                                   UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                    No. 16-2116


GREENBRIER HOTEL CORPORATION, d/b/a The Greenbrier; THELMA R.
ADKINS; WILLIAM ARNOLD; DENNIS AUSTIN; GREG SCOTT; ERIC
TYGRETT,

         Plaintiffs – Appellees,

v.

UNITE HERE HEALTH, a trust; H.E.R.E.I.U. WELFARE FUND- PLAN UNIT
155, an employee welfare health plan; JOHN W. WILHELM; GEOCONDA
ARGUELLO-KLINE; WILLIAM BIGGERSTAFF; DONNA DECAPRIO;
MAYA DEHART; BILL GRANFIELD; TERRY GREENWALD; CONSTANCE
M. HOLT; KAREN KENT; CLETE KILEY; C. ROBERT MCDEVITT;
LEONARD O’NEILL; HENRY TAMARIN; DONALD TAYLOR; THOMAS
WALSH; PAUL ADES; JAMES M. ANDERSON; RICHARD M. BETTY;
ALBERT I. CHURCH; JAMES L. CLAUS; RICHARD ELLIS; GEORGE
GREENE; ARNOLD F. KARR; CYNTHIA KISER MURPHY; RUSS
MELARAGNI; FRANK MUSCOLINA; WILLIAM NOONAN; JACK M.
PENMAN; JOHN SOCHA; HAROLD TAEGEL; GARY WANG,

         Defendants – Appellants.


                                    No. 17-1720


GREENBRIER HOTEL CORPORATION, d/b/a The Greenbrier; THELMA R.
ADKINS; WILLIAM ARNOLD; DENNIS AUSTIN; GREG SCOTT; ERIC
TYGRETT,

         Plaintiffs – Appellees,

v.
UNITE HERE HEALTH, a trust; H.E.R.E.I.U. WELFARE FUND- PLAN UNIT
155, an employee welfare health plan; JOHN W. WILHELM; GEOCONDA
ARGUELLO-KLINE; WILLIAM BIGGERSTAFF; DONNA DECAPRIO;
MAYA DEHART; BILL GRANFIELD; TERRY GREENWALD; CONSTANCE
M. HOLT; KAREN KENT; CLETE KILEY; C. ROBERT MCDEVITT;
LEONARD O’NEILL; HENRY TAMARIN; DONALD TAYLOR; THOMAS
WALSH; PAUL ADES; JAMES M. ANDERSON; RICHARD M. BETTY;
ALBERT I. CHURCH; JAMES L. CLAUS; RICHARD ELLIS; GEORGE
GREENE; ARNOLD F. KARR; CYNTHIA KISER MURPHY; RUSS
MELARAGNI; FRANK MUSCOLINA; WILLIAM NOONAN; JACK M.
PENMAN; JOHN SOCHA; HAROLD TAEGEL; GARY WANG,

             Defendants – Appellants.

Appeal from the United States District Court for the Southern District of West Virginia,
at Beckley. Irene C. Berger, District Judge (5:13-cv-11644)



Argued: October 24, 2017                                          Decided: January 3, 2018


Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.


Affirmed in part and vacated in part by unpublished opinion. Judge Duncan wrote the
opinion in which Judge Wilkinson and Judge Agee joined.


ARGUED: Ian Hugh Morrison, SEYFARTH SHAW LLP, Chicago, Illinois, for
Appellants. Kimberly Grace Kessler Parmer, MASTERS LAW FIRM, LC, Charleston,
West Virginia, for Appellee.    ON BRIEF: Robert J. Carty, Jr., SEYFARTH SHAW
LLP, Houston, Texas; Charles M. Love, III, BOWLES RICE, LLP, Charleston, West
Virginia, for Appellants. Marvin W. Masters, MASTERS LAW FIRM, LC, Charleston,
West Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                            2
DUNCAN, Circuit Judge:

       UNITE HERE HEALTH and its codefendants (the “Fund”) appeal the district

court’s determination that the Fund breached its fiduciary duty under the Employee

Retirement Income Security Act of 1975 (“ERISA”), 29 U.S.C. §§ 1001, et seq., as

amended. The Fund also appeals the district court’s award of attorney’s fees and costs.

For the reasons that follow, we affirm only the district court’s judgment that the Fund

was required to remit excess assets to the Greenbrier’s new employee welfare trust fund.

However, we affirm on non-ERISA grounds and thus vacate the district court’s award of

attorney’s fees and costs.



                                              I.

       Because the disposition of this case is highly fact-dependent, we recount in detail

first the background of this litigation and then its procedural history.



                                              A.

       We first briefly explain the context of the dispute between the Greenbrier and the

Fund, then detail the Greenbrier’s agreement with the Fund with particular attention to

the documents that structure their contractual relationship.



                                              1.

       The seeds of the current dispute were sown in 2004 when the Greenbrier and the

Fund entered into an agreement by which the Fund would provide healthcare benefits to

                                              3
eligible Greenbrier employees and their dependents. 1 The Greenbrier is a hotel and resort

located in White Sulphur Springs, West Virginia. The Fund is a Taft-Hartley employee

welfare benefit fund governed by ERISA, which in 2004 was affiliated with the Hotel

Employees and Restaurant Employees International Union (“HEREIU”). At that time, a

local union affiliated with HEREIU represented certain unionized Greenbrier employees.

The Greenbrier and its HEREIU-affiliated employees negotiated an agreement by which

the Fund would provide healthcare coverage for these employees. When the Greenbrier

joined the Fund, it was known as the HEREIU Welfare Fund.

       In 2009 and 2010, a bitter union dispute split HEREIU into two factions: UNITE

HERE and the Service Employees International Union (“SEIU”).                UNITE HERE

inherited the HEREIU Welfare Fund and renamed it UNITE HERE HEALTH. The split

divided local unions, and the Fund Trustees voted in 2009 to amend the Trust Agreement

such that local unions that disaffiliated with UNITE HERE would no longer be welcome

in the Fund. SEIU and UNITE HERE negotiated a settlement between themselves

governing which bargaining units would be permitted to remain in the Fund.             The

Greenbrier local was one such group that affiliated with SEIU rather than UNITE HERE

after the split; thus the Greenbrier was forced to leave the Fund. In October 2010, the

Fund informed the Greenbrier that, pursuant to the dueling unions’ settlement, the


       1
          Just as we use “the Fund” as a shorthand throughout to describe the UNITE
HERE Health Fund and its 33 Trustee codefendants, we use “the Greenbrier” throughout
to refer to the Greenbrier and its union-affiliated employee coplaintiffs unless the context
of the discussion provides otherwise.


                                             4
Greenbrier’s participation in the Fund would be terminated on January 31, 2013, which

was when the Greenbrier’s collective bargaining agreement was set to expire.

       In short, the Greenbrier entered the Fund voluntarily in 2004 and left involuntarily

in 2013. The parties fundamentally disagree about the consequences that flow from the

termination of their relationship.



                                             2.

       The Fund is a single ERISA plan for tax and organizational purposes. However,

the Fund is composed of several administrative units called “plan units,” which are

distinct for underwriting purposes.     Each plan unit has its own administrative and

eligibility rules and its own rate and benefit structure. The Fund designates different plan

units for different employer groups because different geographic locations generate

different health-care costs, and premiums are calculated accordingly. Contributions from

employers and employees participating in each plan unit are all pooled into a single trust,

and payments for claims are made from those pooled assets.

       Before the Greenbrier joined the Fund, all plan units within the Fund contained

participants from multiple employers. For example, a plan unit might include employees

of several different Las Vegas casinos, and the premiums and benefits offered to these

employees from multiple employers would be underwritten as a single plan unit based on

health-care costs in the Las Vegas area.

       The Greenbrier reasoned that a plan underwritten based on predicted healthcare

costs in a distant city would not serve its interests given its differing local economic

                                             5
conditions. Thus, the Greenbrier successfully negotiated that, as a condition of entering

the Fund, it would be assigned its own plan unit, which would contain only Greenbrier

employees and which would be underwritten independently.

       This resulting Greenbrier plan unit, Plan Unit 155, had its own administrative and

eligibility rules, its own rate and benefit structure, and its own plan documents, including

rules and regulations (the “2004 Rules and Regulations” and, later, the “2009 Rules and

Regulations”).   Greenbrier employee participants received their own Summary Plan

Description (the “SPD”) as well, which summarized Plan Unit 155’s terms and benefits.

All plan units within the Fund, including Plan Unit 155, were subject to a single “Trust

Agreement,” the principal controlling document within the Fund.           At the time the

Greenbrier entered Plan Unit 155, the Trust Agreement in force was the “Sixth Amended

Trust Agreement.”

       Significantly, the parties’ Participation Agreement memorialized the special

agreement between the Greenbrier and the Fund, stating that “The Greenbrier will be

underwritten as an independent plan unit with the Welfare Fund.” Furthermore, “[o]nly

the claims utilization of The Greenbrier Plan . . . will be used in calculating future rates

for The Greenbrier.” The Participation Agreement also incorporated by reference the

terms and conditions of the Trust Agreement and the Plan Unit 155 Rules and

Regulations, explaining that “[a]ny provision in this [Participation] Agreement that is

inconsistent with the [Trust Agreement], or the Plan of Benefits, rules or procedures

established by the Trustees shall be null and void.”



                                             6
        Of particular relevance here, Plan Unit 155’s 2004 Rules and Regulations

specified how excess assets would be distributed if Plan Unit 155 were terminated.

Section 12 of the 2004 Rules and Regulations provides two options for excess assets after

termination:

        If there are any excess assets remaining after the payment of all Plan
        liabilities, those excess assets will be used for purposes consistent with the
        purpose of the Plan as determined by the Trustees, or they may be
        transferred to another employee benefit fund providing similar benefits.

The Definitions section of the 2004 Rules and Regulations further explained that

capitalized words had “a defined meaning” as set forth in the Definitions section, while

other words and phrases not so designated “shall have their regular meanings.” In the

preceding passage, the word “Plan” is a capitalized, and thus defined, term. “Plan” thus

means “[t]he plan, program, method, and procedure adopted by the Trustees for Eligible

Employees and covered Dependents of Plan Unit 155 for the payment of” health care

benefits. 2   In 2009, a second version of the Plan Unit 155 Rules and Regulations

superseded the original version. However, the termination provision of the 2009 Rules

and Regulations remained identical to that in the 2004 Rules and Regulations, except that

the sections were renumbered such that the termination provision appeared in section 11.

        The Trust Agreement also contained a termination provision, but it spoke only to

the termination of the Fund overall, not to the termination of individual plan units. The


        2
         The Fund argues that we should read “Plan” to mean something other than Plan
Unit 155, but we find the terms of the Rules and Regulations document crystal clear on
this point.


                                              7
Trust Agreement also contained an anti-inurement provision, which provided that “[n]o

portion of the Welfare Fund shall ever revert to or inure to the benefit of any Employer or

Union, or to be used for or diverted to purposes other than for the exclusive benefit of

Participants and their Beneficiaries, except as permitted by ERISA.”

       Between the union split in 2009 and the termination of Plan Unit 155 in early

2013, representatives from the Greenbrier raised the issue of the dispensation of excess

assets several times with Fund representatives. A Greenbrier representative explained

that, based on her participation in the initial negotiations for the Greenbrier to join the

Fund and her reading of the termination provision, she understood that the Greenbrier

could retrieve excess assets because of its independence from other Fund participants and

its unique plan unit structure.

       The Fund’s responses are the subject of some dispute.            Peter Bostic, the

Greenbrier’s union representative and a Fund Trustee from 2004 through 2010, reported

that the Fund’s CFO, Kevin Gittens, had informed him that excess assets would remain

with the Fund if the Greenbrier chose to withdraw but that the Plan language required

excess assets be used to provide benefits for Greenbrier employees if Plan Unit 155 were

terminated. Gittens later testified that he had always maintained that assets would remain

with the Fund, though when questioned before the district court about details of his

conversations about the dispensation of excess assets, his responses were vague. 3


       3
         Though Gittens testified that he would not have said that excess assets could be
returned to a departing employer, the district court found Bostic’s testimony more
credible based on the specificity of his recollection and the demeanor of each witness.


                                            8
       A Greenbrier representative sent a letter to the Fund requesting plan documents

and an accounting of contributions and excess assets. Approximately two weeks later,

the Fund replied with a copy of the Seventh Amended Trust Agreement and a letter

indicating that the Fund had no intention of returning excess assets or sharing any

information about possible excess assets with the Greenbrier. The letter stated: “The

amount of excess assets over liabilities in any particular plan unit is information that is

not shared with contributing employers. The Trustees retain exclusive authority on use of

any excess assets. Further, the Fund does not know if there will be any excess assets at

the time of termination.” The Fund never provided a detailed accounting of Plan Unit

155’s excess assets.

       Over the same period, the Fund initiated several amendments to many of the key

documents related to Plan Unit 155. In October 2012, Trustees of the Fund adopted the

Seventh Amended Trust Agreement, which in part removed language from the Sixth

Amended Trust Agreement indicating that the Trustees acted as fiduciaries at all times

and for all activities. This purportedly freed the Fund to make other changes without

conflicting with their fiduciary responsibilities.

       Of even greater significance, Fund Trustees amended Plan Unit 155’s Rules and

Regulations by mail ballot in December 2012. The amendment altered the termination

provision of the 2009 Rules and Regulations, which had previously required excess assets

to be used for purposes consistent with the Plan. After amendment, the provision read:

       If there are any excess assets remaining after the payment of all Plan
       liabilities, those excess assets will be used for purposes consistent with the
       purposes of the Trust Agreement as determined by the Trustees, including

                                               9
       the transfer of such excess assets to another Plan providing similar
       benefits.

(Emphasis added). As highlighted in the preceding passage, the amendment had the

effect of requiring excess assets be used for purposes consistent with “the purposes of the

Trust Agreement” rather than the “purpose of the Plan” and allowed the transfer of excess

assets to “another Plan” instead of “another employee benefit fund providing similar

benefits.”   Thus, on the eve of the Greenbrier’s departure from the Fund and the

termination of Plan Unit 155, the Fund Trustees changed the terms governing disposition

of excess assets in the Greenbrier’s plan unit.

       The Fund terminated Plan Unit 155 on January 31, 2013, and the Fund ceased

paying claims for Greenbrier employees on February 1, 2013. Former participants in

Plan Unit 155 received benefits through a new, self-insured plan established by the

Greenbrier with claims paid out of the Greenbrier’s general operating account. The

Greenbrier also formed the New Greenbrier Trust to receive the excess assets from Plan

Unit 155 and from which to pay qualifying health claims.          On May 10, 2013, the

Greenbrier sent the Fund a letter demanding transfer of excess assets from Plan Unit 155.

On May 17, 2013, the Greenbrier and coplaintiff employees who participated in Plan

Unit 155 sued the Fund, arguing that excess assets from Plan Unit 155 should be

deposited into the New Greenbrier Trust.




                                             10
                                            B.

      In its complaint, the Greenbrier alleged multiple grounds for relief, including

breach of fiduciary duty claims under ERISA brought separately on behalf of plan

participants (count I) and the Greenbrier (count II), federal common law claims for

restitution (count III), violations of the Labor Relations Management Act (count IV), and

state law claims for breach of contract (count V), unjust enrichment (count VI), and

money had and received (count VII).

      The Fund moved to dismiss the complaint, and the district court granted its motion

in part on December 19, 2013. Greenbrier Hotel Corp. v. UNITE HERE HEALTH, No.

5:13-cv-11644 (S.D. W. Va. Dec. 19, 2013), ECF No. 35. In its opinion, the district court

dismissed all claims except for the two ERISA fiduciary-breach claims, reasoning that all

of the Greenbrier’s other claims, including for breach of contract, were preempted by

ERISA because they “relate to” an ERISA plan. Id. at 18. Because the details of the

district court’s reasoning weigh heavily on our analysis below, we recount the court’s

analysis at some length:

      Finally, the Defendants assert that the Plaintiffs’ state law claims found in
      Counts V, VI, and VII are preempted under ERISA’s framework because
      they “relate to” an ERISA plan. . . .
              The Plaintiffs respond that they only assert their state law claims in
      the alternative, and propose that these claims are appropriate when viewed
      under the proper standard of conflict preemption, as opposed to complete
      preemption. . . . The Defendants reply simply that the Fourth Circuit has
      flatly rejected the Plaintiffs’ position in Custer v. Pan Am. Life Ins. Co., 12
      F.3d 410 (4th Cir. 1993).
              Even a cursory review of the case law relating to ERISA plans and
      state law claim preemption reveals that the Defendants are correct. It is
      clear that a state law claim will “relate to” ERISA if it has a connection
      with, or reference to, such a plan. See Shaw v. Delta Air Lines, Inc., 463

                                            11
       U.S. 85, 96-97 (1983). . . . Of paramount importance to courts and the sole
       dispositive factor determining whether ERISA preemption applies is
       whether the state law claims “relate to” the ERISA plan at issue. [citing to
       Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54 (1987).] If they do, they are
       customarily preempted, whether pleaded in the main or in the alternative.

Id. at 17–18 (internal footnotes omitted). The district court then pointed the Greenbrier to

the Supreme Court’s holding in Aetna Health Inc. v. Davila, 542 U.S. 200 (2004), in

support for its conclusion that “ERISA’s preemptive scope applies even when such a

finding would leave a gap in the plaintiffs[’] available relief.” Id. at 18 n.13. The district

court dismissed all counts of the complaint with prejudice except for the ERISA claims

for breach of fiduciary duty brought by the Greenbrier and the Greenbrier employee

participants in the Fund.

       Next, both parties filed motions for summary judgment, which the district court

addressed in an opinion issued on September 24, 2015. Greenbrier Hotel Corp. v.

UNITE HERE HEALTH, No. 5:13-cv-11644, 2015 WL 5626514 (S.D. W. Va. Sept. 24,

2015). The court decided only one issue at the summary-judgment phase: whether the

Greenbrier was an ERISA fiduciary.         This was an essential holding because if the

Greenbrier were not an ERISA fiduciary, it would have no standing to bring its remaining

claim for breach of fiduciary duty. See id. at *9. The district court determined that the

Greenbrier was a fiduciary because it:

       (i) exercised fiduciary control over plan assets--contributions--before they
       were remitted to the Fund; (ii) regularly audited employment rolls to ensure
       that correct amounts of contributions were being remitted and that only
       participants and their beneficiaries were receiving benefits from the Fund,
       and (iii) had a continuing duty to monitor the Trustees of the Fund once it
       became a party to the Trust Agreement.


                                             12
Id. at *10.     The district court reasoned that, though the Greenbrier would not

“automatically” achieve fiduciary status based on its assumption of these roles, the fact

that the Greenbrier sued “in relation to its (and their) responsibilities to ensure adequate

funding for the Plan” created fiduciary status for the purpose of this lawsuit. Id. Because

the district court deemed the Greenbrier a fiduciary, it allowed the Greenbrier’s claims

for breach of fiduciary duty under ERISA to proceed to the merits stage.

       The district court conducted a bench trial, at which it considered Plan Unit 155’s

plan documents, including the SPD provided to plan participants, and extensive live

testimony.    The evidence presented largely focused on the contractual relationship

between the Fund and the Greenbrier and provided contrasting opinions on the

interpretation of the parties’ agreements.       For example, even testimony “on the

appropriate response from a fiduciary under the circumstances presented by this case”

included an opinion from the Greenbrier’s expert that “the Plan documents, read together,

unambiguously required the transfer of surplus assets to the participants of Plan 155.”

Greenbrier Hotel Corp. v. UNITE HERE Health, No. 5:13-cv-11644, 2016 WL 9779134,

at *8 (S.D. W. Va. Aug. 26, 2016). The Fund’s experts, in contrast, testified that “it was

appropriate for the Trustees to override the language in the [SPD] if it required transfer,

based on the language of the Trust Agreement requiring funds to be used to benefit

participants” and that in fact “it would be a breach of fiduciary duty for the trust to use

their assets to benefit non-participants.” Id. (citing expert). Thus, even on the core

question of fiduciary breach, the responses sounded in contract.



                                            13
       The district court concluded first that the Fund Trustees’ last-minute amendment

to the Plan Unit 155 Rules and Regulations “was unreasonable, discriminatory, in bad

faith, and made in violation of the Plan’s amendment procedures.” Id. at *12. Analyzing

the remaining plan documents, the court determined that “the Plan language

unambiguously requires transfer of the funds upon termination” and that “any decision of

the Trustees not to do so constitute[d] an abuse of discretion.” Id. Accordingly, the

district court held that “the Trustees of the UNITE HERE Health [F]und breached their

fiduciary duties by failing to transfer the surplus assets associated with Plan Unit 155 to

the New Greenbrier Trust.” Id. at *14. The Fund refused to provide an accounting of the

Plan Unit 155 surplus, arguing that Plan Unit 155 was merely an administrative unit and

that there were, in fact, no such “excess assets” since the Fund pooled all contributions.

The Greenbrier’s accountant calculated the value of the surplus at $5,503,181 at the time

that the Greenbrier left the Fund, and the district court accepted this number in its

findings of fact and awarded this sum to the Greenbrier. Id. The district court also found

that since the Fund had acted in bad faith in seeking to amend Plan Documents before the

Greenbrier left the Fund, payment of attorney’s fees and costs pursuant to ERISA

§ 502(g) was appropriate.     See ERISA § 502(g), 29 U.S.C. § 1132(g).          The Fund

appealed.

       The parties then submitted documentation of their positions on costs and fees, and

the district court awarded the Greenbrier $1,677,594.58 in attorney’s fees and expenses in

a subsequent opinion and order. Greenbrier Hotel Corp. v. UNITE HERE HEALTH, No.



                                            14
5:13-cv-11644, 2017 WL 2058222, at *6 (S.D. W. Va. May 12, 2017). The Fund also

appealed the award of these fees and costs.



                                              II.

        When reviewing a judgment resulting from a bench trial, we examine conclusions

of law de novo and factual findings for clear error. Tatum v. RJR Pension Inv. Comm.,

761 F.3d 346, 357 (4th Cir. 2014).

        In general, the district court’s fact-finding was meticulous, extensive, and free

from clear error. Unfortunately, however, the district court made an error of law at the

outset that infected the subsequent proceedings. Disposition of this appeal requires us to

unravel the consequences.

        At an early stage in this proceeding, the district court concluded that ERISA

preempted the Greenbrier’s state-law claims. Subsequently, the district court and the

parties characterized the key issue in this case as whether the Fund breached a fiduciary

duty to the Greenbrier under ERISA and structured their arguments accordingly. The

district court purported to find that the Fund breached a fiduciary duty owed to the

Greenbrier, when really it grounded its analysis in the terms of the parties’ agreement.

We conclude, however, that the Greenbrier did not present a cognizable claim under

ERISA and that instead the case should have proceeded as a state-law breach-of-contract

suit.

        Ordinarily, we might vacate and remand such a case. This case, however, is not

ordinary.   Despite the surface-level trappings of ERISA fiduciary-duty claims, the

                                              15
analytic arguments presented by both parties turn out to be garden-variety contract-based

claims dressed in ERISA clothing.       When we peek behind these muddled ERISA

arguments, we discover a mislabeled--but straightforward--contract interpretation case.

This conclusion is bolstered by the fact that contract-based arguments permeated the

briefing and oral argument of both parties. Most critically, the district court’s detailed

and extensive findings provide all of the facts necessary to our legal analysis.

Accordingly, we need not remand to settle the parties’ dispute.

      In the discussion that follows, we first clarify the district court’s error in

concluding that the Greenbrier’s state-law claims were preempted by ERISA. Next, we

explain how the parties have been arguing this case as a contract case all along, which

provides us with sufficient information to affirmatively decide this case.      Applying

contract law to the facts at hand, we reach the same conclusion as the district court,

though on alternative legal grounds. Accordingly, we affirm only the district court’s

judgment that the Fund must remit the balance of Plan Unit 155’s surplus of $5,503,181

to the New Greenbrier Trust. However, because we reach this decision on grounds

outside of ERISA’s statutory scheme, we vacate the district court’s award of attorney’s

fees and costs imposed under ERISA § 502(g).



                                            A.

      In order to explain the district court’s errors of law, we must first wade into the

murky waters of ERISA preemption, a field of law both complex and contentious. In the

sections that follow, we first explain the relevant legal standard for ERISA preemption,

                                           16
then discuss how the district court erred in its preemption analysis. Next, we conclude

that, applying the correct legal standard, the Greenbrier’s state-law claims were not

preempted by ERISA. Finally, we describe how, despite holding the contract claims

preempted, the district court’s opinion actually offered a contract-based analysis.



                                             1.

       ERISA § 514, 29 U.S.C. § 1144, provides that ERISA “shall supersede any and all

State laws insofar as they may now or hereafter relate to any employee benefit plan”

covered by ERISA, so long as those laws do not fall into a narrow category of

exemptions. In short, this so-called “preemption clause” states--in deceptively simple

terms--that, with a few exceptions, laws that “relate to” any ERISA plan are preempted.

The Supreme Court’s interpretation of this provision has experienced a sea change over

time, moving from an expansive, field-preemption scope in the early 1980s toward a

narrower, conflict-preemption approach in more recent decades. This evolution affects

the outcome here.

       In the 1980s, a line of Supreme Court cases construed § 514’s “relate to” language

in the broadest possible fashion. In 1983, the Court explained in Shaw that “[a] law

‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a

connection with or reference to such a plan.” 463 U.S. at 96–97. In a subsequent case,

the Court described Shaw as highlighting the “broad scope of the pre-emption clause”

and clarifying that the “relate to” provision had “its broad common-sense meaning.”

Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739 (1985). Pilot Life further

                                            17
extended this analysis in 1987 to include preemption of state common-law tort and

contract actions brought by a plan beneficiary against his plan administrator for

improperly processing the beneficiary’s claims. 481 U.S. at 43–44, 57. In short, from

Shaw to Pilot Life, the Court interpreted ERISA’s scope of preemption as nearly all-

encompassing, preempting nearly everything that could be said to “relate to” an ERISA

plan under the ordinary meaning of that term.

       However, the Court has since retreated, noting that it had “to recognize that our

prior attempt to construe the phrase ‘relate to’ does not give us much help drawing the

line” for preemption and explaining that it was necessary to “go beyond the unhelpful

text and the frustrating difficulty of defining [§ 514’s] key term.” N.Y. State Conf. of

Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655–56 (1995). In

Travelers, the Court explained that congressional intent was the key consideration in

interpreting the preemptive effect of the statute and that the Court “worked on the

‘assumption that the historic police powers of the States were not to be superseded by

Federal Act unless that was the clear intent of Congress.’” Id. at 655 (quoting Rice v.

Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). Travelers narrowed the impact of

§ 514 to areas where Congress clearly intended to preempt state law, including where

state law would “mandate[] employee benefit structures or their administration,” “bind

plan administrators to a particular choice,” “provid[e] alternative enforcement

mechanisms,” or “preclude uniform administrative practice or the provision of a uniform

interstate benefit package if a plan wishes to provide one.” Id. at 658–60.



                                            18
       Though Travelers did not explicitly overturn prior cases like Shaw or Pilot Life, it

signaled the abandonment of the criteria for evaluating ERISA preemption used in those

cases, especially the notion that one could “apply faithfully the statutory prescription”

that all laws that “relate to” ERISA are preempted without looking to congressional

intent. Cal. Div. of Labor Stds. Enf’t v. Dillingham Constr., N.A., Inc., 519 U.S. 319, 335

(1997) (Scalia, J., concurring). Justice Scalia characterized the pre-Travelers standard as

“a project doomed to failure, since, as many a curbstone philosopher has observed,

everything is related to everything else.”        Id.   Shortly after Dillingham, the Court

reconfirmed that Travelers precluded “an expansive and literal interpretation of the words

‘relate to’ in § 514(a)” when it reversed a Second Circuit case in which that court had

“fail[ed] to give proper weight to Travelers’ rejection of a strictly literal reading of

§ 514(a).” De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 812–13

(1997).

       Thus, following Travelers, courts may no longer rely on a “strictly literal reading”

of § 514’s “relate to” language to determine whether a state law is preempted by ERISA.

Id. at 813. Instead of preempting all state actions that even tangentially touch ERISA

plans, conflict preemption applies. A court must determine whether a conflict exists such

that Congress clearly intended to preempt the law in question. As the Supreme Court has

made clear, ERISA’s principal goal “is to protect plan participants,” not plan sponsors.

See Gobeille v. Liberty Mut. Ins. Co., 136 S. Ct. 936, 946 (2016) (quoting Boggs v.

Boggs, 520 U.S. 833, 845 (1997)); see also ERISA § 2, 29 U.S.C. § 1001 (congressional

findings and declaration of policy). If the state law falls within the field of laws that have

                                             19
traditionally been “occupied by the States,” then the party arguing for preemption must

“bear the considerable burden of overcoming ‘the starting presumption that Congress

does not intend to supplant state law.’” De Buono, 520 U.S. at 814 (quoting Hillsborough

Co. v. Automated Med. Labs., Inc., 471 U.S. 707, 715 (1985); Travelers, 514 U.S. at

654).

        This circuit explicitly noted the post-Travelers shift in ERISA preemption analysis

in Coyne & Delany Co. v. Selman, where we applied a conflict-preemption analysis to

conclude that ERISA did not preempt a “garden-variety malpractice claim” brought by a

plan sponsor against a plan administrator in its professional capacity because the claim

did not “implicate the relations among the traditional ERISA plan entities.” 98 F.3d

1457, 1460, 1469–70 (4th Cir. 1996). Thus, to determine whether ERISA preempts a

claim, a court must determine whether Congress so intended.

        In addition to this evolving standard for substantive ERISA preemption, a parallel

line of cases developed the law on the related--but doctrinally distinct--issue of

preemption as a jurisdictional inquiry for purposes of removal to federal court. This

distinct jurisdictional inquiry requires analysis under the “complete preemption doctrine,”

as opposed to the “conflict preemption doctrine,” because even a case implicating a state

law that conflicts with ERISA is not “properly removable to federal court” unless that

state law is also “‘completely preempted’ by ERISA’s civil enforcement provision,

§ 502(a).” Sunoco Prods. Co. v. Physicians Health Plan, Inc., 338 F.3d 366, 371 (4th

Cir. 2003) (quoting Darcangelo v. Verizon Commc’ns, Inc., 292 F.3d 181, 187 (4th Cir.

2002)); see also Davila, 542 U.S. at 217–18; Metro. Life Ins. Co. v. Taylor, 481 U.S. 62,

                                            20
63 (1987); Custer, 12 F.3d at 420–23. However, because here the ERISA preemption

issue is substantive, not jurisdictional, a conflict preemption analysis properly applies.




                                              2.

       Here, the district court’s error in its preemption analysis falls into two categories:

(1) applying only the now-defunct pre-Travelers preemption analysis and (2) confusing

the jurisdictional doctrine of complete preemption with the substantive doctrine of

conflict preemption.

       First, the district court applied precisely the type of literal analysis of the term

“relate to” from ERISA § 514 prohibited by Travelers, Dillingham, and De Buono. For

example, the district court explained that “[e]ven a cursory review of the case law

relating to ERISA plans and state law claim preemption reveals that [the Greenbrier’s

state law claims are preempted because] a state law claim will ‘relate to’ ERISA if it has

any connection with, or reference to, such a plan.” Greenbrier Hotel Corp. v. UNITE

HERE HEALTH, No. 5:13-cv-11644, at 17 (S.D. W. Va. Dec. 19, 2013) (quoting Shaw,

463 U.S. at 96–97). The court continued: “Of paramount importance to courts and the

sole dispositive factor determining whether ERISA preemption applies is whether the

state law claims “relate to” the ERISA plan at issue.” Id. at 18 (citing Pilot Life, 481 U.S.

at 54) (emphasis added).      The court did not analyze whether Congress intended to

preempt the Greenbrier’s state-law claims, nor did it cite Travelers or any subsequent

case in the Travelers line. Accordingly, we conclude that the district court mistakenly


                                             21
applied a defunct test for ERISA preemption that is precluded by the binding precedent of

both the Supreme Court and this circuit.

       Second, the remainder of the district court’s preemption analysis confused ERISA

preemption analysis on substantive grounds, in which the doctrine of conflict preemption

applies, and on jurisdictional grounds, in which the doctrine of complete preemption

applies.   The district court counterpoised the doctrines of conflict and complete

preemption as opposing choices, and, reading Custer, determined that the Fourth Circuit

had “flatly rejected” conflict preemption analysis altogether. Id. at 17. Here, however,

the Greenbrier and the Fund face no such jurisdictional quandary. 4 Thus, the district

court incorrectly asserted that a “complete preemption” analysis applied.

       Here, the district court should have analyzed the Greenbrier’s state-law claims

through a conflict preemption lens to determine whether Congress intended for ERISA to

preempt the Greenbrier’s claims. Because the field of general contract law falls within

the field of law traditionally occupied by the States, the Fund should have been held to

the burden of overcoming the presumption that Congress did not intend to supplant state

law. The district court thus erred in relying instead on a literal reading of the phrase

“relate to” in ERISA § 514(a) and in confusing case law on preemption for federal

removal and preemption as a substantive matter.




       4
         The Greenbrier asserted both federal-question and diversity jurisdiction in its
original complaint.


                                           22
                                              3.

       We find that the Greenbrier’s state-law claims were not preempted. First, as noted

above, general contract law is a field of law traditionally occupied by the states, and thus

we presume that Congress did not intend to interfere in this area absent clear evidence to

the contrary. Upon examination of the specific facts found by the district court, we do

not find sufficient evidence to conclude that Congress intended for ERISA to preempt the

Greenbrier’s state-law claims.

       The agreement between the Greenbrier, an employer and ERISA plan sponsor, and

the Fund, an ERISA plan, formed an ordinary contractual relationship. Enforcing the

terms of their agreement does not implicate the regulation of, administration of, or

benefits provided under ERISA plans more generally.

       Rather, the Greenbrier is suing the Fund for reneging on the agreement it

negotiated as a plan sponsor. The action only tangentially relates to an ERISA plan. This

is a two-party dispute, and the resolution of this suit on contract grounds does not

implicate other relationships regulated by ERISA or overlap with ERISA’s remedial

scheme, which contemplates only claims brought by plan participants, beneficiaries,

fiduciaries, and the Secretary of Labor--not plan sponsors. See ERISA §§ 502(a)(2),

502(a)(3), 29 U.S.C. §§ 1132(a)(2), 1132(a)(3). Accordingly, ERISA does not preempt

the Greenbrier’s state-law contract claims.




                                              23
                                             4.

       The unusual circumstances presented by the legal argumentation at all stages of

this dispute conflated contract analysis with analysis of fiduciary duties.

       First, the consequences of the district court’s confusion spilled into the issue of

whether the Greenbrier had standing to sue under ERISA at the summary judgment stage.

Employers are generally considered “plan sponsors” or, in the language of trust law,

“settlors” of ERISA plans--not fiduciaries. See 29 U.S.C. § 1002(16)(B) (defining plan

sponsor as the employer that established or maintained the employee benefit plan); see

also Selman, 98 F.3d at 1464 & n.8 (explaining employers’ settlor and plan-sponsor roles

under ERISA).

       The Greenbrier argued that it was a fiduciary because it claimed to exercise three

fiduciary functions: (1) control over employee contributions before remittance to the

Fund; (2) responsibility to audit employment rolls to assure benefits were being paid only

to entitled beneficiaries; and (3) a general duty to monitor the Fund and its Trustees. As

we explained in Selman, a plan sponsor may also be a fiduciary for certain purposes, but

“a plan sponsor does not become a fiduciary by performing settlor-type functions such as

establishing a plan and designing its benefits.” Id. at 1465. Here, we do not see how the

fiduciary functions claimed by the Greenbrier distinguish the Greenbrier from any other

ERISA plan sponsor.

       Following the bench trial, the district court purported to decide the case as a

breach of fiduciary duty under ERISA. See Greenbrier Hotel Corp., 2016 WL 9779134,

at *15. In determining whether a fiduciary has breached its duty, a court must inquire

                                             24
into whether that “ERISA fiduciary [has] discharge[d] his responsibility ‘with the care,

skill, prudence, and diligence’ that a prudent person ‘acting in a like capacity and familiar

with such matters’ would use,” as required by ERISA § 404(a). Tibble v. Edison Int’l,

135 S. Ct. 1823, 1828 (2015) (quoting ERISA § 404(a)(1), 11 U.S.C. § 1104(a)(1)); see

also Tatum, 761 F.3d at 357–61 (analyzing a purported breach of fiduciary duty under

ERISA). At minimum, we would expect this inquiry to include an analysis of what the

“prudent man standard of care” in ERISA § 404(a) would require in the case before the

court, followed by a comparison between this standard of care and the level of care

actually exercised by the fiduciary charged with breaching its fiduciary duty.

       To the contrary, the parties here appear to have confused breach of contract with

breach of fiduciary duty. For example, both parties’ expert witnesses opined on the

meaning of various passages in the parties’ documents and quarreled over which

provisions controlled dispensation of excess funds. See Greenbrier Hotel Corp., 2016

WL 9779134, at *8.       This is contract interpretation, not elucidation of the Fund’s

fiduciary duties.

       These confused contract-based arguments muddled the district court’s legal

analysis. 5 Tellingly, the district court’s opinion contains virtually no reference to a

fiduciary “standard of care.”     Instead, much of the court’s opinion interpreted the

contractual requirements of the plan documents and the contractual expectations and

       5
         For example, the opinion recites the standard ordinarily used for ERISA denial-
of-benefits cases brought under § 502(a)(1)(B), which we note is not the correct standard
for analyzing an ERISA fiduciary breach under § 502(a)(2) or § 502(a)(3). See id. at *13.


                                             25
responsibilities of each party.     See id. at *10–12.       However, the opinion also

memorializes the district court’s contract-based reasoning, which reveals that the court’s

misstatement of law did not taint its fundamental conclusions in this case. The district

court explained that it viewed the case “narrowly” and that it believed the Greenbrier was

entitled to the excess funds because of “unambiguous Plan language.” Id. at *14. The

court held that “no general principle or case law . . . either requires or prohibits the

transfer of assets in these circumstances” and that it was “the unique structure of the

Fund, and Plan [Unit] 155 [that made] the return of excess assets practical in this case.”

Id. We interpret this section of the district court’s opinion as stating that its assignment

of damages in this case is based not on a cosmic standard of care for fiduciaries or some

other legal requirement, but on the contractual relationship between the Greenbrier and

the Fund that led to the creation of Plan Unit 155.        The district court’s erroneous

statements of law aside, we read the bulk of the opinion as presenting a careful

assessment of disputed contractual provisions resulting in a conclusion grounded in the

terms of the parties’ agreement.

       The dispute between the Greenbrier and the Fund is therefore, at its core, a

relatively simple contract dispute. In essence, the Fund and the Greenbrier disagree

about what happens to Plan Unit 155’s excess assets under the terms of the parties’

agreement, as recorded in the Trust Agreement, Participation Agreement, and Plan Unit

155 Rules and Regulations. The next section examines these contractual arguments.




                                            26
                                             B.

       Having found that the Greenbrier’s state-law claims were not preempted, we now

proceed to consideration of the parties’ dispute on the merits.

       The parties disagree both about which contract provision controls this dispute and

the context in which the court should consider this provision. We summarize below the

arguments that each party puts forth to support its reading of the contractual documents’

terms in this appeal. Then, we conclude, like the district court, that the Greenbrier’s

reading is the more persuasive.



                                             1.

       On appeal, the Fund hangs its hat on the Trust Agreement’s anti-inurement

provision, which states that “[n]o portion of the [Fund] shall ever inure to the benefit of

any Employer or Union.” See Oral Argument at 0:39–1:20; see also Appellants’ Br. at

10, 32–33. The Fund led oral argument with its interpretation of this anti-inurement

provision, which it argued “answers the entirety of the question in this litigation because

it explicitly and unambiguously prohibits the alienation of trust assets caused by the

judgment below.”      Id.   The Fund characterized the anti-inurement provision as a

definitive statement that “employers don’t get money back out of this fund.”          Oral

Argument at 8:02–8:10.       However, the Fund also acknowledged that “the Trust

Agreement does not have language saying specifically” that all contributions remain the

property of the Fund upon termination of plan units within the Fund, though the Fund

easily could have included such language. Oral Argument at 8:32–9:35.

                                             27
       In contrast, the Greenbrier focused on the termination provision of Plan Unit 155’s

2004 and 2009 Rules and Regulations, which provides that “excess assets” either “will be

used for purposes consistent with the purpose of the Plan as determined by the Trustees,

or they may be transferred to another employee benefit fund providing similar benefits.”

Oral Argument at 24:00–24:57; see also Appellees’ Br. at 10–14, 21. The Greenbrier

identified this provision as the key, controlling provision in this dispute. Oral Argument

at 26:00–26:15. The Trust Agreement is silent as to plan unit termination and the

distribution of assets upon termination.       Oral Argument 22:50–23:08.         Thus, the

termination provision in the Plan Unit 155 Rules and Regulations does not conflict in any

way with the Trust Agreement. Oral Argument at 23:30–23:38. Further, this termination

provision in the Rules and Regulations is part of the unique arrangement negotiated

between the Greenbrier and the Fund. Plan Unit 155 “was drafted with the very clear

concerns of the Greenbrier in mind,” and was “designed for them.” Oral Argument at

20:05–20:24; 22:42–22:46.       “The Greenbrier did not agree to enter into one of the

preexisting plan units that the Fund had at that time,” instead insisting “very specifically,

by the terms of the participation agreement and the Rules themselves” that it would have

its own plan unit. Oral Argument, 22:21–22:42; see Appellees’ Br. at 2–4. The 2012

amendment to the Plan Unit 155 Rules and Regulations was invalid and calculated to

wrongfully deny the Greenbrier any of the excess assets. Oral Argument at 27:45–28:22.

Thus, the Greenbrier argues that, relying on the pre-amendment termination provision

read in light of the Greenbrier’s unique plan unit arrangement, Plan Unit 155’s excess

assets must be remitted to the New Greenbrier Trust so that these assets can serve

                                             28
“purposes consistent with the purpose of the Plan” and/or transfer “to another employee

benefit fund providing similar benefits.”



                                             2.

       We find the Greenbrier’s position the more compelling when read as a contract

dispute between the parties. Accordingly, we affirm the district court’s order that the

Fund must remit the excess assets, calculated at $5,503,181, to the New Greenbrier Trust

for the benefit of qualified Greenbrier unionized employees.

       First, we adopt the district court’s mixed conclusion of fact and law that the

December 2012 amendment to the Plan Unit 155 Rules and Regulations “was

unreasonable, discriminatory, in bad faith, and made in violation of the Plan’s

amendment procedures.” Greenbrier Hotel Corp., 2016 WL 9779134, *12. The district

court was best placed to make this fact-intensive inquiry, which was grounded in the

court’s evaluation of the credibility of witnesses on both sides of the dispute, and we find

no reason to disturb its determination. Finding the amendment invalid, we consider here

the remaining plan documents, including the 2004 and 2009 Rules and Regulations,

various iterations of the Trust Agreement, and the parties’ Participation Agreement. 6




       6
         We do not consider the SPD in our analysis because of the Supreme Court’s
clear direction that SPDs “do not themselves constitute the terms of the plan” and thus
may not be enforced as such. See CIGNA Corp. v. Amara, 563 U.S. 421, 438 (2011)
(emphasis in original).


                                            29
       After a careful reading of the Trust Agreement, we conclude that it does not offer

any guidance on the entitlement to distribution of a terminated plan unit’s excess assets.

Both parties agree that the Trust Agreement’s terms would supersede the terms found in

the Plan Unit 155 Rules and Regulations documents if they were to conflict. But since

we find no trace of a statement about the distribution of excess assets upon termination of

a plan unit, we find no conflict between the Trust Agreement and the other plan

documents. Most significantly, we conclude that the anti-inurement provision that the

Fund relies on primarily in support of its position does not preclude the transfer of excess

assets to a similar employee welfare trust, such as the New Greenbrier Trust.

       Next, we find no terms in the parties’ Participation Agreement that speak

specifically to the distribution of excess assets.     However, we find significant the

Participation Agreement’s provisions that “The Greenbrier will be underwritten as an

independent plan unit with the Welfare Fund” and that “[o]nly the claims utilization of

The Greenbrier Plan . . . will be used in calculating future rates for The Greenbrier.”

These provisions serve as evidence that the Greenbrier’s Plan Unit 155 was administered

separately from the other plans and that, unlike the multiemployer plan units

administered by the Fund, its assets would be accounted for separately.

       Finding no terms in the Trust Agreement or the Participation Agreement that

speak to the question of what happens to excess plan unit assets upon that plan unit’s

termination, we turn to the termination provision found in identical language in both the

2004 and 2009 Rules and Regulations documents. This termination provision states that:



                                            30
       If there are any excess assets remaining after the payment of all Plan
       liabilities, those excess assets will be used for purposes consistent with the
       purpose of the Plan as determined by the Trustees, or they may be
       transferred to another employee benefit fund providing similar benefits.

Based on the definitions provided in the same Rules and Regulations documents, we read

the term “Plan” to refer to “Plan Unit 155,” not “the Fund’s overall ERISA Plan.”

Accordingly, by these terms, excess assets must either “be used for purposes consistent

with the purpose of [Plan Unit 155]” or “transferred to another employee benefit fund

providing similar benefits.” The purpose of Plan Unit 155 was to provide health care

benefits to unionized employees of (only) the Greenbrier. The New Greenbrier Trust

serves as an employee benefit fund, and its purpose is to provide similar benefits only to

unionized employees of the Greenbrier. We find nothing ambiguous in the language of

this provision. Under either prong of the termination provision, we conclude that Plan

Unit 155’s excess assets should be transferred to the New Greenbrier Trust. Even if this

outcome would not follow were the Greenbrier to share a plan unit with one or more

employers, we note that the Fund made exceptions to its usual policy to accommodate the

Greenbrier’s entry into the Fund, and these exceptions have consequences.

       The district court found that Plan Unit 155’s excess assets totaled $5,503,181, and

we find no error in the court’s fact finding on this point. Therefore, we affirm the district

court’s judgment ordering that the Fund transfer $5,503,181 to the New Greenbrier Trust,

which will provide benefits similar to those that would have been provided through Plan

Unit 155 to unionized Greenbrier employees and their qualifying beneficiaries.




                                             31
      In conclusion, after noting errors in the district court’s legal analysis, we affirm

only the district court’s judgment that the Fund must transfer $5,503,181 in excess assets

to the New Greenbrier Trust.



                                            C.

      Because we reach our conclusions above on non-ERISA grounds, we are

compelled to vacate the award of attorney’s fees and costs awarded pursuant to ERISA

§ 502(g), as detailed in the district court’s May 12, 2017, order. See Greenbrier Hotel

Corp., 2017 WL 2058222.



                                           III.

      For the foregoing reasons, the judgment of the district court is

                                        AFFIRMED IN PART AND VACATED IN PART.




                                            32
