F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

M A T T H E W P R

I C HAR D , Plaintiff-Appellant
,

v

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M E T R O P O L I T A

N L I F E I N S UR A N C E C O MP A N Y ; I B M L ON G T E R

M D I S AB I L I T Y P L

A N , Defendants-Appellees

. N o. 12-17355

D.C. No. 4:10-cv-03313- SB A

OPI NI ON

Appeal from the United States District Court for the Northern District of California Saundra B . Armstrong
, District J udg e, Presiding

Argued and Submitted J anuary 15, 2015—San F rancisco, California

F iled April 21, 2015

B e fore: J . Clifford W allace, Milan D. Smith, J r., and Michelle T. F riedland, Circuit J udg es.
Opinion by

J udg e W allaceP R I C HAR D V

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SUMMARY *

ERISA

T h e panel vacated the d istrict court’s judg ment in a n action challeng ing an ERI SA plan administrator’s decision to deny the plaintiff long -term disability benefits.

The panel held that the district cou r t erred in reviewing the benefits denia l for an abuse of discretion, rather than de
novo, when a Summary Plan Description conferred discretionary a

uthority upon the plan a d m inistrator but a g overning plan d o c u m e n t in the form of an insurance certificate did not. The p anel remanded for the district court to review the denial of benefits de novo.

COUNSEL

Scott Kalkin (argued), Roboostoff & Kalkin, San F rancisco, California, for Plaintiff-Appellant.

Rebecca Ann Hull (arg

ued), S edg wick L L P, San F rancisco, California, for Defendants-Appellees.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.P R I C HAR D V

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OP INION

W A L L ACE, Senior Circuit J udg e:

Matthew Prichard a

p p eals f r o m the district court’s judg ment a ffirming Metropolitan L ife I n surance Company ’s (MetL ife) decision to deny him long -term disability benefits under the long term disability plan of his employ er, I B M. W e have juri s d i ct ion over this appeal pursuant to 28 U .S.C. § 1291. Pric h a r d argues that the district c ourt e rred in reviewing MetL i f

e’ s decision for an abuse of discretion, rather than de novo. He arg ues in the alternative that even if the district c ourt was correct in using the abuse of discretion standard, MetL ife abused its discretion here. W e hold that the district court should have reviewed MetL ife’s decision de
novo, not for an abuse o f discretion. We therefore v a cate a nd remand for the district court to review MetL ife’ s denial o f benefits de novo.

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Prichard was covered by I B M’s L o n g T erm Disability Plan (Plan), which was insured and administered by MetL ife. I n J anuary 2007, Prichard applied t o M etL ife for long term disability b enefits under t h e Plan. MetL ife approved Prichard’s c l aim based on psy chiatric disability and a pplied

a retroactive start date of J uly 20, 2006. However, MetL ife determined that P richard’s benefits period w ould be limited to twenty -four months, a limitation the Plan applied to mental or nervous disorders, among other disabilities.

On May 19, 2008, MetL ife informed Prich a r d t hat his benefits would soon ex pire. MetL ife invited him to s ub m it medical information demonstrating that he suffered fromP R I C HAR D V

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“non-limited medical conditions” which wo u ld qualify him to continue receiving benefits bey o nd the J u ne 19, 2008, limitation date. MetL ife subsequently obtained and reviewed Prichard’s updated medical records. However, MetL ife ultimately decided to ter m i n ate Prichard’s benefits on J uly 12, 2008, because insuf

f i c i e nt m e d ical evidence supported the

ex istence of a continuing “disability ,” as defined by the Plan. After a series o f unsuccessful appeals to M e t L ife for a continuation of benefits under the Plan, Prichard broug ht this action in district court under 29 U.S.C. § 1132(a)(1)(B )

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T h e parties submitted c r oss motions for judg ment und e r F ed. R. Civ. P

. 52(a), disputing the standard of r eview applicable to Met L ife’s decision to terminate benefits. MetL ife argued that the district court should r eview MetL ife’s decision for an abuse of discretion, while Prichard argued that the district court should review it de novo. I n support of its argument for an abuse o f discretion s t a n d a r d
, MetL ife pointed to lang uag e in its Summary Plan Description (SPD) that stated, “Plan fiduciaries shall have discretionary authority to interpret the terms of the [ L ong -Term Disability ] Plan a nd to determine elig ibility f or a nd entitlement to [ L o ng

Term Disability ] Plan benefits.” Prichard countered by citing the Supreme Court’s d ecision in CIGNA Corp. v. Amara
, 131 S. Ct. 1866, 1877 (2 0 1 1 )
, w h i ch h eld that “the terms o f statutorily required plan summaries

. . . may [ not] be enforced

. . . as the terms of the plan itself.” Prichar d a r gu e d that the district court was required to review MetL ife’s decision de

novo because Amara precluded MetL ife from a sserting the SPD’s terms as those of the Plan, and no other Plan document in the administrative record conferred discretionary authority upon MetL ife.P R I C HAR D V

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I n ruling o n the parties’ cross-motio n s , the district court observed that the choice o f which standard of r eview to a pply “[ d] epend[ s] on the la n g uag e of the ERI SA plan at issue,” b e c ause a court must review a denial of benefits d e n o v o “unless the benefit plan g ives t h e administrator or fiduciary discretionary authority to determine elig ibility for benefits o r to construe the ter m s o f the p lan.” Firestone Tire & R u bber Co. v. Bruch
, 489 U.S. 101, 115 (1989). The distri c t co u r t concluded that it should review MetL ife’s denial of benefits for an abuse of discretion because it found that the SPD was the g overning plan document a nd una m big uously g ranted MetL ife d iscretionary authority to determine benefit elig ibility

. The district court then reviewed a n d affirmed MetL ife’s decision, concluding that MetL ife did not abuse its discretion in deny

ing Prichard additional benefits.

I I

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“W e r eview d e n ovo a d i s t rict court’s choice a nd application of the standard of r eview to decisions b y fiduciaries in ERI SA cases.” Abatie v

. Alta Health & Life Ins. Co.
, 458 F .3d 955, 962 (9th Cir. 2006). However, we r eview for clear error any f

inding s o f fact underlying the court’s choice o f the applicable st a n d a r d of review. Id. A district court must review a plan administrator’s denial of benefits de

novo “ unless the benefit plan g ives the administrator o r fiduciary discretionary authority to determine elig ib i lity for benefits.” F

i r es tone , 489 U.S. at 115. MetL ife bears the burden of pro v ing the Plan’s g rant of such discretionary authority

. Thomas v. Or. Fruit Prods. Co.
, 228 F .3d 9 91, 994 (9th Cir. 2000).P R I C HAR D V

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I I I

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Here, it is undisputed that the only d ocument in the record that c onfers d iscretionary authority upon MetL ife is the SPD. Prichard argu es that after Amara
, a g r ant of discretion located only within a n SPD (as opposed to a formal plan document) is insufficient to warrant d i scretionary review. However, MetL ife argues that Prichard misapprehends the scope of the Plan. A ccording to MetL ife, the SPD is the Plan (i.e., it is the only formal Plan document), a n d therefore the SPD’s terms warrant discretionary

review.

ERI SA defines the word “plan” as “an employ ee w elfare benefit plan or an e mploy ee pension benefit plan or a p lan which is both,” 29 U .S.C. § 1002(3), and it requires t h a t a “plan” “be established and maintained pursuant to a w r i tten instrument,” id. § 1102(a)(1). An S P D
, in contrast, is a disclosure meant “to reasonably apprise [ plan ] participants and beneficiaries of their rig hts and obli ga t i ons under the plan.” Id. § 1022(a).

Althoug h it would seem “peculiar for a document meant to ‘apprise’ participants of their rig hts ‘ under the plan ’ to be itself part of the ‘plan,’” Amara
, 131 S. Ct. at 1882 (Scalia, J
., concurring ), a

pparently
, particularly in the contex t of health plans, the SPD is sometimes argu ed to be the plan; that is, to serve simultaneously

as the g overningplan document.

F or certain ty

pes of plans, n o t ably health plans, plan sponsors frequently take a “consol i dated” approach to plan document drafting where the plan d ocument and the SPD take the form of a sing le d ocument. This approach

. . . stands in c ontras t to ty p icalP R I C HAR D V

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practice for leng thie r r etirement plans that customarily have a separate SPD document that is distributed . . . apart from the full plan document . . . .

3 ERI SA P R

A C T I C E A

N D L I TI G

A T I ON § 1 2:38. However, we

nee d not decide here whether w e should treat differently those cases in w hich the E R I S A p lan is alleg ed to have embraced this so-called “consolidated ” a p p r o a ch. The present case, like Amara
, is an “ unconsolidated” case in which the ERI SA p lan has both a g overning plan d ocument and an SPD.

Amara concer

n ed an employ er’s conversion of its traditional pension plan int o a c a sh b alance plan. 131 S. Ct. at 1870. The district fo u n d that the employ er’s initial descriptions of its post-conversion plan had b e e n sig nificantly incomplete and misleading to empl o y e e s

. Id. at 1872. The district c ourt therefore ordered the terms of the plan reformed to g ive the employ ees their pre-conversion plan benefits plus their post-conversion plan benefits. Id. a t 1 875. The Second Circuit affirmed. A m ara v. CIGNA Corp.
, 348 F

. App’x

. 627 (2d Cir. 2009).

T he Supreme Court vacated the district court ’s reformation because it concluded the reforma t i o n amounted to an alteration of the plan’s g overning documents. 131 S. Ct. at 1876–77. T he Court held that althoug h ERI SA se ction 502(a)(1)(B ) a llows a civil action to be broug ht b y a p lan beneficiary “to recover benefits d ue to him under the terms o f his plan,” this statutory te x t gi v e s a c ourt power only to enforce the terms of the pl a n , n ot to chang e them. Id. The Solicitor General had argued that the district court was simply enforcing the plan’s term s a s written, because the court’s reformation tracked the S P D ’s terms, and “the terms of theP R I C HAR D V

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summaries [ were] terms of the plan.” Id. at 1877. The Court rejected this argument, however. Id. I t held that “the summary documents, important as they are, provide communication with beneficiaries a bout the plan, but that their statements do not themselves constitute the terms of the plan.” Id. at 1878.

F or our purposes, it bears observing that Amara ’s holding

assumes the ex istence of both a n SPD and a wr i tten p lan instrument. That is, Amara addressed only the cir c umstance where both a g overning p lan document and an SPD ex isted, and the plan administrator soug ht to e n force the SPD’s terms

over those of the plan document. I t did not address the situation MetL ife alleg es e x ists here—that a p lan administrator seeks to enforce the SPD as th e one and only formal plan document.

W e are aware that, since Amara
, s e veral federal courts h a v e s tated that an SPD may constitute a formal plan document, consistent with Amara
, so long as the SPD neither adds to nor contradicts the terms of ex isting Plan documents. See, e.g. , Eugene S. v. Horizon Blue Cro s s B l u e Shield of N.J.
, 663 F .3d 1124, 1 131 (10th Cir. 2011 ) (“W e interpret Amara as presenting either of two f airly simple p ropositions, g iven the f

actual cont e x t o f t hat case: (1) the terms of the SPD are not enforceable when they conflict with g overning plan documents, or (2 ) t h e S P D cannot create terms that a re not also authoriz ed b y , or r eflected in, g o verning p lan documents. W e need not determine which is the case h ere, thoug h, b ecause the SPD does not c onflict with the Plan o r present terms unsupported by the Plan; rather it is the Plan.”). MetL ife would have us follow the r easoning of such c o u r t s and hold that Prichard is bound by the terms of the S P D be ca u s e t he SPD and the Plan alleg edly “are one and the same.”P R I C HAR D V

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However, we need n o t accept MetL ife’s sug g estion because here the SPD and the Plan ar e n o t “ o n e and the

s ame.” MetL ife’s theory is that the SPD is the only for m al plan document in the record. MetL ife supports its theory almost ex clusively with t h e declaration of Mr. Z y chowicz
, I B M’s manag er of Health B enefits Delivery and Operations, which states that “no

. . . s e p a rate formal plan document

ex ists for the Plan

. . . b ey o n d the [ SPD] booklet.” This statement of I B M’s belief is insufficient in the face o f contrary ind ications in what appears to be the only p lan document in the record before us.

The only document in the r ecord that contains a clear indicatio n that it is a Plan document is an insurance certificate. I t ex pressly states that the Plan consists o n l y o f (1) “the Group Policy and its Ex hib i t s , which include the certificate(

s) ” (emphasis added); (2) “ [ I B M] ’s applicatio n ”; and (3) “any amendments and/or endorsements to the Group Policy .” The insurance certificate declares that those documents constitute the “entire contract” b etween I B M a nd MetL ife, under which Prichard is p r o vided insurance. Conspicuously absent from this ex clusive list is the SPD. W e have pr eviously held that a Plan document’s integ r ation clause, which was “[ p] lainly

. . . intended to keep insureds

. . . from b inding [ the adminis t r a tor] to promises made in

ex traneous documents like the B enefi t S u mmary ,” also preclud e d t he administrator from binding insureds to the Summary ’s discretion-g ranting clause because “what is sauce for the g ander must be sauce for the g oose.” Grosz-Salomon

v. P aul R e v e r e L ife I

ns. Co.
, 237 F .3d 1154, 1161 (9th Cir. 2001) (internal quotation marks omitted). There is n o reason to depart from that princi p l e h ere. W e therefore limit our analy sis to the documents listed in the insurance certificate’s integ ration clause.P R I C HAR D V

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The insurance certificate omits any g rant of d iscretion to MetL ife. Of c ourse, the Plan in this case appears to consist o f

more than just the insurance certificate. I t i s possible that other official Plan documents outside the record contain discretionary lang uag e. B ut, if so, it was MetL ife’s burden to place that evidence befor e the c ourt. Thomas
, 228 F .3d at 994. MetL ife failed to d o so, and we are confined to the record before us.

M e t L ife would have us dismiss the insurance certific a t e

as cont a i n i ng nothing more than the “terms of the insurance contract between MetL ife and I B M,” under which I B M made

a n e l e ction to have MetL ife fund the Plan’s benefits. According to MetL ife, therefore, the insuran c e certificate cannot constitute p art of—or “ supe r s e d e”—the terms of the SPD.

However, t h e terms of the insurance certificate say otherwise. T he insurance c ertificate is issued to and w r i t t en for I B M’s employ ees and contains the P l a n’s official terms reg arding disability benefits. The certi ficate’s opening pag e reads: “MetL ife

. . . certifies t h a t You are insured for the benefits described in this certificate, subject to the provisions of this certificate. T his certificate is issued to Y ou under the Group Policy

and it includes the terms a nd provisions of the Group Policy that desc r i be Your [ d isability ] insurance” (emphasis added). The insurance certificate defines “You a nd Your” a s “an employ ee who is insured under the Group Policy for the insurance described i n t h is certificate.” Thus, contrary to MetL ife’s asse r t i o n s, the certificate contains the Plan’s relevant “terms and provisions” and is c l e a rly issued to and written for I B M ’s e m p loy ees who are beneficiaries under I B M’s long -term disability plan.P R I C HAR D V

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The SPD, in contrast, is n o t part of the P l a n ’s “written instrumen t.” Compare 29 U.S.C. § 1102(a)(1) with § 1022(a). I ndeed, th e SPD itself declares that “official p lan documents

. . . remain the f inal authority ” and “shall g o vern” i n t h e event the SPD’s terms c o nflict with those of offic i al Plan documents. According ly
, the district court clearly erred in finding that “the SPD, and not the insurance c e rtificate, constitutes the Plan document.”

Althoug h the SPD in this case does indicate that MetL ife ha s d iscretionary authority
, the Supreme Court has made clear that statements made in SPDs “do not t h emselves constitute the terms o f the plan.” Amara , 131 S. Ct. at 1878. B ecause the o f

ficial insurance c e rtificate contains no discretion-g r anting terms, we will no t , c o n s i s t ent with Amara
, hold that the SPD’s g rant o f discretion c onstitutes an additional term of the Plan. Consequently
, the district court erred in apply

ing the abuse of discretion standard of review. W e therefore vacate and remand for the district court to review MetL ife’s denial of benefits de novo.

VACATED AND REMANDED

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