                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 22, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    DEANNE YOUNG,

                Plaintiff–Appellant,

    v.                                                   No. 10-4156
                                                (D.C. No. 2:09-CV-00812-BSJ)
    UNITED PARCEL SERVICES, INC.                           (D. Utah)
    EMPLOYEES’ SHORT TERM
    DISABILITY PLAN; AETNA LIFE
    INSURANCE COMPANY,

                Defendants–Appellees.


                            ORDER AND JUDGMENT *


Before LUCERO, ANDERSON, and BALDOCK, Circuit Judges.



         Deanne Young appeals the district court’s dismissal of her claims under the

Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C.

§§ 1001-1461, as barred by the contractual limitations provision in the United




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Parcel Service Inc. (“UPS”) Flexible Benefits Plan. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

                                          I

      Young is a former UPS employee. She applied for and received short-term

disability benefits under the UPS Flexible Benefits Plan (“UPS Plan”) beginning

on December 17, 2007. AETNA Life Insurance Company is the claims

administrator for short-term disability claims under the UPS Plan. On March 20,

2008, AETNA sent Young a letter stating that it had not received medical

information supporting a disability beyond March 11, 2008. Young’s short-term

disability benefits therefore terminated after that date. AETNA’s letter indicated

that Young could appeal its determination by filing a written request within 180

days. Young filed a first-level appeal, which was denied by AETNA on May 12,

2008, in a letter informing her that she had 60 days to file a further appeal.

Young’s second-level appeal was denied by the UPS Claims Review Committee

(“the Committee”) on October 17, 2008. The Committee’s letter informed her

that she might have a right to sue under ERISA, but it did not indicate any

deadline for filing suit.

      Young filed this action almost a year later, on September 8, 2009. The

UPS Plan and AETNA (collectively “UPS Parties”) moved to dismiss the

complaint for failure to state a claim under Federal Rule of Civil Procedure

12(b)(6), arguing that her action was barred by the contractual limitations

                                         -2-
provision in the UPS Plan’s summary plan description (“the SPD”). The SPD

includes the following language:

       Limitation on Legal Action
       Any legal action to receive Plan benefits must be filed the earlier of:
       •     six months from the date a determination is made under the
             Plan or should have been made in accordance with the Plan’s
             claims review procedures, or
       •     three years from the date the service or treatment was provided
             or the date the claim arose, whichever is earlier.

       Your failure to file suit within this time limit results in the
       loss/waiver of your right to file suit.

The UPS Parties contended that, under this provision, Young’s time to file her

action expired on April 17, 2009, six months after the Committee’s denial of her

second-level appeal. Holding that the six-month limitation in the SPD is

reasonable and enforceable, the district court granted the UPS Parties’ motion and

dismissed the action with prejudice. Young filed a timely appeal in which she

contends: (1) the Limitation on Legal Action provision is an unauthorized

amendment to the UPS Plan; (2) the provision is ambiguous and unenforceable;

and (3) UPS breached its promise, contained in the SPD, to inform her of the time

limit for filing suit.

                                            II

       “The legal sufficiency of a complaint is a question of law, and a Rule

12(b)(6) dismissal is reviewed de novo.” Smith v. United States, 561 F.3d 1090,

1098 (10th Cir. 2009), cert. denied, 130 S. Ct. 1142 (2010). “To survive a motion


                                           -3-
to dismiss, a complaint must contain sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct.

1937, 1949 (2009) (quotation omitted). “If the allegations, for example, show

that relief is barred by the applicable statute of limitations, the complaint is

subject to dismissal for failure to state a claim . . . .” Jones v. Bock, 549 U.S.

199, 215 (2007). In evaluating a motion to dismiss, courts “may consider

documents referred to in the complaint if the documents are central to the

plaintiff’s claim and the parties do not dispute the documents’ authenticity.”

Smith, 561 F.3d at 1098 (quotation omitted).

                                          III

      Young’s arguments require us to construe the terms of the UPS Plan. “[A]n

employee benefit plan must be established by a ‘written instrument.’” Chiles v.

Ceridian Corp., 95 F.3d 1505, 1511 (10th Cir. 1996) (quoting 29 U.S.C.

§ 1102(a)(1)). In addition, an employer is required to furnish plan participants

with a summary plan description, which “shall be sufficiently accurate and

comprehensive to reasonably apprise such participants . . . of their rights and

obligations under the plan.” 29 U.S.C. § 1022(a). A summary plan description

must contain certain information, including the “circumstances which may result

in disqualification, ineligibility, or denial or loss of benefits.” § 1022(b). And it

must “be written in a manner calculated to be understood by the average plan

participant.” § 1022(a). In construing the terms of an ERISA plan, we examine

                                           -4-
the plan documents as a whole, including the summary plan description. See

Chiles, 95 F.3d at 1511. We will give the language in the plan documents “its

common and ordinary meaning as a reasonable person in the position of the plan

participant, not the actual participant, would have understood the words to mean.”

Id. (quotation and alteration omitted).

                                          A

      Because ERISA does not contain a statute of limitations for private

enforcement actions, courts “generally apply the most closely analogous statute of

limitations under state law.” Salisbury v. Hartford Life & Accident Co., 583 F.3d

1245, 1247 (10th Cir. 2009) (quotation omitted). Parties to an ERISA plan are

free, however, to include a reasonable contractual limitations period in the plan.

Id. at 1247-48. Young argues in this case that the Limitation on Legal Action

provision, which appears only in the SPD, is unenforceable as an unauthorized

amendment of the Plan; therefore, she maintains that the default state-law statute

of limitations applies, under which her action was timely.

      “Employers or other plan sponsors are generally free under ERISA, for any

reason at any time, to adopt, modify, or terminate welfare plans.” Curtiss-Wright

Corp. v. Schoonejongen, 514 U.S. 73, 78 (1995). But every ERISA Plan must

“provide a procedure for amending such plan, and for identifying the persons who

have authority to amend the plan.” 29 U.S.C. § 1102(b)(3). Any amendment to a

plan must comply with that procedure in order to be authorized. See

                                          -5-
Curtiss-Wright Corp., 514 U.S. at 85 (“ERISA . . . dictat[es] only that whatever

level of specificity a company ultimately chooses, in an amendment procedure or

elsewhere, it is bound to that level.”). The UPS Plan grants UPS broad amending

authority, for both the UPS Plan itself and the SPD, as follows:

      The Employer, through its duly authorized Corporate Benefits
      Manager, reserves the right to amend the provisions of the Plan to
      any extent and in any manner it desires by execution of a written
      document describing the intended amendment(s). The SPD attached
      hereto may be amended at any time by preparation and publication of
      a revised SPD . . . by the Corporate Benefits Manager. Upon
      adoption, the SPD, as amended, shall be attached hereto as Appendix
      D.

      For her proposition that the Limitation on Legal Action provision in the

SPD is an unauthorized amendment of the UPS Plan, Young cites Jobe v. Medical

Life Insurance Co., 598 F.3d 478 (8th Cir. 2010). In Jobe, the Eighth Circuit

addressed whether to apply a de novo or abuse-of-discretion standard of review to

a plan administrator’s determination, given that the summary plan description

granted the administrator discretion, but the plan was silent on that issue. See id.

at 481. The court noted that, absent a grant of discretion in a plan, the default

standard of de novo review would apply. See id. at 483. The court concluded

that the plan and the summary plan description were in conflict, reasoning that the

plan, by its silence, provided for de novo review, while the summary plan

description provided for abuse-of-discretion review. See id. The plan documents

in Jobe uniformly provided that the plan’s terms prevailed over the summary plan


                                          -6-
description. See id. at 483-84 & n.4. Young argues that UPS Plan and SPD are

similarly in conflict, asserting that the default state-law statute of limitations

applies under the terms of the UPS Plan, but the six-month contractual limitations

period applies under the SPD.

      Jobe does not apply here because the terms of the UPS Plan differ

significantly from the terms of the plan at issue in that case. The UPS Plan

expressly incorporates the terms of the SPD into the Plan by providing: “The

summary plan description and [summaries of material modifications] . . . are

hereby incorporated by reference and shall constitute a part of the Plan.” The

UPS Plan also provides, “[i]f the terms of [the Plan] and the SPD conflict, the

SPD shall govern.” Thus, under the terms of the UPS Plan, the Limitation on

Legal Action provision is incorporated into and made a part of the Plan. And

even if there were a conflict between the UPS Plan’s silence and the time limits

stated in the Limitation on Legal Action provision, the latter would prevail as part

of the SPD, which explicitly amended the UPS Plan. Finally, Young does not

contend that any amendment to the UPS Plan or the SPD failed to comply with

the Plan’s amendment procedures. Therefore, Young fails to show that the

Limitation on Legal Action provision in the SPD is unenforceable as an

unauthorized amendment of the UPS Plan.




                                           -7-
                                         B

      Young also contends that the Limitation on Legal Action provision is

unenforceable because the average plan participant would expect it to be located

in a different section of the SPD and because its terms are ambiguous. The

Limitation on Legal Action provision is located in a section of the SPD headed “If

Your Claim Is Denied,” which is one of the main sections listed in the SPD’s

table of contents. This section describes the chronology of the appeals process

applicable to denied claims, beginning with the receipt of a denial notice from the

claims administrator, through the denial of a second-level appeal by the

Committee. The Limitation on Legal Action provision is located in this section,

under a bold, italicized and larger-font heading.

      Young argues that the UPS Plan’s placement of the Limitation on Legal

Action provision within the SPD is so misleading that it is unenforceable. She

contends that, having been advised by the Committee that she may have a right to

file an ERISA action in federal court, a plan participant would reasonably search

the SPD for information regarding ERISA. However, a reasonable plan

participant, consulting the SPD after having received a denial notice from the

claim administrator, would find the If Your Claim is Denied section prominently

listed in the table of contents. We reject Young’s assertion that UPS placed this

provision in the “wrong” section of the SPD.




                                        -8-
      Young also contends that the text of the Limitation on Legal Action

provision is ambiguous. She is correct that “[t]he duty of clarity falls upon the

plan sponsor.” Chiles, 95 F.3d at 1518. She raises two contentions of ambiguity

that merit discussion.

      She argues that the first bullet of the Limitation on Legal Action provision

is ambiguous with respect to what “determination” triggers the beginning of the

six-month period. She notes that AETNA and UPS made several determinations

under the UPS Plan and if UPS meant the “final” determination, it could have and

should have used that term. We do not agree that a failure to specify the “final”

determination makes the commencement of the six-month period ambiguous.

When read in conjunction with the detailed description of the appeals process in

the same section, including the statement that “[y]ou cannot file suit in federal

court until you have exhausted these appeal procedures,” it is sufficiently clear to

a plan participant in Young’s position that “determination” does not refer to the

intermediate steps in the appeal process.

      Young also contends that it is unclear whether the three-year period

described in the second bullet of the Limitation on Legal Action provision applied

to her claim because that provision fails to define when her claim arose. But the

three-year alternative period applies only when it ends earlier than the six-month

period. Young’s six-month period expired on April 17, 2009. She does not assert

that her claim arose more than three years before that date, as she did not claim a

                                            -9-
disability until December 2007 and her benefits were not terminated until March

2008. Thus, it would be clear to a plan participant in Young’s position that, upon

the Committee’s determination on her second-level appeal on October 17, 2008,

she had six more months to file her action. Young has not established that the

Limitation on Legal Action provision is ambiguous.

                                       C

      Young’s final contention is that UPS breached its promise in the SPD to

inform her of the time limit for filing suit. She points to language in the If Your

Claim Was Denied section stating that a notice of claim denial will contain “a

description of the Plan’s appeal procedures and the time limits applicable to such

procedures, including a statement of your right to bring a civil action following a

denial of your appeal.” The SPD provides further that, if the Committee denies a

second-level appeal, the notice will contain this same information. Young does

not dispute that each of the letters from AETNA included information regarding

the applicable time limits for filing an appeal. She maintains, however, that the

language in the SPD referring to the time limits applicable to the appeal

procedures also required the Committee to notify her of the deadline for filing her

ERISA action. But, as the UPS Parties point out, this argument conflates the

internal appeals process, and its associated deadlines, with the filing of a legal

action after that process has been fully exhausted. The SPD states only that

notice will be provided regarding the time limits applicable to the appeal

                                         -10-
procedures. Therefore, Young fails to show a breach of the terms of the Plan

regarding notice of her right to file an ERISA action.

                                         IV

      AFFIRMED.


                                                    Entered for the Court



                                                    Carlos F. Lucero
                                                    Circuit Judge




                                        -11-
