           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          March 13, 2008

                                     No. 07-30433                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


MARIAN THOMPSON ROBINSON

                                                  Plaintiff-Appellant
v.

NEW ORLEANS EMPLOYERS ILA AFL-CIO PENSION WELFARE
VACATION & HOLIDAY FUNDS

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                for the Eastern District of Louisiana, New Orleans
                              USDC No. 05-cv-6270


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Marian Thompson Robinson (“Marian”) appeals the
district court’s order granting summary judgment in favor of Defendant-Appellee
New Orleans Employers ILA AFL-CIO Pension Welfare Vacation & Holiday
Funds (the “Pension Fund”). For the following reasons, we AFFIRM.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                No. 07-30433

           I. FACTUAL AND PROCEDURAL BACKGROUND
      Marian is the widow of George Robinson (“George”). George worked as a
longshoreman in Louisiana for approximately thirty-three years and earned
benefits in the Pension Fund. On August 29, 1983, George took early retirement
and applied for pension benefits. The Pension Fund provided a 50% Qualified
Surviving Spouse benefit after the death of the pensioner, but to qualify, “the
Employee must at the time of making the application for same, have been
married to the qualified spouse for a period of at least 12 months immediately
preceding the Approved Retirement Date.” George began receiving an early
retirement benefit from the Pension Fund on January 1, 1984.
      Marian and George met in 1955 and dated for many years. In 1978,
George moved in with Marian, and, although not formally married, they lived
together as if they were husband and wife. On May 5, 1996, Marian and George
were legally married in Louisiana. Marian alleges that at some time between
May 5, 1996, and May 15, 1996, representatives from the Pension Fund held a
meeting at the longshoreman’s hall and told her and George that if George
signed a “Designation of Beneficiary” naming her as the sole beneficiary under
his pension plan, then the Pension Fund would consider Marian to be a qualified
spouse. The Pension Fund does not dispute that this meeting took place but
instead argues that any oral representations from that meeting could not modify
the terms of the written plan documents.
      George died on November 25, 2004. After his death, Marian applied for
a surviving spouse share of his pension benefits, but the Administrative
Manager of the Pension Fund told her that under the plan documents she would
receive benefits only for one year after George’s death. Marian appealed this
decision to the Pension Fund’s Board of Trustees, which also denied Marian’s
request for a surviving spouse benefit because she and George were not married
on George’s retirement date.    Marian brought suit, seeking a declaratory


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judgment that she is a “qualified spouse” under George’s pension plan, and
therefore that she has rights to all past and future benefits pursuant to the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), 29
U.S.C. §§ 1001-1461. The Pension Fund filed a motion for summary judgment,
which the district court granted. The court held that Marian was not a qualified
spouse because under the plan’s terms a qualified spouse must be legally
married to the plan participant at the time of the participant’s retirement, and
Marian and George were not legally married in 1984 when George retired.
Marian appeals. We have jurisdiction over the district court’s final order
granting summary judgment pursuant to 28 U.S.C. § 1291.
                        II. STANDARD OF REVIEW
      This court reviews a district court’s summary judgment order de novo.
Jenkins v. Cleco Power, LLC, 487 F.3d 309, 313 (5th Cir. 2007). Summary
judgment is appropriate when, after considering the evidence, “there is no
genuine issue as to any material fact and . . . the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(c); see also Jenkins, 487 F.3d at 313. We
must view all evidence “in the light most favorable to the non-moving party” and
draw “all reasonable inferences in that party’s favor.” Jenkins, 487 F.3d at 313-
14.
      Under ERISA, when, as here, an employee benefit plan gives the
administrator discretionary authority to determine eligibility for benefits or to
construe the terms of a plan, we review the plan administrator’s decision for an
abuse of discretion. See McCall v. Burlington N. Santa Fe Co., 237 F.3d 506, 512
(5th Cir. 2000).
                              III. DISCUSSION
      Marian argues that the Pension Fund’s administrator abused his
discretion in deciding that she was not a qualified spouse under the plan because
he failed to take into account the time she and George lived as if they were
husband and wife from 1978 to 1996. She contends that this fact, combined with


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the information she received at the longshoreman’s meeting when George signed
the “Designation of Beneficiary,” demonstrates that she is George’s qualified
spouse and is entitled to benefits. Marian’s arguments miss the mark.
       The plan documents state that the Pension Fund provides a survivor
benefit to a “qualified surviving spouse.” To be eligible for this benefit, “the
Employee must at the time of making application for same, have been married
to the qualified spouse for a period of at least 12 months immediately preceding
the Approved Retirement Date.” The plan defines a “qualified spouse” as “a
spouse who has been legally married to the Employee throughout the one year
period immediately preceding the earlier of the Employee’s death or Annuity
Starting Date.”1 The question, therefore, is whether Marian was legally married
to George for at least one year on his Annuity Starting Date, which was January
1, 1984.
       Marian urges this court to recognize her relationship with George at that
time as a “common law marriage.” However, she fails to point to any authority
holding that Louisiana recognizes a common law marriage.                      Instead, the
Louisiana Supreme Court has ruled that “a common-law marriage cannot be
contracted by virtue of the law of Louisiana.” Succession of Marinoni, 148 So.
888, 894 (La. 1933); see also Succession of Clements, 830 So. 2d 307, 316 (La. Ct.
App. 2002) (“Louisiana law does not recognize common-law marriages. . . .
Marriage in Louisiana is a legal relationship between a man and a woman
created by civil contract.”); Liberty Mut. Ins. Co. v. Caesar, 345 So. 2d 64, 65 (La.
Ct. App. 1977) (“Louisiana Law [sic] does not recognize ‘common law
marriage’ . . . .”). This fact proves fatal to Marian’s claim. The administrator did
not abuse his discretion in determining that George and Marian were not legally
married when George retired because a common law marriage cannot arise


       1
         A person also can be a “qualified spouse” even if the employee and spouse are married
for less than one year on the annuity starting date if the spouse is “legally married to the
Employee on his Annuity Starting Date and for at least a one year period ending on or before
the Employee’s death.”

                                              4
under Louisiana law. Because Marian was not a “qualified spouse” at the time
George began receiving pension benefits, Marian is not entitled to any benefits
as a “qualified surviving spouse.”
      Marian also argues that she and George relied to their detriment on the
statements that the Pension Fund’s representatives made at the meeting shortly
after their legal marriage.     She claims that the Pension Fund’s officials
represented that their 1996 marriage certificate, along with the signed
“Designation of Beneficiary,” satisfied the plan’s criteria.      Therefore, she
contends that the Pension Fund is equitably estopped from denying surviving
spouse benefits. Marian’s argument essentially is that the oral representations
from the Pension Fund’s officials modified the plan’s terms to allow a
subsequently-drafted “Designation of Beneficiary” to name her as a qualified
spouse.
      A plaintiff must establish three elements for an equitable estoppel claim
under ERISA: (1) a material misrepresentation, (2) the plaintiff’s reasonable and
detrimental reliance upon that representation, and (3) extraordinary
circumstances. Mello v. Sara Lee Corp., 431 F.3d 440, 444-45 (5th Cir. 2005).
The district court ruled that even if Marian could establish the first and third
elements, it was unreasonable for her to rely on the oral statements that
purportedly modified the clear definition of “qualified spouse” in the plan’s
terms. We agree. “ERISA-estoppel is not permitted if based on purported oral
modifications of plan terms.” Id. at 446 (internal quotation marks omitted).
This is because ERISA requires “every employee benefit plan” to be “established
and maintained pursuant to a written instrument.” Id. (internal quotation
marks omitted); see also 29 U.S.C. § 1102(a)(1). This makes sense, because “the
writing requirement gives the plan’s participants and administrators a clear
understanding of their rights and obligations.” Mello, 431 F.3d at 446. Marian
has failed to show why it was reasonable for her to rely on an oral representation
that changed the plan’s requirement that she and George be “legally married”


                                        5
before George’s retirement date given this court’s clear guidance in Mello.
Therefore, she cannot make out a claim for equitable estoppel.2
                                  IV. CONCLUSION
       We hold that the district court properly granted summary judgment for
the Pension Fund because its administrator did not abuse his discretion when
he determined that Marian and George were not legally married when George
retired. Further, the district court correctly concluded that it was unreasonable
for Marian to rely on an oral representation that the “Designation of Beneficiary”
would make her a qualified spouse under the plan. Therefore, we affirm the
judgment of the district court.
       AFFIRMED.




       2
          Marian also argues that the district court erred by not applying ERISA’s summary
plan description rule, which requires plan administrators to provide a summary plan
description to all participants and beneficiaries that is “written in a manner calculated to be
understood by the average plan participant.” See 29 U.S.C. § 1022(a). Marian contends that
the Pension Fund’s failure to show that it distributed a summary plan description creates a
factual dispute that precludes summary judgment. This argument is unavailing. Whether or
not the Pension Fund distributed a summary plan description is irrelevant as to whether a
person may rely on an oral representation regarding the terms of the plan. A plan is liable for
failing to provide a summary plan description only if the employee first requests one. See 29
U.S.C. § 1132(c)(1); Bannistor v. Ullman, 287 F.3d 394, 407 (5th Cir. 2002) (“[ERISA] requires
Appellees to make a request for such plan description before liability may be imposed, and
Appellees did not make such a request.”). Marian has failed to establish any connection
between the Pension Fund’s alleged failure to distribute a summary plan document and the
reasonableness of her reliance on an oral representation, and we can conceive of none.

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