                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                  FOR THE FOURTH CIRCUIT


DEBRA L. JOLLY,                          
                  Plaintiff-Appellant,
                  v.                              No. 01-2281
COMPAQ COMPUTER CORPORATION,
             Defendant-Appellee.
                                         
DEBRA L. JOLLY,                          
                  Plaintiff-Appellant,
                  v.                              No. 02-1136
COMPAQ COMPUTER CORPORATION,
             Defendant-Appellee.
                                         
           Appeals from the United States District Court
         for the Eastern District of Virginia, at Alexandria.
                    T.S. Ellis, III, District Judge.
                             (CA-01-147)

                   Submitted: September 30, 2002
                       Decided: January 14, 2003

   Before WIDENER, NIEMEYER, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


                              COUNSEL

Sheila Venable, Alexandria, Virginia, for Appellant. William Patrick
Flanagan, HOGAN & HARTSON, L.L.P., McLean, Virginia; Coates
2                 JOLLY v. COMPAQ COMPUTER CORP.
Lear, HOGAN & HARTSON, L.L.P., Denver, Colorado, for Appel-
lee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   In case number 01-2281, Debra L. Jolly appeals the district court’s
order dismissing her claim against Compaq Computer Corporation
filed pursuant to the Employee Retirement Income Security Act of
1974, 29 U.S.C.A. §§ 1001-1461 (West 1999 & Supp. 2002)
(ERISA). Jolly claims that the district court erred in granting sum-
mary judgment to Compaq and concluding that Compaq did not vio-
late the tenets of ERISA by failing to timely provide Jolly with a
comprehensive plan relating Compaq’s short-term disability program.

   We review de novo a district court’s grant of summary judgment.
Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th
Cir. 1988). Upon written request, ERISA requires an employer to
"furnish a copy of the latest updated summary plan description, plan
description . . . or other instruments under which the plan is estab-
lished or operated." 29 U.S.C.A. § 1024(b)(4) (West Supp. 2002). It
is undisputed that at the time of Jolly’s request for documentation,
Compaq had not yet completed its comprehensive plan document
relating to short-term disability. Accordingly, we conclude that, at the
time of Jolly’s request, the comprehensive plan document was not an
instrument under which the plan was established or operated.* Fair-
cloth v. Lundy Packing Co., 91 F.3d 648, 654 (4th Cir. 1996). Jolly
was thus not entitled to relief.

   *We also note that Compaq provided Jolly with a summary plan
description in a timely manner, and further, that upon its completion in
February, 2001, Compaq provided Jolly with a copy of the comprehen-
sive plan documents.
                  JOLLY v. COMPAQ COMPUTER CORP.                    3
   In No. 02-1136, Jolly assigns error to "the December 18, 2001,
order that denied her motion for attorney fees." (Appellant’s second
notice of appeal, docketed January 17, 2002). This order denies a
motion for attorney’s fees filed by Compaq, not by Jolly. However,
because Jolly included a request for attorney’s fees in her motion for
summary judgment, we conclude that the district court’s denial of
Jolly’s motion for summary judgment and award of summary judg-
ment to Compaq implicitly denied Jolly’s request. Accordingly, the
matter is properly before the court for review. We have held that only
a prevailing party may succeed on a motion for attorney’s fees under
ERISA. See Martin v. Blue Cross & Blue Shield of Va., 115 F.3d
1201, 1209-10 (4th Cir. 1997). Because Jolly’s claim does not suc-
ceed on the merits, she cannot prevail on her claim for fees.

  Accordingly, we affirm the order of the district court. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

                                                         AFFIRMED
