IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10711

BOARD OF TRUSTEES OF THE PLUMBERS AND PIPEFITTERS 

NATIONAL PENSION FUND, 

 Plaintiff - Appellee

v.

PATRICIA ANN FRALICK, 

 Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:11-CV-3386

Before JOLLY and JONES, Circuit Judges, and GODBEY*, District Judge. 

PER CURIAM:**

In this declaratory judgment action relating to pension rights, Patricia 

Ann Fralick (“Mrs. Fralick”) appeals the district court’s declaratory judgment 

in favor of the Board of Trustees of the Plumbers and Pipefitters National 

Pension Fund (the “Board”) and the dismissal of her counterclaim for benefits 

* District Judge of the Northern District of Texas, sitting by designation. 

** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 18, 2015

Lyle W. Cayce

Clerk

 

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under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 

1132(a) (“ERISA”). Mrs. Fralick argues that the district court lacked subject 

matter jurisdiction over the Board’s claim. Alternatively, she argues that she 

is entitled to relief under her counterclaim for benefits. 

We conclude that we have subject matter jurisdiction and that Mrs. 

Fralick’s counterclaim for benefits lacks merit. Accordingly, we AFFIRM in 

part, VACATE in part, and REMAND the case for entry of an amended 

judgment awarding Mrs. Fralick the remaining payment of $36,722 due under 

Mr. Fralick’s retirement pension. 

I.

This appeal is the second occasion in which we have addressed the 

Fralicks’ rights under the Plumbers and Pipefitters National Pension Fund 

(the “Fund”), a pension plan governed by ERISA. The facts underlying the first 

case are also specifically relevant to this appeal. 

Fred Fulton Fralick (“Mr. Fralick”), Mrs. Fralick’s husband, applied for 

benefits from the Fund in October 2005. At the time of his application, Mr.

Fralick worked for Brandt Engineering, and he had accumulated 38.883 years

of credit toward his pension. The Board informed Mr. Fralick on October 26, 

2005, that he would be awarded an early retirement pension with an effective 

date of benefits of January 1, 2006. The Board’s letter also informed Mr. 

Fralick that such pensions were automatically paid as a 50% Husband and 

Wife Pension unless both Mr. Fralick and Mrs. Fralick agreed to reject this 

structure. On December 2, 2005, Mr. and Mrs. Fralick signed a form rejecting 

the 50% Husband and Wife Pension and electing instead to receive a Single 

Life Pension with 5-Years Certain Payments. Under the plan the Fralicks 

selected, Mr. Fralick was entitled to benefits for the course of his life, and Mrs. 

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Fralick would be entitled to additional benefits only to the extent that Mr. 

Fralick died before receiving sixty total monthly payments.1 

On December 2, 2005, Mr. Fralick signed a declaration representing to 

the Board that he would not work in the plumbing and pipefitting industry 

after December 30, 2005. This representation is important, as the Fund’s 

terms require suspension of benefits if a beneficiary engages in “Disqualifying 

Employment,” which includes employment with any employer that contributes 

to the Fund or any other employment either related to the plumbing and 

pipefitting industry or the plumbing and pipefitting union. 

After Mr. Fralick completed the application process, he received twelve 

monthly benefit payments in 2006. Apparently, Mr. Fralick began working for 

Brandt Electric, a sister company to Brandt Engineering, soon after he 

supposedly retired from Brandt Engineering. In late 2006, the Board received 

word that Mr. Fralick was working for Brandt Engineering. Thus, the Board 

suspended his benefits because it believed that Mr. Fralick was working for a 

contributing employer to the Fund, and it also sought return of the payments

it had made. Mr. Fralick appealed these decisions, contending that Brandt 

Electric and Brandt Engineering were separate companies and that he had not 

engaged in plumbing and pipefitting work. 

The Board did not accept Mr. Fralick’s arguments, and he subsequently 

filed suit. In that suit, on June 22, 2010, the district court granted Mr. 

Fralick’s motion for summary judgment and rejected the Board’s arguments 

that Mr. Fralick had engaged in disqualifying employment. The Board 

promptly appealed. Mr. Fralick died on November 12, 2010, while that case 

was on appeal but after the briefing had been completed. Mr. Fralick’s 

1 Apparently, the upside of this plan is that it allowed Mr. Fralick to receive larger 

monthly payments. 

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attorneys substituted Mrs. Fralick as executrix of the estate, and this Court 

affirmed the district court’s ruling in March 2011. Although Mrs. Fralick 

initially refused to accept the Board’s payment in satisfaction of the judgment, 

she ultimately filed a satisfaction of judgment on June 26, 2011. 

On July 7, 2011, Mrs. Fralick’s attorneys sought payment of a 

preretirement spouse pension from the Fund.2 A surviving spouse is entitled 

to a preretirement pension if the “Qualified Spouse dies before his Effective 

Date of Benefits, and if at the time of his death the Participant was Vested or 

otherwise could have established entitlement to a pension.” In order to seek 

this pension, Mrs. Fralick argued that Mr. Fralick had not retired from 

plumbing and pipefitting work. Based upon the earlier decision of this Court, 

supra, the Board took the position in Mrs. Fralick’s case that she was not 

entitled to a preretirement surviving spouse pension because the courts had 

already determined that Mr. Fralick was entitled to the early retirement 

pension. 

The Board initiated this declaratory judgment action on December 7, 

2011, seeking a declaration that Mrs. Fralick was not entitled to a 

preretirement surviving spouse pension benefit; it also sought an order that it 

only owed Mrs. Fralick an additional payment of $36,722 based on the 

remaining payments due under Mr. Fralick’s retirement pension. Mrs. Fralick 

answered the complaint, and on August 21, 2012, she amended her answer to

include a counterclaim for benefits. On October 19, 2012, the Board moved for 

summary judgment, both with respect to its declaratory judgment action and

Mrs. Fralick’s counterclaim. On October 31, 2012, Mrs. Fralick moved for 

2 The record indicates that Mrs. Fralick submitted documentation seeking a 

preretirement surviving spouse pension in January 2011. The Board had also taken the 

position that the resolution of the appeal would determine the type of pension that Mrs. 

Fralick would receive. 

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dismissal based on lack of subject matter jurisdiction. She never filed any 

other responsive brief to the summary judgment motion. The district court 

ruled in favor of the Board, granting its declaratory judgment and dismissing 

Mrs. Fralick’s counterclaim. It subsequently denied Mrs. Fralick’s motion for 

reconsideration, and she filed a timely appeal of the district court’s rulings. 

II.

We review issues of subject matter jurisdiction, including justiciability 

issues such as standing, de novo. Ctr. for Individual Freedom v. Carmouche, 

449 F.3d 655, 659 (5th Cir. 2006). Mrs. Fralick argues that the district court 

lacked subject matter jurisdiction or, alternatively, that the Board lacked

standing to bring this declaratory judgment action. We cannot agree.

A.

The Board seeks relief under the Declaratory Judgment Act, which 

permits the federal courts to “declare the rights and other legal relations of any 

interested party seeking such declaration, whether or not further relief is or 

could be sought.” 28 U.S.C. § 2201. Thus, the Board invoked a federal remedy 

that is available to it in federal court. But, of course, the Board must also 

present to the Court “a case of actual controversy within its jurisdiction.” Id.

The subject matter of the Board’s declaratory judgment claim is a 

pension fund governed by ERISA. Thus, the Board invokes the federal 

question jurisdiction of the federal courts. See 28 U.S.C. § 1331 (“The district 

courts shall have original jurisdiction of all civil actions arising under the 

Constitution, laws, or treaties of the United States.”). The Board’s declaratory 

judgment action “arises” under federal law because its right to relief, if any, 

depends on our construction of ERISA, a federal statute. Indeed, the Board 

asserts no right that is separate and distinct from its rights under the statutory 

scheme of ERISA. It urges us to interpret 29 U.S.C. § 1132(a), which 

enumerates the bases for civil actions under ERISA, and conclude that it has 

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stated an actionable claim under ERISA. The Board only seeks to enforce its 

rights outside the statutory scheme by resorting to the Declaratory Judgment 

Act as an enforcement mechanism. 

Mrs. Fralick argues, however, that the district court lacked subject 

matter jurisdiction because the Board’s ERISA claim falls outside the remedies 

provided to it in § 1132(a). She argues that the Board, an ERISA fiduciary, 

has brought a claim for benefits, and only a beneficiary may make such a claim 

under § 1132(a)(1)(B). This argument, however, does not bear on whether we 

have subject matter jurisdiction over the Board’s claim. See ACS Recovery 

Servs., Inc. v. Griffin, 723 F.3d 518, 523 (5th Cir. 2013) (en banc). We conclude 

that the district court correctly held that it had subject matter jurisdiction to 

adjudicate this declaratory judgment claim under its federal question power in 

28 U.S.C. § 1331.

B.

Next, we turn to the question of whether the Board has standing to 

assert its claim in this federal court action. Standing derives from the 

constitutional premise that federal courts may only adjudicate “Cases” or 

“Controversies.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 559–61 (1992). 

We typically break standing into constitutional and prudential components. 

Relevant here, a party satisfies the constitutional elements of standing by 

“present[ing] (1) an actual or imminent injury that is concrete and 

particularized, (2) fairly traceable to the defendant’s conduct, and (3) 

redressable by a judgment in [his or her] favor.” Duarte ex rel. Duarte v. City 

of Lewisville, Tex., 759 F.3d 514, 517 (5th Cir. 2014). Mrs. Fralick argues that 

the Board lacked constitutional standing to bring its action.3

3 The district court read Mrs. Fralick’s arguments to implicate prudential standing. 

Prudential standing relates to a litigant’s ability to raise personal legal rights that affect his 

interests. See Cibolo Waste, Inc. v. City of San Antonio, 718 F.3d 469, 474 (5th Cir. 2013). 

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Her standing argument is also premised on her contention that the 

Board has not stated a claim for relief within the enumerated causes of action 

under § 1132(a). She has not explained, however, how the failure to state a 

claim implicates any of the elements of standing as relates to this case. 

To the contrary, the record suggests that the Board seeks resolution of 

an ongoing controversy over ERISA benefits, and if the courts adopt the 

Board’s interpretation of the pension plan, it will not be liable to Mrs. Fralick. 

The Board also does not lack standing to pursue this action merely because it 

filed the action before Mrs. Fralick counterclaimed for benefits. See SherwinWilliams Co. v. Holmes Cnty., 343 F.3d 383, 391–92 (5th Cir. 2003) 

(“Declaratory judgments are often ‘anticipatory,’ appropriately filed when 

there is an actual controversy that has resulted in or created a likelihood of 

litigation.”). The Board presents a long-standing actual controversy between 

the parties that is capable of judicial resolution, and thus it has standing to 

bring its declaratory judgment claim in federal court. 

Mrs. Fralick points us to an Eleventh Circuit decision, which she claims 

supports her view that § 1132(a) relates to the elements of standing. Gulf Life 

Ins. Co. v. Arnold, 809 F.2d 1520 (11th Cir. 1987). In Gulf Life, the Eleventh 

Circuit described § 1132 as “essentially a standing provision: it sets forth those 

parties who may bring civil actions under ERISA and specifies the types of 

actions each of those parties may pursue.” Id. at 1524. We emphasize the 

Eleventh Circuit’s use of the word “essentially.” It does not appear to us that 

the Gulf Life court actually concluded that § 1132(a) establishes standing 

elements. In any event the decision does not bind us on the issue of standing.

Mrs. Fralick argues on appeal, however, that her arguments implicate constitutional and not 

prudential standing. Moreover, we do not believe that Mrs. Fralick has raised any issue 

regarding the prudential elements of standing. 

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In sum, we conclude that the district court correctly held that it had

subject matter jurisdiction over the Board’s declaratory judgment claim and 

that the Board had standing to bring the claim. 

III.

Next, we turn to the merits of the Board’s declaratory judgment action 

and Mrs. Fralick’s counterclaim for benefits. The district court disposed of both 

claims on summary judgment, and thus we review its decision de novo. Munn 

v. City of Ocean Springs, Miss., 763 F.3d 437, 438 (5th Cir. 2014).

Before turning to the merits, we observe that the same claims are

presented to the Court in two ways. First, the Board filed its action for a 

declaratory judgment that Mrs. Fralick was not entitled to additional ERISA 

benefits. Second, Mrs. Fralick filed a counterclaim to the Board’s declaratory 

judgment action seeking ERISA benefits. Because we may decide Mrs. 

Fralick’s claims on her counterclaim for benefits, we need not decide whether 

the Board could bring its declaratory judgment action under ERISA.4

Both parties acknowledge that Mrs. Fralick may bring a counterclaim 

for benefits under § 1132(a)(1)(B) of ERISA, but the Board disputes whether 

she is actually entitled to such benefits. The district court considered Mrs. 

Fralick’s counterclaim and the Board’s declaratory judgment claim to be 

virtually identical, as it noted that Mrs. Fralick’s counterclaim would still have 

4 We question whether the Board, as an ERISA fiduciary, can bring a declaratory 

judgment action against an ERISA beneficiary relating to benefits. See, e.g., Newpage 

Wisconsin Sys. Inc. v. United Steel, Paper & Forestry, Rubber, Mfg., Energy Allied Indus. & 

Serv. Workers Int’l Union, 651 F.3d 775, 777 (7th Cir. 2011) (explaining that “[w]hether a 

claim is good differs from the question whether a district court possesses jurisdiction, a 

matter of adjudicatory competence”). Because this is a difficult question, we decline to decide

it, in part because Mrs. Fralick did not plainly raise it on appeal. Instead, she couched her 

argument in terms of subject matter jurisdiction and standing, which we have rejected. Thus, 

we decide the merits of the appeal based on Mrs. Fralick’s counterclaim for benefits, and we 

VACATE the district court’s decision insofar as it was premised on the Board’s declaratory 

judgment. 

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been dismissed even if the Board had lacked authority to bring its action. We 

agree with the district court and AFFIRM its dismissal of Mrs. Fralick’s 

counterclaim. 

A.

First, the district court concluded that Mrs. Fralick was judicially 

estopped from challenging the earlier decision in Mr. Fralick’s case. We review 

the district court’s decision for abuse of discretion. In re Oparaji, 698 F.3d 231, 

235 (5th Cir. 2012). Typically, a reviewing court will consider whether: “(1) the 

party against whom judicial estoppel is sought has asserted a legal position 

that is ‘plainly inconsistent’ with a position asserted in a prior case; (2) the 

court in the prior case accepted that party’s original position, thus creating the 

perception that one or both courts were misled; and, (3) the party to be estopped 

has not acted inadvertently.” Id. We recognize that judicial estoppel is an 

equitable doctrine that may be “invoked where intentional self-contradiction is 

being used as a means of obtaining unfair advantage in a forum provided for 

suitors seeking justice.” Kane v. Nat’l Union Fire Ins. Co., 535 F.3d 380, 385 

(5th Cir. 2008) (internal quotation marks omitted). As it is an equitable 

doctrine, it “is not governed by inflexible prerequisites or an exhaustive 

formula for determining [its] applicability.” Love v. Tyson Foods, Inc., 677 F.3d 

258, 261 (5th Cir. 2012) (internal quotation marks omitted, alteration in the 

original). 

Mrs. Fralick admits that the third prong of this test applies here, but she 

argues that neither of the first two prongs can be applied to her claim because 

she was not a party to that original action, which addressed Mr. Fralick’s claim 

for benefits. She argues that Mr. Fralick brought and pursued the first action, 

not she, and even once she stepped into that case she served in a representative 

capacity only. We cannot agree. It is true that Mrs. Fralick was substituted in

Mr. Fralick’s place in his action after briefs were filed in this Court, but she 

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allowed the case to proceed to a judgment several months after Mr. Fralick 

died without disavowing any of these arguments. During that time, she 

received word from the Fund that the outcome of the first case would establish

whether she was entitled to Mr. Fralick’s retirement benefits or the 

preretirement surviving spouse pension. Additionally, her pension rights were 

plainly intertwined with Mr. Fralick’s action because both Mr. Fralick and she

had signed the form selecting the Single Life Pension. Indeed, Mrs. Fralick 

filed the satisfaction of judgment in the first action, and her counsel collected 

attorneys’ fees. It was no abuse of discretion to apply the equitable principle 

of judicial estoppel to her action in the instant case.

B.

Finally, we address whether the district court abused its discretion when 

it held that Mrs. Fralick was not entitled to a preretirement surviving spouse 

pension. See Tolson v. Avondale Indus., Inc., 141 F.3d 604, 608 (5th Cir. 1998) 

(“When an ERISA plan vests its administrator or fiduciary with discretionary 

authority to determine eligibility for benefits or to construe the terms of the 

plan, or both, our standard of review is abuse of discretion.”).5 Under the abuse 

of discretion standard, the Court’s first inquiry is whether the Board’s decision 

was legally correct. See LifeCare Mgmt. Servs. LLC v. Ins. Mgmt. Adm’rs Inc., 

703 F.3d 835, 841 (5th Cir. 2013) (explaining that the “legally correct” standard 

consists of three elements: “(1) whether the administrator has given the plan 

a uniform construction, (2) whether the interpretation is consistent with a fair 

reading of the plan, and (3) any unanticipated costs resulting from different 

interpretations of the plan” (internal quotation marks omitted)). The district 

5 Mrs. Fralick concedes in her brief that abuse of discretion is the appropriate 

standard of review. 

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court carefully interpreted the terms of the Fund’s plan in its opinion, and we 

find no error. 

A surviving spouse like Mrs. Fralick is entitled to a preretirement 

surviving spouse pension if the spouse dies “before his Effective Date of 

Benefits.” When Mrs. Fralick filed a satisfaction of judgment in the first 

action, she accepted benefits under Mr. Fralick’s retirement pension, which had 

an effective date of benefits of January 1, 2006, prior to his death. Thus, in 

addition to its holding that Mrs. Fralick was estopped from arguing that Mr. 

Fralick had not “retired,” the district court also concluded correctly that Mr. 

Fralick’s retirement benefits began on January 1, 2006. Therefore, Mrs. 

Fralick was disqualified from preretirement surviving spouse benefits because 

Mr. Fralick did not die before his Effective Date of Benefits.6 

IV.

In sum, we conclude that the district court had subject matter 

jurisdiction over both claims in this action and that the Board had standing to 

bring its declaratory judgment action.7 Additionally, we hold that Mrs. 

Fralick’s claim for ERISA benefits lacks merit except to the extent that she 

was entitled to an additional payment of $36,722. Accordingly we AFFIRM the 

district court’s judgment on Mrs. Fralick’s counterclaim, VACATE its 

judgment with respect to the Board’s declaratory judgment action, and 

6 We do call to the district court’s attention that both the Board’s declaratory judgment 

pleading and Mrs. Fralick’s prayer for relief in her counterclaim assert that she is due 

payment of $36,722 in additional benefits under Mr. Fralick’s retirement pension. The 

district court also concluded that Mrs. Fralick was entitled to this payment as part of the 

Board’s declaratory judgment. On remand, the district court should amend its judgment to 

reflect that Mrs. Fralick is entitled to $36,722.

7 Mrs. Fralick raises a number of additional arguments regarding discovery issues and 

a request that any remand be made to the district judge who handled Mr. Fralick’s case 

instead of the judge responsible for this case. Having reviewed the briefs and the record, we 

find no merit to any of these additional arguments. 

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REMAND the case for entry of an amended judgment awarding Mrs. Fralick 

the remaining payment of $36,722 due under Mr. Fralick’s retirement pension. 

AFFIRMED in part, VACATED in part, and REMANDED.

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