                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit Rule 206
                                        File Name: 12a0374p.06

                 UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                               X
                                                -
 MARGARET A. LIPKER,
                                                -
                                   Plaintiff-Appellee,
                                                -
                                                -
                                                   No. 10-5298
          v.
                                                ,
                                                 >
                                                -
                      Defendant-Appellant. -
 AK STEEL CORPORATION,
                                                -
                                               N
                 Appeal from the United States District Court
               for the Eastern District of Kentucky at Ashland.
             No. 09-00050—Henry R. Wilhoit, Jr., District Judge.
                                     Argued: October 5, 2011
                             Decided and Filed: October 31, 2012
 Before: BOGGS and McKEAGUE, Circuit Judges; GOLDSMITH, District Judge.*
                                       _________________
                                             COUNSEL
ARGUED: Sheryl G. Snyder, FROST BROWN TODD LLC, Louisville, Kentucky, for
Appellant. John F. Vincent, MARTIN & VINCENT, PSC, Ashland, Kentucky, for
Appellee. ON BRIEF: Sheryl G. Snyder, FROST BROWN TODD LLC, Louisville,
Kentucky, Adam P. Hall, Matthew C. Blickensderfer, FROST BROWN TODD LLC,
Cincinnati, Ohio, for Appellant. John F. Vincent, MARTIN & VINCENT, PSC,
Ashland, Kentucky, for Appellee. Daniel J. Buckley, Glenn V. Whitaker, Mary C.
Henkel, Adam C. Sherman, VORYS SATER SEYMOUR & PEASE LLP, Cincinnati,
Ohio, for Amici Curiae.
       McKEAGUE, J., delivered the opinion of the court, in which BOGGS, J., joined,
and GOLDSMITH, D. J., joined in part. GOLDSMITH, D. J. (pp. 14–18), delivered a
separate opinion dissenting from Section II.D of the majority’s opinion.




         *
           Honorable Mark A. Goldsmith, United States District Judge for the Eastern District of Michigan,
sitting by designation.


                                                    1
No. 10-5298        Lipker v. AK Steel Corp.                                         Page 2


                                  _________________
                                      OPINION
                                  _________________
       McKEAGUE, Circuit Judge. When plaintiff Margaret Lipker’s husband died,
she applied for surviving spouse benefits under the pension benefits plan administered
by his former employer, AK Steel Corporation. Her application was granted, but her
monthly surviving spouse allowance was considerably smaller than she had expected.
Lipker filed suit to recover plan benefits in the amount she believed she was entitled to.
The discrepancy between her expectation and the actual award hinges on the
interpretation of plan language that both parties argue is unambiguous, yet each party
interprets differently. The district court approved Lipker’s interpretation and ordered
AK Steel to award her benefits accordingly. On de novo review, we find AK Steel’s
proposed interpretation of the plan language to be truer to its plain meaning when read
with reference to the law it expressly refers to. Therefore, and for the reasons more fully
set forth below, the district court’s judgment for plaintiff must be reversed.

                                  I. BACKGROUND

       Plaintiff Margaret A. Lipker is the surviving spouse of Frank P. Lipker, a thirty-
nine-year employee of defendant AK Steel Corporation at its steel production facility in
Ashland, Kentucky. Frank Lipker retired on January 31, 1999. When he died on
September 7, 2008, he was receiving a monthly pension benefit of $1,386 under the AK
Steel pension plan. Shortly thereafter, plaintiff Margaret Lipker applied for the
surviving spouse benefit under the AK Steel plan. She was advised that under the terms
of the Pension Agreement Plan, she would be entitled to a monthly benefit of $693 (50%
of her husband’s pension benefit), reduced by 50% of her social security widow’s benefit
(an amount yet to be determined), but not less than $140 per month.

       AK Steel made inquiry of the Social Security Administration (“SSA”). AK Steel
was initially advised by form response that plaintiff’s monthly widow’s benefit would
be $458. This response was changed by the SSA three weeks later, stating the widow’s
benefit would be $1469, without any explanation for the change evident in the record.
No. 10-5298           Lipker v. AK Steel Corp.                                           Page 3


On the basis of this corrected amount, AK Steel calculated that 50% of Frank Lipker’s
pension benefit, $693, reduced by 50% of plaintiff’s social security widow’s benefit,
$734.50, resulted in a negative balance, thereby triggering the $140 minimum benefit
under the AK Steel Pension Agreement, § 4.3(d).

          Separately, however, plaintiff had received a statement from SSA indicating her
social security widow’s benefit would be $458.50, in addition to her own “earnings
record” benefit of $1,010.90, thus yielding one monthly social security benefit payment
in the amount of $1,469.40. This was followed by another letter from SSA showing the
widow’s benefit amount to be $485 and plaintiff’s retirement benefit to be $973, yielding
a total monthly social security benefits payment of $1,458. On this basis, plaintiff
calculated that when 50% of the $485 widow’s benefit, $242.50, was subtracted from
$693, she would be entitled to a monthly surviving spouse benefit of $450.50 under the
AK Steel Plan. Plaintiff objected to AK Steel’s calculation and asked for an explanation.
She received a letter explaining AK Steel’s calculation (as set forth above), but not
explaining the discrepancy between the different widow’s benefit amounts reported by
SSA. AK Steel also sent a copy of the pertinent provisions from the Pension Agreement
and directed plaintiff’s attention to § 4.3(d):

                  Commencing with the first Surviving Spouse’s Benefit payable
          after the surviving spouse attains the age at which widow’s or widower’s
          benefits are first provided under a law referred to in Plan § 1.24 [e.g., as
          relevant in this case, the Social Security Act], the amount of the
          Surviving Spouse’s Benefit otherwise payable for any month shall be
          reduced by 50% of the widow’s or widower’s benefit to which the
          surviving spouse is, or upon application would be, entitled for such
          month based on the law in effect at the time the Surviving Spouse’s
          Benefit first becomes payable (without regard to any offset or suspension
          imposed by such law). If the surviving spouse is not eligible for such a
          widow’s or widower’s benefit for such month, the amount of the
          reduction shall be equal to 50% of the amount of the widow’s or
          widower’s benefit that could have become payable to the surviving
          spouse for such month, based on the Participant’s wages, if the surviving
          spouse had been eligible and had applied for such a benefit.

R. 12, Attach. 8, Pension Agreement § 4.3(d), p. 37 (bracketed note and emphasis
added).
No. 10-5298         Lipker v. AK Steel Corp.                                          Page 4


        This was followed by a letter from AK Steel further explaining that the language
italicized above, “without regard to any offset or suspension imposed by such law,”
represented the key to understanding the discrepancy. The letter explained that the base
amount of the social security widow’s benefit is derived from a calculation beginning
with the deceased husband’s wages. The letter further explained that that amount,
eventually identified by SSA to AK Steel as $1,469, without any offset for any other
benefit that the widow may be entitled to under the Social Security Act, is the amount
that is halved in the formula set forth in § 4.3(d). Confusion, the letter implied, is caused
by the SSA’s use of the term “widow’s benefit” to describe the remaining portion of the
entire widow’s benefit that is paid after offset for any other social security benefit the
widow may be entitled to.

        It was this practice, ostensibly, that led SSA to initially report plaintiff’s widow’s
benefit to both plaintiff and AK Steel as $458. Hence, according to AK Steel, the $458
figure represented only the remainder of the entire widow’s benefit, $1,469, after offset
for, or reduction of, plaintiff’s own old-age retirement benefit, $1,011. However, the
form on which SSA was asked to disclose plaintiff’s widow’s benefit, consistent with
the “without regard to” clause in § 4.3(d), expressly called for an amount “based on
retiree’s earnings only and irregardless of widow’s or widower’s earnings.” Thus,
according to AK Steel, the subsequently reported figure, $1,469, represented the correct
widow’s benefit amount to insert into the § 4.3(d) formula in AK Steel’s Pension
Agreement.

        Plaintiff was not satisfied with this explanation. Insisting that SSA had reported
to her that her widow’s benefit was $485 and her retirement benefit was $973, she
requested review by the AK Steel Benefit Plans Administrative Committee. Plaintiff’s
appeal was denied on May 12, 2009, based on the same reading of § 4.3(d) of the
Pension Agreement and the same use of the $1,469 figure supplied by the SSA in the
§ 4.3(d) formula.

        Plaintiff filed this action for recovery of plan benefits in the Boyd County
(Kentucky) Circuit Court. Defendant AK Steel removed the action to the United States
No. 10-5298            Lipker v. AK Steel Corp.                                                   Page 5


District Court for the Eastern District of Kentucky as preempted by the Employee
Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001 et seq. The district
court addressed the matter on cross-motions for judgment and awarded judgment to
plaintiff on February 24, 2010. The district court essentially adopted plaintiff’s
argument and held that the first disclosed widow’s benefit amount of $458 was the
correct figure to insert into the § 4.3(d) formula. Accordingly, the court halved that
amount and subtracted $229.40 from $693 (50% of the husband’s pension benefit) in
holding that plaintiff was entitled to a monthly surviving spouse benefit of $463.60. AK
Steel timely filed notice of appeal.1

                                           II. ANALYSIS

         A. Standard of Review

         The parties are in agreement regarding the standard of review. This court
reviews de novo the district court’s decision reviewing an ERISA plan administrator’s
decision regarding plan benefits—where, as here, the plan does not give the plan
administrator discretionary authority to interpret plan terms—and applies the same legal
standard as the district court. Balmert v. Reliance Standard Life Ins. Co., 601 F.3d 497,
501 (6th Cir. 2010). Under de novo review, the court confines its review to the
administrative record and determines whether the plan administrator made “a correct
decision” without according the administrator any deference or presumption of
correctness. Shelby County Healthcare Corp. v. Majestic Star Casino, 581 F.3d 355,
367-68 (6th Cir. 2009). When interpreting ERISA plan provisions, general principles


         1
           The record is devoid of explanation for the two different sets of figures reported by SSA. SSA
eventually reported to AK Steel that plaintiff’s entire widow’s benefit was $1,469 and implied that the
originally reported amount, $458, was her remainder widow’s benefit, after offset for or reduction of her
old-age retirement benefit of $1,011. These figures roughly matched those originally reported to plaintiff.
However, SSA eventually reported to plaintiff that her entire social security monthly benefit was
$1,458 (after deduction of $96.40 for medical insurance premium), consisting of her widow’s benefit of
$485 and her old-age retirement benefit of $973.
          The parties’ arguments largely ignore this latter set of figures, although plaintiff suggests the
$27 increase in her widow’s benefit was attributable to a cost-of-living increase. For the most part, the
parties’ arguments focus on the more significant question whether the § 4.3(d) formula calls for the
“entire” widow’s benefit figure or the “remainder” figure. And, for the most part, both sides are content
to use the $1,469/$458/$1,011 figures in presenting their arguments, as was the district court in rendering
its decision, a course followed in this opinion as well. That is, for purposes of analyzing the dispositive
issues, the $1,458/$485/$973 figures are essentially ignored.
No. 10-5298        Lipker v. AK Steel Corp.                                         Page 6


of contract law apply; unambiguous terms are given their “plain meaning in an ordinary
and popular sense.” Fahner v. United Transp. Union Discipline Income Protection
Program, 645 F.3d 338, 343 (6th Cir. 2011) (quoting Williams v. Int’l Paper Co., 227
F.3d 706, 711 (6th Cir. 2000)). Where plan language is ambiguous, extrinsic evidence
may be considered to discern the purpose of the plan as the average employee would
have reasonably understood it. Kolkowski v. Goodrich Corp., 448 F.3d 843, 850 (6th
Cir. 2006).

       B. Plan Language

       The relevant plan language is confined to a single provision, § 4.3(d). See p. 3,
supra. In this provision, the meaning of two terms is at issue: (a) “widow’s benefit,”
and (b) “without regard to any offset imposed by law.” On its face, neither of these
terms can be said to have a “plain meaning.” Yet, neither term is used in such a way as
to be understood in a vacuum. Both terms are used with express reference to a law. The
only law implicated under the facts of this case is the Social Security Act.

       Hence, AK Steel appropriately urges us to consult the Social Security Act in
ascertaining the meaning of these terms, something the district court conspicuously
failed to do. “Widow’s insurance benefit,” as used in the Social Security Act, is defined
at 42 U.S.C. § 402(e). Under 42 U.S.C. § 402(e)(2)(A), the amount of the widow’s
insurance benefit is initially defined as equal to the primary insurance benefit of the
deceased husband. Here, it appears to be undisputed that this amount, plaintiff’s
husband’s primary insurance benefit, at the time of death, was $1,469. However, the Act
makes clear that a person who is entitled to an old-age benefit (as plaintiff is) and any
other monthly social security insurance benefit (such as a widow’s benefit, to which
plaintiff is also entitled), will not receive both benefits in full simultaneously. Rather,
the other insurance benefit (i.e., the widow’s benefit) will be reduced by the amount of
the old-age benefit (but not below zero). 42 U.S.C. § 402(k)(3)(A). That is, the Act
imposes a reduction in the widow’s benefit ($1,469) by an amount equal to the person’s
old-age benefit ($1,011), leaving a widow’s benefit remainder ($458). As AK Steel
points out, this subsection (k) reduction is referred to in the Act as “the method by which
No. 10-5298            Lipker v. AK Steel Corp.                                                    Page 7


monthly benefits are offset when an individual is entitled to more than one kind of
benefit.” 42 U.S.C. § 402(q)(11) (emphasis added).

         With the benefit of this statutory background, the terms of § 4.3(d) become
intelligible and unambiguous. It seems clear, consistent with AK Steel’s position, that
the “widow’s benefit” amount to be plugged into the § 4.3(d) formula, “without regard
to any offset imposed by law,” is $1,469. AK Steel’s construction and application of
§ 4.3(d) thus appears to be correct.

         Plaintiff’s arguments in support of her construction of § 4.3(d) as yielding a
widow’s benefit amount of $458 in spite of the light shed by the above statutory
provisions are not convincing. First, she contends, regardless of the actual provisions
of § 402 of the Social Security Act, that the court should adopt the SSA’s interpretation
of the provisions it is charged with administering. The SSA initially reported both to
plaintiff and AK Steel that her widow’s benefit was $458. She contends the court should
accept this amount as conclusive, disregarding SSA’s later correction of the amount to
$1,469. She contends the corrected amount is not entitled to credence because it is the
product of AK Steel’s bad faith and manipulation.

         The record is devoid of explanation for SSA’s correction of the widow’s benefit
amount. This is unfortunate. Yet, our review, like the district court’s, is confined to the
administrative record.2 In the present record, the accuracy of the $1,469/$458/$1,011
figures is not really in controversy. These are substantially the same figures initially
reported by SSA to plaintiff in September 2008. The dispute actually revolves around
determining what labels apply to these figures and how the figures relate to each other
under the Social Security Act, the law referred to in § 4.3(d) of the Pension Agreement.
Review of the pertinent Social Security Act provisions substantiates the correctness of


         2
          An exception to this rule is recognized in the case of a procedural challenge to a plan
administrator’s decision alleging a lack of due process or bias. Wilkins v. Baptist Healthcare System, Inc.,
150 F.3d 609, 618 (6th Cir. 1998). Although plaintiff’s passing accusation of bad faith manipulation by
AK Steel could arguably come within the exception justifying expansion of the record, plaintiff appears
not to have pressed the point below. Nor has she proffered any evidence to support the accusation.
Moreover, and most importantly, there is no reason to believe expansion of the record would make a
difference. Use of the $1,469 figure as the amount of the “widow’s benefit” simply makes sense when the
plan formula is viewed in light of the Social Security Act’s defining provisions.
No. 10-5298         Lipker v. AK Steel Corp.                                         Page 8


AK Steel’s interpretation of § 4.3(d). It is regrettable that imprecision in SSA
communications about which figure should be labeled the “widow’s benefit” may have
led to unrealistic expectations in plaintiff, but this does not alter the meaning of the law
or its operation in conjunction with § 4.3(d).

        Second, plaintiff challenges AK Steel’s application of the “without regard to any
offset imposed by law” clause. She contends the clause does not come into play because
§ 402(e) of the Social Security Act, defining widow’s benefit, does not even mention
“offset.” Plaintiff argues that AK Steel’s discovery of a thread linking the term “offset”
in § 402(q)(11), through § 402(k)(3)(A), defining the method of reduction that applies
when a person is simultaneously entitled to multiple benefits, to identify the meaning
of “widow’s benefit” under § 402(e) is too tenuous. Yet, plaintiff’s contention that
“offset” is a unique term of art with a meaning distinct from “reduction” as used in
§ 402(k)(3)(A) is unpersuasive. The real problem for plaintiff is that AK Steel’s
construction of § 4.3(d) in light of § 402’s provisions is true to the law and sensible.

        C. District Court’s Analysis

        Plaintiff urges the court to approve the district court’s decision without regard
to the Social Security Act. Indeed, although AK Steel presented the foregoing analysis
of § 402’s provisions in the district court, the court ignored it. Instead, the court relied
exclusively on an unpublished interlocutory ruling by another district court construing
and applying similar plan language to requests for surviving spouse benefits, Patrick v.
AK Steel Corp., 2008 WL 906052 (S.D. Ohio, Mar. 31, 2008). The plan language at
issue in Patrick is similar, but not identical:

        Commencing with the first Surviving Spouse's Benefit payable after the
        surviving spouse attains the age at which widow's or widower's benefits
        are first provided under a Public Pension, the amount of the Surviving
        Spouse's Benefit otherwise payable for any month shall be reduced by
        50% of the amount of the widow's or widower's benefit to which the
        surviving spouse is, or upon application would be, entitled for such
        month based on the law in effect at the time the Surviving Spouse's
        Benefit first becomes payable (without regard to any offset or suspension
        imposed by such law) and based upon the benefit payable to such person
No. 10-5298        Lipker v. AK Steel Corp.                                        Page 9


       as a widow or widower without regard to any benefit earned in her own
       right.

Id. at *4 (emphasis added). But for the italicized language, the above provision is
materially identical to § 4.3(d). Unfortunately for plaintiff, the italicized language
played a leading role in the Patrick court’s reasoning.

       The above provision contains two “without regard to” clauses, but the Patrick
court did not parse them specifically or attempt to ascertain how they harmonize with
or complement each other. As to the former clause, the Patrick court, like the district
court here in Lipker, did not consult the law providing the claimants’ public pension
widow’s benefits and did not inquire whether the law imposed any offset. Instead, the
court focused on the latter clause and concluded “the only reasonable interpretation is
that ‘without regard to’ . . . means to exclude any old age benefit earned by the widow
or widower in her or his own right, prior to the deduction calculation.” Id. at *5. In
other words, the court construed “without regard to” as meaning “excluding” any old-age
benefit from the equation.

       Viewing the latter clause in isolation, the Patrick court’s construction is not
unreasonable. However, the latter clause succeeds a former clause, whose meaning
seems to be directly contrary. As explained above, with reference to the very law
referred to in this provision as well, the former “without regard to” clause, unlike the
latter, does not exclude any old-age benefit from the equation, but actually serves to
exclude any offset or exclusion of the old-age benefit imposed by law. In effect, then
the former clause, by virtue of a double-negative, serves to include any old-age benefit
in the equation. If the Patrick court had scrutinized the meaning of both clauses it would
have confronted this apparent contradiction or ambiguity. Instead, the court side-stepped
any dissonance between the two clauses by observing that its construction of the latter
clause did not run afoul of the former because the exclusion effected by the latter was
not imposed by law, but by the plan itself. Id.

       What is clear about Patrick’s reasoning is that it is premised primarily on
construction of the latter clause language, language that is absent from and materially
No. 10-5298            Lipker v. AK Steel Corp.                                                   Page 10


different from the language in § 4.3(d) of AK Steel’s Pension Agreement. It follows that
Patrick is factually distinguishable and has little persuasive value in evaluating AK
Steel’s determination of plaintiff’s surviving spouse benefit under § 4.3(d). It also
follows that the district court’s exclusive reliance on Patrick as justification for awarding
judgment to plaintiff and granting her relief was misplaced and erroneous.3

         D. Summary Plan Description

         Finally, plaintiff contends that notwithstanding all of the above, AK Steel’s
decision is wrong because its construction and application of § 4.3(d) conflicts with the
terms of the governing summary plan description (“SPD”). The SPD defines the
surviving spouse benefit simply as “50% of the participant’s pension less 50% of the
amount of widow’s (or widower’s) Social Security benefit or, if higher, a minimum
benefit of $140 per month.” Thus, in relevant part, the SPD omits the “without regard
to any offset imposed by law” clause found in § 4.3(d) of the Pension Agreement. This
conflict, plaintiff contends, renders the clause unenforceable. The district court did not
address this argument in its opinion.

         Because employees rely on summary plan descriptions in making decisions about
their future benefit needs, we have held that language in an SPD may control over any
conflicting language in the employee benefit plan itself. See Univ. Hosps. of Cleveland
v. Emerson Elec. Co., 202 F.3d 839, 850-51 (6th Cir. 2000).4 This does not mean,
however, that an omission from the SPD will, by negative implication, be deemed to


         3
           In holding that Patrick is distinguishable and therefore inapposite, we express no opinion on the
merits of its reasoning.
         4
           The continuing vitality of this proposition has recently been questioned as a result of CIGNA
Corp. v. Amara, 131 S.Ct. 1866, 1876-78 (2011), where the Court held that terms of an SPD cannot be
enforced over conflicting terms of the employee benefit plan itself under ERISA § 502(a)(1)(B). 29 U.S.C.
§ 1132(a)(1)(B). Per CIGNA, if there is a conflict, the plan language controls over the SPD. In other
words, if we were to accept Lipker’s argument that there is a conflict in this case, the holding of CIGNA
would defeat her claim.
         The CIGNA Court left open the possibility that “appropriate equitable relief” could potentially
be awarded under § 502(a)(3). Here, however, unlike in CIGNA, the district court did not consider such
a theory. Indeed, no such equitable theory is asserted in plaintiff’s complaint, which expressly prays only
for award of benefits under the “specific” and “clear and unambiguous language” of the plan.
         Yet, even if the relief recognized in the University Hospitals case were deemed available in the
event of a “conflict” between SPD language and plan language, the discussion that follows explains why
it would not come into play under the facts of this case.
No. 10-5298        Lipker v. AK Steel Corp.                                      Page 11


alter the terms of the plan itself. Sprague v. General Motors Corp., 133 F.3d 388, 401
(6th Cir. 1998). Silence in the SPD regarding a term the plan defines more explicitly
does not make out a “conflict.” Id. “The reason is obvious: by definition, a summary
will not include every detail of the thing it summarizes.” Id. “[W]hile a conflict exists
where the summary plan description misleads or fails to state additional requirements
contained in the plan document, . . . there is no conflict where the plan document
clarifies the summary’s general language.” Mitzel v. Anthem Life Ins. Co., 351 F. App’x
74, 80 (6th Cir. 2009) (citations omitted).

       Here, application of these standards makes it clear that the asserted “conflict”
between the SPD language and the terms of § 4.3(d) is really nothing more than an
innocuous “omission.” The SPD refers to the “widow’s Social Security benefit.” While
the SPD does not expressly state that the widow’s benefit referred to is “provided under
a law,” as does § 4.3(d) of the Pension Agreement, the SPD’s reference to Social
Security implies the same meaning; it is not misleading. And when the Social Security
Act, 42 U.S.C. § 402(e)(2)(A), is consulted for a definition of “widow’s benefit,” we find
a definition equating the amount of the widow’s insurance benefit with the primary
insurance benefit of the deceased husband, or in this case $1,469, the same amount used
by AK Steel in the § 4.3(d) formula. Thus, the SPD’s omission of reference to “the law”
does not result in an inconsistency.

       The SPD also does not mention that this amount of the widow’s benefit is used
to calculate the surviving spouse’s benefit “without regard to any offset or suspension
imposed by such law.” Yet, again, the omission actually has no effect on the end result.
Whether one uses the widow’s benefit amount, as defined at § 402(e)(2)(A) (i.e.,
$1,469), or the widow’s benefit amount without regard to the offset imposed by
§ 402(k)(3)(A) (i.e., $1,469), the meaning of the two provisions is the same. In other
words, § 4.3(d)’s “without regard to” clause merely makes explicit what is implicit or
at worst ambiguous in the SPD; it “clarifies the summary’s general language.” Mitzel,
351 F. App’x at 80.
No. 10-5298            Lipker v. AK Steel Corp.                                                   Page 12


         The omission of these two elements from the SPD is not misleading and the
discrepancy between the language of the two provisions does not rise to the level of a
“conflict.”     The SPD’s summary description is incomplete, in comparison with
§ 4.3(d)—as would ordinarily be expected—but is otherwise consistent with the Pension
Agreement. Hence, there is no conflict between the SPD and the plan such that the SPD
definition of the surviving spouse benefit would control over the plan language. See also
Sullivan v. CUNA Mut. Ins. Soc’y, 649 F.3d 553, 557-58 (7th Cir. 2011) (citing CIGNA,
131 S.Ct. at 1876-80, and observing that “[a] participant who draws an unfounded
inference from an omission from a summary plan description is not entitled to a
remedy.”).5

         E. Miscellaneous Arguments

         The parties have presented various arguments regarding the intent underlying
§ 4.3(d) of the Pension Agreement. There is, however, substantially no extrinsic
evidence of the parties’ intent. Nor is there any need to resort to extrinsic evidence, as
§ 4.3(d), construed in light of the pertinent § 402 provisions to which it refers, appears
to be unambiguous, its meaning plain.6




         5
           The dissent chides us for this line of analysis on two grounds. First, we are faulted for
addressing Lipker’s argument that there is a conflict between the plan and the SPD because the line of
authorities that supported her claim for relief under such a theory has been overruled. We agree with the
dissent’s view that the holding of CIGNA undercuts Lipker’s position. As explained above in responding
to Lipker’s argument, however, we do not reach the impact of CIGNA’s holding because the threshold
requirement, a conflict between the plan and the SPD, is not presented.
          Second, besides faulting us for addressing the argument Lipker has made, the dissent also faults
us for not responding to an argument she has not made. Citing dicta from CIGNA, the dissent contends
we should remand for consideration of a potentially appropriate theory of equitable relief that Lipker never
pled below, has not argued in this appeal, and has not even asserted, post-CIGNA, as grounds for remand
and reconsideration. The dissent’s position misconceives our role.
         6
           We acknowledge that the language of both § 4.3(d) and the parallel SPD provision, viewed on
its face, cannot be said to have a “plain meaning”—either to a lawyer or a layperson. But neither is
designed to be read on its face; both provisions include reference to “the law” or “ Social Security.”
Hence, neither provision is understandable without reference to the Social Security Act. We further
acknowledge that a casual reading of the pertinent provisions of the Social Security Act yields no ready
answer as to how the § 4.3(d) and SPD provisions are to be understood. The provisions of § 402 of the
Act are complex. Yet, by referring to “widow’s Social Security benefit” in the SPD and “the law” in
§ 4.3(d), AK Steel has clearly put the average reasonable plan participant or beneficiary on notice of the
need to make further inquiry if the specifics of the surviving spouse benefit are to be understood. As
explained above, such further inquiry yields a clear and sensible meaning.
No. 10-5298        Lipker v. AK Steel Corp.                                     Page 13


       Also unavailing is plaintiff’s argument that AK Steel’s construction and
application of § 4.3(d) “penalizes” surviving spouses who earned their own old-age
benefits. Quite to the contrary, when applied in accordance with its express terms,
§ 4.3(d) treats all surviving spouses equally, irrespective of their work history. By
disregarding the Social Security offset to the widow’s benefit that stems from the
widow’s own work history, AK Steel Pension Plan intentionally disregards the widow’s
work history, putting all widows in the same position.

                                III. CONCLUSION

       In sum, for the reasons set forth above, we hold that AK Steel’s determination
of plaintiff’s surviving spouse benefit was and is correct and that the district court’s
judgment in favor of plaintiff Margaret Lipker must be REVERSED. The case is
REMANDED to the district court for entry of judgment in favor of AK Steel.
No. 10-5298         Lipker v. AK Steel Corp.                                        Page 14


            __________________________________________________

             CONCURRING IN PART AND DISSENTING IN PART
            __________________________________________________

        MARK A. GOLDSMITH, District Judge, concurring in part and dissenting in
part. I agree with all but Section II.D of the majority’s opinion. My disagreement
concerns two issues. First, the majority engages in a legal analysis for a claim under
29 U.S.C. § 1132(a)(1)(B), based on an asserted conflict between language in an ERISA-
covered plan and the summary plan description (SPD), that is no longer relevant after
the United States Supreme Court’s decision in CIGNA Corp. v. Amara, 131 S. Ct. 1866
(2011). Second, the majority bars Lipker on remand from seeking equitable relief under
29 U.S.C. § 1132(a)(3), even though the viability of such relief was shrouded in
uncertainty until CIGNA. For the reasons explained in more detail below, I would
reverse the judgment of the district court, but remand the case to that court for
consideration of appropriate equitable relief in light of CIGNA.

        CIGNA was decided well after the district court issued its final judgment in this
case. Where there has been an intervening change in law during the pendency of an
appeal, this court generally must “apply the law in effect at the time it renders its
decision.” See Bradley v. Sch. Bd. of City of Richmond, 416 U.S. 696, 712 (1974).
Therefore, CIGNA must be followed in this case.

        In CIGNA, the Supreme Court held that SPDs do not constitute plan terms for
claims brought under 29 U.S.C. § 1132(a)(1)(B). See CIGNA, 131 S. Ct. at 1878 (“[T]he
summary documents, important as they are, provide communication with beneficiaries
about the plan, but . . . their statements do not themselves constitute the terms of the plan
for purposes of § 502(a)(1)(B).”) (emphasis in original). See also Bender v. Newell
Window Furnishings, Inc., 681 F.3d 253, 265 n.9 (6th Cir. 2012) (“In CIGNA, an ERISA
action to recover amounts due under an ERISA plan, the Court clarified that the
provisions of an SPD could not be enforced as terms of the ERISA plan itself.”).
No. 10-5298            Lipker v. AK Steel Corp.                                                  Page 15


         At the same time, however, the CIGNA Court suggested, in dicta, that relief
under § 1132(a)(3) – which allows courts to grant “other appropriate equitable relief” –
is available to redress injuries caused by an administrator’s failure to provide accurate
summary information.           See CIGNA, 131 S. Ct. at 1878-82 (discussing whether
§ 1132(a)(3) provides relief to those injured by inaccurate summary language, and
concluding that “[w]e doubt that Congress would have wanted to bar those employees
from relief”).1

         In the present case, the majority acknowledges CIGNA’s holding. See Opinion
at 12 n.4. Nonetheless, it proceeds to apply pre-CIGNA authority to resolve Lipker’s
alternative argument under § 1132(a)(1)(B) that she is entitled to a higher pension
amount based on language in the SPD, regardless of any conflicting language in the plan.
See Opinion at 10-12 (citing various pre-CIGNA cases, including University Hospitals
of Cleveland v. Emerson Electric Company, 202 F.3d 839, 850-51 (6th Cir. 2000)).
After CIGNA, however, this line of cases is inapplicable because the Supreme Court has
now held that an SPD does not constitute “terms of the plan” that a beneficiary may
enforce under § 1132(a)(1)(B). The majority’s analysis of possible conflict between the
plan and the SPD is irrelevant because, in either case, the SPD language cannot be
enforced under that ERISA provision. Therefore, I would simply invoke CIGNA to
reject Lipker’s alternative argument under § 1132(a)(1)(B).

         More importantly, the majority errs in summarily depriving Lipker of the
opportunity to return to the district court to assert a claim for equitable relief under
§ 1132(a)(3). The majority does so because, in its words, “no such equitable theory is


         1
           Following CIGNA, other courts have uniformly recognized what the Supreme Court strongly
implied in CIGNA – that, under appropriate circumstances, equitable remedies under § 1132(a)(3) are
available to redress injuries stemming from inaccurate summary language. See Koehler v. Aetna Health
Inc., 683 F.3d 182, 189 (5th Cir. 2012) (citing CIGNA for the proposition that “even if the plan’s language
unambiguously supports the administrator’s decision, a beneficiary may still seek to hold the administrator
to conflicting terms in the plan summary through a . . . claim under § 1132(a)(3)” (emphasis in original));
Skinner v. Northrop Grumman Ret. Plan B, 673 F.3d 1162, 1165-67 (9th Cir. 2012) (recognizing that,
under CIGNA, equitable relief pursuant to § 1132(a)(3) is available to redress injuries stemming from
reliance on inaccurate summary language); US Airways, Inc. v. McCutchen, 663 F.3d 671, 670 (3d Cir.
2011) (citing CIGNA, recognizing that equitable relief under § 1132(a)(3) “temper[s]” the “absolute
freedom to contract”); Wallace v. Freight Drivers & Helpers Local No. 557 Pension Fund, No. 11-2062,
2012 WL 2571223, at *6 (D. Md. Jul. 2, 2012) (noting that, under CIGNA, “court may hold a Plan to the
terms of its SPDs on equitable grounds (as, in essence, a form of estoppel)”).
No. 10-5298            Lipker v. AK Steel Corp.                                                    Page 16


asserted in plaintiff’s complaint, which expressly prays only for award of benefits under
the ‘specific’ and ‘clear and unambiguous language’ of the plan.” Opinion at 10 n.4.

         It is true that Lipker did not expressly seek equitable relief before the district
court.2 But her failure to do so is not surprising and certainly not unreasonable, as her
right to do so was not apparent until May 16, 2011, the day CIGNA was decided, more
than two years after this case was originally filed. Prior to CIGNA, SPD language was
deemed plan language to the extent there was a conflict between the two. See, e.g.,
Edwards v. State Farm Mut. Auto. Ins. Co., 851 F.2d 134, 136 (6th Cir. 1988) (“This
Circuit has decided that statements in a summary plan are binding and if such statements
conflict with those in the plan itself, the summary shall govern.”).                              Further,
§ 1132(a)(1)(B) was utilized as the avenue for relief from injuries arising out of such
conflicts. See, e.g., id.; Rhoton v. Cent. States, Se. & Sw. Areas Pension Fund, 717 F.2d
988 (6th Cir. 1983). Moreover, prior to CIGNA, there was significant uncertainty
whether § 1132(a)(3) provided an avenue for relief based on such a conflict. See
CIGNA, 131 S. Ct. at 1876 (noting that district court did not award equitable relief under
§ 1132(a)(3) because of Supreme Court cases that narrowed application of that section).
Only after CIGNA did it become clear that (i) § 1132(a)(1)(B) does not provide an
avenue for relief from injuries stemming from conflicts between SPD language and plan
language, and (ii) § 1132(a)(3) may well provide an avenue for such relief.

         In situations where an intervening change-in-law during the pendency of an
appeal renders an old theory untenable and a new theory viable, it is only fair to return
the case to the district court for a determination, in the first instance, whether to permit
the new claim to proceed. See Del Rosario v. King & Prince Seafood Corp., 432 F.
App’x 912, 913 (11th Cir. 2011) (affirming dismissal of claim for benefits under
§ 1132(a)(1)(B), but remanding “for reconsideration of the issue of whether a remedy
exists under . . . § 1132(a)(3), in light of the Supreme Court’s decision in CIGNA”).

         2
           In her complaint, Lipker did not expressly seek relief under § 1132(a)(1)(B) either. The
barebones complaint, which does not even mention ERISA, alleges only that AK Steel miscalculated the
widow’s benefit to which she is entitled under the plan, and requests relief as follows: “the Plaintiff prays
for a determination of the Court that the plan must comply with the specific language set forth within the
plan contract; for back pay; for interest, costs and attorney’s fees; and for any and all other appropriate
relief to which she may appear entitled.”
No. 10-5298         Lipker v. AK Steel Corp.                                        Page 17


        However, the majority refuses to do so here because “Lipker never pled below,
has not argued in this appeal, and has not even asserted, post-CIGNA,” a claim for
equitable relief. Opinion at 12 n.5. As discussed, Lipker’s failure to plead an equitable
claim below was reasonable under the circumstances. Regarding her failure to raise the
issue of equitable relief under § 1132(a)(3) during the pendency of this appeal, Lipker’s
brief on appeal was due and submitted before CIGNA was decided. Further, this court
never directed the parties to submit supplemental briefs addressing the impact of CIGNA
on this case. Tellingly, neither attorney in this matter has mentioned CIGNA to this court
– not during oral argument and not in any post-argument submission. In light of the
obvious relevance of that decision to this case and the fact that neither attorney has
brought the case to the court’s attention, it is likely that neither counsel is aware of the
decision. The majority’s insistence on forever barring Lipker from pursuing a form of
relief to which she may be entitled simply because her attorney is apparently unaware
of an intervening sea-change in the law is unreasonably harsh.

        The majority holds that it is not the role of the court to order sua sponte a remand
for the purpose of allowing the district court to address an unasserted claim. See
Opinion at 12 n.5 (“The dissent’s position misconceives our role.”). While I agree with
the majority that courts generally should not raise issues and claims that were not raised
by the parties, there are plainly extenuating circumstances here justifying a remand –
namely, a significant change in the law (occurring after the district court proceedings
and after the deadline for briefing on appeal) that created the possibility of a viable cause
of action, previously viewed dubiously by the courts.

        The power of an appellate court to remand sua sponte under circumstances that
are just is well established and deeply rooted. See 28 U.S.C. § 2106 (“The Supreme
Court or any other court of appellate jurisdiction may . . . remand the cause and direct
the entry of such appropriate judgment, decree, or order, or require such further
proceedings to be had as may be just under the circumstances.”); Underwood v. Comm’r
of Internal Revenue, 56 F.2d 67, 73 (4th Cir. 1932) (“In a number of instances, Circuit
Courts of Appeals have remanded cases for rehearing when it seemed necessary in order
No. 10-5298        Lipker v. AK Steel Corp.                                       Page 18


to do justice to the parties. . . . In addition, there is the well-established rule that an
appellate court has the power, without determining and disposing of a case, to remand
it to the lower court for further proceedings if the case has been tried on a wrong theory,
or the record is not in condition for the appellate court to decide the question presented
with justice to all parties concerned.”). In Nuelsen v. Sorensen, 293 F.2d 454 (9th Cir.
1961), the court of appeals ordered a remand for the district court to consider issues not
raised before either court, explaining:

       There is, however, no rigid and undeviating judicially declared practice
       under which courts of review invariably and under all circumstances
       decline to consider all questions which have not previously been
       specifically urged. Indeed there could not be without doing violence to
       the statutes which give federal appellate courts the power to modify,
       reverse or remand decisions ‘as may be just under the circumstances.’
       28 U.S.C. § 2106. Exceptional cases or particular circumstances may
       prompt a reviewing court, where injustice might otherwise result or
       where public policy requires, to consider questions neither pressed nor
       passed upon below. The power to raise and decide question sua sponte
       is, however, to be exercised sparingly and with full realization of the
       restrictions and limitations inherent in its employment.
       Rather than consider the matter sua sponte, of course, the appellate court
       may note the existence of the unargued, undecided question and remand
       the case to the lower court. This makes the decision on the matter one
       reflecting the consideration of a trial court and the counsel in the case.
Id. at 462 (footnotes omitted).
       Exceptional circumstances for a remand exist here where an unpled claim of
questionable validity became viable on appeal because of an intervening Supreme Court
decision. Given that there is no prejudice to AK Steel in ordering a remand to consider
such a claim, it is well within the role of this court, as a court of justice, to see that
Lipker receives a full opportunity to vindicate her rights under ERISA.

       For all of these reasons, reversal of the district court should be accompanied by
a remand for a determination whether Lipker can proceed on an equitable theory under
§ 1132(a)(3) in light of CIGNA. Because the majority opinion does not order a remand
for this purpose and because of its failure to apply CIGNA properly, I must respectfully
dissent from Section II.D of the majority’s opinion.
