* Pursuant t o 5 TH C IR . 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this opinion should not be published and is not precedent except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 5 TH C IR . R. 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-11158

LOCKHEED MARTIN VOUGHT SYSTEMS CORPORATION, Formerly

known as Loral Vought Systems Corporation; COMMITTEE OF

LOCKHEED MARTIN VOUGHT SYSTEMS CORPORATION RETIREE GROUP

HEALTH PLANS, Formerly known as the Committee of Loral

Vought Systems Corporation Retiree Group Health Plans,

Plaintiffs - Counter Defendants - Appellees,

VERSUS

JOHN MOLLICK, Individually and as Representative of a Class

of persons Similarly Situated; THOMAS D. FIELD, JR., Individually

and as Representative of a Cl ass of Persons Similarly Situated;

ROBERT L. LIDDELL, Individually and as Representativeof a Class of

Persons Similarly Situated; LTV RETIREES ASSOCIATION,

Defendants - Counter Claimants - Appellants.

Appeal from the United States District Court

for the Northern District of Texas

(95-CV-807)

February 11, 2000

Before DUHE’, BARKSDALE and DENNIS, Circuit Judges.

PER CURIAM: *

Defendant-Appellants appeal from the district court’s summary

judgment rejecting their counter-claims and declaring that

Plaintiff-Appellees, by enacting and implementing amendments to

retiree group health plans, did not violate the Employee Retirement

Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et. seq,

or exercise rights or powers precluded by the Frost Amendment, Pub.L. No. 102-484, § 839, 106 Stat. 2315 (1992), the asset purchase

agreement, or the doctrine of estoppel. Appellants raise four

points of controversy on appeal, viz., whether: (1) the health plan

am endments violated the terms of the ERISA plans; (2) the

amendments violated Plaintiff-Appellees’ fiduciary duties to

Defendant-Appellants as plan administrators; (3) PlaintiffAppellees were equitably estopped from enacting the amendments; or

(4) the Frost Am endment amended ERISA to prevent PlaintiffAppellees from enacting the health plan amendments. After careful

review and consideration of the record and the parties’ written and

oral arguments on appeal, we affirm for substantially the same

reasons assigned by the district court in its order and opinion.

With respect to the fi rst issue, it is well-settled that

welfare plans do not vest under ERISA and that they may be amended

at the employer’s discretion u nless the Summary Plan Description

(“SPD”) clearly and expressly limits that right. S ee Fallo v.

Piccadilly Cafeterias, Inc.

, 141 F.3d 580, 583 (5 th Cir. 1998); Wise

v. El Paso Natural Gas Co.

, 986 F.2d 929, 935 (5 th Cir. 1993) cert.

denied 510 U.S. 870 (1993). We agree with the district court that

u nder the law and the undisputed material facts, the Plai ntiffAppellees’ actions did not violate any clearly expressed

limitations or fail to fulfill any stipulated condition.

With respect to the second issue raised, it is well-settled

that although Congress has authorized employees of an employer

company to serve as plan fiduciaries, the employer is not acting in

a fiduciary capacity when amending an ERISA welfare plan. S ee

Grindstaff v. Green , 133 F.3d 416, 424 (6 t h Cir. 1998); see alsoIzzarelli v. Rexene Prods. Co. , 24 F.3d 1506, 1524 (5 th Cir. 1994)

(“[An employer] can wear two hats: one as a fiduciary and the other

as the drafter of a plan’s terms . . . [a]n employer does not act

as a fiduciary when it amends or otherwise set s the terms of a

plan.”). Thus, we agree with the district court that in enacting

the amendments to the health plans, Plainti ff-Appellees did not

violate their fiduciary duty or abuse their discretion.

With respect to the third issue raised on appeal, this circuit

has not squarely addressed whether an estoppel cause of action is

av ailable under ERISA; we need not resolve this issue, however,

because assuming arguendo that an estop pel cause of action does

exist, we conclude that Defendant-Appellants have not established

such a cause of action. To recover under an equitable estoppel

theory, a beneficiary must “establish a material misrepresentation,

reasonable and detrimental rel iance upon the representation, and

ex traordinary circumstances.” W eir v. Federal Asset Disposition

Assoc.

, 123 F.3d 281, 290 (5 th Cir. 1997) ( citing In re Unisys Corp.

Retiree Medical Benefit “ERISA” Litig.

, 58 F.3d 896, 907 (3 rd Cir.

1995)). As the district court corre c tly concluded, DefendantAppellants did not present evidence of oral representations that

could be construed as an interpret ation of an ambiguous plan

provision, and thus have not established a material

misrepresentation sufficient to recover un der an ERISA estoppel

cause of action.

With respect to the fourth issue raised, we agree with the

district court that the Frost Amendment deals solely with existing

and future obligations to pay benefits as determined by the termso f the plans and did not amend ERISA so as to alter Plai ntiffAppellees’ rights to amend the terms of such plans.

For these reasons, and for substantially the same reasons set

forth by the district court, we AFFIRM the judgment of the district

court.