                     REVISED, July 22, 1998

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT



                          No. 97-31029



GREGORY A. TOLSON,

                                         Plaintiff-Appellant,

                             versus


AVONDALE INDUSTRIES, INC.,
AVONDALE INDUSTRIES, INC.,
SHIPYARDS DIVISION, AVONDALE
HEALTH PLAN AND AVONDALE
INDUSTRIES, INC., SHIPYARDS
DIVISION, GROUP INSURANCE PLAN,

                                         Defendants-Appellees.



          Appeal from the United States District Court
              for the Eastern District of Louisiana



                          June 3, 1998


Before WIENER, BARKSDALE and DEMOSS, Circuit Judges.

WIENER, Circuit Judge.


     In appealing from the district court’s summary judgment that

dismissed his claims for medical and long-term disability benefits
under two    ERISA1   plans   sponsored    by   his employer,   Plaintiff-

Appellant Gregory A. Tolson insists that the court erred in thus

rejecting his claims for benefits and for breach of fiduciary duty

as well as in assessing court costs against him.            The thrust of

Tolson’s argument is that the costs of treatment for his depression

should have been covered by the Avondale Industries, Inc. Shipyards

Division Avondale Health Plan (the “AHP”), and that benefits for

the disability that resulted from such depression should have been

paid under the Avondale Industries, Inc. Shipyards Division Group

Insurance Plan (the “GIP”).           Tolson argues that, despite the

express, unambiguous limitations on coverage of “mental and nervous

conditions” by these plans, he should nevertheless be covered

because his depression was secondary to or caused by his Hepatitis

C or by the Interferon treatment for that condition and was

therefore “unusual.”     More particularly, Tolson insists that the

plan administrator for the AHP and the GIP (collectively, “the

Plans”) erred in its legal interpretation of the Plans’ provisions

and abused its discretion in denying Tolson benefits under the

Plans.   According to Tolson, this occurred when the administrator

treated his depression as a mental or nervous condition or disorder

instead of    recognizing     that   the   Hepatitis   C/Interferon-caused

depression fit a narrow exception that Tolson perceives this court

to have recognized in Lynd v. Reliance Standard Life Insurance

     1
       Employee Retirement Income Security Act of 1974, 29 U.S.C.
§ 1001 et seq.

                                      2
Co..2       Tolson reads some dicta in Lynd to forecast the possibility

that some day there might be an unusual case in which treatment of

a mental disorder is necessitated by, and disability is caused by,

something other than the cause of most other kinds of debilitating

depressive conditions.       And, of course, Tolson asserts that his is

that unusual case.       Disagreeing with Tolson’s reading of Lynd, we

affirm the summary dismissal of Tolson’s action and the taxing of

costs to him.




        2
             94 F.3d 979 (5th Cir. 1996).

                                     3
                                      I

                          FACTS AND PROCEEDINGS

     Despite Tolson’s insistence to the contrary, the material

facts of this case are undisputed.        Tolson was employed by Avondale

from 1981 through April 1987 and was a participant in and a

qualified beneficiary of the Plans.         He was diagnosed in December

1994 by Dr. Robert Perillo, a liver specialist at New Orleans’

Ochsner Clinic and an approved medical provider under the AHP, as

having “moderate chronic Hepatitis C, with mild but definite

chronic active component.”         Tolson was successfully treated by

Dr. Perillo in an experimental program using Interferon-Alpha 2a,

and the AHP paid for all eligible medical charges and prescription

drugs.     The following May, Tolson applied to the GIP for weekly

disability benefits on the basis of a statement from Dr. Perillo

that Tolson suffered “Interferon-induced adverse effects (insomnia,

fatigue)    causing    temporary   disability.”     Following   the    GIP’s

approval    of   his   application,   Tolson   started   receiving    weekly

disability benefits. In August 1995, Tolson applied to the GIP for

long-term disability benefits based on his chronic Hepatitis C.

Four days later Tolson was released by Dr. Perillo to return to

work.    Even though the physician’s statement said that Tolson was

not totally disabled, he was approved for long-term benefits for 21

days, being the number of days between the end of his 90-day

elimination period and the date of his return to work.                Tolson

received no other long-term disability benefits under the GIP.

                                      4
     The recommencement of Tolson’s work was unremarkable until

March 1996, when Dr. Gerald Heintz, a psychiatrist with Ochsner to

whom Tolson had been referred by Dr. Perillo, diagnosed Tolson as

suffering    from    “major   depression”   and   treated   him   for   that

condition.       According to Tolson, his depression is a secondary

symptom resulting directly from his Hepatitis and the Interferon

treatment he received for it.

     The following month, almost eight months after he had returned

to work from disability leave, Tolson quit his job.         He blamed his

depression for his inability to continue working.

     The entire documentation for each of the Plans is contained in

its Summary Plan Description (“SPD”); there are no separate trust

indentures.      The AHP provides comprehensive health care benefits

for eligible employees and their beneficiaries, covering medical

costs incurred in conformity with that plan’s requirements. In the

AHP, coverage of treatment of mental conditions is limited as

follows:

            a)      Introduction:

     Note in particular that covered treatment for Mental and
     Nervous conditions or Substance Abuse will be provided
     only by West Jefferson Behavioral Medicine Center
     [”WJBMC”].

            b)      Benefit Limitations:

     Note: Coverage for Mental and Nervous conditions is
     provided ONLY by [WJBMC] and is subject to different
     limitations, deductibles and co-payments.

            c)      Summary of Benefits:


                                     5
      In order that treatment for mental and nervous conditions
      be covered by the [AHP], treatment must be pre-certified
      and provided by [WJBMC]. There is no plan benefit for
      services received from other sources.

      Parallel provisions limiting coverage of disability by reason

of mental conditions under the GIP are as follows:

           a)   Weekly disability Benefits (Non-
                Occupational) - Benefit Limitations

                . . . .

      Also, benefits will not be payable for disability because
      of mental or nervous disorders unless hospitalized. If
      hospitalized, then later discharged, benefits will not
      continue beyond 30 days following discharge.

           b)   Long-Term Disability    Benefits   -
                Benefit
                Limitations

                . . . .

      Also, benefits will not be payable for disability because
      of mental or nervous disorders, unless hospitalized. If
      hospitalized, then later discharged, benefits will not
      continue beyond 30 days following discharge.

Both plans establish an ERISA Review Committee (the “Committee”)

and endow the Committee with discretionary powers to interpret the

terms of the Plans and to evaluate claims for benefits.       Among

other things, those provisions specify that the Committee has “sole

and   exclusive discretion and power to grant and/or deny any and

all claims for benefits, and construe any and all issues of Plan

interpretation and/or facts or issues relating to eligibility for

benefits.”   “All findings, decisions, and/or determinations of any

type made by the [Committee] shall not be disturbed unless the

[Committee] act(s) in an arbitrary and/or capricious manner or

                                 6
abuses the discretion and powers conferred by the Plan’s sponsor.”

     After      he     quit      working,    Tolson     claimed      coverage      of his

treatment for a “major depressive disorder” and sought disability

benefits on that basis as well.                  As no part of Tolson’s treatment

for depression took place at WJMBC, the plan administrator for the

AHP denied his claim for psychological treatment.                      Similarly, his

application to the GIP for long-term disability benefits was denied

because    he    was    never       hospitalized      for    his    depression.       An

additional road block to Tolson’s coverage is the fact that Dr.

Heintz    is    not    on     the    list   of    approved    referral       providers.3

Tolson’s claim for coverage of psychological treatment was denied

because it was not pre-certified and none of it was provided by

WJBMC.    Likewise, his claim for disability benefits was denied

because he      was     never       hospitalized     for    his    nervous    or   mental

condition.      The Plans classified Tolson’s claims as stemming from

a distinct and separate “mental or nervous disorder or condition,”

terms that, Tolson notes, are not defined in the Plans.                               He

appealed the denial of his claim, but the Committee unanimously

upheld denial.

     Tolson      sued       in   March   1997,     alleging       wrongful   denial   of

     3
       Tolson attempts to skirt the problem of having been treated
by a non-approved referral provider, first by urging that his
referral to Dr. Heintz by Dr. Perillo should be sufficient and,
second, by stating that the original administrative record does not
contain a list of approved referral providers, the latter
contention being countered by the Plans which point out that the
subject list was presented to the court in an exhibit to their
reply brief.

                                             7
benefits or, in the alternative, breach of the fiduciary duty to

avoid    misrepresenting    the   terms   of   available   coverage.      His

complaint asserted that he was improperly denied payment of medical

claims in connection with his treatment for depression under the

AHP, and was improperly denied payment of disability benefits under

the GIP.    He grounded his alternative breach of fiduciary claim in

the alleged misrepresentation of the terms of the Plans, both of

which are employee welfare benefit plans governed by ERISA.

     After some preliminary procedural skirmishing, which included

the Plans’ filing a motion to dismiss and Tolson’s amendment of his

complaint, the defendants filed a motion for summary judgment, and

Tolson filed an opposition. Shortly thereafter, the district court

granted the Plans’ motion and entered judgment dismissing Tolson’s

claims and assessing costs to him.             Tolson filed a motion for

review of the taxation of costs which the court denied.                Tolson

timely filed a notice of appeal.

                                     II

                                  ANALYSIS

A.   Standard of Review

     All    grants   of    summary   judgment   are   reviewed   de    novo.4

“Whether the district court employed the appropriate standard in

reviewing an eligibility determination made by an ERISA plan




     4
         FDIC v. Myers, 955 F.2d 348, 349 (5th Cir. 1992).

                                      8
administrator is a question of law.”5          “Therefore, we review the

district court’s decision de novo.”6         When an ERISA plan vests its

administrator   or     fiduciary    with     discretionary    authority   to

determine eligibility for benefits or to construe the terms or the

plan, or both, our standard of review is abuse of discretion.7

There is no question but that the language of the AHP and GIP vests

their plan administrator with such authority.

     The district court found that the Plans’ language vested the

plan administrator with sufficient discretion to make abuse of

discretion the appropriate standard for reviewing the Committee’s

denial of Tolson’s claims for benefits. The district court applied

the de novo standard to reviewing Tolson’s breach of fiduciary

claim.

B.   Plan Interpretation

     In Wildbur v. ARCO Chemical Co., we set forth the appropriate

two-step   methodology     for     testing    the   plan     administrator’s

interpretation of the plan for abuse of discretion:

     First, a court must determine the legally correct
     interpretation of the plan. If the administrator did not
     give the plan the legally correct interpretation, the

     5
       Lynd, 94 F.3d 979, 980-81 (citing Chevron Chem. Co. v. Oil,
Chem. & Atomic Workers Local Union 4-447, 47 F.3d 139, 142 (5th
Cir. 1995)).
     6
         Id. at 981.
     7
        Wildbur v. ARCO Chem. Co., 974 F.2d 631, 636 (5th Cir.),
modified, 979 F.2d 1013 (1992). See also Firestone Tire & Rubber
Co. v. Bruch, 489 U.S. 101, 113-17, 109 S. Ct. 948, 956-57, 103 L.
Ed. 2d 80 (1989).

                                      9
     court must then determine whether the administrator’s
     decision was an abuse of discretion. In answering [this]
     question, . . . a court must consider:

            (1)   whether the administrator has given
                  the plan a uniform construction,

            (2)   whether   the  interpretation  is
                  consistent with a fair reading of
                  the plan, and

            (3)   any unanticipated costs resulting
                  from different interpretations of
                  the plan.8

Only if the court determines that the administrator did not give

the legally correct interpretation, must the court then determine

whether the administrator’s decision was an abuse of discretion.9

We need not proceed to the second step of the Wildbur analysis to

search for abuse of discretion if we determine in applying the

first step that the plan administrator’s legal interpretation of

the plan provisions is correct.10

     Like the district court before us, we conclude that the plan

administrator correctly interpreted the pertinent provisions of the

Plans.    The first element of the first Wilbur step—— uniformity of

construction —— is neutral here, as the applicable provisions of

the Plans have not previously been interpreted in light of claims



     8
        Wildbur, 974 F.2d at 637-38 (citing Jordan v. Cameron Iron
Works, Inc., 900 F.2d 53, 56 (5th Cir.), cert. denied, 498 U.S.
939, 111 S. Ct. 344, 112 L. Ed. 2d 308 (1990) (internal citation
omitted).
     9
          Id.
     10
          Chevron, 47 F.3d at 146.

                                  10
like Tolson’s.

     The second element of the first step of Wildbur —— a fair

reading of the plan —— clearly favors the administrator of the

Plans.   Under the AHP, medical costs for the treatment of “mental

and nervous conditions” are covered only if they are (1) pre-

certified, and (2) provided by WJBMC.      Under the GIP, neither

weekly nor long-term disability benefits are payable unless the

participant or beneficiary is hospitalized, and even then benefits

continue for only 30 days following discharge from the hospital.

Thus, the Wildbur “fair reading” element is met by the Committee’s

determination that AHP limits coverage for mental and nervous

conditions to pre-certified treatment at WJBMC and that GIP limits

disability payments on account of such disorders or conditions to

those for which hospitalization is required. Tolson does not claim

to have complied with these prerequisites.

     The third element of the first step of Wildbur likewise favors

the administrator: Any variance from the interpretation placed on

the provisions in the Plans by the Committee would be likely to

produce costs not anticipated by the Plans.   All costs of covering

treatment provided by others than WJMBC and all costs of disability

payments to non-hospitalized participants would produce costs not

anticipated by the Plans.

     Clearly, then, the legal interpretation of the terms of the

Plans by the Committee passes the first step of the Wildbur test ——



                                11
“legally correct interpretation of the plan”11 —— with flying

colors.    Inasmuch as the administrator made the legally correct

interpretation, we are not compelled to proceed to the second step

of Wildbur to determine whether the administrator’s denial of

benefits was an abuse of discretion12 because under a correct

interpretation “no abuse of discretion could have occurred.”13

     We infer that, despite his argument, Tolson is not really

disagreeing with the legal interpretation of the Committee that

coverage of treatment costs for nervous or mental disorders are

predicated on pre-certification and treatment at WJBMC, and that

payments for long-term disability caused by such disorders are

predicated on hospitalization.        Rather, we understand Tolson’s

argument to be that payments for the treatment of his “unusual”

kind of depression and benefits for his “unusual” disability do not

properly come within the undefined terms “mental and nervous

conditions” or “mental or nervous disorders,” as used respectively

in the AHP and the GIP, because his depression is secondary to and

caused by his hepatitis and the treatment of it with Interferon.

Tolson would have us conclude that his depression is part and

parcel of his hepatitis and its Interferon treatment, and thus

should not be restricted by the coverage limitations for mental or

     11
          Wildbur, 974 F.2d at 637-38.
     12
          Id.
     13
        Spacek v. Maritime Ass’n, ILA Pension Plan, 134 F.3d 283,
292 (5th Cir. 1998).

                                 12
nervous disorders or conditions. He contends that, for purposes of

the Plans, his treatment for depression and his depression-caused

disability should receive the same coverage as is afforded to his

hepatitis.   It is for this proposition that he relies on Lynd as

creating a narrow exception for those instances —— such as his ——

when a traditional mental or nervous disorder is not a mental or

nervous disorder within the intendment of the Plans. This reliance

is badly misplaced.

     In Lynd, we expressly held that depression is a “mental

disorder,” irrespective of its physical causes or symptoms.            As

noted earlier, we cannot read the holding in Lynd —— even its dicta

—— to admit of a situation (and Tolson claims that his is such a

situation) that would be a narrow exception to the universal

conclusion   that   depression   is   a   mental   disorder   or   nervous

condition.   Try as we may, we can discern no such proposition in

the Lynd opinion.

     Indeed, we concluded in Lynd that the appropriate standard for

interpreting ERISA plan terminology is its ordinary meaning, not

specialized meanings. 14   We have already noted that here the SPDs

are the only substantive plan documents. And, SPDs are required by

law to be couched in ordinary, conversational language that is

understandable by lay participants.       This realization explains not


     14
        Lynd, 94 F.3d at 983 (quoting Brewer v. Lincoln Nat’l Life
Ins. Co., 921 F.2d 150, 154 (8th Cir. 1990), cert. denied, 501
U. S. 1238, 111 S. Ct. 2872, 115 L. Ed. 2d 1038 (1991)).

                                  13
only the absence of definitions of the terms at issue here but also

the propriety of the Committee’s implicit conclusion that, in the

contemplation of the Plans, Tolson’s depression is a mental or

nervous condition or disorder.

     In discussing the physical symptoms of mental disabilities in

Lynd, we stated:

     If we begin with the premise that the cause of a
     disability is “mental” —— and the Eighth and Ninth
     Circuits,   as   well  as   the   American   Psychiatric
     Association, characterize “depression” as a “mental”
     disorder —— then to find that a disability falls outside
     of the term “mental disorder” (as used in an ERISA plan)
     because the disability has “physical” symptoms would
     render the term “mental disorder” obsolete in this
     context. As the ERISA plan in the instant case pointedly
     refers to “mental or nervous disorders,” it would be
     inappropriate to effectively collapse the term “mental
     disorder” to include only those illnesses, if any exist,
     which have no “physical” manifestations.15

The converse is equally true: Simply because a medical problem and

an ensuing disability are produced by depression (a stereotypical

mental condition or disorder) that is itself the product of a

pathological disease (Hepatitis) or of the medication used to treat

such a disease (Interferon), the fact is not altered that the

depression is and remains a mental disorder or condition.             It

follows inescapably that (1) coverage of the costs of treating that

depression, like treating of any depression, is subject to the pre-

certification and WJBMC limitations of the AHP, and (2) payment of

benefits    for   disability   produced   by   that   depression,   like


     15
           Id. at 984.

                                   14
disability produced by any nervous or mental disorder, is subject

to the hospitalization limitations of the GIP.

      Again, as the Committee satisfied the first step of the

Wildbur test by making the legally correct interpretation of the

Plan, we never reach the second, abuse of discretion step.                     A

determination that a plan administrator’s interpretation is legally

correct pretermits the possibility of abuse of discretion.16

C.    Breach of Fiduciary Duty

      Tolson’s efforts to justify assertion of breach of a fiduciary

duty claim against the Plans by distinguishing such a claim from

his   claims    for   coverage     and        benefits   claims   are   woefully

unavailing.     If they are distinctions at all, they are without

differences.     This was succinctly and correctly explained by the

district court:

      Because Tolson has adequate redress for disavowed claims
      through his right to bring suit pursuant to section
      1132(a)(1), he has no claim for breach of fiduciary duty
      under section 1132(a)(3). Section 1132(a)(2) allows a
      beneficiary to bring a standard breach of fiduciary duty
      suit for the benefit of the subject plan. Massachusetts
      Mut. Life Ins. Co. v. Russell, 105 S. Ct. 3085 (1985).
      In Varity Corp. v. Howe, 116 S. Ct. 1065 (1996), the
      Supreme Court interpreted section 1132(a)(3) to allow
      plaintiffs to sue for breach of fiduciary duty for
      personal recovery when no other appropriate equitable
      relief is available. Because Tolson has adequate relief
      available for the alleged improper denial of benefits
      through his right to sue the Plans directly under section
      1132(a)(1), relief through the application of Section
      1132(a)(3) would be inappropriate.

      Unlike   the    plaintiffs     in        Varity,   Tolson   was   the

      16
           Spacek, 134 F.3d at 292.

                                         15
     beneficiary of two viable plans whom [sic] he had
     standing to sue and did sue. Further, both Plans are
     viable and before the Court. Because this relief was
     available   and,   indeed,   utilized,  it   would   be
     inappropriate for the Court to fashion any further
     equitable relief under Section 1132(a)(3). The simple
     fact that Tolson did not prevail on his claim under
     section 1132(a)(1) does not make his alternative claim
     under section 1132(a)(3) viable.17
     No purpose would be served by discussing this issue further.

The district court’s analysis is accurate and clear, so we adopt it

as our own.18

D.   Costs

     The district court rejected Tolson’s motion to review and

reverse taxation of costs.   The court observed that F.R.C.P. 54(d)

contemplates that costs will be allowed to the prevailing party as

a matter of course unless the court directs otherwise.         The Plans

were the prevailing parties and the court did not “otherwise

direct,” so the Clerk of Court properly taxed costs to Tolson as a

matter of course.

     In   particular,   Tolson   objects   to   the   Plans’    seeking


     17
        The district court relied in part —— correctly, we conclude
—— on Wald v. Southwestern Bell Corp. Customcare Medical Plan,
83 F.3d 1002 (8th Cir. 1996) (determining that plaintiff failed to
state a cause of action for breach of fiduciary duty in reviewing
claim as she sought no different relief than that available under
claim for benefits under another section of ERISA).
     18
         We have also carefully considered the other issues and
assignments of error that Tolson ascribes to the rulings of the
district court by reviewing counsel’s appellate brief and hearing
his arguments to the court, including his complaints regarding the
court’s grant of summary judgment and its rulings on discovery. It
suffices that we discern no reversible error in any of the rulings
of the district court.

                                 16
reimbursement of the costs of reproducing the whole administrative

record, insisting that the entire record was not necessary for

summary judgment disposition.           Tolson also advances equitable

arguments, contending that his suit was neither frivolous nor

instituted    in    bad   faith   because    his   novel     contention    is,

essentially, res nova.       He also pleads financial inability to pay.

      We agree with the Plans’ contention that the taxing of costs

was   routine      and    appropriate     here.    Given    the   burgeoning

jurisprudence in this circuit and elsewhere concerning the extreme

deference that courts must give to plan administrators vested with

discretionary authority to interpret plans and to award or deny

benefits,    Tolson’s     self-proclaimed   res    nova    argument   is   more

correctly seen as specious sophistry, approaching frivolousness.

Indeed, plan participants and beneficiaries who continue to mount

attacks such as Tolson’s in the face of such an established body of

law may well find themselves assessed with much more than court

costs. Be that as it may, it suffices here that, as we do not

reverse a district court’s taxation of costs in the absence of

clear abuse of discretion,19 we will not disturb that assessment

against Tolson.




      19
        Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 334
(5th Cir.), cert. denied, 516 U.S. 862, 116 S. Ct. 173, 113
L. Ed. 2d 113 (1995).

                                     17
                                     III

                                  CONCLUSION

     For     the     foregoing    reasons   we   hold   that   the   legal

interpretation of the pertinent language of the Plans by the plan

administrator was correct, ending the need to continue our review,

(albeit    the     plan   administrator’s   determination   that   Tolson’s

depression was subject to the Plans’ provisions limiting coverage

of nervous or mental conditions or disorders was neither incorrect

nor an abuse of discretion).       We also hold that the district court

correctly dismissed Tolson’s breach of fiduciary duty claims and

did not abuse its discretion in taxing costs to Tolson.                For

essentially the same reasons, we assess costs of this appeal to

Tolson and caution him —— and future ERISA plan participants and

beneficiaries similarly situated —— that fomenting and prosecuting

litigation of this ilk in the face of plan provisions vesting

administrators with discretion to interpret provisions of ERISA

plans and entitlement to benefits under such plans, could result in

sanctions more stringent than mere assessment of costs, including,

without limitation, attorneys’ fees and double costs under F.R.A.P.

38 for frivolously appealing adverse dispositions of the district

court.     The judgment of the district court is

AFFIRMED at appellant’s cost.




                                      18
