                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


DANIELLE MULL, appointed              No. 15-56246
Guardian Ad Litem for C. Mull;
C. MULL, as Plaintiff and              D.C. No.
Danielle Mull is Appointed              2:12-cv-
Guardian Ad Litem for C. Mull,        06693-VBF-
             Plaintiffs-Appellees,       MAN

LENAI MULL; NORMAN MULL,
  Plaintiffs-Counter-Defendants-        OPINION
                      Appellees,

                v.

MOTION PICTURE INDUSTRY
HEALTH PLAN,
          Defendant-Appellant,

BOARD OF DIRECTORS OF MOTION
PICTURE INDUSTRY HEALTH
PLAN,
   Defendant-Counter-Claimant-
                     Appellant.




     Appeal from the United States District Court
          for the Central District of California
    Valerie Baker Fairbank, District Judge, Presiding
2    MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN

              Argued and Submitted June 7, 2017
                    Pasadena, California

                      Filed August 1, 2017

    Before: Susan P. Graber and Mary H. Murguia, Circuit
        Judges, and Susan R. Bolton, * District Judge.

                    Opinion by Judge Bolton


                          SUMMARY **


         Employee Retirement Income Security Act

   The panel vacated the district court’s grant of summary
judgment in favor of the plaintiffs in an ERISA action.

    The district court enjoined an ERISA plan and its board
of directors from enforcing Summary Plan Description
provisions regarding reimbursement of benefits previously
paid upon a plan participant’s receipt of a third-party
recovery.       The district court ruled that these
reimbursement/recoupment provisions were not enforceable
under ERISA because they were found only in the Summary
Plan Description and not in any document that constituted
the ERISA plan.


     *
      The Honorable Susan R. Bolton, United States District Judge for
the District of Arizona, sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
    MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN           3

    The panel concluded that a Motion Picture Industry Plan
Agreement and Declaration of Trust, along with the
Summary Plan Description, together comprised the ERISA
plan because only the Summary Plan Description provided
the basis on which payments were made to and from the
plan. The panel distinguished CIGNA Corp. v. Amara,
563 U.S. 421 (2011), which held that summary documents
do not constitute the terms of an ERISA plan when there
exist both a governing plan document and a summary plan
description. The panel vacated the district court’s grant of
summary judgment and remanded for further proceedings.


                       COUNSEL

Kathryn Jane Halford (argued) and Elizabeth Rosenfeld,
Wohlner Kaplon Cutler Halford & Rosenfeld, Encino,
California, for Defendants-Appellants.

Donald Mitchell de Camara (argued), Law Office of Donald
M. de Camara, Carlsbad, California; Drew M. Widders and
Daniel E. Wilcoxen, Wilcoxen Callahan LLP, Sacramento,
California; for Plaintiffs-Appellees.


                        OPINION

BOLTON, District Judge:

   This appeal arises from the order of the district court
granting summary judgment in favor of Plaintiffs Norman,
Danielle, Lenai, and C. Mull on claims under the Employee
Retirement Income Security Act of 1974 (“ERISA”) against
Defendants Motion Picture Industry Health Plan (the “Plan”)
and the Board of Directors of the Plan.
4   MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN

    The Plan is a self-funded multi-employer health and
welfare benefit plan established under a Motion Picture
Industry Plan Agreement and Declaration of Trust (the
“Trust Agreement”). The Board of Directors are named
fiduciaries and administrators of the Plan. The Board
adopted the Motion Picture Industry Health Plan Summary
Plan Description for Active Participants (the “SPD”), which
specifies eligibility requirements, conditions for the receipt
of benefits, the types of benefits, and the amount and
duration of benefits provided to participants and their
eligible dependents.

    Two related provisions of the SPD are relevant to this
appeal. The SPD provides that no benefits will be payable in
a third-party liability claim unless the participant, or
applicable dependent, agrees to reimburse the Plan for any
benefits previously paid upon receipt of a third-party
recovery. The SPD further states that if reimbursement is
requested but not received by the Plan, the amount of the
benefits paid will be deducted from all future benefits
payable to the participant and his or her dependents.

    Lenai was injured in a motor vehicle accident in 2010.
At the time of her accident, she received health benefits from
the Plan as a dependent of Norman. The Plan extended
$147,948.38 in benefits to Lenai for treatment of her injuries.

     In 2011, Lenai received a $100,000 recovery from a third
party involved in the accident. The Plan sought
reimbursement, but Lenai declined. The Plan then instituted
its overpayment procedures to recoup $100,000 from future
benefits payable to Norman and the other beneficiaries under
his policy.

   Lenai and Norman, joined by other family-member
beneficiaries under Norman’s policy, sued the Plan and the
    MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN               5

Board for declaratory relief, injunctive relief, and recovery
of benefits. The Board filed a counterclaim against Lenai and
Norman for equitable relief under ERISA § 502(a)(3),
29 U.S.C. § 1132(a)(3), seeking an equitable lien or a
constructive trust to recover the $100,000 received by Lenai
from the third party.

    Lenai then filed for Chapter 7 bankruptcy, and the
bankruptcy court discharged the counterclaim against her. In
this action, the district court later dismissed the counterclaim
against Norman on grounds not challenged on appeal.

    On Plaintiffs’ claims, the district court granted summary
judgment to Plaintiffs. The court ruled that, because the
reimbursement/recoupment provisions that the Plan sought
to enforce were found only in the SPD and not in any
document      that     constituted       “the     plan,”  the
reimbursement/recoupment provisions were not legally
enforceable under ERISA. The district court enjoined
Defendants from enforcing the reimbursement/recoupment
provisions, and the court directed Defendants to reimburse
Norman $1,861 in benefits previously recouped. We vacate
and remand.

                               I.

    We have jurisdiction to hear an appeal from a final order
of the district court pursuant to 28 U.S.C. § 1291, and we
review de novo a district court’s grant of summary judgment.
Fin. Mgmt. Advisors, LLC v. Am. Int’l Specialty Lines Ins.
Co., 506 F.3d 922, 925 (9th Cir. 2007). Findings of fact are
reviewed for clear error, and conclusions of law are reviewed
de novo. Metro. Life Ins. Co. v. Parker, 436 F.3d 1109, 1113
(9th Cir. 2006); Conestoga Servs. Corp. v. Exec. Risk
Indem., Inc., 312 F.3d 976, 981 (9th Cir. 2002).
6   MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN

                              II.

     ERISA requires that every employee benefit plan include
(1) a procedure for establishing and carrying out a funding
policy, (2) the procedure for the allocation of responsibilities
for operation and administration of the plan, (3) a procedure
for amending the plan and the identity of persons with the
authority to do so, and (4) the basis on which payments are
made to and from the plan. 29 U.S.C. § 1102(b). The Trust
Agreement, originally written in 1977, meets the first three
requirements. But, because the Trust Agreement does not
provide a basis on which payments are made to and from the
Plan, the Trust Agreement does not meet the fourth
requirement. Instead, Trust Agreement Article VI, Section 3,
titled “Written Plan of Benefits,” states: “After
determination of the detailed basis upon which payments of
Benefits is to be made pursuant to this agreement, the same
shall be specified in writing by appropriate resolution of the
[Board of] Directors . . . .”

    The Board carried out the Trust Agreement’s directive
by approving the SPD, which supplies, in great detail, the
basis for payments. See Eugene S. v. Horizon Blue Cross
Blue Shield of N.J., 663 F.3d 1124, 1131 (10th Cir. 2011)
(“[T]he SPD cannot create terms that are not also authorized
by, or reflected in, governing plan documents.” (emphasis
added)). The natural conclusion is that “the plan” is
comprised of two documents: the Trust Agreement and the
SPD.

    The Board clearly intended that result. For example, the
SPD states: “If you have selected the self-funded medical
and hospital benefits provided by the [Motion Picture
Industry] Health Plan, benefit details are included in this
Summary Plan Description.” Two pages later the SPD
states: “The Plan is operated under the provisions of an
     MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN                          7

Agreement and Declaration of Trust, and all benefits
provided are subject to the terms of the Trust, this Plan of
Benefits and the Group Master Contracts issued by: [various
health benefits providers].” The SPD also provides, in the
section titled “Employee Retirement Income Security Act of
1974,” that “[t]his book constitutes both the Plan document
and the Summary Plan Description for the Motion Picture
Industry Health Plan.”

    In summary, neither the Trust Agreement nor the SPD
meets ERISA’s requirements for constituting a plan. But by
clear design reflected in provisions of both documents, the
two documents together constitute a plan. Accordingly, we
conclude that the ERISA plan is the Trust Agreement plus
the SPD. 1

    The Supreme Court’s decision in CIGNA Corp. v.
Amara, 563 U.S. 421 (2011), is not to the contrary. In
Amara, the Court held that “summary documents, important
as they are, provide communication with beneficiaries about
the plan, but that their statements do not themselves
constitute the terms of the plan for purposes of [ERISA]
§ 502(a)(1)(B).” Amara, 563 U.S. at 438; see also US
Airways, Inc. v. McCutchen, 133 S. Ct. 1537, 1543 n.1

    1
      Plaintiffs point out that Article VI uses the future tense (the Board
“shall” specify the basis of payments), that the effective date of the Trust
Agreement is 2010, and that the SPD was approved in 2007. Plaintiffs
conclude that the SPD therefore cannot constitute the relevant basis of
payments. We are unpersuaded. Article VI was last revised in 1977; at
most, Plaintiffs have pointed out an editing oversight that cannot undo
the otherwise clear intent of the Board. Moreover, without the SPD, there
would be no plan at all, because the Trust Agreement contains no
benefits of any kind. We decline to adopt an interpretation of the
documents that would render the plan a nullity, thereby contradicting the
longstanding practice and understanding of the parties that a plan exists.
8   MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN

(2013) (“We have made clear that the statements in a
summary plan description ‘communicate with beneficiaries
about the plan, but do not themselves constitute the terms of
the plan.”’ (alterations omitted) (quoting Amara, 563 U.S. at
438)). We have clarified that “Amara addressed only the
circumstance where both a governing plan document and an
SPD existed, and the plan administrator sought to enforce
the SPD’s terms over those of the plan document. It did not
address the situation . . . that a plan administrator seeks to
enforce the SPD as the one and only formal plan document.”
Prichard v. Metro. Life Ins. Co., 783 F.3d 1166, 1170 (9th
Cir. 2015). Accordingly, “an SPD may constitute a formal
plan document, consistent with Amara, so long as the SPD
neither adds to nor contradicts the terms of existing Plan
documents.” Id.; see also Eugene S., 663 F.3d at 1131 (“We
interpret Amara as presenting either of two fairly simple
propositions, given the factual context of that case: (1) the
terms of the SPD are not enforceable when they conflict with
governing plan documents, or (2) the SPD cannot create
terms that are not also authorized by, or reflected in,
governing plan documents.”). Here, the SPD is part of the
plan itself, and there is no conflict between the SPD and the
Trust Agreement. Amara does not prohibit this type of
arrangement.

                             III.

    The district court erred in concluding that the SPD is not
part of the Motion Picture Industry Health Plan. On appeal,
Plaintiffs raised four alternative grounds to affirm. Those
issues were raised but not decided by the district court,
including whether the reimbursement provision is
enforceable against any Plaintiff other than Lenai. We
decline to reach those issues in the first instance, leaving
them to the district court to consider on remand. Therefore,
   MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN        9

we vacate the district court’s grant of summary judgment
and remand for further proceedings consistent with this
opinion.

    VACATED and REMANDED. The parties shall bear
their own costs on appeal.
