                 United States Court of Appeals,

                          Fifth Circuit.

                          No. 95-10877.

 James E. WEIR, Individually and as Representatives of a Class of
all Former Employees of the Dallas Office of the Federal Asset
Disposition Association ("FADA"); William Ferguson, Individually
and as Representatives of a Class of all Former Employees of the
Dallas Office of the Federal Asset Disposition Association
("FADA"); Pamela Bender, Individually and as Representatives of a
Class of all Former Employees of the Dallas Office of the Federal
Asset Disposition Association ("FADA"); Shirley Albright; Eleanor
M. Bates; Melinda Benton; John B. Bills; Brenda S. Blume; Fred
A. Brown; Mozella L. Brown; William P. Clements; Edgar Allen
Cruthirds;    Ronda R. Decker;     Valerie M. Farmer;     Karen S.
Fitzgerald;    Jackie L. Flannagan;    Toi B. Forswall;     Yolanda
Franks; Lori Lee Frantz-Burgin; James Steve Gerhardt; Bonni K.
Gibson;   Gwendolyn C. Giesen;    Patricia Ann Golden;   Priscilla
Gordon-Wright; Gregory Gormley; Janet Gormley; C. Kay Gough;
Deborah Hancock; Paul M. Harris; Susan Deneed Hasek; Lindsay
Beth Haynes; Laurie Lee Hilderbrand; Monette J. Howell; Mary
Beth Hunt; Patti D. Jackson; Mary E. Johnson; Sally Kibler;
Kimberly W. Kirkendoll;    Kristi A. Knorpp;   Craig Alan Koenig;
Kathleen G. Kovatch; R. Scot Lange; Shelly Lange; Britt Lemmons;
Stephen C. Massanelli; Jean Matney; Jimmy E. May; Isqa Lylah
Mclarty; Blair G. Mercer, Jr; Pamela F. Mitchell; James Weston
Moffett;    Thomas M. Pacha;    Thomas R. Phillips;     Abdel-Ilah
Rahmoune; Cheryl D. Robinson; Pauline R. Roeder; Belinda Baxter
Rogers; Lawrence A. Rothrock; Justina M. Sansom; Kimberly A.
Saunooke; Yvonne E. Scobedo; Robert B. Shults; Craig B. Smith,
Dorothy E. Snodgrass; Sue J. Sparks; Richard R. Spies; Kenneth
Joseph Springfield; Tracey L. Talley; Gary W. Tallon; Connie
Thesman, Ms;    Sandy Wagnor;    Denise Enise Wall;    Sherry Lynn
Watson; Genine A. Weiss; Bruce Wheeless; Debra S. Williams; V.
Kay Williams; Valerie A. Williams; Richard D. Wilson; Diane P.
Wood;    Barry C. Wren;     Thomas G. Zimmerman;     Joseph Zorn,
Plaintiffs-Appellants,

                                v.

 FEDERAL ASSET DISPOSITION ASSN; Steven A. Seelig, Individually
and as Director, FADA Oversight/Dissolution for the Resolution
Trust Corporation and in his capacity as Fiduciary of the Retention
Pay and Benefits Policies Issued by FADA;          Federal Deposit
Insurance Corporation, as Receiver for Federal Asset Disposition
Association;    The FADA Retention Pay And Benefits Policies,
Defendants-Appellees.

                         Sept. 25, 1997.


                                1
Appeal from the United States District Court for the Northern
District of Texas.

Before JOLLY, DUHÉ and EMILIO M. GARZA, Circuit Judges.

     DUHÉ, Circuit Judge:

     Appellants, eighty-three former employees of the Federal Asset

Disposition Association, filed a class action suit under the

Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001

et seq., seeking benefits they claim are owed to them under their

employer's    severance      plans.     The   district       court   denied   the

challenge.    For reasons that follow, we affirm in part, reverse in

part, and remand.

                                        I

     The Federal Asset Disposition Association ("FADA") was a

federally-chartered savings and loan association wholly owned by

the Federal Savings and Loan Insurance Corporation ("FSLIC").

FADA's sole function was to assist the FSLIC in managing and

disposing the assets of failed thrifts that the FSLIC insured.

     FADA    was   not   a   welcome    entity   on   the    savings   and    loan

frontier.     Almost from its inception in 1985, FADA came under

extensive legislative attack.          In 1988, Congress initiated efforts

to abolish FADA, and in January 1989, Congress began consideration

of legislation that would become the Financial Institutions Reform,

Recovery, and Enforcement Act ("FIRREA"), 12 U.S.C. § 1811 et seq.,

which in     all   drafts    included   a   provision    to    eliminate     FADA.

Understandably, FADA employees were constantly concerned about job

security.    In this context, FADA's Board of Directors adopted the

following    ERISA-protected      severance      plans      (collectively,    the

                                        2
"Plans"):

     Policy No. 820:     This policy, adopted 3 May 1988, provided

that employees terminated as a result of a reduction in force or

job elimination necessitated by business reasons would receive,

among other benefits, a lump sum separation payment at the time of

termination equal to between one-half (1/2) and two (2) months pay

depending on length of service.

     First Addendum:    This addendum, adopted on 29 September 1988,

supplemented Policy No. 820 and was also known as the Employee

Retention Plan. It provided that if FADA's charter was revoked or

withdrawn, or if FADA was dissolved by act of Congress, "each

employee who is in FADA's employ on the date of termination shall

be paid, in one lump-sum payment, an amount of money ("severance

benefit amount") equal to his or her then-current monthly salary,

for four months....    This is in addition to benefits provided by

[FADA] Policy No. 820."1

     Second Addendum:      This addendum, adopted on 2 May 1989,

supplemented Policy No. 820, as amended by the First Addendum.

According to the terms of the Second Addendum, the First Addendum

was to remain in full force and effect.2       The Second Addendum

        1
        The First Addendum also provided that "[p]rior to any
termination by Act of Congress, FADA shall prepay to the provider
of major medical insurance coverage for Association employees, a
prepayment on behalf of each employee equal to the monthly premium
normally paid by FADA to such provider for the insurance coverage
for that employee and his or her dependents for four months."
    2
     The Second Addendum provided that "[n]othing in this Addendum
is intended or shall be construed to change the application or
interpretation of FADA Personnel Policy No. 820 or the Addendum to
such Policy, dated September 29, 1988, and any payment of the

                                  3
provided, in pertinent part, that any covered employee, as defined

therein, "who, between May 2, 1989 and the Expiration Date, is

given notice of termination of employment by FADA, for any reason

other than cause, shall be entitled to the Severance Benefits, ...

provided, however, that no Severance Benefits shall be payable

pursuant to this subparagraph if, prior to the giving of notice of

termination of employment by FADA: (i) a Sale shall have occurred,

and (ii) the Successor shall have made a Comparable Offer of

Employment to such employee[.]"              So, in the event of a Sale,

severance benefits were payable under the Second Addendum only if

employees   received     notices   of   termination      prior    to   receiving

comparable job offers.

     In August 1989, Congress passed FIRREA in an effort to resolve

the burgeoning savings and loan crisis.                 FIRREA dissolved the

FSLIC, and it mandated that 100% of FADA's capital stock, which the

FSLIC had   held,   be    transferred       to   the   FSLIC    Resolution   Fund

("Fund"), see 12 U.S.C. § 1821a(a)(2)(A), which the Federal Deposit

Insurance   Corporation      ("FDIC")        managed,     see    12    U.S.C.   §

1821a(a)(1).   Moreover, FIRREA directed that FADA be liquidated

within 180 days of its passage.             See FIRREA § 501(f), Pub.L. No.

101-73, 103 Stat. 183 (1989) (amended 1991).                   Overseeing these

liquidation efforts was Appellee Steven A. Seelig, Director of the

FDIC's Division of Liquidation.             Seelig was also responsible for

administering the FADA severance plans. In February 1990, FADA was


Severance Benefits as defined in this Addendum shall not be in
derogation of any employee's right to the benefits described in
FADA Personnel Policy No. 820."

                                        4
placed into receivership, and the Resolution Trust Corporation

("RTC"),3 an arm of the FDIC, was appointed FADA's receiver.

     Seelig advised FADA management that two options were available

for FADA's liquidation:   either a sale of FADA to a third party

purchaser or the merger of FADA into the RTC or the FDIC. In

pursuit of the first option, efforts were made to sell FADA to a

private entity, but those efforts were unsuccessful, and FADA

employees were so advised in November 1989.     Appellants contend

that on the same or following day, they were also told they should

consider themselves in receipt of notice that FADA would close, and

that their jobs would terminate, on 31 December 1989.    Appellees

disagree, maintaining they did not give notice of termination until

December 1989.

     By 15 December 1989, the FDIC or the RTC offered to Appellants

jobs comparable to those they had had at FADA. Some Appellants

rejected these offers;    FADA therefore sent them "Notice of Job

Elimination" letters dated 21 December 1989, setting 5 January 1990

as their termination date.   Appellees contend this letter was the

first and only formal notice of termination FADA gave.         Those

Appellants who accepted the job offers began to work for the FDIC

or the RTC on 2 January 1990 and were never sent "Notice of Job

Elimination" letters.

     In December 1989, Seelig, as Plan Administrator, determined

that Appellants were ineligible for severance benefits under the


     3
      Since these events occurred, the RTC has been succeeded by
the FDIC.

                                 5
Plans.      Appellants thereafter filed suit under ERISA against FADA,

Seelig, and the RTC (now the FDIC), seeking judicial review of

Seelig's decision.               After     a   bench    trial,    the   court    affirmed

Seelig's decision.          Appellants timely appeal.

                                                II

        We review a district court's factual findings for clear error

and its conclusions of law de novo.                    See Reeves v. AcroMed Corp.,

103 F.3d 442, 445 (5th Cir.1997) (citations omitted).                              Before

reaching the merits of this case, we must address two preliminary

issues.

                                                A

        First, Appellees contest the district court's application of

the    de     novo    standard      of    review       in   its   review    of   Seelig's

determination         as    to     Appellants'        ineligibility     for      severance

benefits.       They insist the district court should have reviewed

Seelig's determination for abuse of discretion only.                        We disagree.

A reviewing court employs an abuse of discretion standard only when

an    ERISA    plan    gives      to     the   plan    administrator       discretionary

authority to construe the plan terms or to determine benefit

eligibility.         See Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101, 115, 109 S.Ct. 948, 956-57, 103 L.Ed.2d 80 (1989).                          Where, as

here, the       ERISA      plans    confer      upon    the   administrator       no   such

authority, the reviewing court must review the administrator's

conclusions de novo.             See id.4      Following traditional principles of

        4
      Appellants agree the proper standard is de novo, but they
insist the district court, despite its statement to the contrary,
reviewed Seelig's determinations for abuse of discretion.

                                                6
contract and trust law, therefore, a reviewing court must construe

a participant's claim " "as it would have any other contract

claim—by looking to the terms of the plan and other manifestations

of the parties' intent.' "         Sunbeam-Oster Co., Inc. Group Benefits

Plan    for     Salaried   and    Non-Bargaining        Hourly   Employees    v.

Whitehurst, 102 F.3d 1368, 1373 (5th Cir.1996) (quoting Bruch, 489

U.S. at 112-13, 109 S.Ct. at 955-56).

                                         B

        Next, Appellants argue that the Plans contain ambiguous terms

that should be construed against Appellees under the doctrine of

contra proferentem. This doctrine, which directs courts to resolve

contractual ambiguities in insurance contracts against the drafter,

has been held to apply to insurance contracts covered by ERISA.

See, e.g., Ramsey v. Colonial Life Ins. Co., 12 F.3d 472, 479 (5th

Cir.1994).      Whether the doctrine can also direct the resolution of

ambiguity in severance plans covered by ERISA appears to be an

issue of first impression for this Court.               We need not reach its

merits, however, because we conclude the district court correctly

found    that    the   Plans,    when   examined   in    their   entirety,   are

susceptible to only one reasonable interpretation.                    That the


Appellants, however, fail to demonstrate that the court deferred to
Seelig's interpretations of the Plans. They assert only that the
court "ignored" testimony favorable to them.        This argument,
however, does not carry the day, and, as the district court pointed
out, is not useful advocacy. The district court, as trier of fact,
is responsible for making credibility determinations. That it made
such determinations against Appellants is not proof that it applied
an abuse of discretion standard. Our review of the court's orders
and opinions reveals the court properly applied the de novo
standard.   Indeed, the court stated it reached its conclusions
after a consideration of all the evidence.

                                         7
parties may have interpreted the plans differently is of no moment.

Disagreement as to the meaning of a contract does not make it

ambiguous, nor does uncertainty or lack of clarity in the language

chosen by the parties.       See D.E.W., Inc. v. Local 93, Laborers'

Int'l Union, 957 F.2d 196, 199 (5th Cir.1992).              Where, as here,

"the written instrument is so worded that it can be given a certain

definite legal meaning or interpretation, then it is not ambiguous,

and this Court will construe the contract as a matter of law."            Id.

                                      III

     The first substantive issue before us is whether the district

court correctly found that Appellants are not entitled to severance

benefits under the Plans.        The court reasoned that the Plans,

contrary to Appellants' position, do not constitute "Pay to Stay"

policies designed to reward solely the services and loyalties of

those    employees   who   remained   at    FADA   until   its   termination.

Rather, the court found, the award of severance benefits under the

Plans is conditional on the occurrence, or non-occurrence, of

certain events, as outlined in the Second Addendum.              Finding that

such terms of the Second Addendum were not satisfied, the court

denied Appellants' claim for severance benefits under all the

Plans.    Appellants challenge that finding for clear error.               In

particular, Appellants challenge both the district court's decision

to read the Plans jointly rather than independently and the court's

factual findings under various terms in the Second Addendum.

         We agree with Appellants that the Plans should be read

independent of one another. Language in the First Addendum and the


                                       8
Second Addendum reveals that the three Plans provide benefits

independent of the limitations, restrictions, or conditions of each

other.5 Each successive addendum enhanced, rather than superseded,

the plan before it. In determining whether Appellants are entitled

to benefits, therefore, we must examine each plan separately.

                                   A

        We conclude the district court's denial of severance benefits

under unamended Policy No. 820 is not clear error.      Policy No. 820

was not a "Pay to Stay" policy;        rather, it stated that eligible

employees would receive benefits only if they were terminated as a

result of a reduction in force or job elimination necessitated by

business reasons.    Appellants were terminated for neither of these

reasons; rather, those who were terminated were terminated because

they rejected the job offers extended by the FDIC or the RTC.

                                   B

        We conclude the court did commit clear error, however, in

denying benefits under the First Addendum, which was a "Pay to

Stay" policy.     Appellees insist that benefits are due under the

First Addendum only in the event an employee has suffered a period

of unemployment after his or her termination by FADA. In support,

Appellees note that the First Addendum states its purpose is to

    5
     The First Addendum states that the benefits afforded under it
are "in addition to benefits provided by Association Policy No.
820." The Second Addendum states that "[n]othing in this Addendum
is intended or shall be construed to change the application or
interpretation of FADA Personnel Policy No. 820 or the Addendum to
such Policy, dated September 29, 1988, and any payment of the
Severance Benefits as defined in this Addendum shall not be in
derogation of any employee's right to the benefit described in FADA
Personnel Policy No. 820."

                                   9
"provide assurance to personnel that if proposed legislation is

successful and FADA's charter is withdrawn, [such personnel] will

have a reasonable period of opportunity, with income, to pursue

other gainful employment." (emphasis added).            Because Appellants

suffered no unemployment, Appellees maintain, they are therefore

not entitled to severance benefits under this plan.           We disagree.

     The paragraph from which Appellees extracted the sentence

states in full:

     I. Purpose

           An Employee Retention Plan, with appropriate incentives,
           will provide assurance to personnel that if proposed
           legislation is successful and FADA's charter is
           withdrawn, they will have a reasonable period of
           opportunity, with income, to pursue other gainful
           employment. This plan's objective is to ensure that FADA
           will retain the services of its employee base and not
           lose personnel through attrition because of justifiable
           concerns about the dissolution of FADA.

While the first sentence may support Appellees' position, the

second sentence does not.         A plain-language reading indicates that

the purpose of the plan is to pay employees for staying with the

company.

      This plain-language reading is buttressed by the entitlement

language of the plan itself. Unlike the Second Addendum, the First

Addendum   does    not   define    eligibility   with   respect   to   a   job

termination.      Rather, the First Addendum clearly states that "[i]n

the event of a termination of FADA by an act of Congress resulting

in revocation or withdrawal of FADA's charter or dissolution of the

Association[,] each employee who is in FADA's employ on the date of

termination shall be paid, in one lump-sum payment, an amount of


                                       10
money ... equal to his or her then-current monthly salary, for four

months as set forth below."      Contrary to Appellees' position,

nothing in this language indicates that payment of severance

benefits is contingent upon unemployment.   In the absence of such

language, we will not construe eligibility to depend upon a period

of unemployment. See Bellino v. Schlumberger Tech., Inc., 944 F.2d

26, 31 (1st Cir.1991) ("Federal courts have established no hard and

fast rule that an individual must suffer a period of unemployment

to qualify for severance benefits under ERISA.   Those courts that

have deemed unemployment a prerequisite to such benefits have

predicated their decisions on the particular terms of the ERISA

plan at issue and its application to the specific facts before

them.");   Barnett v. Petro-Tex Chemical Corp., 893 F.2d 800, 809

(5th Cir.1990) (recognizing that period of unemployment is not

prerequisite for entitlement to termination pay and that each ERISA

case is controlled by language of policy itself).   Under the First

Addendum, benefits are conditioned only upon FADA's statutory

termination.   FIRREA mandated that FADA liquidate within 180 days

of its passage.   See FIRREA § 501(f), Pub.L. No. 101-73, 103 Stat.

183 (1989) (amended 1991).   Eligible Appellants are thus entitled

to benefits under the First Addendum.6

     6
      Appellees maintain the Plans should be read jointly as one
policy. They suggest, therefore, that because a "Sale" of FADA
occurred, Appellants can find relief, if at all, only under the
Second Addendum. As we pointed out in note 5, supra, however, the
plain language of the Second Addendum belies Appellees' claim.
Moreover, under the section labeled "Scope", the Second Addendum
states that the supplemental severance benefits it offers "shall
not be available to any employee of FADA ... who is paid the
severance benefit amount described in the Addendum to FADA

                                 11
                                 C

     We conclude the district court's denial of severance benefits

under the Second Addendum is not clear error.7     Unlike the First

Addendum, the Second Addendum is not a "Pay to Stay" policy.   FADA

owes no severance benefits under the Second Addendum if, prior to

the time it gave notices of termination of employment, (i) a "Sale"

had occurred and (ii) FADA's "Successor" had made a "Comparable

Offer of Employment."   Finding that a Sale had occurred and that

Comparable Offers of Employment were timely made, the district

court denied Appellants severance benefits.    Appellants challenge

the court's findings.


Personnel Policy No. 820, dated September 29, 1988 [i.e., the First
Addendum]."   In drafting the Second Addendum, therefore, FADA
anticipated that employees could be eligible for benefits under
both the First and Second Addendum. That a "Sale" of FADA occurred
thus does not a fortiori foreclose eligibility under the First
Addendum.
       7
       This Court recognizes that its conclusion that eligible
Appellants are entitled to benefits under the First Addendum may
foreclose entitlement to benefits under the Second Addendum, in
light of the following language:

           III. Scope

           The supplemental Severance Benefits described in Section
           II above shall not be available to any employee of FADA
           (i) who is paid the severance benefit amount described in
           the Addendum to FADA personnel policy No. 820, dated
           September 29, 1988 [the First Addendum], and (ii) for
           whom FADA either has (A) made available for a four month
           period ... major medical insurance coverage ... or (B)
           has paid to the employee ... a lump sum amount equal to
           [an insurance premium].... No employee shall be entitled
           to receive the Severance Benefits described herein more
           than once. (emphasis added).

     We nevertheless will address the merits of the parties'
     arguments regarding entitlement under the Second Addendum in
     the event some Appellants would still qualify.

                                 12
                                        1

      The Second Addendum defines "Sale" as, inter alia, (i) any

change in the direct or indirect beneficial ownership of more than

fifty percent (50%) of the capital stock of FADA effected by

transfer of issued and outstanding shares, issuance of additional

shares, or otherwise;         or (ii) any transfer of the right to appoint

or   elect    Directors   constituting       a   majority   of   the   Board   of

Directors of FADA. Upon passage of FIRREA, the FDIC acquired the

right    to   appoint   all    of   FADA's   directors.     Seelig,     as   Plan

Administrator, thus determined that passage of FIRREA constituted

a Sale under subsection (ii).8         The district court agreed, and this

finding is not clear error.9

                                        2

      Although a Sale had occurred, eligible Appellants could still

receive benefits under the Second Addendum unless FADA's Successor

gave eligible Appellants "Comparable Offers of Employment" before


     8
     Appellants suggest that a "Sale" also occurred when, pursuant
to FIRREA, 100% of FADA's capital stock was transferred to the
Fund. We need not reach the merits of this issue. The terms of the
Second Addendum require only that a "Sale" have occurred.      The
FDIC's acquisition of the right to appoint a majority of FADA's
Board of Directors effected a "Sale." That a "Sale" may also have
occurred upon transfer of 100% of FADA's capital stock is
inapposite.
         9
        Appellants complain that the passage of FIRREA cannot
constitute a "Sale" for purposes of the Second Addendum because
Seelig never communicated to them that any transaction or event
other than a sale of FADA to a private buyer qualified as a "Sale."
Seelig, however, was under no obligation under the Plans or
otherwise to so communicate.     The plain language of the Second
Addendum stated what events constitute a "Sale." Appellants,
therefore, were adequately notified of the definition of "Sale"
upon receipt of a copy of the plan terms.

                                        13
FADA gave them notices of termination of employment.             The parties

dispute which entity became FADA's Successor and when notices of

termination were given.

     The Second Addendum defines "Successor" as any person or

entity that has acquired (i) the direct or indirect beneficial

ownership of more than 50% of FADA's capital stock;              or (ii) the

right to appoint or elect Directors constituting a majority of

FADA's Board of Directors.      Under the second definition, the FDIC

is clearly a Successor to FADA;        upon passage of FIRREA, the FDIC

had authority to appoint all of FADA's directors.                 Appellants

insist, however, that the Fund, because it acquired 100% of FADA's

capital     stock   upon   passage    of   FIRREA,    see   12    U.S.C.   §

1821a(a)(2)(A), is also a Successor under the first definition. We

disagree.

     To be a Successor under the first definition, an entity must

acquire beneficial ownership of more than 50% of FADA's capital

stock. The Second Addendum does not define "beneficial ownership."

We   thus   seek    guidance   from    securities    law,   which    defines

"beneficial owner" for purposes of 15 U.S.C. §§ 78m(d) & (g), as

follows:

     For the purposes of section 13(d) and 13(g) of the [Securities
     and Exchange Act of 1934, 15 U.S.C. § 78 et seq.] a beneficial
     owner of a security includes any person who, directly or
     indirectly, through any contract, arrangement, understanding,
     relationship, or otherwise has or shares:

(1) Voting power which includes the power to vote, or to direct the
     voting of, such security; and/or

(2) Investment power which includes the power to dispose, or to
     direct the disposition of, such security.


                                      14
17 C.F.R. § 240.13d-3(a).         A beneficial owner, therefore, has

voting and/or investment power over the securities it purports to

own.    The Fund had no such ownership interests;           indeed, it was

merely an accounting creation, not a legal entity, that existed on

paper only.      Beneficial ownership of FADA's capital stock belonged

to the FDIC, which had exclusive statutory authority to manage the

Fund. See 12 U.S.C. § 1821a(a)(1).           Such authority included the

right to dispose of and to vote, or to direct the voting of, FADA's

corporate stock.

       The district court found that the FDIC, either on its own or

through    the    RTC,   gave   Comparable    Offers   of   Employment   to

Appellants.      Appellants do not challenge that finding on appeal.

They do challenge, however, whether such offers were extended

before FADA gave notices of termination of employment.

                                     3

       Appellants contend they received notices of termination of

employment in mid-November 1989, which is when they were also

informed that FADA would not be sold to a private buyer and that

FADA would likely close by year's end.          The district court found

otherwise, weighing the testimony before it in favor of Appellees,

who maintain that notices of termination were not distributed until

21 December 1989. This finding is not clear error. Alternatively,

Appellants argue that passage of FIRREA constituted notice of

termination of employment.       The district court disagreed, and we

affirm. FIRREA mandated only that FADA terminate;           it did not also

announce that its passage constituted effective notice to FADA


                                     15
employees of their termination of employment.

                                      IV

     Citing various omissions or misrepresentations they allege

Appellees     made     in   connection     with     the    interpretation     and

implementation of the Plans, Appellants next claim that FADA and

Seelig violated fiduciary duties owed to Appellants.               The district

court found otherwise, explaining that Appellees never amended the

Plans and neither misrepresented nor misled Appellants with respect

to the Plans.          The court found that, in fact, Appellees made

sincere efforts to interpret and implement the Plans and to inform

Appellants of their interpretations.              This finding is not clear

error.

         Appellants next beseech this Court to estop Appellees from

denying them severance benefits, claiming that "[a]ll of FADA's

communications with them, including its policies, memos, and other

statements," modified the Plans and led them to believe they were

entitled    to   severance      benefits   if     they    stayed   until    FADA's

termination.     It is unclear to what "other statements" Appellants

refer.      To   the   extent   Appellants'       claim   is   based   on   FADA's

purported oral communications, we reject it.               An estoppel cause of

action is not cognizable under ERISA in suits seeking to enforce

rights to benefits based on purported oral modifications of plan

terms.    See, e.g., Rodrigue v. Western and Southern Life Ins. Co.,

948 F.2d 969, 971 (5th Cir.1991);          Cefalu v. B.F. Goodrich Co., 871

F.2d 1290, 1297 (5th Cir.1989) (concluding that oral agreements or

modifications to ERISA plan are contrary to express provisions of


                                      16
ERISA);          Degan v. Ford Motor Co., 869 F.2d 889, 895 (5th Cir.1989)

(declining to create federal common law in this area, reasoning

that this power extends only to areas that federal law preempts but

does not          address    and     noting   that   Congress   has   addressed   the

question of amendment in 29 U.S.C. § 1102(a)(1), which expressly

requires that every employee benefit plan be established and

maintained pursuant to a written instrument).

        Whether an estoppel cause of action is cognizable under ERISA

for written statements that purport to amend plan terms,10 however,

is an issue not squarely addressed by this Court.11                          We have

considerable doubt as to whether such an action exists in the

instant case.          We need not resolve this issue, however, because

even assuming, arguendo, that Appellants' estoppel action does

exist, we conclude it nonetheless fails. To recover benefits under

an equitable estoppel theory, an ERISA beneficiary must establish

a material misrepresentation, reasonable and detrimental reliance

upon the representation, and extraordinary circumstances.                      In re

Unisys Corp. Retiree Medical Benefit "ERISA" Litig., 58 F.3d 896,

907 (3d Cir.1995) (citations omitted) (reaching estoppel claim

based on alleged misrepresentations in summary plan descriptions).

The district court rejected Appellants' estoppel claim, finding

that    Appellants          failed    to   show    that   Appellees   made   material

            10
        We note, in any event, that the district court rejected
Appellants' argument that memoranda issued by Seelig and FADA
modified the Plans.
       11
      This Court was faced with this precise issue in Izzarelli v.
Rexene Products Co., 24 F.3d 1506, 1517 (5th Cir.1994), but
declined to reach it.

                                              17
misrepresentations.12 We agree. Moreover, even assuming, arguendo,

that        Appellants   established    material     misrepresentations,     we

conclude Appellants have failed to demonstrate their reasonable

reliance on such.            Where, as here, a plan participant is in

possession of a written document notifying her of the conditional

nature of benefits, her "reliance on employer representations

regarding benefits may never be "reasonable.' "              Id. at 908.

                                         V

            Appellants next challenge the district court's dismissal of

their compensatory and punitive damages claims against Seelig in

his individual capacity.          The district court based its decision on

Supreme Court precedent holding that a plan fiduciary cannot be

held personally liable, under ERISA's remedial provisions, to plan

beneficiaries for extracontractual compensatory or punitive damages

arising from an allegedly wrongful denial of benefits. See Mertens

v. Hewitt Assoc., 508 U.S. 248, 255-58, 113 S.Ct. 2063, 2068-70,

124 L.Ed.2d 161 (1993) (holding that ERISA § 502(a)(3), 29 U.S.C.

§ 1132(a)(3), which allows plan beneficiary to bring action to

obtain "appropriate equitable relief" for violations of either

ERISA or ERISA-qualified plan, does not allow such beneficiary to

sue     plan     fiduciary   in   his   or    her   individual   capacity   for

extracontractual damages, which are "the classic form of legal

relief" (emphasis in original));             Massachusetts Mut. Life Ins. Co.

v. Russell, 473 U.S. 134, 144, 105 S.Ct. 3085, 3091, 87 L.Ed.2d 96


       12
     The district court reached Appellants' estoppel claim without
discussing whether it exists in the first instance.

                                        18
(1985) (holding that ERISA § 502(a)(1), 29 U.S.C. § 1132(a)(1),

which allows plan beneficiary to bring action for fiduciary breach,

does not allow such beneficiary to sue plan fiduciary in his or her

individual capacity for extracontractual damages).

     Pointing to the Supreme Court's recent decision in Varity v.

Howe, --- U.S. ----, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996),

Appellants   insist   that   both       Mertens       and   Russell    have    been

overruled.      Appellants   read        Varity       as    holding   that     plan

participants,    under   ERISA      §        502(a)(3),      can    now     recover

extracontractual   damages   as     a    form    of    "appropriate       equitable

relief" from a plan fiduciary in his or her individual capacity.

Appellants' reading is incorrect.             Varity held nothing more than

that ERISA § 502(a)(3) authorizes plan beneficiaries to bring a

lawsuit on their own behalf for injunctive relief for a fiduciary

breach.   See id. at ----, 116 S.Ct. at 1077-79.                   Varity did not

hold, as Appellants believe, that ERISA plan beneficiaries can sue

plan fiduciaries for extracontractual relief for damages arising

from a fiduciary breach. Indeed, the issue before the Varity Court

was whether plan beneficiaries had a cause of action under ERISA §

502(a)(3) for injunctive relief. The district court's dismissal of

Appellants' damages claims against Seelig is therefore proper.

                                        VI

     For the foregoing reasons, we AFFIRM IN PART, REVERSE IN PART,

and REMAND for proceedings consistent with this opinion.




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