                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-2064


DEAN A. VAUGHAN; MICHAEL GRUENDER; JERRY DEAN BAKER;
LADONNA C. BAKER; EVELYN C. BROWN; GREGORY STEPHAN
COPELAND; REBECCA B. CORUM; BOBBY GERALD DAWKINS; JEFFREY
S. GROSHANS; RYAN A. GRAV; KIMBERLY M. HENRY; DIANE B.
HESS; KARIN M. HUDSON; WILLIAM L. LAWSON, III; XUAN THE
LE; BRENDA C. MORRISON; THOMAS A. NEEDHAM; MARC P. RAY;
THOMAS L. ROACH; DEBRA G. ROBINSON,

                Plaintiffs - Appellants,

           v.

CELANESE    AMERICAS   CORPORATION;   CELANESE    ADVANCED
MATERIALS, INCORPORATED; THE CELANESE AMERICAS CORPORATION
SEPARATION PAY PLAN,

                Defendants - Appellees.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:06-cv-00104-FDW)


Argued:   January 28, 2009                 Decided:    July 30, 2009


Before WILKINSON, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.    Judge King wrote a
dissenting opinion.


ARGUED: Louis L. Lesesne, Jr., ESSEX &             RICHARDS, P.A.,
Charlotte, North Carolina, for Appellants.           Jeanne Louise
Bakker, MONTGOMERY, MCCRACKEN, WALKER & RHOADS, Philadelphia,
Pennsylvania, for Appellees. ON BRIEF: Beth A. Vanesse, ESSEX &
RICHARDS, P.A., Charlotte, North Carolina, for Appellants. John
D. Cole, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.,
Charlotte, North Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Appellants filed this action under the Employee Retirement

Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1133 (2006),

claiming that their employer denied them requisite compensation

under a separation plan.                 The district court granted summary

judgment for the Appellees.              We affirm.



                                           I.

     Appellants       are    former        employees     of    Appellee      Celanese

Advanced   Materials,        Inc.       (“CAMI”),   a   subsidiary     of    Appellee

Celanese Americas Corporation (“Celanese”).                    CAMI was comprised

of two separate operations:              PBI, which employed Appellants, and

Vectran.      In     2005,    Celanese       sold     both    CAMI   operations   to

separate purchasers:          PBI to InterTech Group (“InterTech”) and

Vectran to Kuraray.

     Celanese      maintained       a    Separation     Pay   Plan   (“the   Plan”).

The Plan provided separation pay for Celanese employees upon

termination     of   their     employment       under     specified     conditions,

which included the sale of a business unit when the successor

employer did not offer a “comparable level of compensation.”

(J.A. 39.)      In the instant case, Appellants received the same

base salary from their new employer, InterTech.                      However, their




                                            3
benefits were reduced because InterTech did not offer a defined

pension plan.

       The Vectran sale was the first to be negotiated when CAMI

sold its operations.             In that transaction, Celanese and Kuraray

negotiated a “side letter,” which gave the Vectran employees a

“signing       bonus”     to    compensate        for    the    reduction       in    their

benefits      package.         The   bonus    negotiated        in    the   Vectran    sale

prompted PBI employees to ask for separation pay under the Plan

to supplement their reduction in benefits.

       Under     the    Plan     there       is    a    Benefits       Committee      (“the

Committee”) to address claims.                    Cheryl Cunningham was a member

of the Committee.              During the beginning stage of negotiations

for the PBI deal, Cunningham suggested that Appellants would be

eligible for separation pay under the Plan.                          Jay Townsend, the

senior      Celanese    official      negotiating        the    PBI    sale,    disagreed

with       Cunningham’s    suggestion.            On    April    20,    2005,    Townsend

conducted a conference call with Cunningham, B.J. Smith (a local

human resources representative designated as the Administrator

of the Plan), and Mathias Kuhr (Celanese’s in-house counsel). 1

At the conclusion of the call, the group agreed that Appellants




       1
       Cunningham was the only member of the Committee on the
call that the parties collectively refer to as the April
decision.

                                              4
would not be eligible to receive separation pay under the Plan

to supplement their reduced benefits.

       In June of 2005, Appellants filed claims under the Plan for

separation pay benefits.               On July 7, 2005, Smith sent Appellants

a    letter   identifying        himself          as    the   Plan      Administrator          and

advising them that they could submit additional evidence for

consideration, “[i]n the interest of being fair.”                                  (J.A. 79.)

He     assured    them    that        their       claims      would      be    “reviewed       in

accordance       with    the    claims       procedures          of    the    Plan.”        (Id.)

Appellants submitted additional information on July 17, 2005.

       On   September      21,       2005,    Smith       sent        Appellants       a    denial

letter through his attorney, Jeanne Bakkar.                              The letter stated

that    the   Committee’s        decision          was     final;       that     the       Vectran

“signing bonus” was not separation pay under the Plan; that this

bonus was paid by Kuraray; and that the phrase “comparable level

of compensation” only required a comparable level of salary, not

comparable salary and benefits.

       Appellants       wrote        back    on        October    3,     2005,     requesting

numerous      documents        and    an     explanation          of    Appellees’          denial

procedures.        Bakkar responded on November 9, 2005, addressing

the concerns Appellants raised in the previous letter and with

specific instructions on how to appeal.




                                               5
      Appellants         appealed       the     Plan       Administrator’s        September

decision.           On December 29, 2005, the appeal was denied in a

letter       from    Bakkar    on    behalf    of     the    Committee.          The    letter

stated       that      the    Committee        relied        on     its      “discretionary

authority” to construe the meaning of “compensation” as only

including the base salary.               (J.A. 144-46.)             Further, the letter

stated that the Vectran “signing bonus” provided no precedent to

support Appellants’ claims.

      On March 9, 2006, Appellants filed an action in the Western

District of North Carolina for denial of separation pay benefits

under    the    Plan.         On    September       27,    2007,    the      district   court

granted       summary       judgment    for    Appellees,          concluding     that    the

Committee’s discretionary decision to deny separation pay was

reasonable under Booth v. Wal-Mart Stores, Inc., 201 F.3d 335

(4th Cir. 2000).



                                              II.

        We    review    a    district    court’s          decision      to   grant     summary

judgment de novo, and we employ the same legal standards applied

by the district court.               Elliot v. Sara Lee Corp., 190 F.3d 601,

605   (4th     Cir.     1999).       With     respect       to    the   district       court’s

findings, we review factual findings for clear error and legal




                                              6
determinations de novo.              Williams v. Sandman, 187 F.3d 379, 381

(4th Cir. 1999).

       Although we review summary judgment orders in the light

most    favorable       to     the     non-moving       party,       Evans      v.    Techs.

Applications & Servs. Co., 80 F.3d 954, 958 (4th Cir. 1996), we

must   also    evaluate        a    denial    of    benefits       under   an    abuse    of

discretion standard when, as here, an ERISA benefit plan vests

discretionary          authority         to         make      benefit         eligibility

determinations with the plan administrator, Ellis v. Metro. Life

Ins. Co., 126 F.3d 228, 232 (4th Cir. 1997).                         An administrator’s

decision “will not be disturbed if it is reasonable,” even if we

“would have come to a different conclusion independently.”                                Id.

A decision is reasonable when it is the “result of a deliberate,

principled      reasoning          process        and   if    it     is    supported      by

substantial evidence.”               Brogan v. Holland, 105 F.3d 159, 161

(4th Cir. 1997) (internal citations omitted); see also Booth,

201    F.3d    at     342-43       (listing   eight        factors     that     guide    the

reasonableness analysis, discussed infra).

       The    regulations      promulgated         under     ERISA    prescribe,        inter

alia, that:         1) Decisions must be made in accordance with plan

documents,       29     C.F.R.        § 2560.503-1(b)(5)            (2008);      2)     Plan

procedures must be applied consistently, id.; and 3) Notice must

be given in writing to deny a claim, state the basis for the



                                              7
denial,   reference        the   plan    provision      relied    upon,   identify

additional information required to perfect the claim, describe

the appeal process, and notify the petitioner of the right to

bring a civil action, 29 C.F.R. § 2560.503-1(g) (2008).



                                        III.

                                          a.

       Appellants first argue that Appellees’ actions violated the

Plan’s requirements because the initial decision to deny the

claim was not made by the Committee in a meeting attended by

quorum, pursuant to the Plan.                  See Bedrick By and Through v.

Travelers    Ins.        Co.,    93    F.3d     149,    153    (4th   Cir.     1996)

(emphasizing the importance of ERISA’s requirement of “full and

fair    review”     of    all    denied       claims   by     “appropriate     named

fiduciary.”);       Ellis,       126    F.3d      at    236-37     (acknowledging

importance of ERISA’s formal claims process, which protects from

arbitrary decision making); Weaver v. Phoenix Home Life Mut.

Ins. Co., 990 F.2d 154, 157 (4th Cir. 1993) (stating that the

“procedural guidelines are at the foundation of ERISA.”)

       ERISA’s    claim     requirements        are    only   triggered      when   a

claimant makes a “claim for benefits.”                   29 C.F.R. § 2560.503-

1(e) (2008).      A “claim for benefits” does not occur until there

is a “request for a plan benefit or benefits made by a claimant



                                          8
in   accordance     with   a   plan’s       reasonable       procedure      for    filing

benefit claims.”        Id.     Additionally, Section 5.6 of the Plan,

titled   “Claims     Procedures,”      states:         “In    the    event    that       the

Administrator denies, in whole or in part, a written claim for

benefits by a Participant or his beneficiary, the Administrator

shall    furnish     notice     of    the       adverse    determination          to    the

claimant.”        (J.A. 51 (emphasis added).)                In the instant case,

Appellants had not made a “request for a plan benefit” before

the PBI deal closed.           The April 22, 2005, conference call was

neither in response to Appellants’ claims nor a denial of a

claim for benefits because Appellants did not make a claim until

June    2005.      Therefore,    ERISA       procedures       did    not    govern      the

Committee’s decision during the conference call.

       Appellants     attempt    to     skirt      the     fact      that    the       April

decision was not a response to their claims by arguing that they

were never afforded fair review under ERISA because Celanese had

already made its decision in April concerning the substance of

their June claims.         The gist of Appellants’ argument is that the

decision     on    their    claims     was       “in   a     sense     foreordained.”

(Appellants’ Reply Br. 2.)              Appellants’ contention has little

weight because, as the district court correctly recognized,

       [I]t is in no way extraordinary that the benefits
       committee would have reached a conclusion as to
       whether severance benefits would be paid prior to the
       closing of the divestiture transaction, because the

                                            9
       business partners negotiating the deal would have
       needed to anticipate with a reasonable degree of
       certainty all of the transaction costs that would be
       incurred by the sale.

(J.A.    1327.)           Business         transactions        would      be     significantly

burdened       if        all     discussions           and     decisions         relating    to

eligibility         of    benefits         must   follow      the   Plan’s       claim   review

procedures even when, as here, no claim for benefits has been

made.        Clearly, a plan fiduciary is not required to initiate

formal claim review procedures every time internal discussions

with management and plan fiduciaries might affect a potential

claim for separation pay.                   And this Court does not impose such a

burden here.

                                                  b.

       Next, Appellants contend that the district court misapplied

the     Booth       factors           in     concluding        that        the     fiduciary’s

interpretation            of     the       Plan     and      denial       of     benefits   was

reasonable.          In Booth, this Court established a non-exclusive

list    of    factors          that    a    court      reviewing      a    decision      denying

benefits in an ERISA case can consider to determine whether the

denial was “reasonable”:

        (1) [T]he language of the plan; (2) the purposes and
        goals of the plan; (3) the adequacy of the materials
        considered to make the decision and the degree to
        which they support it; (4) whether the fiduciary’s
        interpretation was consistent with other provisions in
        the plan and with earlier interpretations of the plan;
        (5) whether the decision making process was reasoned

                                                  10
      and   principled;  (6)  whether   the   decision   was
      consistent   with  the  procedural   and   substantive
      requirements of ERISA; (7) any external standard
      relevant to the exercise of discretion; and (8) the
      fiduciary’s motives and any conflict of interest it
      may have.

201 F.3d at 342-43.       Each factor will be addressed in turn.

      (1) Language of the Plan

      All    parties     agree      that       the      Plan   does     not     define

“compensation.”        The   district         court    found   that    although      the

meaning of the term is ambiguous, this factor weighed in favor

of    the   Appellees.        The    district          court   deferred       to     the

Committee’s     interpretation           of     “compensation,”        because       it

recognized    ERISA’s    policy     of    judicial       deference,    acknowledged

the   Committee’s   “inherent       discretionary         authority,”     and      found

“no compelling reason” to adopt Appellants’ interpretations of

“compensation.”        (J.A. 1319-20.)           The Supreme Court stated in

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111 (1989),

that under ERISA, judicial deference is owed to a fiduciary’s

reasonable discretionary decision.                In this case, the district

court considered Appellants’ interpretation but decided that the

fiduciary’s     interpretation           was     reasonable      and     worthy      of

deference.    For the reasons set forth below, we agree.

      Appellants argue that “compensation,” as used in Section

1.10, means “benefits” and salary.                    Appellants contend that in

the Plan “Annual Base Pay,” or salary, is used to calculate the

                                          11
amount of separation pay, but was never set forth as a synonym

for “compensation.”     Further, the Plan does not refer to “Annual

Base Pay” in Section 1.10, which sets out eligibility under the

section      titled:   “Eligible       Termination      of       Employment.”

Appellants argue that if the Plan intended “compensation” to

mean just “Annual Base Pay” it would have said so explicitly as

it did in other sections.

       The Plan language does not support Appellants’ definition.

Article III of the Plan, which is otherwise titled “Separation

Pay and Special Separation Allowances,” begins with Section 3.1:

“Benefits Eligibility.”       This is the first indication, of many,

that the Plan defines “benefits” as “separation pay” or “special

separation allowances.”       Section 3.3, “Separation Pay,” states:

       If the Participant’s employment with the company is
       terminated as a result of an Eligible Termination of
       Employment, the Participant shall receive separation
       pay from the Company in an amount that will vary
       depending upon the number of Service Years the
       Participant has with the Company.   The separation pay
       shall be calculated on the basis of one (1) week of
       pay (based on a pro rata share of the Participant’s
       Annual Base Pay) for each continuous Service Year plus
       one additional week.

(J.A. 44.)     The last section in Article III, “Special Separation

Allowances,”    explains   that    special    separation     allowances    fall

into    a   category   with   unused       vacation   days    and    are   also

calculated    by   considering    a   participant’s    “Annual      Base   Pay.”

Appellants’ argument that “compensation” in Section 1.10(c) of

                                      12
the Plan should include salary and “benefits,” as Appellants

define the word, is unsupported by the rest of the Plan.                               The

separation     pay     benefit     is    an    amount    of    money    calculated      by

looking at an employee’s immediate past salary.                        The formula for

calculating separation pay does not include a variable for the

value of lost future benefits.                 It was logical for Appellees to

interpret “compensation” as salary since “benefits” are almost

exclusively     calculated        by    considering      a    participant’s      salary;

“benefits” as Appellants define them are not discussed in the

Plan.

       Article IV, “Benefits Payments,” employs the same use of

“benefits” as Article III:               a benefit is either separation pay

or a special separation allowance.                    This Article, however, adds

an important caveat:             “The total amount of benefits paid to a

Participant      shall     not     exceed      the     equivalent      of     twice    the

employee’s Annual Base Pay during the year immediately preceding

the termination of his service with the Company.”                             (J.A. 46.)

This language caps the amount of special separation allowances

that can be paid to a participant in addition to their “Annual

Base    Pay”   under     the     Plan.        Thus,    Appellants’      argument      that

“compensation”       was       meant     to        encapsulate   both       salary     and

benefits,      without     any    explicit         explanation    in    the    Plan,    is




                                              13
unconvincing.      The   Plan   accounted       for   every    cent    paid    to    a

participant and set out definite limits.

       Each of the four criteria for separation pay in Section

1.10   describes    circumstances    where      Celanese       would   expect       an

employee to require temporary replacement income because of an

involuntary loss of employment with Celanese:

       1.10 “Eligible Termination of Employment” shall mean
             the involuntary termination of the Employee’s
             employment due to
             (a) a permanent reduction in force or job
                 elimination;
             (b) a plant or department closing;
             (c) a sale of all or part of a business provided
                 the   successor   employer  does  not  offer
                 continued reemployment at a comparable level
                 of compensation; or
             (d) an inability to perform required duties
                 (unless   this   inability   is  due  to   a
                 Disability).

(J.A. 38-39.)      If we adopt Appellants’ suggestion that Section

1.10(c) grants compensation for lost benefits, then employees

that qualify under the Plan through Sections 1.10(a), (b), or

(d)    would   receive   unequal    compensation         where    there       is    no

indication of any intent to do so.           It would be unreasonable to

conclude   from    the   language   of    the    Plan    that     employees        who

qualify for separation pay under Section 1.10(c) are entitled to

some    special    payment   that   those       who     qualify    under       other

subsections     cannot   receive.        Therefore,      the     district      court

rightly deferred to the Appellees’ interpretation of the Plan.



                                     14
      (2) Purposes and Goals of the Plan

      Appellants        argued     that     the       purpose    for       “compensation”

covering salary and benefits was to “encourage employees facing

the sale or shutdown of a business not to prematurely terminate

their employment, so that a smooth transition could be made to

the    new    purchaser.”         (Appellants’          Br.     29.)         However,   the

district court found that the Committee reasonably believed the

purpose      of   the   Plan     was   to   provide      an     “income      replacement”

benefit (J.A. 1320) and that providing separation pay based on

lost future benefits would create a windfall contrary to the

Plan’s    goals.        The    district     court      rationalized          that   because

Celanese      could     reduce    benefits       at    any    time     for    any   reason,

Appellants never had an “earned and vested” right to receive

future health and pension benefits.                   (J.A. 1322.)

      We agree with the district court that the purpose suggested

by    Appellees       was   reasonable.           This       Court   has      continuously

emphasized that a fiduciary’s reasonable interpretation is owed

deference.        See Colucci v. Agfa Corp. Severance Pay Plan, 431

F.3d 170, 179 (4th Cir. 2005), abrogated on other grounds by

Metro. Life Ins. Co. v. Glenn, ___ U.S. ___, 128 S. Ct. 2343

(2008); Hickey v. Digital Equip. Corp., 43 F.3d 941, 945-46 (4th

Cir. 1995); Doe v. Group Hospitalization & Med. Servs., 3 F.3d




                                            15
80, 86 (4th Cir. 1993), abrogated on other grounds by Glenn; de

Nobel v. Vitro Corp., 885 F.2d 1180, 1185-86 (4th Cir. 1989).

        (3)    Adequacy        of    the    Materials       Considered     To    Make    the

               Decision and the Degree to Which They Support It

        Appellants       take       issue   with      the   district     court’s    finding

that the April decision was an adequate basis for denying their

claim.        However, the district court correctly found that it was

reasonable       for     the    Committee        to    consider    the    past     business

decisions       made     by    the     company     that     affected     their     ultimate

determination; this consideration did not violate ERISA.                                 See

e.g., Elmore v. Cone Mills Corp., 23 F.3d 855, 863 (4th Cir.

1994)    (holding      that         employer’s     decisions      in    creating    benefit

plan    are    business        decisions     that      do   not   give    rise     to   ERISA

procedures).       Appellants have not demonstrated that this finding

was clearly erroneous.

        (4) Whether the Fiduciary’s Interpretation Was Consistent

               with Other Provisions in the Plan and with Earlier

               Interpretations of the Plan.

        Whether    the    administrator’s             decision    was    consistent     with

its      earlier       Plan         interpretations          is    highly        contested.

Appellants argue that the bonus payment to Vectran employees was

precedent to support their claim.                       Conversely, Appellees argue




                                              16
that Appellants’ claims were the first claims under the Plan and

that the Vectran transaction was not applicable precedent.

     The district court found that the Vectran employees did not

receive any benefit under the Plan.    The Vectran employees were

given the difference between their old benefits and the benefits

offered by their new employer in the form of a “signing bonus”

because of their worth to the overall sale.     The district court

specifically noted that:

     [B]ecause [Vectran’s] principal product was still in
     the   stages   of   research    and   development,  the
     intellectual capital of the seven Vectran employees
     was one of the business’s most significant assets.
     Accordingly, it made good business sense for Celanese
     to make concessions necessary to close the deal and
     keep the employees happy enough to continue their
     employment with the buyer.    PBI, however, presented a
     much different scenario:     It was a mature business
     with over $4 million in annual profits, and human
     capital was not as much of a critical asset of the
     business.

(J.A. 1326, internal citations omitted.)       The district court

gave the fiduciary the deference owed its interpretation of the

Plan, and distinguished the divestiture negotiations from the

plan administration. 2   Appellants have not demonstrated that the

court’s factual findings were clearly erroneous.


     2
      See Sutton v. Weirton Steel Div. of Nat’l Steel Corp., 567
F. Supp. 1184, 1201 (N.D. W. Va. 1983), aff’d, 724 F.2d 406 (4th
Cir. 1983) (“When acting on behalf of the pension fund, there is
no doubt that a fiduciary having such ‘dual loyalty’ must act
solely to benefit participants and beneficiaries.    However, it
is the Court’s opinion here that when a corporate employer

                                 17
      (5) Whether the Decision was Reasoned and Principled and

      (6) Consistency               with      Procedural            and         Substantive

           Requirements of ERISA

      The facts of this case support the district court’s finding

that Booth factors (5) and (6) weigh in favor of Appellees.

When Smith received Appellants’ claims, he immediately notified

members    of    the      Committee.        Smith    sent    letters      to    Appellants

acknowledging receipt of the claims and inviting them to submit

additional information in support of their claims.                              Appellants

did   in    fact       provide      supplemental       information,          which   Smith

forwarded       to   the    Committee.        When     the       Committee      denied   the

claims,    it    stated      a     clear   basis,    quoted       from    the    Plan,   and

attached a summary of the Plan.                   The denial letter also informed

the   parties        of    their    right    to     bring    a    civil    action    under




negotiates the terms of sale of a division, whose employees are
participants in a pension plan, the negotiations that affect the
terms and conditions of future pension benefits (at least those
that are not protected by ERISA’s vesting and non-forfeitability
provisions), do not implicate fiduciary duties as to the
pension fund. Such negotiations    are   distinct   from actually
administering a plan and conducting transactions affecting the
monies and property of the plan’s fund.      In other words, the
mere fact that a company has named itself as pension plan
administrator or trustee does not restrict it from pursuing
reasonable business behavior in negotiations concerning pension
benefits not otherwise affected by the requirements of ERISA.”)


                                             18
§ 502(a) of ERISA.          In response to the request of Appellants,

Appellees provided them with a copy of the Plan. 3

     Appellants      have     not    demonstrated           that    the     September

decision    denied   them     any    procedures        required       under   ERISA.

Therefore, the district court reached the correct conclusions

concerning Booth factors (5) and (6).                  See Brogan, 105 F.3d at

165-66 (determining plaintiff was given full and fair review of

his claim because he was notified of specific reasons for the

benefit denial and of the relevant plan provisions); Ellis, 126

F.3d at 234-36 (finding that plan administrator complied with

ERISA’s    requirements      when   it        issued   letter       explaining   the

reasons for the denial, quoted the relevant plan language, and

described appeal procedures).

     (7) External       Standard      Relevant         to     the     Exercise    of

           Discretion

     Appellants argue that two external standards of statutory

construction   governed      the    exercise      of    Appellees’        discretion.

They claim that the doctrine of “expressio unius est exclusio


     3
      Although the initial letter did not tell Appellants how to
appeal their claims, in response to Appellants’ next letter,
counsel for Smith stated:    “In the event that you decide to
appeal the Committee’s denial of your claim for severance
benefits, you may do so by submitting comments in writing,
documents, records, and other relevant information to the
committee.   Please direct your appeal to the committee to my
attention.” (J.A. 119.)


                                         19
alterius” 4 leads to the conclusion that the drafters of the Plan

did     not     intend      that     “Annual     Base   Pay”   be    understood     as

“compensation.”            In support of their argument, Appellants state

that the drafters of the Plan were aware of and used the concept

of base salary in determining the amount of benefits; thus, the

failure        to    do    so   in    defining    “compensation”       supports     the

conclusion that “compensation” was intended to mean something

more.         Therefore, under the doctrine of expressio unius, the

fact that “Annual Base Pay” was expressly defined and used for

another purpose in another section of the Plan means that the

drafters would have done the same if “Annual Base Pay” was meant

to equal “compensation” in the application of eligibility for

separation pay.             (Appellants’ Br. 26.)          This argument is just

another way of stating Appellants’ contention that “Annual Base

Pay”        could    not   possibly    equal    “compensation”      because   “Annual

Base Pay” is not mentioned in Section 1.10(c).                      As stated above,

Appellants’ interpretation of “compensation” does not logically

follow from the Plan’s language, whereas “Annual Base Pay” does

complement the use of “compensation” in Section 1.10(c).

        Next, Appellants state that this case is governed by the

doctrine        of    “contra   proferentem,”      which   requires     a   court    to


        4
       “A canon of construction holding that to express or
include one thing implies the exclusion of the other, or of the
alternative.” Black’s Law Dictionary 602 (7th ed. 1999).

                                           20
construe ambiguous contract language against the drafter.                                      They

claim     that     this     doctrine       has         repeatedly       been        applied      in

interpreting ERISA plans and has specifically been identified as

an “external standard.”                 (Appellants’ Br. 27 (citing Carolina

Care Plan Inc. v. McKenzie, 467 F.3d 383, 388 (4th Cir. 2006),

cert.     dismissed,        128    S.     Ct.      6     (2007)     (“Faced          with       such

ambiguity, a reasonable administrator-insurer would look to an

important        external       standard        for      interpreting          an     ambiguous

contractual provision—that it be construed against the drafting

party.”)).)

        Generally,       this     Court       limits      the     application             of     the

doctrine     of      contra       proferentem            in     ERISA     cases        to        the

interpretation of complicated insurance contracts, particularly

health     insurance        contracts.                 See,     e.g.,     Doe        v.        Group

Hospitalization & Med. Servs., 3 F.3d 80, 89 (4th Cir. 1993);

Bynum v. CIGNA Healthcare of N.C., Inc., 287 F.3d 305, 313-14

(4th Cir. 2002); Carolina Care Plan Inc., 467 F.3d at 389.                                        In

our recent decision in Carden v. Aetna Life Ins. Co., ___ F.3d

___, 2009 WL 635419 (4th Cir. March 11, 2009), we explicitly

found     that     the    Supreme       Court’s          recent     decision          in       Glenn

forecloses the use of contra proferentem to limit the discretion

plan language gives to an administrator to interpret disputed or

doubtful    terms.          Carden,      at     **3.          Neither   of     the     external



                                              21
standards Appellants raise lessens the deference owed to the

administrator’s interpretation of the Plan.                     Thus, the district

court did not err in its determination that this Booth factor

weighed in favor of Appellees.

       (8) Fiduciary Motives and/or Conflicts of Interest

       In determining the eighth factor, the court considers the

“fiduciary’s motives and any conflict of interest it may have,”

in    order   to   determine       the    reasonableness       of    the    fiduciary’s

discretionary       decision.            See    Booth,   201        F.3d    at   342-44.

Appellants state that because the “funding for the plan comes

directly from the coffers of a company, rather than through a

funded trust . . . [and the] decision to award or deny benefits

impacts    defendants’       own    financial     interests         . . .   a    conflict

exists and must be weighed under Booth.”                 (Appellants’ Br. 45.)

       An administrator’s conflict of interest is only “one factor

among     many”    that   a    court       considers     when        determining     the

reasonableness of an administrator’s decision.                         Glenn, 128 S.

Ct. at 2351.        The district court recognized that there was a

conflict of interest, but determined that management did not

exercise any undue influence on Cunningham or other members of

the    Committee.      The    district         court   held    that    “the      benefits

committee, although conflicted, was not influenced by improper

motives or authorities.” (J.A. 1328.)                  Appellants have not shown



                                           22
that the district court’s factual determinations were clearly

erroneous.

      The district court held a three-day hearing to determine

the effect of the conflict.             Appellants seem to suggest that we

should set aside the district court’s factual and credibility

determinations.      However, this Court must give due regard to the

opportunity     of   the    trial   judge      to   weigh   the   credibility   of

witnesses.      Minyard Enters. v. S.E. Chem. & Solvent Co., 184

F.3d 373, 380 (4th Cir. 1999).                 The district court thoroughly

and   appropriately        considered    the    conflict    of    interest   under

Glenn.       Therefore, this Court finds no reason to overturn the

district court’s assessment of the Booth factors.



                                        IV.

      This Court reviews the district court’s determination of

its standard for reviewing a plan administrator’s decision and

interpretations of a plan’s language de novo.                 Colucci, 431 F.3d

at    176.      Judicial      review     of    an    administrator’s     decision

concerning an ERISA plan decision is reviewed “under a de novo

standard unless the plan provides to the contrary.”                    Glenn, 128

S. Ct. at 2348 (internal quotation marks and citations omitted);

Firestone, 489 U.S. at 115.              When the plan language, as here,

grants   the    administrator       discretionary       authority,     review   is



                                         23
conducted under an abuse of discretion standard.                              Glenn, 128 S.

Ct. at 2348; Smith v. Continental Cas. Co., 369 F.3d 412, 417

(4th Cir. 2004).

       Although the district court concluded that the Committee

“was    acting     under       an   inherent,      albeit     minimal,          conflict   of

interest in that the Plan was unfunded and self-insured,” it

found that “as a matter of law no reduction in the deference

given to the discretionary decision of the benefits committee is

necessary to ‘neutralize any untoward influence resulting from a

[conflict of interest].’”                (J.A. 1318 (quoting Booth, 201 F.3d

at 343 n.2).)

       Appellants         argue      that        because      the        district        court

acknowledged that there was a conflict of interest it should

have     adjusted        the    degree      of     deference        to        sliding    scale

deference.        Appellants’ argument has little merit in light of

the Supreme Court’s holding in Glenn.

       In Glenn, the Court held that an administrator’s conflict

of     interest     did    not      change       the    standard         of     review   from

deferential to de novo review, or an alternative hybrid review.

Glenn, 128 S. Ct. at 2350; Champion v. Black & Decker (U.S.)

Inc.,     550     F.3d     353,     358     (4th       Cir.   2008);           Carden,    **3.

Specifically, the Court in Glenn stated:

       We do not believe that Firestone’s statement implies a
       change  in   the   standard  of   review,   say,  from

                                             24
       deferential to de novo review. Trust law continues to
       apply a deferential standard of review to the
       discretionary decision making of a conflicted trustee,
       while at the same time requiring the reviewing judge
       to take account of the conflict when determining
       whether the trustee, substantively or procedurally,
       has abused his discretion.

Glenn, 128 S. Ct. at 2350.                The Court stated further that a

conflict of interest should not lead to “special burden-of-proof

rules, or other special procedural or evidentiary rules, focused

narrowly    upon    the     evaluator/payor      conflict.”         Id.    at    2351.

Instead,    as    stated    above,   a    conflict      is    merely    one     of   the

“several different, often case-specific, factors” that a court

weighs when evaluating whether there is an abuse of discretion.

Id.    While Appellants’ suggestion that the district court should

have   used   a    different    standard       of    review    in   light     of     the

conflict might have been availing pre-Glenn, it has no merit

now.

       Second, Appellants argue that where a decision is not made

according to the Plan, the decision should not be reviewed for

an abuse of discretion.           See Sharkey v. Ultramar Energy Ltd.,

Lasmo PLC, 70 F.3d 226, 229 (2d Cir. 1995); Sanford v. Harvard

Indus., Inc., 262 F.3d 590, 597 (6th Cir. 2001).                        Perhaps this

argument    would    have    merit   if    the      April    decision    were    being

reviewed.        The district court rightly found that “Plaintiffs

[sic] claim for separation pay was the first formal claim ever



                                          25
made under the Plan, and consequently the first time that the

Committee    was     obligated   to   act   qua   fiduciary    in    making     an

authoritative        eligibility      determination    under        the     Plan.

Therefore, Celanese’s informal business practices are simply not

relevant to this matter.”             (J.A. 1324.)     The district court

correctly found that the denial of separation pay in September

was the decision under ERISA review and that ERISA procedures

did   not   attach    to   informal   business    decisions    predating      the

claims.      Appellants      cannot    demonstrate    that    the    September

decision was contrary to the Plan.



                                       V.

      For the reasons stated above, the judgment of the district

court is affirmed.

                                                                          AFFIRMED




                                       26
KING, Circuit Judge, dissenting:

       Because of the dubious circumstances of Celanese’s decision

to deny separation pay to Appellants, I would prefer to dispose

of this case by directing the district court to enter judgment

in   Appellants’        favor    on    their    ERISA   claim,    brought     under   29

U.S.C. § 1132(a)(1)(B) to recover benefits due.                        In any event,

the case should be remanded in the wake of Metropolitan Life

Insurance Co. v. Glenn, 128 S. Ct. 2343 (2008), for the district

court to properly weigh Celanese’s conflict of interest in the

applicable abuse-of-discretion analysis.                      Thus, with all respect

to my fine colleagues on the panel majority, I dissent.



                                              I.

       Two decades ago, the Supreme Court held in Firestone Tire &

Rubber      Co.    v.    Bruch        that,    “[c]onsistent       with    established

principles of trust law, . . . a denial of benefits challenged

under § 1132(a)(1)(B) is to be reviewed under a de novo standard

unless the benefit plan gives the administrator or fiduciary

discretionary authority to determine eligibility for benefits or

to construe the terms of the plan.”                     489 U.S. 101, 115 (1989).

More     recently,       while    this        appeal    was    pending,     the   Court

clarified in Glenn that the abuse-of-discretion standard applies

even   if    the   plan    administrator           operated    under   a   conflict   of

interest, including the common situation where “the entity that

                                              27
administers      the     plan,    such    as       an     employer    or    an    insurance

company, both determines whether an employee is eligible for

benefits and pays benefits out of its own pocket.”                               128 S. Ct.

at 2346.       The court explained that, although the decision of a

conflicted       administrator           is     entitled        to     deference,          the

administrator’s         “conflict    should         ‘be    weighed     as   a     factor    in

determining whether there is an abuse of discretion.’”                               Id. at

2350    (quoting       Firestone,    489       U.S.       at   115)    (other      internal

quotation marks omitted).

       Writing    for     the    Glenn    majority,         Justice    Breyer      observed

that “[t]rust law continues to apply a deferential standard of

review    to     the     discretionary        decisionmaking          of    a    conflicted

trustee, while at the same time requiring the reviewing judge to

take    account     of    the    conflict          when    determining       whether       the

trustee,       substantively        or        procedurally,           has       abused     his

discretion.”       Glenn, 128 S. Ct. at 2350.                   He further explained

that

       when judges review the lawfulness of benefit denials,
       they will often take account of several different
       considerations of which a conflict of interest is one.
       This kind of review is no stranger to the judicial
       system.   Not only trust law, but also administrative
       law, can ask judges to determine lawfulness by taking
       account of several different, often case-specific,
       factors, reaching a result by weighing all together.

            In such instances,            any one factor will act as a
       tiebreaker  when   the             other   factors  are  closely
       balanced, the degree of            closeness necessary depending
       upon the tiebreaking               factor’s inherent or case-

                                              28
       specific importance.   The conflict of interest . . .
       should   prove   more  important    (perhaps   of  great
       importance) where circumstances suggest a higher
       likelihood that it affected the benefits decision,
       including, but not limited to, cases where an
       insurance company administrator has a history of
       biased claims administration.     It should prove less
       important (perhaps to the vanishing point) where the
       administrator   has taken    active   steps   to  reduce
       potential bias and to promote accuracy, for example,
       by walling off claims administrators from those
       interested in firm finances, or by imposing management
       checks    that   penalize   inaccurate    decisionmaking
       irrespective of whom the inaccuracy benefits.

Id. at 2351 (citations omitted); see also id. at 2352 (Roberts,

C.J., concurring in part and concurring in the judgment) (“The

majority    would       accord    weight,      of    varying    and     indeterminate

amount, to the existence of . . . a conflict in every case where

it is present.”).

       In the wake of Glenn, we have recognized that “any conflict

of     interest    is     considered     as    one    factor,        among   many,   in

determining         the        reasonableness         of       the      discretionary

determination.”           Champion v. Black & Decker (U.S.) Inc., 550

F.3d     353,     359   (4th     Cir.   2008)       (reiterating       the   “familiar

standard” that “a discretionary determination will be upheld if

reasonable”).             And,    we    have    acknowledged          the    continued

applicability of our pre-Glenn reasonableness test, comprised of

eight nonexclusive factors that a court may consider (including

the existence of a conflict):

       “(1) the language of the plan; (2) the purposes and
       goals of the plan; (3) the adequacy of the materials

                                          29
        considered to make the decision and the degree to
        which they support it; (4) whether the fiduciary’s
        interpretation was consistent with other provisions in
        the plan and with earlier interpretations of the plan;
        (5) whether the decisionmaking process was reasoned
        and   principled;  (6)   whether   the   decision   was
        consistent   with  the   procedural   and   substantive
        requirements of ERISA; (7) any external standard
        relevant to the exercise of discretion; and (8) the
        fiduciary’s motives and any conflict of interest it
        may have.”

Champion, 550 F.3d at 359 (quoting Booth v. Wal-Mart Stores,

Inc. Assocs. Health & Welfare Plan, 201 F.3d 335, 342-43 (4th

Cir. 2000)).∗



                                        II.

     Here, the district court properly recognized that Celanese

was accorded discretionary authority to make benefit eligibility

determinations     and,    thus,      that    the     rejection      of   Appellants’

claim    for   separation       pay   was     to    be    reviewed    for   abuse    of

discretion.        And,     the       court        correctly    acknowledged        the

applicability     of      our    eight-factor            reasonableness     test     in

conducting such review.           As Glenn now makes clear, however, the


     ∗ Prior to Glenn, as we observed in Champion, we also
accounted for conflicts of interest by applying “a ‘modified’
abuse-of-discretion standard that reduced deference to the
administrator to the degree necessary to neutralize any untoward
influence resulting from the conflict of interest.”     Champion,
550 F.3d at 359. Of course, Glenn abrogated our modified abuse-
of-discretion standard.     See Glenn, 128 S. Ct. at 2351.
Accordingly, I agree with the panel majority’s rejection of
Appellants’ pre-Glenn contention that the district court should
have applied the modified abuse-of-discretion standard.
                                         30
court’s   analysis    of   the   conflict   of    interest   factor   was

fundamentally flawed.

                                   A.

     Significantly,    the   district    court   conducted   a   three-day

bench trial in late July 2007 for the sole purpose of taking

evidence on the conflict issue.         The court specifically focused

on the question of “whether or not there was undue influence on

the Benefits Committee which would have impacted the legitimacy

of the committee’s interpretation of the [Separation Pay Plan].”

J.A. 1001.   The evidence adduced during the bench trial, as well

as that submitted by the parties in support of their cross-

motions for summary judgment, reflected the following.

     ●    The Plan required participants to first submit
          written separation pay claims to the Plan’s
          Administrator, and to then appeal any adverse
          decision to the three-member Benefits Committee.
          See 29 U.S.C. § 1133(2) (mandating that ERISA
          plans “afford a reasonable opportunity to any
          participant whose claim for benefits has been
          denied for a full and fair review by the
          appropriate named fiduciary of the decision
          denying the claim”).

     ●    Celanese    officials   repeatedly  —    but  only
          privately — acknowledged in early 2005 that both
          the Vectran and PBI employees would be entitled
          to separation pay under the Plan if they were to
          receive inferior benefits from the purchasers of
          their respective business units (Kuraray and
          InterTech).    There was particular concern about
          the larger separation pay obligation to the PBI
          employees (approximately $876,000) than to the
          Vectran employees (about $125,000), and the
          corresponding    effect  on   the  value   of  the
          InterTech deal.

                                   31
●   On April 1, 2005, Celanese executed a “side
    letter” with Kuraray — under which Celanese would
    provide separation pay to the Vectran employees,
    but the payment would appear to be part of a
    “signing bonus” funded by Kuraray — apparently to
    conceal from the PBI employees the payment of
    Plan benefits to their Vectran counterparts.

●   In mid-April 2005, Cheryl Cunningham, Celanese’s
    benefits manager, concluded that the InterTech
    benefits   were   indeed  inferior   and,   thus,
    recommended that PBI employees receive separation
    pay — just as the Vectran employees (secretly)
    had.

●   At the direction of Jay Townsend, the Celanese
    official negotiating the PBI-InterTech sale, a
    telephone conference call was conducted on April
    22, 2005, with Townsend, in-house counsel Mathias
    Kuhr, benefits manager Cunningham, and human
    resources   official  B.J.  Smith  participating.
    Only Cunningham (as just one member of the three-
    member Benefits Committee) and Smith (the Plan’s
    Administrator) possessed any authority to decide
    the separation pay issue.

●   During the conference call, Smith convinced
    Cunningham that the PBI employees were not
    entitled to separation pay under the Plan — not
    because of the plain terms of the Plan (which
    Smith had never read), but based on past
    practices in non-Plan-related divestitures. Soon
    after the call, Cunningham and the second member
    of the Benefits Committee informally agreed that
    the PBI employees were ineligible for Plan
    benefits; the third Committee member was never
    consulted about the matter.     The PBI-InterTech
    negotiations    then     proceeded    with    the
    understanding that any claim for Plan benefits
    made by the PBI employees would definitely be
    denied.

●   Unaware that the decision to deny them Plan
    benefits had already been made, the Appellant PBI
    employees submitted written claims for separation
    pay in June 2005.   Celanese thereafter conducted

                         32
    sham administrative proceedings — orchestrated by
    its lawyers — in order to give the appearance of
    a full and fair claims review.     As just a few
    examples of Celanese’s egregious and dishonest
    conduct:

    -   Smith advised Appellants in a July 7,
        2005   letter  that   they   were  being
        permitted, “[i]n the interests of being
        fair,” ten days to submit additional
        evidence in support of their claims,
        J.A. 79, but the letter had actually
        been drafted by a Celanese lawyer as a
        means to “requir[e] the [PBI employees]
        to submit all of their evidence up
        front,    most  likely    limiting   any
        evidence in [any subsequent] lawsuit to
        the information submitted in the claims
        process,” id. at 239;

    -   Once     Appellants    submitted     their
        additional     evidence,    counsel    for
        Celanese   explored   various   post   hoc
        justifications (other than the plain
        language    of    the   Plan)   for    the
        predetermined April 22, 2005 decision
        to deny Appellants’ claims for Plan
        benefits; and

    -   Correspondence from a Celanese attorney
        to Appellants, sent in the fall of 2005
        to announce and defend the benefits
        denial        decision,       contained
        misinformation concerning, inter alia,
        the decision-making process utilized by
        Celanese, the Appellants’ procedural
        rights, and the nature of the so-called
        “signing bonus” paid to the Vectran
        employees.

●   Significantly, the April 22, 2005 benefits denial
    decision not only contravened Plan procedures
    (requiring the Plan’s Administrator to make the
    initial claim determination and the Benefits
    Committee to resolve any appeal thereof), but
    also deprived Appellants of protections afforded
    by ERISA (mandating a full and fair review).

                         33
      At the conclusion of the bench trial, the district court

acknowledged that “without a doubt . . . it was a sloppy and

messy    process        by    which    the    Benefits       Committee         reached”    the

benefits denial decision.                J.A. 1005.          Nevertheless, the court

accepted         as     truthful        the         testimony       of       Cunningham       —

uncontradicted by direct evidence (though called into question

by circumstantial evidence) — that the Committee had not been

improperly influenced by Townsend or anyone else.                               As such, the

court concluded that “the best we can say for plaintiffs is that

this bench trial ends in a draw.”                          Id. at 1005-06.             Because

“plaintiffs [had] the burden of proof [and] the party with the

burden      of   proof       loses    when    it’s    a    draw,”      the     court   further

concluded that it was compelled to “find[] as a matter of fact

there was no undue influence on the decision of the Benefits

Committee that PBI employees were ineligible for separation pay

under the plan.”             Id. at 1006.

      Thereafter, in disposing of the parties’ cross-motions for

summary judgment by written Memorandum and Order of September

27,     2007,     the    district       court        engaged      in     our    eight-factor

reasonableness test.             The court deemed the conflict of interest

factor to be “inapplicable,” however, based on its determination

at    the    conclusion         of    the     bench       trial    “that       the     benefits

committee, although conflicted, was not influenced by improper


                                               34
motives or authorities.”                   J.A. 1328.            The court did acknowledge

that     “[t]he       lack         of     formalities            by     which      the    benefits

committee’s decisions were reached, and the indiscrete mixing of

fiduciary and non-fiduciary roles, has not made this an easy

case to decide.”             Id.        “However,” the court concluded, “Celanese

has produced wholly benign motives and reasons for its decision,

and Plaintiffs have failed to carry their burden of persuasion

by     showing    that       these        explanations           are     implausible.”            Id.

Accordingly,       the       court       ruled     that     “it        was   not    an    abuse   of

discretion to deny Plaintiffs’ claims for separation pay under

the Plan.”       Id. at 1329.

                                                 B.

       Simply put, the district court’s handling of the conflict

of     interest       factor        —     disregarding            Celanese’s        acknowledged

conflict on the ground that Appellants failed to demonstrate by

a preponderance of the evidence that there was undue influence

on the Benefits Committee — is wholly at odds with controlling

Supreme       Court     precedent,         culminating            in    Glenn.       As    Justice

Breyer       observed    therein,          trust      law    “requir[es]           the   reviewing

judge to take account of the conflict when determining whether

the     trustee,      substantively           or      procedurally,           has    abused       his

discretion.”          Glenn, 128 S. Ct. at 2350 (emphasis added).                                 The

reviewing judge is not permitted to disregard a conflict for

lack    of    proof     by    a     preponderance           of    the    evidence        that   such

                                                 35
conflict impacted the benefits decision; rather, the judge must

simply consider the conflict as one of the factors to be weighed

in assessing the decision’s overall reasonableness.                              See Carden

v.   Aetna     Life       Ins.    Co.,    559   F.3d    256,    260     (4th     Cir.   2009)

(recognizing that, under Glenn, “a conflict of interest becomes

just    one     of        the     ‘several      different,      often      case-specific,

factors’      to     be    weighed       together      in    determining        whether   the

administrator abused its discretion” (quoting Glenn, 128 S. Ct.

at 2351).      Indeed, the purpose of having a judge — rather than a

jury — assess the reasonableness of a benefits decision is that

the judge is better-equipped to engage in a nuanced weighing of

relevant factors.               See Berry v. Ciba-Geigy Corp., 761 F.2d 1003,

1007    (4th       Cir.         1985)    (observing         that,   under       trust     law,

“proceedings to determine rights under employee benefit plans

are equitable in character and thus a matter for a judge, not a

jury”).

       Finally,       that       the     district    court      wrote     off    Celanese’s

conflict      of   interest         as   “inapplicable”        to   the    reasonableness

inquiry is particularly problematic in view of the circumstances

of the benefits denial decision.                     For example, Celanese failed

to “take[] active steps to reduce potential bias and to promote

accuracy . . . by walling off claims administrators from those

interested in firm finances,” such as would render the conflict

“less important (perhaps to the vanishing point).”                               Glenn, 128

                                                36
S. Ct. at 2351.          Rather, Plan Administrator Smith and Benefits

Committee member Cunningham made their benefits denial decision

— a sudden reversal of a Plan interpretation widely shared by

Celanese officials, including Cunningham — during a conference

call     arranged    and     participated         in    by    PBI-InterTech        deal

negotiator    Townsend.           Because    these     and   other    “circumstances

suggest a higher likelihood that [Celanese’s conflict] affected

the benefits decision,” id., the conflict should have been given

significant weight in the abuse-of-discretion analysis — weight

that, at a minimum, probably would have tipped the scale in

Appellants’      favor.      It    is   thus     imperative    that    we    at   least

remand    this    case     for    proper     consideration      of     the   conflict

factor.

       Accordingly, I dissent.




                                            37
