FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID WIT; NATASHA WIT; 

BRIAN MUIR; BRANDT PFEIFER, 

on behalf of the Estate of his deceased 

wife, Lauralee Pfeifer; LORI 

FLANZRAICH, on behalf of her 

daughter Casey Flanzraich; CECILIA 

HOLDNAK, on behalf of herself, her 

daughter Emily Holdnak; GARY 

ALEXANDER, on his own behalf and 

on behalf of his beneficiary son, 

Jordan Alexander; CORINNA 

KLEIN; DAVID HAFFNER, on 

behalf of themselves and all others 

similarly situated, 

Plaintiffs-Appellees,

LINDA TILLITT; MARY JONES,

 

Intervenor-PlaintiffsAppellees,

 v. 

UNITED BEHAVIORAL HEALTH,

 

Defendant-Appellant.

Nos. 20-17363 

 21-15193 

D.C. No. 3:14-cv02346-JCS 

OPINION
2 WIT V. UNITED BEHAVIORAL HEALTH

GARY ALEXANDER, on his own 

behalf and on behalf of his beneficiary 

son, Jordan Alexander; CORINNA 

KLEIN; DAVID HAFFNER, on 

behalf of themselves and all others 

similarly situated,

 

Plaintiffs-Appellees,

MICHAEL DRISCOLL,

 

Intervenor-PlaintiffAppellee,

 v. 

UNITED BEHAVIORAL HEALTH,

 

Defendant-Appellant.

Nos. 20-17364 

 21-15194

D.C. No. 3:14-cv05337-JCS 

Appeal from the United States District Court

for the Northern District of California

Joseph C. Spero, Magistrate Judge, Presiding

Argued and Submitted August 11, 2021

San Francisco, California

Filed January 26, 2023
WIT V. UNITED BEHAVIORAL HEALTH 3 

Before: Morgan Christen and Danielle J. Forrest, Circuit 

Judges, and Michael M. Anello,* District Judge.

Opinion by Judge Anello 

SUMMARY**

Employee Retirement Income Security Act

The panel affirmed in part and reversed in part the 

district court’s judgment finding United Behavioral Health 

(“UBH”) liable, and awarding declaratory and injunctive 

relief, to classes of plaintiffs who were beneficiaries of 

ERISA-governed health benefit plans for which UBH was 

the claims administrator. 

Plaintiffs submitted health plan coverage requests, which 

UBH denied. Plaintiffs brought claims under ERISA for 

breach of fiduciary duty and improper denial of benefits, 

based on a theory that UBH improperly developed and relied 

on internal guidelines that were inconsistent with the terms 

of the class members’ plans and with state-mandated 

criteria. The parties stipulated to a sample class, from which 

they submitted a sample of health insurance plans. Plaintiffs 

alleged that the plans provided coverage for treatment 

consistent with generally accepted standards of care 

* The Honorable Michael M. Anello, United States District Judge for the 

Southern District of California, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
4 WIT V. UNITED BEHAVIORAL HEALTH

(“GASC”) or were governed by state laws specifying certain 

criteria for making coverage or medical necessity 

determinations. Plaintiffs alleged that UBH’s Level of Care 

Guidelines and Coverage Determination Guidelines for 

making these determinations were more restrictive than 

GASC and were also more restrictive than state-mandated 

criteria.

The district court certified three classes, conducted a 

bench trial, and entered judgment in plaintiffs’ favor, 

concluding that UBH breached its fiduciary duties and 

wrongfully denied benefits because UBH’s Guidelines 

impermissibly deviated from GASC and state-mandated 

criteria. The district court issued declaratory and injunctive 

relief, directed the implementation of court-determined 

claims processing guidelines, ordered “reprocessing” of all 

class members’ claims in accordance with the new 

guidelines, and appointed a special master to oversee 

compliance for ten years.

The panel held that plaintiffs had Article III standing to 

bring their claims. The panel held that plaintiffs sufficiently 

alleged a concrete injury as to their fiduciary duty claim 

because UBH’s alleged fiduciary violation presented a 

material risk of harm to plaintiffs’ interest in their 

contractual benefits. Plaintiffs also alleged a concrete injury 

as to the denied of benefits claim because they alleged a 

harm—the arbitrary and capricious adjudication of benefits

claims—that presented a material risk to their interest in fair 

adjudication of their entitlement to their contractual 

benefits. Further, plaintiffs alleged a particularized injury as 

to both claims because the Guidelines materially affected 

each plaintiff. Finally, plaintiffs’ alleged injuries were 

“fairly traceable” to UBH’s conduct.
WIT V. UNITED BEHAVIORAL HEALTH 5

The panel reversed the part of the district court’s class 

certification order certifying plaintiffs’ denial of benefits 

claims as class actions. The panel held that plaintiffs’ 

“reprocessing” theory, seeking reprocessing of their benefits 

claims under proper guidelines, was a use of the class action 

procedure to expand or modify substantive rights provided 

by ERISA, in violation of Fed. R. Civ. P. 23 and the Rules 

Enabling Act, 28 U.S.C. § 2072(b).

UBH did not appeal the portion of the district court’s 

judgment finding that the UBH Guidelines were 

impermissibly inconsistent with state-mandated criteria, and 

that portion of the district court’s decision therefore 

remained intact.

UBH did argue on appeal that the district court erred in 

concluding that the Guidelines improperly deviated from 

GASC and that the district court did not apply an appropriate 

level of deference to UBH’s interpretation of the ERISA 

plans. The panel concluded that the district court did not 

clearly err in finding that UBH had a structural conflict of 

interest in serving a dual role as plan administrator and 

insurer, and that UBH also had a financial conflict because 

it was incentivized to keep benefit expenses down. The 

panel held, however, that these findings did not excuse the 

district court from reviewing UBH’s interpretation of the 

plans for an abuse of discretion. The panel held that, even 

assuming the conflicts of interest found by the district court 

warranted heavy skepticism against UBH’s interpretation, 

UBH’s interpretation did not conflict with the plain language 

of the plans. Accordingly, the district court erred by 

substituting its interpretation of the plans for UBH’s 

interpretation. The panel reversed the district court’s 

judgment that UBH wrongfully denied benefits to the named 

plaintiffs based upon the court’s finding that the Guidelines 
6 WIT V. UNITED BEHAVIORAL HEALTH

impermissibly deviated from GASC. The panel held that the 

district court also erred in its judgment on plaintiffs’ breach 

of duty claim, which also relied heavily on the district 

court’s conclusion that the Guidelines impermissibly 

deviated from GASC.

Finally, the panel held that the district court erred when 

it excused unnamed class members from demonstrating 

compliance with the plans’ administrative exhaustion 

requirement. The panel held that when an ERISA plan does 

not merely provide for administrative review but, as here, 

explicitly mandates exhaustion of such procedures before 

bringing suit in federal court and, importantly, provides no 

exceptions, application of judicially created exhaustion 

exceptions would conflict with the written terms of the 

plan. Accordingly, to the extent that any absent class 

members’ plans required exhaustion, the district court erred 

in excusing the failure to satisfy such a contractual 

requirement.

In sum, the panel held that plaintiffs had Article III 

standing to bring their breach of fiduciary duty and improper 

denial of benefits claims pursuant to 29 U.S.C. 

§§ 112(a)(1)(B) and (a)(3). And the district court did not err 

in certifying three classes to pursue the fiduciary duty 

claim. However, because plaintiffs expressly declined to 

make any showing, or seek a determination of, their 

entitlement to benefits, permitting plaintiffs to proceed with 

their denial of benefits claim under the guise of a 

“reprocessing” remedy on a class-wide basis violated the 

Rules Enabling Act. Accordingly, the panel affirmed in part 

and reversed in part the district court’s class certification 

order. On the merits, the panel held that the district court 

erred in excusing absent class members’ failure to exhaust 

administrative remedies as required under the plans. The 
WIT V. UNITED BEHAVIORAL HEALTH 7 

district court also erred in determining that the Guidelines 

improperly deviated from GASC based on its interpretation 

that the plans mandated coverage that was coextensive with 

GASC. Therefore, the panel reversed the judgment on 

plaintiffs’ denial of benefits claim. To the extent the 

judgment on plaintiffs’ breach of fiduciary duty claim was 

based on the district court’s erroneous interpretation of the 

plans, it was also reversed. The panel affirmed in part, 

reversed in part, and remanded for further proceedings. 

COUNSEL

Miguel A. Estrada (argued), Geoffrey M. Sigler, Lucas C. 

Townsend, and Matthew S. Rozen, Gibson Dunn & Crutcher 

LLP, Washington, D.C.; April N. Ross, Cromwell & 

Morning LLP, Washington, D.C.; Jennifer S. Romano and 

Andrew Holmer, Cromwell & Moring LLP, Los Angeles, 

California; Nathaniel P. Bualat and Thomas F. Koegel, 

Crowell & Moring LLP, San Francisco, California; for 

Defendant-Appellant 

Caroline E. Reynolds (argued), David A. Reiser, and 

Andrew N. Goldfarb, Zuckerman Spaeder LLP, 

Washington, D.C.; D. Brian Hufford, Jason S. Cowart, 

Zuckerman Spaeder LLP, New York, New York; Adam 

Abelson, Zuckerman Spaeder LLP, Baltimore, Maryland; 

Peter K. Stris, Stris & Maher LLP, Los Angeles, California; 

Meiram Bendat, Meiram Bendat, Santa Barbara, California; 

for Plaintiffs-Appellees.

Michael B. Kimberly and Sara P. Hogarth, McDermott Will 

& Emery LLP, Washington, D.C.; Joshua B. Simon, Warren 

Haskel, and Richard Diggs; McDermott Will & Emery LLP, 
8 WIT V. UNITED BEHAVIORAL HEALTH

New York, New York; for Amicus Curiae America’s Health 

Insurance Plans Inc.

Andrew J. Pincus, Archis A. Parasharami, and Daniel E. 

Jones, Mayer Brown LLP, Washington, D.C.; Avi M. 

Kupfer, Mayer Brown LLP, Chicago, Illinois; Daryl Joseffer 

and Jennifer B. Dickey, United States Chamber Litigation 

Center Inc, Washington, D.C.; for Amicus Curiae the 

Chamber of Commerce of the United States of America.

Joana S. McCallum, Manatt Phelps & Phillips LLP, Los 

Angeles, California; Joseph E. Laska, and Nathaniel A. 

Cohen, San Francisco, California; for Amicus Curiae 

Association for Behavioral Health and Wellness.

Aaron M. Panner and Eric J. Maier, Kellogg Hansen Todd 

Figel & Frederick PLLC, Washington, D.C.; Alison L. 

Andersen, ArentFox Schiff LLP, Washington, D.C.; Jack R. 

Bierig and Neil Lloyd, ArentFox Schiff LLP, Chicago, 

Illinois; Wendy Qiu, Holland & Knight LLP, Los Angeles, 

California; for Amici Curiae American Psychiatric 

Association, American Medical Association, California 

Medical Association, Southern California Psychiatric 

Society, Northern California Psychiatric Society, Orange 

County Psychiatric Society, Central California Psychiatric 

Society and San Diego Psychiatric Society.

Melissa Moore and Stephen Silverman, Senior Attorneys; 

Jeffrey Hahn, Counsel for Litigation; G. William Scott, 

Associate Solicitor for Plan Benefit Security; Elena 

Goldstein, Acting Solicitor of Labor; United States 

Department of Labor, Office of the Solicitor, Plan Benefits 

Security Division, Washington, D.C.; for Amicus Curiae 

Secretary of Labor.
WIT V. UNITED BEHAVIORAL HEALTH 9

Ari Dybnis and Martine N. D’Agostino, Deputy Attorney 

Generals; Karli Eisenberg, Supervising Deputy Attorney 

General; Renu R. George, Senior Assistant Attorney 

General; Rob Bonta, Attorney General of California, Office 

of the Attorney General, Oakland, California; for Amicus 

Curiae State of California.

Kevin Costello, Center for Health Law & Policy Innovation, 

Harvard Law School, Cambridge, Massachusetts; Abigail K. 

Coursolle and Elizabeth Edwards, National Health Law 

Program, Los Angeles, California; for Amici Curiae 

National Health Law Program, et al.

Sarah W. Rice, Deputy, Public Protection Bureau; Maria R. 

Lenz, Assistant Attorney General; Peter F. Neronha, 

Attorney General; Rhode Island Office of the Attorney 

General, Providence, Rhode Island; Thomas Ryan, Assistant 

Attorney General; Clare Kindall, Solicitor General; William 

Tong, Attorney General of Connecticut, Office of the 

Attorney General, Hartford, Connecticut; Sarah A. Hunger, 

Deputy Solicitor General; Kwame Raoul, Attorney General 

of Illinois, Office of the Illinois Attorney General, Chicago, 

Illinois; for Amici Curiae states of Rhode Island, 

Connecticut, and Illinois.
10 WIT V. UNITED BEHAVIORAL HEALTH

OPINION

ANELLO, District Judge:

United Behavioral Health (“UBH”) appeals from the 

district court’s judgment finding it liable to classes of 

Employee Retirement Income Security Act of 1974, 29 

U.S.C. § 1001 et seq. (“ERISA”) plaintiffs under 29 U.S.C. 

§§ 1132(a)(1)(B) and (a)(3), as well as several pre- and posttrial orders, including class certification, summary 

judgment, and a remedies order. UBH contends on appeal 

that Plaintiffs lack Article III standing, and that the district 

court erred at class certification and trial in several respects.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we 

reverse in part. 

I

UBH is one of the nation’s largest managed healthcare 

organizations. It administers insurance benefits for mental 

health conditions and substance use disorders for various 

commercial health benefit plans. In this role, UBH 

processes coverage requests made by plan members to 

determine whether the treatment sought is covered under the 

respective plans. UBH retains discretion to make these 

coverage determinations “for specific treatment for specific 

members based on the coverage terms of the member’s 

plan.” 

Individually named plaintiffs David and Natasha Wit, 

Brian Muir, Brandt Pfeifer, Lori Flanzraich, Cecilia 

Holdnak, Gary Alexander, Corinna Klein, David Haffner, 

Linda Tillitt, and Michael Driscoll (collectively, 

“Plaintiffs”) are all beneficiaries of ERISA-governed health 

benefit plans for which UBH was the claims administrator. 
WIT V. UNITED BEHAVIORAL HEALTH 11

Plaintiffs all submitted coverage requests, which UBH 

denied.

Plaintiffs initiated this action on behalf of three putative 

classes, asserting, at issue here, two claims against UBH.

The first is for breach of fiduciary duty pursuant to 29 U.S.C. 

§ 1132(a)(1)(B) and “to the extent the injunctive relief 

Plaintiffs seek is unavailable under that section, they assert 

the claim under 29 U.S.C. § 1132(a)(3)(A).” Second, 

Plaintiffs brought an improper denial of benefits claim under 

29 U.S.C. §§ 1132(a)(1)(B) and (a)(3)(B). Both of 

Plaintiffs’ claims hinge on a theory that UBH improperly 

developed and relied on internal guidelines that were 

inconsistent with the terms of the class members’ plans and 

with state-mandated criteria.

1

Among the individually named Plaintiffs, there are ten 

different ERISA plans. Among the class members, there 

may be as many as 3,000 different plans. The Parties 

stipulated to a sample class of 106 members, from which 

they submitted a sample of health insurance plans (the 

“Plans”). Plaintiffs alleged that the Plans provided coverage 

for treatment consistent with generally accepted standards of 

care (“GASC”) or were governed by state laws specifying

certain criteria for making coverage or medical necessity 

determinations. Some of the plans administered by UBH 

were fully insured plans where UBH served a dual role as a 

plan administrator and insurer, both authorized to determine 

the benefits owed and responsible for paying such benefits. 

The Plans provide that a precondition for coverage is that 

treatment be consistent with GASC. The Plans contain 

1 Plaintiffs also alleged that UBH developed the Guidelines to benefit its 

self-serving financial interests in breach of its fiduciary duties. 
12 WIT V. UNITED BEHAVIORAL HEALTH

additional conditions and exclusions, and Plaintiffs did “not 

dispute that a service that is consistent with [GASC] may, 

nonetheless, be excluded from coverage under a particular 

class member’s plan.” For example, some plans may 

exclude “[s]ervices that extend beyond the period necessary 

for evaluation, diagnosis, the application of evidence-based 

treatments, or crisis intervention to be effective.” Some 

plans also may require that the service be the “least costly 

alternative.” The Plans grant UBH discretion to interpret 

these various terms and determine whether a requested 

service is covered. To assist with the process of making 

these determinations, UBH developed internal guidelines

used by UBH’s clinicians in making coverage 

determinations. These guidelines include the challenged 

Level of Care Guidelines and Coverage Determination 

Guidelines (“Guidelines”). The Level of Care Guidelines 

are used for plans that limit coverage to medically necessary 

services. The Coverage Determination Guidelines are used 

for plans not containing a medical necessity requirement.

Plaintiffs alleged that these Guidelines were more 

restrictive than GASC and were also more restrictive than 

state-mandated criteria for making medical-necessity or 

coverage determinations. Plaintiffs further alleged that UBH 

breached its fiduciary duties to act solely in the interests of 

the participants and beneficiaries to develop coverage 

criteria consistent with GASC. UBH also allegedly 

breached its fiduciary duties by developing guidelines 

inconsistent with criteria explicitly mandated by state laws. 

Plaintiffs also contended UBH breached its duties by 

promulgating self-serving, cost-cutting guidelines that are 

more restrictive than the Plans. As to their denial of benefits 

claim, Plaintiffs argued that UBH violated ERISA by 

improperly denying Plaintiffs benefits based on its 
WIT V. UNITED BEHAVIORAL HEALTH 13

Guidelines, which are more restrictive than the Plans or 

criteria mandated by state laws. 

Plaintiffs sought certification of three proposed classes 

as to both claims: (1) the Wit Guideline Class; (2) the Wit 

State Mandate Class; and (3) the Alexander Guideline Class. 

The Wit Guideline Class was defined as:

Any member of a health benefit plan 

governed by ERISA whose request for 

coverage of residential treatment services for 

a mental illness or substance use disorder was 

denied by UBH, in whole or in part, on or 

after May 22, 2011, based upon UBH’s Level 

of Care Guidelines or UBH’s Coverage 

Determination Guidelines.

The Wit Guideline Class excludes members 

of the Wit State Mandate Class, as defined 

below.

The Wit State Mandate Class was defined as:

Any member of a fully-insured health benefit 

plan governed by both ERISA and the state 

law of Connecticut, Illinois, Rhode Island or 

Texas, whose request for coverage of 

residential treatment services for a substance 

use disorder was denied by UBH, in whole or 

in part, [within the Class period], based upon 

UBH’s Level of Care Guidelines or UBH’s 

Coverage Determination Guidelines and not 

upon the level-of-care criteria mandated by 

the applicable state law. . . .
14 WIT V. UNITED BEHAVIORAL HEALTH

The Alexander Guideline Class was defined as:

Any member of a health benefit plan 

governed by ERISA whose request for 

coverage of outpatient or intensive outpatient 

services for a mental illness or substance use 

disorder was denied by UBH, in whole or in 

part, on or after May 22, 2011, based upon 

UBH’s Level of Care Guidelines or UBH’s 

Coverage Determination Guidelines.

The Alexander Guideline Class excludes any 

member of a fully insured plan governed by 

both ERISA and the state law of Connecticut, 

Illinois, Rhode Island or Texas, whose 

request for coverage of intensive outpatient 

treatment or outpatient treatment related to a 

substance use disorder.

The classes differ in that the Wit State Mandate Class 

includes members whose denial of benefits was based on 

UBH’s Guidelines and not on state-mandated level-of-care 

criteria. The Guideline classes include members whose 

denials were based on the Guidelines and not on the terms of 

the Plans. The Wit Guideline Class included members who 

requested coverage of residential treatment services, 

whereas the Alexander Guideline Class included members 

who requested coverage of outpatient or intensive outpatient 

services. 

For their breach of fiduciary duties claim, Plaintiffs 

sought injunctive and declaratory relief. As to their denial 
WIT V. UNITED BEHAVIORAL HEALTH 15

of benefits claim, Plaintiffs sought reprocessing of their 

claims2 and argued:

Individual circumstances are . . . irrelevant to 

[this claim]. Plaintiffs are not asking this 

Court to determine whether Class members 

were owed benefits or whether UBH should 

be ordered to cause its plans to pay such 

benefits. Rather, Plaintiffs seek a 

reprocessing remedy, which stems directly 

from their allegation that UBH used an 

arbitrary process, premised on fatally flawed 

Guidelines, to deny their requests for 

coverage. For that reason, Plaintiffs need not 

prove at trial that UBH reached the wrong 

outcome in every single one of its coverage 

determinations.

Plaintiffs also asserted at the class certification hearing 

that their denial of benefits claim was “a process claim.”

Plaintiffs stipulated that “if the case is certified as a class 

case” then “additional theories” requiring “individualized 

inquiries as to why UBH’s denials of the named Plaintiffs’ 

claims for benefits were wrongful” would “not be part of this 

case.” 

2 Plaintiffs relatedly sought a declaration that UBH’s denial of benefits 

was improper and an order for UBH to apply the new guidelines in 

processing future claims. 
16 WIT V. UNITED BEHAVIORAL HEALTH

On September 19, 2016, the district court granted 

Plaintiffs’ motion to certify these classes.3 In its order, the 

district court stated:

Of particular significance is the fact that 

Plaintiffs do not ask the Court to make 

determinations as to whether class members 

were actually entitled to benefits (which 

would require the Court to consider a 

multitude of individualized circumstances 

relating to the medical necessity for coverage 

and the specific terms of the member’s plan).

Beginning October 16, 2017, the district court held a tenday bench trial. The district court, in its post-trial findings 

of fact and conclusions of law, relied upon Plaintiffs’ 

representations that their denial of benefits claim was a 

“process claim” only, stating “Plaintiffs stipulated at the 

class certification stage of the case that they do not ask the 

Court to make determinations as to whether individual class 

members were actually entitled to benefits . . . . Rather, they 

assert only facial challenges to the Guidelines.” 

The district court entered judgment in Plaintiffs’ favor, 

concluding that UBH breached its fiduciary duties and 

wrongfully denied benefits because the Guidelines 

impermissibly deviated from GASC and state-mandated 

criteria. The district court also found that financial 

3 The district court later issued an order partially decertifying the class to 

exclude class members who successfully appealed their coverage 

denials, members who were initially improperly included because of a 

“flaw in the method used to identify class members,” and to modify the 

Illinois State Mandate Class period. 
WIT V. UNITED BEHAVIORAL HEALTH 17

incentives infected UBH’s Guideline development process, 

particularly where the Guidelines “were riddled with 

requirements that provided for narrower coverage than is 

consistent with” GASC. Based on these findings, the district 

court concluded that UBH breached its fiduciary duty to 

comply with Plan terms and breached its duties of loyalty 

and care “by adopting Guidelines that are unreasonable and 

do not reflect” GASC. It also held that UBH improperly 

denied Plaintiffs benefits by relying on its restrictive

Guidelines that were inconsistent with the Plan terms and 

state law.

The parties had stipulated, and the district court found, 

that the Plans gave UBH discretionary authority to create 

tools, such as the Guidelines, to facilitate interpretation and 

administration of the Plans. But the district court viewed 

UBH’s interpretation with “significant skepticism” because 

it found that UBH had a financial conflict of interest and a

structural conflict of interest as a dual administrator and 

insurer for some plans. Ultimately, the district court held 

that UBH’s interpretation embodied in the Guidelines was 

unreasonable and an abuse of discretion. 

In its extensive Findings of Fact and Conclusions of 

Law, the district court excused any unnamed class members 

for failing to exhaust their administrative remedies under the 

Plans despite acknowledging evidence that “some class 

members who did not exhaust available administrative 

remedies were required under their Plans to exhaust those 

remedies before they could bring a legal action against 

UBH.” The district court cited to one of the sample plans, 

which states: “You cannot bring any legal action against us

to recover reimbursement until you have completed all the 

steps [described in the plan].” The district court further 

found that exhaustion would have been futile. 
18 WIT V. UNITED BEHAVIORAL HEALTH

The district court issued declaratory and injunctive relief, 

directed the implementation of court-determined claims 

processing guidelines, ordered “reprocessing” of all class 

members’ claims in accordance with the new guidelines, and 

appointed a special master to oversee compliance for ten 

years. 

II

ERISA is a federal statute designed to regulate 

“employee benefit plan[s].” 29 U.S.C. § 1003(a). Congress 

enacted ERISA “to promote the interests of employees and 

their beneficiaries in employee benefit plans,” Shaw v. Delta 

Air Lines, Inc., 463 U.S. 85, 90 (1983), “by setting out 

substantive regulatory requirements for employee benefit 

plans and to ‘provid[e] for appropriate remedies, sanctions, 

and ready access to the Federal courts,’” Aetna Health Inc. 

v. Davila, 542 U.S. 200, 208 (2004) (alteration in original) 

(quoting 29 U.S.C. § 1001(b)). “The purpose of ERISA is 

to provide a uniform regulatory regime over employee 

benefit plans.” Id.

ERISA does not “require[] employers to establish 

employee benefits plans.” Lockheed Corp. v. Spink, 517 U.S. 

882, 887 (1996). “Nor does ERISA mandate what kind of 

benefits employers must provide if they choose to have such 

a plan.” Id. (first citing Shaw, 463 U.S. at 91; and then citing 

Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 511 

(1981)). Rather, ERISA “ensure[s] that employees will not 

be left empty-handed once employers have guaranteed them 

certain benefits.” Id. The Supreme Court has “recognized 

that ERISA represents a ‘careful balancing between ensuring 

fair and prompt enforcement of rights under a plan and the 

encouragement of the creation of such plans.’” Conkright v. 

Frommert, 559 U.S. 506, 517 (2010) (quoting Aetna Health, 
WIT V. UNITED BEHAVIORAL HEALTH 19

542 U.S. at 215). “Congress sought ‘to create a system that 

is [not] so complex that administrative costs, or litigation 

expenses, unduly discourage employers from offering 

[ERISA] plans in the first place.’” Id. (alterations in 

original) (quoting Varity Corp. v. Howe, 516 U.S. 489, 497 

(1996)). “ERISA ‘induc[es] employers to offer benefits by 

assuring a predictable set of liabilities, under uniform 

standards of primary conduct and a uniform regime of 

ultimate remedial orders and awards when a violation has 

occurred.’” Id. (alteration in original) (quoting Rush 

Prudential HMO, Inc. v. Moran, 536 U.S. 355, 379 (2002), 

overruled in part on other grounds by Ky. Ass’n of Health 

Plans v. Miller, 538 U.S. 329 (2003)).

Accordingly, 29 U.S.C. § 1132(a) “set[s] forth a 

comprehensive civil enforcement scheme.” Aetna Health, 

542 U.S. at 208 (2004) (quoting Pilot Life Ins. Co. v. 

Dedeaux, 481 U.S. 41, 54 (1987), overruled in part on other 

grounds by Miller, 538 U.S. 329). 

III

UBH argues that Plaintiffs lacked Article III standing to 

bring their claims because: (1) Plaintiffs did not suffer 

concrete injuries; and (2) Plaintiffs did not show proof of 

benefits denied, and so they cannot show any damages 

traceable to UBH’s Guidelines. We disagree. We review de 

novo the district court’s determination that Plaintiffs have 

Article III standing. See Spinedex Physical Therapy USA 

Inc. v. United Healthcare of Ariz., Inc., 770 F.3d 1282, 1288 

(9th Cir. 2014). 

To establish standing under Article III, “a plaintiff must 

show (i) that he suffered an injury in fact that is concrete, 

particularized, and actual or imminent; (ii) that the injury 

was likely caused by the defendant; and (iii) that the injury 
20 WIT V. UNITED BEHAVIORAL HEALTH

would likely be redressed by judicial relief.” TransUnion 

LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021) (citing Lujan 

v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). “If ‘the 

plaintiff does not claim to have suffered an injury that the 

defendant caused and the court can remedy, there is no case 

or controversy for the federal court to resolve.’” Id. (quoting 

Casillas v. Madison Ave. Assocs., Inc., 926 F.3d 329, 333 

(7th Cir. 2019)).

To determine whether a statutory violation caused a

concrete injury, we ask: “(1) whether the statutory 

provisions at issue were established to protect [the 

plaintiff’s] concrete interests (as opposed to purely 

procedural rights), and if so, (2) whether the specific 

procedural violations alleged in this case actually harm, or 

present a material risk of harm to, such interests.” Patel v. 

Facebook, Inc., 932 F.3d 1264, 1270–71 (9th Cir. 2019)

(alteration in original) (quoting Robins v. Spokeo, Inc., 867 

F.3d 1108, 1113 (9th Cir. 2017)). 

A

We find Plaintiffs sufficiently alleged a concrete injury 

as to their fiduciary duty claim. ERISA’s core function is to 

“protect contractually defined benefits,” US Airways, Inc. v. 

McCutchen, 569 U.S. 88, 100 (2013) (quoting Mass. Mut.

Life Ins. Co. v. Russell, 473 U.S. 134, 148 (1985)), and 

UBH’s alleged fiduciary violation presents a material risk of 

harm to Plaintiffs’ interest in their contractual benefits, see 

Ziegler v. Conn. Gen. Life Ins. Co., 916 F.2d 548, 551 (9th 

Cir. 1990) (“Congress intended to make fiduciaries culpable 

for certain ERISA violations even in the absence of actual 

injury to a plan or participant.”). Under the fiduciary duties 

section of ERISA, a fiduciary has a duty to administer plans 

“solely in the interest of the participants and beneficiaries . . 
WIT V. UNITED BEHAVIORAL HEALTH 21

. with . . . care, skill, prudence, and diligence,” and “in 

accordance with the documents and instruments governing 

the plan.” 29 U.S.C. § 1104(a). Plaintiffs alleged that UBH 

administered their Plans in UBH’s financial self-interest and 

in conflict with Plan terms. This presents a material risk of 

harm to Plaintiffs’ ERISA-defined right to have their 

contractual benefits interpreted and administered in their 

best interest and in accordance with their Plan terms. Their 

alleged harm further includes the risk that their claims will 

be administered under a set of Guidelines that impermissibly 

narrows the scope of their benefits and also includes the 

present harm of not knowing the scope of the coverage their 

Plans provide. The latter implicates Plaintiffs’ ability to 

make informed decisions about the need to purchase 

alternative coverage and the ability to know whether they are 

paying for unnecessary coverage. 

We also find Plaintiffs alleged a concrete injury as to the 

denial of benefits claim. As explained, ERISA protects 

contractually defined benefits, see McCutchen, 569 U.S. at 

100. Plaintiffs alleged a harm—the arbitrary and capricious 

adjudication of benefits claims—that presents a material risk 

to their interest in fair adjudication of their entitlement to 

their contractual benefits. Plaintiffs need not have 

demonstrated that they were, or will be, entitled to benefits 

to allege a concrete injury. See CIGNA Corp. v. Amara, 563 

U.S. 421, 424–25 (2011); cf. Ne. Fla. Chapter of Associated 

Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 

656, 666 (1993) (“When the government erects a barrier that 

makes it more difficult for” someone “to obtain a benefit” a 

plaintiff challenging “the barrier need not allege that he 

would have obtained the benefit but for the barrier in order 

to establish standing”). 
22 WIT V. UNITED BEHAVIORAL HEALTH

B

We also find that Plaintiffs alleged a particularized injury 

as to both claims. “For an injury to be ‘particularized,’ it 

‘must affect the plaintiff in a personal and individual way.’” 

Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (citation 

omitted), as revised (May 24, 2016). Plaintiffs’ alleged 

injuries are particularized because the Guidelines are applied 

to the contractual benefits afforded to each individual class 

member. The fact that Plaintiffs did not ask the court to 

determine whether they were individually entitled to benefits 

does not change the fact that the Guidelines materially 

affected each Plaintiff. Cf. Thole v. U.S. Bank N.A., 140 S. 

Ct. 1615 (2020) (holding no injury where alleged ERISA 

violations had no effect on plaintiffs’ defined benefit plan). 

Finally, Plaintiffs’ alleged injuries are “fairly traceable” 

to UBH’s conduct. An injury is “fairly traceable” where 

there is a causal connection between the injury and the 

defendant’s challenged conduct. Lujan, 504 U.S. at 560.

Plaintiffs’ alleged injuries are fairly traceable to UBH’s 

conduct because their interest in the proper interpretation of 

their contractual benefits, inability to know the scope of 

coverage under their Plans, and denial of coverage requests, 

are all connected to UBH’s alleged conduct of improperly 

developing Guidelines in its own self-interest and using 

those improper Guidelines in denying Plaintiffs’ coverage 

requests.

IV

UBH also appeals from the district court’s class 

certification order. The district court’s class certification 

decision is reviewed for an abuse of discretion. Pulaski & 

Middleman, LLC v. Google, Inc., 802 F.3d 979, 984 (9th Cir. 

2015). A district court abuses its discretion when its ruling 
WIT V. UNITED BEHAVIORAL HEALTH 23

is based “on an erroneous view of the law.” Id. (citation 

omitted). We review de novo the district court’s 

interpretation of ERISA. See Shaver v. Operating Eng’rs 

Loc. 428 Pension Tr. Fund, 332 F.3d 1198, 1201 (9th Cir. 

2003). UBH argues that the district court erred in certifying 

the three classes based on Plaintiffs’ “novel reprocessing 

theory” because Rule 23 of the Rules of Civil Procedure and 

the Rules Enabling Act, 28 U.S.C. § 2072(b), forbid using 

the class action procedure to expand or modify substantive 

rights. As to Plaintiffs’ denial of benefits claim, we agree.4

“[T]he Rules Enabling Act forbids interpreting Rule 23 

to ‘abridge, enlarge or modify any substantive right.’” WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 367 (2011) 

(quoting 28 U.S.C. § 2072(b)). We must therefore begin 

with the ERISA statute to determine Plaintiffs’ substantive 

rights. 

As discussed above, the purpose of ERISA is to “provide 

a uniform regulatory regime over employee benefit plans.” 

Aetna Health, 542 U.S. at 208. Accordingly, 29 U.S.C. § 

1132(a) “set[s] forth a comprehensive civil enforcement 

scheme” for accomplishing the overall purposes of ERISA.

Id. (quoting Dedeaux, 481 U.S. at 54). Two provisions are

particularly relevant: § 1132(a)(1)(B) and § 1132(a)(3). 

Under § 1132(a)(1)(B), “[i]f a participant or beneficiary 

4 UBH’s Rule 23 argument in its Opening Brief disputed class 

certification only on the grounds that Plaintiffs facially challenged the 

Guidelines and have asserted a “novel reprocessing theory” to advance 

their denial of benefits claim on a class-wide basis. This argument does 

not implicate a Rules Enabling Act issue as to the fiduciary duty claim. 

Thus, we deem any challenge to certification of the breach of fiduciary 

duty claim forfeited, and our analysis leaves class certification as to that 

claim intact. 
24 WIT V. UNITED BEHAVIORAL HEALTH

believes that benefits promised to him under the terms of the 

plan are not provided, he can bring suit seeking provision of 

those benefits. A participant or beneficiary can also bring 

suit generically to ‘enforce his rights’ under the plan, or to 

clarify any of his rights to future benefits.” Id. at 210 

(quoting 29 U.S.C. § 1132(a)(1)(B)). Because the remedy

provided under § 1132(a)(1)(B) is to recover benefits or to 

enforce or clarify rights under the plan, a remand to the 

administrator for reevaluation is a means to the ultimate 

remedy. See Vizcaino v. Microsoft Corp., 120 F.3d 1006, 

1008, 1013–15 (9th Cir. 1997) (remanding for reevaluation 

of plaintiffs’ rights under plan pursuant to § 1132(a)(1)(B)’s 

right to enforce the plan terms, where plaintiffs “sought a 

determination that they were entitled to participate in the 

plan benefits”); see also Saffle v. Sierra Pac. Power Co. 

Bargaining Unit Long Term Disability Income Plan, 85 F.3d 

455, 458, 460–61 (9th Cir. 1996) (remanding for 

reevaluation to determine whether plaintiff was entitled to 

benefits under § 1132(a)(1)(B) where plaintiff filed suit for 

benefits due); Patterson v. Hughes Aircraft Co., 11 F.3d 948, 

949–51 (9th Cir. 1993) (similar). A plaintiff asserting a 

claim for denial of benefits must therefore show that she may 

be entitled to a positive benefits determination if outstanding 

factual determinations were resolved in her favor. See, e.g.,

Saffle, 85 F.3d at 460–61; Patterson, 11 F.3d at 951. Here, 

there are numerous individualized questions involved in 

determining Plaintiffs’ entitlement to benefits given the 

varying Guidelines that apply to their claims and their 

individual medical circumstances. To avoid the 

individualized inquiry involved in assessing whether 

Plaintiffs may be entitled to benefits under the Plan terms, 

Plaintiffs framed their denial-of-benefits claims as seeking a 

procedural remedy only.
WIT V. UNITED BEHAVIORAL HEALTH 25

Simply put, reprocessing is not truly the remedy that 

Plaintiffs seek, it is the means to the remedy that they seek. 

But Plaintiffs expressly disclaimed the actual remedy 

available to them and narrowed their theory of liability under 

§ 1132(a)(1)(B) in an attempt to satisfy Rule 23’s 

commonality requirement.

Yet here, the district court found that “reprocessing” 

itself was an appropriate class-wide remedy for Plaintiffs’ 

denial of benefits claim under § 1132(a)(1)(B). The district 

court abused its discretion in accepting the erroneous legal 

view that reprocessing is itself a remedy under 

§ 1132(a)(1)(B) independent from the express statutory 

remedies that Congress created, justifying class treatment. 

See Russell, 473 U.S. at 146 (“The . . . carefully integrated 

civil enforcement provisions found in § 502(a) of the statute 

as finally enacted, however, provide strong evidence that 

Congress did not intend to authorize other remedies that it 

simply forgot to incorporate expressly.”). Doing so 

improperly allowed Plaintiffs to use Rule 23 as a vehicle for 

enlarging or modifying their substantive rights where 

ERISA does not provide reprocessing as a standalone 

remedy. See Dukes, 564 U.S. at 367.

The district court found that the reprocessing remedy 

could alternatively fall under § 1132(a)(3). This also was an 

abuse of discretion. Section 1132(a)(3) is a “catchall” 

provision to offer appropriate equitable relief for injuries that 

§ 1132 does not otherwise remedy. Varity, 516 U.S. at 511–

12, 515; see also Moyle v. Liberty Mut. Ret. Benefit Plan, 

823 F.3d 948, 959 (9th Cir. 2016), as amended on denial of 

reh’g and reh’g en banc (Aug. 18, 2016). Where the alleged 

injury is improper denial of benefits, “a claimant may not 

bring a claim for denial of benefits under § 1132(a)(3) when 

a claim under § 1132(a)(1)(B) will afford adequate relief.” 
26 WIT V. UNITED BEHAVIORAL HEALTH

Castillo v. Metro. Life Ins. Co., 970 F.3d 1224, 1229 (9th 

Cir. 2020). The issue here is that Plaintiffs have expressly 

disclaimed a remedy under § 1132(a)(1)(B) by declining to 

show that reprocessing might allow any plaintiff or class 

member to recover benefits. But as discussed above, 

Plaintiffs cannot modify their ERISA rights to obtain the 

benefits of proceeding as a class action under Rule 23. See 

Dukes, 564 U.S. at 367. 

Further, “[a]n individual bringing a claim under § 

1132(a)(3) may seek ‘appropriate equitable relief,’ which 

refers to ‘those categories of relief that, traditionally 

speaking (i.e., prior to the merger of law and equity) were 

typically available in equity.’” Castillo, 970 F.3d at 1229

(quoting CIGNA Corp. v. Amara, 563 U.S. 421, 439 (2011)). 

Plaintiffs and the district court did not explain or refer to 

precedent showing how a “reprocessing” remedy constitutes 

relief that was typically available in equity. Consequently, 

the district court erred in concluding that “reprocessing” was 

an available remedy under 29 U.S.C. § 1132(a)(3).

The district court abused its discretion in certifying 

Plaintiffs’ denial of benefits claims as class actions.

Therefore, we reverse this part of the district court’s class 

certification order. 

V

Turning to the merits of Plaintiffs’ claims, UBH 

challenges the district court’s final judgment, arguing that 

the district court erred in concluding that the UBH 

Guidelines improperly deviated from GASC, and the district 

court did not apply an appropriate level of deference to 

UBH’s interpretation of the Plans. As an initial matter, UBH 

did not appeal the portions of the district court’s judgment 

finding the Guidelines were impermissibly inconsistent with 
WIT V. UNITED BEHAVIORAL HEALTH 27

state-mandated criteria. This portion of the district court’s 

decision therefore remains intact. 

As discussed above, ERISA does not “mandate what 

kind of benefits employers must provide.” Black & Decker 

Disability Plan v. Nord, 538 U.S. 822, 833 (2003) (quoting 

Lockheed, 517 U.S. at 887). ERISA “focus[es] on the 

written terms of the plan” which “in short, [are] at the center 

of ERISA.” Heimeshoff v. Hartford Life & Accident Ins. 

Co., 571 U.S. 99, 108 (2013). The question then is not 

whether ERISA mandates consistency with GASC—it does 

not—but whether UBH properly administered the Plans 

pursuant to the Plan terms. See id.

“Where the benefit plan gives the administrator or 

fiduciary discretionary authority to determine eligibility for 

benefits or to construe the terms of the plan, we ordinarily 

review the plan administrator’s decisions for an abuse of 

discretion.” Schikore v. BankAmerica Suppl. Ret. Plan, 269 

F.3d 956, 960 (9th Cir. 2001); see also Firestone Tire & 

Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). The 

administrator’s interpretation is an abuse of discretion if the 

interpretation is unreasonable. Moyle, 823 F.3d at 958.

Where the administrator or fiduciary has a conflict of 

interest, review of its interpretation will be “informed by the 

nature, extent, and effect on the decision-making process” of 

such conflict. Abatie v. Alta Health & Life Ins. Co., 458 F.3d

955, 967 (9th Cir. 2006). “We review de novo a district 

court’s choice and application of the standard of review to 

decisions by fiduciaries in ERISA cases.” Williby v. Aetna 

Life Ins. Co., 867 F.3d 1129, 1133 (9th Cir. 2017) (quoting 

Estate of Barton v. ADT Sec. Servs. Pension Plan, 820 F.3d 

1060, 1065 (9th Cir. 2016)). We review findings of fact for 

clear error. Abatie, 458 F.3d at 962. 
28 WIT V. UNITED BEHAVIORAL HEALTH

It is undisputed that the Plans in this case confer UBH 

with discretionary authority to interpret the Plan terms. The 

parties stipulated, and the district court found as a matter of 

fact, that this includes the discretion to create interpretive 

tools, such as the Guidelines. This finding was not clearly 

erroneous. Accordingly, UBH’s interpretation of the Plans 

via its Guidelines is reviewed for an abuse of discretion.

Schikore, 269 F.3d at 960. And the district court correctly

identified this standard of review. 

But the district court also found that UBH had a 

significant conflict of interest and therefore gave little 

weight to UBH’s interpretation of the Plans. Where an 

administrator has a dual role as plan administrator and plan 

insurer, there is a structural conflict of interest. See Stephan

v. Unum Life Ins. Co. of Am., 697 F.3d 917, 929 (9th Cir. 

2012). UBH served such a dual role as Plan administrator 

and insurer (authorized to determine the benefits owed and 

responsible for paying such benefits) for at least some of the 

Plans. The district court found, in addition to this structural 

conflict of interest, that UBH also had a financial conflict 

because it was incentivized to keep benefit expenses down. 

Again, the district court’s factual findings are not clearly 

erroneous.

However, the district court’s findings did not excuse it 

from applying the abuse of discretion standard. “Abuse of 

discretion review applies to a discretion-granting plan even 

if the administrator has a conflict of interest.” Abatie., 458 

F.3d at 965 (emphasis added). The conflict is weighed as a 

factor in determining whether the administrator abused its 

discretion. Stephan, 697 F.3d at 929; see also Metro. Life 

Ins. Co. v. Glenn, 554 U.S. 105, 115–17 (2008). The district 

court purported to apply an abuse of discretion standard 

tempered by high skepticism of UBH’s interpretation given 
WIT V. UNITED BEHAVIORAL HEALTH 29

UBH’s conflict of interest. But even with such a tempered 

abuse of discretion standard, we cannot agree that UBH 

abused its discretion on the facts of this case. 

Even assuming the conflicts of interest found by the 

district court warrant heavy skepticism against UBH’s 

interpretation, UBH’s interpretation does not conflict with 

the plain language of the Plans. To the contrary, it gives 

effect to all the Plan provisions. The Plans exclude coverage 

for treatment inconsistent with GASC or otherwise condition 

treatment on consistency with GASC. While the GASC 

precondition mandates that a treatment be consistent with 

GASC as a starting point, it does not compel UBH to cover 

all treatment that is consistent with GASC. Nor does the 

exclusion—or any other provision in the Plans—require 

UBH to develop Guidelines that mirror GASC. And while 

treatment consistent with GASC is a precondition to 

coverage, there are other Plan provisions that still exclude 

certain treatments even if they are consistent with GASC. 

Thus, if UBH had interpreted the GASC exclusion to 

mandate coverage for and consistency with GASC, these 

other exclusions would be rendered nugatory.

The district court disagreed. Although it acknowledged 

some treatment consistent with GASC may be excluded 

under the Plans, it ultimately ruled that UBH abused its 

discretion because the Guidelines did not require coverage 

for all care consistent with GASC. The district court’s 

substitution of its interpretation of the Plans for UBH’s 

interpretation that is consistent with the language of the 

Plans was erroneous. 

We reverse the district court’s judgment that UBH 

wrongfully denied benefits to the named Plaintiffs based 

upon the court’s finding that the Guidelines impermissibly 
30 WIT V. UNITED BEHAVIORAL HEALTH

deviate from GASC. The district court’s judgment on 

Plaintiffs’ breach of fiduciary duty claim also relied heavily

on its conclusion that the Guidelines impermissibly deviated 

from GASC.

5 This also was error. 

VI

Finally, UBH contends that the district court erred when 

it excused unnamed class members from demonstrating 

compliance with the Plans’ administrative exhaustion 

requirement. We agree.

We review the applicability of exhaustion principles de 

novo. See Barboza v. Cal. Ass’n of Pro. Firefighters, 651 

F.3d 1073, 1076 (9th Cir. 2011). “ERISA itself does not 

require a participant or beneficiary to exhaust administrative 

remedies in order to bring an action under § 502 of ERISA, 

29 U.S.C. § 1132.” Bilyeu v. Morgan Stanley Long Term 

Disability Plan, 683 F.3d 1083, 1088 (9th Cir. 2012) 

(quoting Vaught v. Scottsdale Healthcare Corp. Health 

Plan, 546 F.3d 620, 626 (9th Cir. 2008)). Instead, ERISA 

mandates an opportunity for administrative review, see 29 

U.S.C. § 1133(2), and we have treated completion of this 

administrative review as a prudential exhaustion 

requirement. Castillo, 970 F.3d at 1228. We have also 

consistently recognized three exceptions to the prudential 

exhaustion requirement: futility, inadequate remedy, and 

unreasonable claims procedures. See Vaught, 546 F.3d at 

5 This was not the only finding relevant to the district court’s judgment 

on the breach of fiduciary duties claim. The district court also found, 

among other things, that financial incentives infected UBH’s Guideline 

development process and that UBH developed the Guidelines with a 

view toward its own interests. Our decision does not disturb these 

findings to the extent they were not intertwined with an incorrect 

interpretation of the Guidelines as inconsistent with the Plan terms.
WIT V. UNITED BEHAVIORAL HEALTH 31

626–27. Plaintiffs have not shown that we have extended 

these exceptions to a contractual exhaustion requirement, 

and even if we were inclined to do so, here it is uncontested 

that some beneficiaries successfully appealed the denial of 

their benefit claims, so these exceptions are not satisfied. 

The Supreme Court has explained that “[t]he plan, in 

short, is at the center of ERISA,” and accordingly, “[t]his 

focus on the written terms of the plan is the linchpin of ‘a 

system that is [not] so complex that administrative costs, or 

litigation expenses, unduly discourage employers from 

offering [ERISA] plans in the first place.’” Heimeshoff, 571 

U.S. at 108 (third and fourth alterations in original) (first 

quoting McCutchen, 569 U.S. at 101; and then quoting 

Varity, 516 U.S. at 497). While Congress, in enacting 

ERISA, “empowered the courts to develop, in . . . light of 

reason and experience, a body of federal common law 

governing employee benefit plans,” Menhorn v. Firestone 

Tire & Rubber Co., 738 F.2d 1496, 1499 (9th Cir. 1984),

federal common law doctrines cannot alter or override clear 

and unambiguous plan terms, see Cinelli v. Security Pacific

Corp., 61 F.3d 1437, 1444 (9th Cir. 1995).

When an ERISA plan does not merely provide for 

administrative review but, as here, explicitly mandates 

exhaustion of such procedures before bringing suit in federal 

court and, importantly, provides no exceptions, application 

of judicially created exhaustion exceptions would conflict 

with the written terms of the plan. Cf. Greany v. W. Farm 

Bureau Life Ins. Co., 973 F.2d 812, 822 (9th Cir. 1992) 

(“Because the plan was unambiguous, the Greanys cannot 

avail themselves of the federal common law claim of 

equitable estoppel.”).
32 WIT V. UNITED BEHAVIORAL HEALTH

This outcome is consistent with the Rules Enabling Act. 

Exhaustion is a contractual limitation that impacts the 

availability of remedies. In this case, by excusing all absent 

class members’ failure to exhaust, the district court abridged 

UBH’s affirmative defense of failure to exhaust and 

expanded many absent class members’ right to seek judicial 

remedies under Rule 23(b)(3). Cf. Dukes, 564 U.S. at 367 

(“[A] class cannot be certified on the premise that [the 

defendant] will not be entitled to litigate its statutory 

defenses to individual claims.”). Accordingly, to the extent 

any absent class members’ plans required exhaustion, the 

district court erred in excusing the failure to satisfy such a 

contractual requirement. On this basis, we reverse. 

VII

In sum, Plaintiffs have Article III standing to bring their

breach of fiduciary duty and improper denial of benefits 

claims pursuant to 29 U.S.C. §§ 112(a)(1)(B) and (a)(3). 

And the district court did not err in certifying three classes 

to pursue the fiduciary duty claim. However, because 

Plaintiffs expressly declined to make any showing, or seek a 

determination of, their entitlement to benefits, permitting 

Plaintiffs to proceed with their denial of benefits claim under 

the guise of a “reprocessing” remedy on a class-wide basis 

violated the Rules Enabling Act. Accordingly, we affirm in 

part and reverse in part the district court’s class certification 

order. 

On the merits, the district court erred in excusing absent 

class members’ failure to exhaust administrative remedies as 

required under the Plans. The district court also erred in 

determining that the Guidelines improperly deviate from 

GASC based on its interpretation that the Plans mandate 

coverage that is coextensive with GASC. Therefore, the 
WIT V. UNITED BEHAVIORAL HEALTH 33

judgment on Plaintiffs’ denial of benefits claim is reversed, 

and to the extent the judgment on Plaintiffs’ breach of 

fiduciary duty claim is based on the district court’s erroneous 

interpretation of the Plans, it is also reversed. 

AFFIRMED in part, REVERSED in part, and

REMANDED FOR FURTHER PROCEEDINGS. Each 

party to bear its own costs.