14-3438-cv
Whelehan v. Bank of America Pension Plan for Legacy Fleet – Traditional Benefit, et al.

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to a summary
order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of
Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in
a document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 30th day of October, two thousand fifteen.

PRESENT:            AMALYA L. KEARSE,
                    RALPH K. WINTER,
                    JOSÉ A. CABRANES,
                                 Circuit Judges.


KATHLEEN WHELEHAN,

                               Plaintiff-Appellant,                                       14-3438-cv

                               v.

BANK OF AMERICA PENSION PLAN FOR LEGACY
COMPANIES – FLEET – TRADITIONAL BENEFIT,
TRUSTEES OF THE BANK OF AMERICA PENSION PLAN
FOR LEGACY COMPANIES – FLEET – TRADITIONAL
BENEFIT, AND BANK OF AMERICA,

                               Defendants-Appellees. *




     *
    The Clerk of Court is directed to amend the official caption to conform with the caption
above.

                                                                   1
FOR PLAINTIFF-APPELLANT:                                   MICHAEL T. HARREN, Trevett Cristo
                                                           Salzer & Andolina P.C., Rochester, NY.

FOR DEFENDANTS-APPELLEES:                                  BETH L. KAUFMAN (Paulette J. Morgan, on
                                                           the brief), Schoeman Updike Kaufman &
                                                           Stern LLP, New York, NY.

       Appeal from two orders of the United States District Court for the Western District of New
York (Michael A. Telesca, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the orders of the District Court be and hereby are
AFFIRMED.

        Plaintiff-appellant Kathleen Whelehan appeals the District Court’s March 17, 2014 order
denying her motion for partial summary judgment and request for further discovery and granting
summary judgment in favor of defendants-appellees Bank of America Pension Plan for Legacy Fleet
– Traditional Benefit (“Plan”), Trustees of the Bank of America Pension Plan for Legacy Fleet –
Traditional Benefit, and Bank of America (jointly, “defendants”), as well as the District Court’s
August 29, 2014 order denying Whelehan’s motion for reconsideration. We assume the parties’
familiarity with the underlying facts and the case’s procedural history.

         On appeal, Whelehan contends that the District Court improperly overlooked genuine issues
of material fact in granting summary judgment dismissing her claims for benefits and breach of
fiduciary duty under the Employee Retirement Income Security Act of 1974 (“ERISA”) and
erroneously determined that defendants had not violated ERISA by denying her request for certain
documents. In any event, she argues, the District Court should have permitted her to augment the
factual record through discovery before granting summary judgment.

         Reviewing the District Court’s grant of summary judgment de novo, Amaker v. Foley, 274 F.3d
677, 680 (2d Cir. 2001), and its denial of additional discovery for abuse of discretion, Paddington
Partners v. Bouchard, 34 F.3d 1132, 1137 (2d Cir. 1994), we affirm.

         In Whelehan’s leading argument, she asserts that genuine issues of material fact preclude a
judicial determination that the denial of her claim for pension benefits by the Bank of America
Benefits Appeals Committee (“Appeals Committee”) was not arbitrary and capricious.1 Whelehan



   1
      In her reply brief, and apparently for the first time in this litigation, Whelehan raises the
argument that the Appeals Committee’s decision is not owed deference because the Plan does not
vest the Appeals Committee with discretionary authority in rendering decisions on benefits. Compare
Whelehan Br. 23 (“[T]his Court must apply the deferential arbitrary and capricious standard to the
Plan’s interpretation.”), with Whelehan Rep. Br. 4 (“[T]he Court cannot grant the decision of the
                                                  2
takes the position that to render a reasoned decision denying her claim, the Appeals Committee was
obliged to undertake a full investigation of her employment history, document its efforts and
findings, and demonstrate that under the Plan, a person with such a history is not entitled to
benefits. Absent record evidence showing that the Appeals Committee undertook this operation,
she urges, defendants are not entitled to summary judgment.

         This argument is not persuasive. It is an ERISA claimant’s burden to establish an
entitlement to benefits, and “administrators may exercise their discretion in determining whether a
claimant’s evidence is sufficient to support his claim.” Roganti v. Metro. Life Ins. Co., 786 F.3d 201,
212 (2d Cir. 2015). In this case the Appeals Committee determined that Whelehan’s meager
evidentiary showing failed to establish that she became eligible for Plan benefits at Security Trust
Company,2 participated in the Plan, and accrued a vested benefit. 3 See generally Jiras v. Pension Plan of
Make-Up Artist & Hairstylists Local 798, 170 F.3d 162, 166 (2d Cir. 1999) (upholding the plan
administrator’s refusal to increase a benefits award under arbitrary and capricious review, when the
claimant “offered no documentation as to any collective bargaining agreements or [employer
contributions]” and “the only affidavit supporting his position was unsubstantiated” and came from
an unreliable witness). Rather than point to evidence in the administrative record undermining the
Appeals Committee’s decision, Whelehan demands that defendants produce evidence supporting it.
This misapprehends ERISA’s assignment of burdens and the scope of judicial review. “[A] district
court’s review under the arbitrary and capricious standard is limited to the administrative record.”
Miller, 72 F.3d at 1071. Whelehan had the opportunity to compile an evidentiary record
demonstrating her entitlement to benefits — an opportunity that she was informed included the
right to obtain relevant documents from the Plan administrator, without cost — but the Appeals
Committee concluded that she had not done so. In view of Whelehan’s lackluster submission,




plan administrator a deferential standard of review.”). A litigant may not raise an argument for the
first time in a reply brief, Knipe v. Skinner, 999 F.2d 708, 711 (2d Cir. 1993), so we decline to consider
this theory.
    2
     In her submissions to the Appeals Committee, Whelehan stated that she had worked at
predecessor organizations of Bank of America, including Security Trust Company, between 1972
and 1988.
    3
     This showing did not include the certified record from the Social Security Administration
(“SSA”) dated June 28, 2013, indicating that Whelehan worked for Security Trust Company from
1972 to 1986. J.A. 42-43. The SSA document was issued nearly a year after the Appeals
Committee’s final decision of August 2, 2012. J.A. 114-15. The District Court therefore properly
declined to consider it in reviewing the Appeals Committee’s decision under the arbitrary and
capricious standard. Miller v. United Welfare Fund, 72 F.3d 1066, 1071 (2d Cir. 1995) (“[A] district
court’s review under the arbitrary and capricious standard is limited to the administrative record.”).

                                                    3
which the District Court quite accurately characterized as a “motley array of uncertified, ambiguous
documents,” this conclusion was not arbitrary and capricious.

        Neither did the District Court err in granting summary judgment for defendants on
Whelehan’s claims for breach of fiduciary duty. A claim under ERISA § 502(a)(2), 29 U.S.C. §
1132(a)(2), “may not be made for individual relief, but instead [is] ‘brought in a representative
capacity on behalf of the plan.’” Coan v. Kaufman, 457 F.3d 250, 257 (2d Cir. 2006) (quoting Mass.
Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 142 n.9 (1985)). Whelehan seeks only individual relief and
therefore may not proceed under § 502(a)(2). Similarly, to the extent that Whelehan may have
intended to invoke ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), that section may not be relied on by a
claimant to pursue relief — in this case, pension benefits — available under a separate ERISA
provision. Varity Corp. v. Howe, 516 U.S. 489, 515 (1996) (“[W]here Congress elsewhere provided
adequate relief for a beneficiary’s injury . . . relief [under § 502(a)(3)] normally would not be
‘appropriate.’”).

        Whelehan next argues that the District Court erred in granting summary judgment on her
second cause of action, in which she sought damages under 29 U.S.C. § 1132(c)(1) on the ground
that defendants refused to furnish her with Plan documents on request (as required by 29 U.S.C. §
1024(b)(4)). Whelehan was entitled to relief on this claim only if she requested information from the
Plan administrator, the administrator refused to furnish it, the administrator was obliged to furnish it
because Whelehan qualified as a “participant” or “beneficiary,” and the administrator’s refusal did
not result from matters reasonably beyond its control. 29 U.S.C. § 1132(c)(1). It appears that
Whelehan’s attorney requested “certain documents” from the Appeals Committee in January 2013,
J.A. 30-31, ¶ 36, but the administrative proceedings had been concluded in August 2012, and there is
no evidence in the record that Whelehan requested Plan documents from the Plan administrator at
any point during those proceedings.4 Accordingly, the District Court did not err in granting
summary judgment for defendants on this claim.

      Finally, we conclude that the District Court did not abuse its discretion in denying
Whelehan’s request for further discovery. A litigant may resist a summary judgment motion by


    4
      Whelehan correctly notes that a person is a “participant” entitled to certain documents if he
has a “colorable claim” to vested benefits; that is, a person can be a “participant” without actually
being entitled to benefits. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117 (1989). She argues
that the evidence before the District Court — including her June 2013 SSA record, which was issued
six months after her attorney requested documents from the Appeals Committee — easily satisfies
the “colorable claim” standard. But Whelehan’s task is not to demonstrate that she qualifies as a
“participant” today. It is to establish that she requested covered documents from the Appeals
Committee, and the Appeals Committee refused to furnish them (though not for reasons outside its
control) even though she then qualified as a “participant.” Whelehan fails to identify record
evidence establishing any of these things, and the Court’s own search has turned up nothing.

                                                   4
asserting the need for additional discovery, but in so doing must comply with the requirements of
Federal Rule of Civil Procedure 56(d) by submitting an affidavit that includes “the nature of the
uncompleted discovery; how the facts sought are reasonably expected to create a genuine issue of
material fact; what efforts the affiant has made to obtain those facts; and why those efforts were
unsuccessful.” Paddington Partners, 34 F.3d at 1138 (discussing materially identical prior version of
Rule 56(d)). Here, Whelehan did not submit an affidavit at all in responding to defendants’ motion
— she merely asked for further discovery in her responsive filing — and this alone was reason to
deny her request. See id. at 1137. Moreover, as the District Court noted, the documents Whelehan
sought could not have given rise to a genuine issue of material fact: the District Court’s review of
the Appeals Committee’s decision was limited to the administrative record.5 Miller, 72 F.3d at 1071.
For this reason, too, the District Court acted well within its discretion in denying Whelehan’s
procedurally improper request for discovery, as well as in declining to consider the untimely affidavit
she filed in connection with her motion for reconsideration.

                                           CONCLUSION

      We have reviewed all of Whelehan’s arguments on appeal and find them to be without merit.
We thus AFFIRM the March 17, 2014 and August 29, 2014 orders of the District Court.


                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




    5
      Whelehan suggests that these documents might have demonstrated the existence of a conflict
of interest, and on this subject discovery of material outside the administrative record is typically
appropriate. Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 174 (2d Cir. 2001). But Whelehan identifies
no particular reason to suppose that the Appeals Committee was operating under a conflict, and she
did not allege a conflict in her amended complaint. Accordingly, the District Court properly denied
her request for discovery on this topic. See Paddington Partners, 34 F.3d at 1138 (a litigant that has a
claim may be granted time for additional discovery, but a litigant may not obtain time for additional
discovery “to find out if it has a claim”).

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