*

Honorable Mark A. Goldsmith, United States District Judge for the Eastern District of Michigan,

sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0374p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

MARGARET A. LIPKER,

 Plaintiff-Appellee,

v.

AK STEEL CORPORATION,

 Defendant-Appellant.

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No. 10-5298

Appeal from the United States District Court

for the Eastern District of Kentucky at Ashland.

No. 09-00050—Henry R. Wilhoit, Jr., District Judge.

Argued: October 5, 2011

Decided and Filed: October 31, 2012 

Before: BOGGS and McKEAGUE, Circuit Judges; GOLDSMITH, District Judge.*

_________________

COUNSEL

ARGUED: Sheryl G. Snyder, FROST BROWN TODD LLC, Louisville, Kentucky, for

Appellant. John F. Vincent, MARTIN & VINCENT, PSC, Ashland, Kentucky, for

Appellee. ON BRIEF: Sheryl G. Snyder, FROST BROWN TODD LLC, Louisville,

Kentucky, Adam P. Hall, Matthew C. Blickensderfer, FROST BROWN TODD LLC,

Cincinnati, Ohio, for Appellant. John F. Vincent, MARTIN & VINCENT, PSC,

Ashland, Kentucky, for Appellee. Daniel J. Buckley, Glenn V. Whitaker, Mary C.

Henkel, Adam C. Sherman, VORYS SATER SEYMOUR & PEASE LLP, Cincinnati,

Ohio, for Amici Curiae.

McKEAGUE, J., delivered the opinion of the court, in which BOGGS, J., joined,

and GOLDSMITH, D. J., joined in part. GOLDSMITH, D. J. (pp. 14–18), delivered a

separate opinion dissenting from Section II.D of the majority’s opinion.

1
No. 10-5298 Lipker v. AK Steel Corp. Page 2

_________________

OPINION

_________________

McKEAGUE, Circuit Judge. When plaintiff Margaret Lipker’s husband died,

she applied for surviving spouse benefits under the pension benefits plan administered

by his former employer, AK Steel Corporation. Her application was granted, but her

monthly surviving spouse allowance was considerably smaller than she had expected.

Lipker filed suit to recover plan benefits in the amount she believed she was entitled to.

The discrepancy between her expectation and the actual award hinges on the

interpretation of plan language that both parties argue is unambiguous, yet each party

interprets differently. The district court approved Lipker’s interpretation and ordered

AK Steel to award her benefits accordingly. On de novo review, we find AK Steel’s

proposed interpretation of the plan language to be truer to its plain meaning when read

with reference to the law it expressly refers to. Therefore, and for the reasons more fully

set forth below, the district court’s judgment for plaintiff must be reversed.

I. BACKGROUND

Plaintiff Margaret A. Lipker is the surviving spouse of Frank P. Lipker, a thirtynine-year employee of defendant AK Steel Corporation at its steel production facility in

Ashland, Kentucky. Frank Lipker retired on January 31, 1999. When he died on

September 7, 2008, he was receiving a monthly pension benefit of $1,386 under the AK

Steel pension plan. Shortly thereafter, plaintiff Margaret Lipker applied for the

surviving spouse benefit under the AK Steel plan. She was advised that under the terms

of the Pension Agreement Plan, she would be entitled to a monthly benefit of $693 (50%

of her husband’s pension benefit), reduced by 50% of her social security widow’s benefit

(an amount yet to be determined), but not less than $140 per month.

AK Steel made inquiry of the Social Security Administration (“SSA”). AK Steel

was initially advised by form response that plaintiff’s monthly widow’s benefit would

be $458. This response was changed by the SSA three weeks later, stating the widow’s

benefit would be $1469, without any explanation for the change evident in the record.
No. 10-5298 Lipker v. AK Steel Corp. Page 3

On the basis of this corrected amount, AK Steel calculated that 50% of Frank Lipker’s

pension benefit, $693, reduced by 50% of plaintiff’s social security widow’s benefit,

$734.50, resulted in a negative balance, thereby triggering the $140 minimum benefit

under the AK Steel Pension Agreement, § 4.3(d).

Separately, however, plaintiff had received a statement from SSA indicating her

social security widow’s benefit would be $458.50, in addition to her own “earnings

record” benefit of $1,010.90, thus yielding one monthly social security benefit payment

in the amount of $1,469.40. This was followed by another letter from SSA showing the

widow’s benefit amount to be $485 and plaintiff’s retirement benefit to be $973, yielding

a total monthly social security benefits payment of $1,458. On this basis, plaintiff

calculated that when 50% of the $485 widow’s benefit, $242.50, was subtracted from

$693, she would be entitled to a monthly surviving spouse benefit of $450.50 under the

AK Steel Plan. Plaintiff objected to AK Steel’s calculation and asked for an explanation.

She received a letter explaining AK Steel’s calculation (as set forth above), but not

explaining the discrepancy between the different widow’s benefit amounts reported by

SSA. AK Steel also sent a copy of the pertinent provisions from the Pension Agreement

and directed plaintiff’s attention to § 4.3(d):

Commencing with the first Surviving Spouse’s Benefit payable

after the surviving spouse attains the age at which widow’s or widower’s

benefits are first provided under a law referred to in Plan § 1.24 [e.g., as

relevant in this case, the Social Security Act], the amount of the

Surviving Spouse’s Benefit otherwise payable for any month shall be

reduced by 50% of the widow’s or widower’s benefit to which the

surviving spouse is, or upon application would be, entitled for such

month based on the law in effect at the time the Surviving Spouse’s

Benefit first becomes payable (without regard to any offset or suspension

imposed by such law). If the surviving spouse is not eligible for such a

widow’s or widower’s benefit for such month, the amount of the

reduction shall be equal to 50% of the amount of the widow’s or

widower’s benefit that could have become payable to the surviving

spouse for such month, based on the Participant’s wages, if the surviving

spouse had been eligible and had applied for such a benefit.

R. 12, Attach. 8, Pension Agreement § 4.3(d), p. 37 (bracketed note and emphasis

added). 
No. 10-5298 Lipker v. AK Steel Corp. Page 4

This was followed by a letter from AK Steel further explaining that the language

italicized above, “without regard to any offset or suspension imposed by such law,”

represented the key to understanding the discrepancy. The letter explained that the base

amount of the social security widow’s benefit is derived from a calculation beginning

with the deceased husband’s wages. The letter further explained that that amount,

eventually identified by SSA to AK Steel as $1,469, without any offset for any other

benefit that the widow may be entitled to under the Social Security Act, is the amount

that is halved in the formula set forth in § 4.3(d). Confusion, the letter implied, is caused

by the SSA’s use of the term “widow’s benefit” to describe the remaining portion of the

entire widow’s benefit that is paid after offset for any other social security benefit the

widow may be entitled to.

It was this practice, ostensibly, that led SSA to initially report plaintiff’s widow’s

benefit to both plaintiff and AK Steel as $458. Hence, according to AK Steel, the $458

figure represented only the remainder of the entire widow’s benefit, $1,469, after offset

for, or reduction of, plaintiff’s own old-age retirement benefit, $1,011. However, the

form on which SSA was asked to disclose plaintiff’s widow’s benefit, consistent with

the “without regard to” clause in § 4.3(d), expressly called for an amount “based on

retiree’s earnings only and irregardless of widow’s or widower’s earnings.” Thus,

according to AK Steel, the subsequently reported figure, $1,469, represented the correct

widow’s benefit amount to insert into the § 4.3(d) formula in AK Steel’s Pension

Agreement.

Plaintiff was not satisfied with this explanation. Insisting that SSA had reported

to her that her widow’s benefit was $485 and her retirement benefit was $973, she

requested review by the AK Steel Benefit Plans Administrative Committee. Plaintiff’s

appeal was denied on May 12, 2009, based on the same reading of § 4.3(d) of the

Pension Agreement and the same use of the $1,469 figure supplied by the SSA in the

§ 4.3(d) formula.

Plaintiff filed this action for recovery of plan benefits in the Boyd County

(Kentucky) Circuit Court. Defendant AK Steel removed the action to the United States
No. 10-5298 Lipker v. AK Steel Corp. Page 5

1

The record is devoid of explanation for the two different sets of figures reported by SSA. SSA

eventually reported to AK Steel that plaintiff’s entire widow’s benefit was $1,469 and implied that the

originally reported amount, $458, was her remainder widow’s benefit, after offset for or reduction of her

old-age retirement benefit of $1,011. These figures roughly matched those originally reported to plaintiff.

However, SSA eventually reported to plaintiff that her entire social security monthly benefit was

$1,458 (after deduction of $96.40 for medical insurance premium), consisting of her widow’s benefit of

$485 and her old-age retirement benefit of $973.

The parties’ arguments largely ignore this latter set of figures, although plaintiff suggests the

$27 increase in her widow’s benefit was attributable to a cost-of-living increase. For the most part, the

parties’ arguments focus on the more significant question whether the § 4.3(d) formula calls for the

“entire” widow’s benefit figure or the “remainder” figure. And, for the most part, both sides are content

to use the $1,469/$458/$1,011 figures in presenting their arguments, as was the district court in rendering

its decision, a course followed in this opinion as well. That is, for purposes of analyzing the dispositive

issues, the $1,458/$485/$973 figures are essentially ignored.

District Court for the Eastern District of Kentucky as preempted by the Employee

Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001 et seq. The district

court addressed the matter on cross-motions for judgment and awarded judgment to

plaintiff on February 24, 2010. The district court essentially adopted plaintiff’s

argument and held that the first disclosed widow’s benefit amount of $458 was the

correct figure to insert into the § 4.3(d) formula. Accordingly, the court halved that

amount and subtracted $229.40 from $693 (50% of the husband’s pension benefit) in

holding that plaintiff was entitled to a monthly surviving spouse benefit of $463.60. AK

Steel timely filed notice of appeal.1

II. ANALYSIS

A. Standard of Review

The parties are in agreement regarding the standard of review. This court

reviews de novo the district court’s decision reviewing an ERISA plan administrator’s

decision regarding plan benefits—where, as here, the plan does not give the plan

administrator discretionary authority to interpret plan terms—and applies the same legal

standard as the district court. Balmert v. Reliance Standard Life Ins. Co., 601 F.3d 497,

501 (6th Cir. 2010). Under de novo review, the court confines its review to the

administrative record and determines whether the plan administrator made “a correct

decision” without according the administrator any deference or presumption of

correctness. Shelby County Healthcare Corp. v. Majestic Star Casino, 581 F.3d 355,

367-68 (6th Cir. 2009). When interpreting ERISA plan provisions, general principles
No. 10-5298 Lipker v. AK Steel Corp. Page 6

of contract law apply; unambiguous terms are given their “plain meaning in an ordinary

and popular sense.” Fahner v. United Transp. Union Discipline Income Protection

Program, 645 F.3d 338, 343 (6th Cir. 2011) (quoting Williams v. Int’l Paper Co., 227

F.3d 706, 711 (6th Cir. 2000)). Where plan language is ambiguous, extrinsic evidence

may be considered to discern the purpose of the plan as the average employee would

have reasonably understood it. Kolkowski v. Goodrich Corp., 448 F.3d 843, 850 (6th

Cir. 2006).

B. Plan Language

The relevant plan language is confined to a single provision, § 4.3(d). See p. 3,

supra. In this provision, the meaning of two terms is at issue: (a) “widow’s benefit,”

and (b) “without regard to any offset imposed by law.” On its face, neither of these

terms can be said to have a “plain meaning.” Yet, neither term is used in such a way as

to be understood in a vacuum. Both terms are used with express reference to a law. The

only law implicated under the facts of this case is the Social Security Act.

Hence, AK Steel appropriately urges us to consult the Social Security Act in

ascertaining the meaning of these terms, something the district court conspicuously

failed to do. “Widow’s insurance benefit,” as used in the Social Security Act, is defined

at 42 U.S.C. § 402(e). Under 42 U.S.C. § 402(e)(2)(A), the amount of the widow’s

insurance benefit is initially defined as equal to the primary insurance benefit of the

deceased husband. Here, it appears to be undisputed that this amount, plaintiff’s

husband’s primary insurance benefit, at the time of death, was $1,469. However, the Act

makes clear that a person who is entitled to an old-age benefit (as plaintiff is) and any

other monthly social security insurance benefit (such as a widow’s benefit, to which

plaintiff is also entitled), will not receive both benefits in full simultaneously. Rather,

the other insurance benefit (i.e., the widow’s benefit) will be reduced by the amount of

the old-age benefit (but not below zero). 42 U.S.C. § 402(k)(3)(A). That is, the Act

imposes a reduction in the widow’s benefit ($1,469) by an amount equal to the person’s

old-age benefit ($1,011), leaving a widow’s benefit remainder ($458). As AK Steel

points out, this subsection (k) reduction is referred to in the Act as “the method by which
No. 10-5298 Lipker v. AK Steel Corp. Page 7

2

An exception to this rule is recognized in the case of a procedural challenge to a plan

administrator’s decision alleging a lack of due process or bias. Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609, 618 (6th Cir. 1998). Although plaintiff’s passing accusation of bad faith manipulation by

AK Steel could arguably come within the exception justifying expansion of the record, plaintiff appears

not to have pressed the point below. Nor has she proffered any evidence to support the accusation.

Moreover, and most importantly, there is no reason to believe expansion of the record would make a

difference. Use of the $1,469 figure as the amount of the “widow’s benefit” simply makes sense when the

plan formula is viewed in light of the Social Security Act’s defining provisions.

monthly benefits are offset when an individual is entitled to more than one kind of

benefit.” 42 U.S.C. § 402(q)(11) (emphasis added).

With the benefit of this statutory background, the terms of § 4.3(d) become

intelligible and unambiguous. It seems clear, consistent with AK Steel’s position, that

the “widow’s benefit” amount to be plugged into the § 4.3(d) formula, “without regard

to any offset imposed by law,” is $1,469. AK Steel’s construction and application of

§ 4.3(d) thus appears to be correct.

Plaintiff’s arguments in support of her construction of § 4.3(d) as yielding a

widow’s benefit amount of $458 in spite of the light shed by the above statutory

provisions are not convincing. First, she contends, regardless of the actual provisions

of § 402 of the Social Security Act, that the court should adopt the SSA’s interpretation

of the provisions it is charged with administering. The SSA initially reported both to

plaintiff and AK Steel that her widow’s benefit was $458. She contends the court should

accept this amount as conclusive, disregarding SSA’s later correction of the amount to

$1,469. She contends the corrected amount is not entitled to credence because it is the

product of AK Steel’s bad faith and manipulation.

The record is devoid of explanation for SSA’s correction of the widow’s benefit

amount. This is unfortunate. Yet, our review, like the district court’s, is confined to the

administrative record.2

 In the present record, the accuracy of the $1,469/$458/$1,011

figures is not really in controversy. These are substantially the same figures initially

reported by SSA to plaintiff in September 2008. The dispute actually revolves around

determining what labels apply to these figures and how the figures relate to each other

under the Social Security Act, the law referred to in § 4.3(d) of the Pension Agreement.

Review of the pertinent Social Security Act provisions substantiates the correctness of
No. 10-5298 Lipker v. AK Steel Corp. Page 8

AK Steel’s interpretation of § 4.3(d). It is regrettable that imprecision in SSA

communications about which figure should be labeled the “widow’s benefit” may have

led to unrealistic expectations in plaintiff, but this does not alter the meaning of the law

or its operation in conjunction with § 4.3(d).

Second, plaintiff challenges AK Steel’s application of the “without regard to any

offset imposed by law” clause. She contends the clause does not come into play because

§ 402(e) of the Social Security Act, defining widow’s benefit, does not even mention

“offset.” Plaintiff argues that AK Steel’s discovery of a thread linking the term “offset”

in § 402(q)(11), through § 402(k)(3)(A), defining the method of reduction that applies

when a person is simultaneously entitled to multiple benefits, to identify the meaning

of “widow’s benefit” under § 402(e) is too tenuous. Yet, plaintiff’s contention that

“offset” is a unique term of art with a meaning distinct from “reduction” as used in

§ 402(k)(3)(A) is unpersuasive. The real problem for plaintiff is that AK Steel’s

construction of § 4.3(d) in light of § 402’s provisions is true to the law and sensible.

C. District Court’s Analysis

Plaintiff urges the court to approve the district court’s decision without regard

to the Social Security Act. Indeed, although AK Steel presented the foregoing analysis

of § 402’s provisions in the district court, the court ignored it. Instead, the court relied

exclusively on an unpublished interlocutory ruling by another district court construing

and applying similar plan language to requests for surviving spouse benefits, Patrick v.

AK Steel Corp., 2008 WL 906052 (S.D. Ohio, Mar. 31, 2008). The plan language at

issue in Patrick is similar, but not identical:

Commencing with the first Surviving Spouse's Benefit payable after the

surviving spouse attains the age at which widow's or widower's benefits

are first provided under a Public Pension, the amount of the Surviving

Spouse's Benefit otherwise payable for any month shall be reduced by

50% of the amount of the widow's or widower's benefit to which the

surviving spouse is, or upon application would be, entitled for such

month based on the law in effect at the time the Surviving Spouse's

Benefit first becomes payable (without regard to any offset or suspension

imposed by such law) and based upon the benefit payable to such person
No. 10-5298 Lipker v. AK Steel Corp. Page 9

as a widow or widower without regard to any benefit earned in her own

right.

Id. at *4 (emphasis added). But for the italicized language, the above provision is

materially identical to § 4.3(d). Unfortunately for plaintiff, the italicized language

played a leading role in the Patrick court’s reasoning. 

The above provision contains two “without regard to” clauses, but the Patrick

court did not parse them specifically or attempt to ascertain how they harmonize with

or complement each other. As to the former clause, the Patrick court, like the district

court here in Lipker, did not consult the law providing the claimants’ public pension

widow’s benefits and did not inquire whether the law imposed any offset. Instead, the

court focused on the latter clause and concluded “the only reasonable interpretation is

that ‘without regard to’ . . . means to exclude any old age benefit earned by the widow

or widower in her or his own right, prior to the deduction calculation.” Id. at *5. In

other words, the court construed “without regard to” as meaning “excluding” any old-age

benefit from the equation.

Viewing the latter clause in isolation, the Patrick court’s construction is not

unreasonable. However, the latter clause succeeds a former clause, whose meaning

seems to be directly contrary. As explained above, with reference to the very law

referred to in this provision as well, the former “without regard to” clause, unlike the

latter, does not exclude any old-age benefit from the equation, but actually serves to

exclude any offset or exclusion of the old-age benefit imposed by law. In effect, then

the former clause, by virtue of a double-negative, serves to include any old-age benefit

in the equation. If the Patrick court had scrutinized the meaning of both clauses it would

have confronted this apparent contradiction or ambiguity. Instead, the court side-stepped

any dissonance between the two clauses by observing that its construction of the latter

clause did not run afoul of the former because the exclusion effected by the latter was

not imposed by law, but by the plan itself. Id.

What is clear about Patrick’s reasoning is that it is premised primarily on

construction of the latter clause language, language that is absent from and materially
No. 10-5298 Lipker v. AK Steel Corp. Page 10

3

In holding that Patrick is distinguishable and therefore inapposite, we express no opinion on the

merits of its reasoning.

4

The continuing vitality of this proposition has recently been questioned as a result of CIGNA

Corp. v. Amara, 131 S.Ct. 1866, 1876-78 (2011), where the Court held that terms of an SPD cannot be

enforced over conflicting terms of the employee benefit plan itself under ERISA § 502(a)(1)(B). 29 U.S.C.

§ 1132(a)(1)(B). Per CIGNA, if there is a conflict, the plan language controls over the SPD. In other

words, if we were to accept Lipker’s argument that there is a conflict in this case, the holding of CIGNA

would defeat her claim.

The CIGNA Court left open the possibility that “appropriate equitable relief” could potentially

be awarded under § 502(a)(3). Here, however, unlike in CIGNA, the district court did not consider such

a theory. Indeed, no such equitable theory is asserted in plaintiff’s complaint, which expressly prays only

for award of benefits under the “specific” and “clear and unambiguous language” of the plan.

Yet, even if the relief recognized in the University Hospitals case were deemed available in the

event of a “conflict” between SPD language and plan language, the discussion that follows explains why

it would not come into play under the facts of this case.

different from the language in § 4.3(d) of AK Steel’s Pension Agreement. It follows that

Patrick is factually distinguishable and has little persuasive value in evaluating AK

Steel’s determination of plaintiff’s surviving spouse benefit under § 4.3(d). It also

followsthat the district court’s exclusive reliance on Patrick as justification for awarding

judgment to plaintiff and granting her relief was misplaced and erroneous.3

D. Summary Plan Description

Finally, plaintiff contends that notwithstanding all of the above, AK Steel’s

decision is wrong because its construction and application of § 4.3(d) conflicts with the

terms of the governing summary plan description (“SPD”). The SPD defines the

surviving spouse benefit simply as “50% of the participant’s pension less 50% of the

amount of widow’s (or widower’s) Social Security benefit or, if higher, a minimum

benefit of $140 per month.” Thus, in relevant part, the SPD omits the “without regard

to any offset imposed by law” clause found in § 4.3(d) of the Pension Agreement. This

conflict, plaintiff contends, renders the clause unenforceable. The district court did not

address this argument in its opinion.

Because employees rely on summary plan descriptions in making decisions about

their future benefit needs, we have held that language in an SPD may control over any

conflicting language in the employee benefit plan itself. See Univ. Hosps. of Cleveland

v. Emerson Elec. Co., 202 F.3d 839, 850-51 (6th Cir. 2000).4

 This does not mean,

however, that an omission from the SPD will, by negative implication, be deemed to
No. 10-5298 Lipker v. AK Steel Corp. Page 11

alter the terms of the plan itself. Sprague v. General Motors Corp., 133 F.3d 388, 401

(6th Cir. 1998). Silence in the SPD regarding a term the plan defines more explicitly

does not make out a “conflict.” Id. “The reason is obvious: by definition, a summary

will not include every detail of the thing it summarizes.” Id. “[W]hile a conflict exists

where the summary plan description misleads or fails to state additional requirements

contained in the plan document, . . . there is no conflict where the plan document

clarifies the summary’s general language.” Mitzel v. Anthem Life Ins. Co., 351 F. App’x

74, 80 (6th Cir. 2009) (citations omitted).

Here, application of these standards makes it clear that the asserted “conflict”

between the SPD language and the terms of § 4.3(d) is really nothing more than an

innocuous “omission.” The SPD refers to the “widow’s Social Security benefit.” While

the SPD does not expressly state that the widow’s benefit referred to is “provided under

a law,” as does § 4.3(d) of the Pension Agreement, the SPD’s reference to Social

Security implies the same meaning; it is not misleading. And when the Social Security

Act, 42 U.S.C. § 402(e)(2)(A), is consulted for a definition of “widow’s benefit,” we find

a definition equating the amount of the widow’s insurance benefit with the primary

insurance benefit of the deceased husband, or in this case $1,469, the same amount used

by AK Steel in the § 4.3(d) formula. Thus, the SPD’s omission of reference to “the law”

does not result in an inconsistency.

The SPD also does not mention that this amount of the widow’s benefit is used

to calculate the surviving spouse’s benefit “without regard to any offset or suspension

imposed by such law.” Yet, again, the omission actually has no effect on the end result.

Whether one uses the widow’s benefit amount, as defined at § 402(e)(2)(A) (i.e.,

$1,469), or the widow’s benefit amount without regard to the offset imposed by

§ 402(k)(3)(A) (i.e., $1,469), the meaning of the two provisions is the same. In other

words, § 4.3(d)’s “without regard to” clause merely makes explicit what is implicit or

at worst ambiguous in the SPD; it “clarifies the summary’s general language.” Mitzel,

351 F. App’x at 80.
No. 10-5298 Lipker v. AK Steel Corp. Page 12

5

The dissent chides us for this line of analysis on two grounds. First, we are faulted for

addressing Lipker’s argument that there is a conflict between the plan and the SPD because the line of

authorities that supported her claim for relief under such a theory has been overruled. We agree with the

dissent’s view that the holding of CIGNA undercuts Lipker’s position. As explained above in responding

to Lipker’s argument, however, we do not reach the impact of CIGNA’s holding because the threshold

requirement, a conflict between the plan and the SPD, is not presented.

Second, besides faulting us for addressing the argument Lipker has made, the dissent also faults

us for not responding to an argument she has not made. Citing dicta from CIGNA, the dissent contends

we should remand for consideration of a potentially appropriate theory of equitable relief that Lipker never

pled below, has not argued in this appeal, and has not even asserted, post-CIGNA, as grounds for remand

and reconsideration. The dissent’s position misconceives our role.

6

We acknowledge that the language of both § 4.3(d) and the parallel SPD provision, viewed on

its face, cannot be said to have a “plain meaning”—either to a lawyer or a layperson. But neither is

designed to be read on its face; both provisions include reference to “the law” or “ Social Security.”

Hence, neither provision is understandable without reference to the Social Security Act. We further

acknowledge that a casual reading of the pertinent provisions of the Social Security Act yields no ready

answer as to how the § 4.3(d) and SPD provisions are to be understood. The provisions of § 402 of the

Act are complex. Yet, by referring to “widow’s Social Security benefit” in the SPD and “the law” in

§ 4.3(d), AK Steel has clearly put the average reasonable plan participant or beneficiary on notice of the

need to make further inquiry if the specifics of the surviving spouse benefit are to be understood. As

explained above, such further inquiry yields a clear and sensible meaning. 

The omission of these two elements from the SPD is not misleading and the

discrepancy between the language of the two provisions does not rise to the level of a

“conflict.” The SPD’s summary description is incomplete, in comparison with

§ 4.3(d)—as would ordinarily be expected—but is otherwise consistent with the Pension

Agreement. Hence, there is no conflict between the SPD and the plan such that the SPD

definition of the surviving spouse benefit would control over the plan language. See also

Sullivan v. CUNA Mut. Ins. Soc’y, 649 F.3d 553, 557-58 (7th Cir. 2011) (citing CIGNA,

131 S.Ct. at 1876-80, and observing that “[a] participant who draws an unfounded

inference from an omission from a summary plan description is not entitled to a

remedy.”).5

E. Miscellaneous Arguments

The parties have presented various arguments regarding the intent underlying

§ 4.3(d) of the Pension Agreement. There is, however, substantially no extrinsic

evidence of the parties’ intent. Nor is there any need to resort to extrinsic evidence, as

§ 4.3(d), construed in light of the pertinent § 402 provisions to which it refers, appears

to be unambiguous, its meaning plain.6
No. 10-5298 Lipker v. AK Steel Corp. Page 13

Also unavailing is plaintiff’s argument that AK Steel’s construction and

application of § 4.3(d) “penalizes” surviving spouses who earned their own old-age

benefits. Quite to the contrary, when applied in accordance with its express terms,

§ 4.3(d) treats all surviving spouses equally, irrespective of their work history. By

disregarding the Social Security offset to the widow’s benefit that stems from the

widow’s own work history, AK Steel Pension Plan intentionally disregards the widow’s

work history, putting all widows in the same position.

III. CONCLUSION

In sum, for the reasons set forth above, we hold that AK Steel’s determination

of plaintiff’s surviving spouse benefit was and is correct and that the district court’s

judgment in favor of plaintiff Margaret Lipker must be REVERSED. The case is

REMANDED to the district court for entry of judgment in favor of AK Steel.
No. 10-5298 Lipker v. AK Steel Corp. Page 14

__________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

__________________________________________________

MARK A. GOLDSMITH, District Judge, concurring in part and dissenting in

part. I agree with all but Section II.D of the majority’s opinion. My disagreement

concerns two issues. First, the majority engages in a legal analysis for a claim under

29 U.S.C. § 1132(a)(1)(B), based on an asserted conflict between language in an ERISAcovered plan and the summary plan description (SPD), that is no longer relevant after

the United States Supreme Court’s decision in CIGNA Corp. v. Amara, 131 S. Ct. 1866

(2011). Second, the majority bars Lipker on remand from seeking equitable relief under

29 U.S.C. § 1132(a)(3), even though the viability of such relief was shrouded in

uncertainty until CIGNA. For the reasons explained in more detail below, I would

reverse the judgment of the district court, but remand the case to that court for

consideration of appropriate equitable relief in light of CIGNA.

CIGNA was decided well after the district court issued its final judgment in this

case. Where there has been an intervening change in law during the pendency of an

appeal, this court generally must “apply the law in effect at the time it renders its

decision.” See Bradley v. Sch. Bd. of City of Richmond, 416 U.S. 696, 712 (1974).

Therefore, CIGNA must be followed in this case.

In CIGNA, the Supreme Court held that SPDs do not constitute plan terms for

claims brought under 29 U.S.C. § 1132(a)(1)(B). See CIGNA, 131 S. Ct. at 1878 (“[T]he

summary documents, important as they are, provide communication with beneficiaries

about the plan, but . . . their statements do not themselves constitute the terms of the plan

for purposes of § 502(a)(1)(B).”) (emphasis in original). See also Bender v. Newell

Window Furnishings, Inc., 681 F.3d 253, 265 n.9 (6th Cir. 2012) (“In CIGNA, an ERISA

action to recover amounts due under an ERISA plan, the Court clarified that the

provisions of an SPD could not be enforced as terms of the ERISA plan itself.”).
No. 10-5298 Lipker v. AK Steel Corp. Page 15

1

Following CIGNA, other courts have uniformly recognized what the Supreme Court strongly

implied in CIGNA – that, under appropriate circumstances, equitable remedies under § 1132(a)(3) are

available to redress injuries stemming from inaccurate summary language. See Koehler v. Aetna Health

Inc., 683 F.3d 182, 189 (5th Cir. 2012) (citing CIGNA for the proposition that “even if the plan’s language unambiguously supports the administrator’s decision, a beneficiary may still seek to hold the administrator

to conflicting terms in the plan summary through a . . . claim under § 1132(a)(3)” (emphasis in original));

Skinner v. Northrop Grumman Ret. Plan B, 673 F.3d 1162, 1165-67 (9th Cir. 2012) (recognizing that,

under CIGNA, equitable relief pursuant to § 1132(a)(3) is available to redress injuries stemming from

reliance on inaccurate summary language); US Airways, Inc. v. McCutchen, 663 F.3d 671, 670 (3d Cir.

2011) (citing CIGNA, recognizing that equitable relief under § 1132(a)(3) “temper[s]” the “absolute

freedom to contract”); Wallace v. Freight Drivers & Helpers Local No. 557 Pension Fund, No. 11-2062,

2012 WL 2571223, at *6 (D. Md. Jul. 2, 2012) (noting that, under CIGNA, “court may hold a Plan to the

terms of its SPDs on equitable grounds (as, in essence, a form of estoppel)”).

At the same time, however, the CIGNA Court suggested, in dicta, that relief

under § 1132(a)(3) – which allows courts to grant “other appropriate equitable relief” –

is available to redress injuries caused by an administrator’s failure to provide accurate

summary information. See CIGNA, 131 S. Ct. at 1878-82 (discussing whether

§ 1132(a)(3) provides relief to those injured by inaccurate summary language, and

concluding that “[w]e doubt that Congress would have wanted to bar those employees

from relief”).1

In the present case, the majority acknowledges CIGNA’s holding. See Opinion

at 12 n.4. Nonetheless, it proceeds to apply pre-CIGNA authority to resolve Lipker’s

alternative argument under § 1132(a)(1)(B) that she is entitled to a higher pension

amount based on language in the SPD, regardless of any conflicting language in the plan.

See Opinion at 10-12 (citing various pre-CIGNA cases, including University Hospitals

of Cleveland v. Emerson Electric Company, 202 F.3d 839, 850-51 (6th Cir. 2000)).

After CIGNA, however, this line of cases is inapplicable because the Supreme Court has

now held that an SPD does not constitute “terms of the plan” that a beneficiary may

enforce under § 1132(a)(1)(B). The majority’s analysis of possible conflict between the

plan and the SPD is irrelevant because, in either case, the SPD language cannot be

enforced under that ERISA provision. Therefore, I would simply invoke CIGNA to

reject Lipker’s alternative argument under § 1132(a)(1)(B).

More importantly, the majority errs in summarily depriving Lipker of the

opportunity to return to the district court to assert a claim for equitable relief under

§ 1132(a)(3). The majority does so because, in its words, “no such equitable theory is
No. 10-5298 Lipker v. AK Steel Corp. Page 16

2

In her complaint, Lipker did not expressly seek relief under § 1132(a)(1)(B) either. The

barebones complaint, which does not even mention ERISA, alleges only that AK Steel miscalculated the

widow’s benefit to which she is entitled under the plan, and requests relief as follows: “the Plaintiff prays

for a determination of the Court that the plan must comply with the specific language set forth within the

plan contract; for back pay; for interest, costs and attorney’s fees; and for any and all other appropriate

relief to which she may appear entitled.”

asserted in plaintiff’s complaint, which expressly prays only for award of benefits under

the ‘specific’ and ‘clear and unambiguous language’ of the plan.” Opinion at 10 n.4.

It is true that Lipker did not expressly seek equitable relief before the district

court.2 But her failure to do so is not surprising and certainly not unreasonable, as her

right to do so was not apparent until May 16, 2011, the day CIGNA was decided, more

than two years after this case was originally filed. Prior to CIGNA, SPD language was

deemed plan language to the extent there was a conflict between the two. See, e.g.,

Edwards v. State Farm Mut. Auto. Ins. Co., 851 F.2d 134, 136 (6th Cir. 1988) (“This

Circuit has decided that statements in a summary plan are binding and if such statements

conflict with those in the plan itself, the summary shall govern.”). Further,

§ 1132(a)(1)(B) was utilized as the avenue for relief from injuries arising out of such

conflicts. See, e.g., id.; Rhoton v. Cent. States, Se. & Sw. Areas Pension Fund, 717 F.2d

988 (6th Cir. 1983). Moreover, prior to CIGNA, there was significant uncertainty

whether § 1132(a)(3) provided an avenue for relief based on such a conflict. See

CIGNA, 131 S. Ct. at 1876 (noting that district court did not award equitable relief under

§ 1132(a)(3) because of Supreme Court cases that narrowed application of that section).

Only after CIGNA did it become clear that (i) § 1132(a)(1)(B) does not provide an

avenue for relief from injuries stemming from conflicts between SPD language and plan

language, and (ii) § 1132(a)(3) may well provide an avenue for such relief.

In situations where an intervening change-in-law during the pendency of an

appeal renders an old theory untenable and a new theory viable, it is only fair to return

the case to the district court for a determination, in the first instance, whether to permit

the new claim to proceed. See Del Rosario v. King & Prince Seafood Corp., 432 F.

App’x 912, 913 (11th Cir. 2011) (affirming dismissal of claim for benefits under

§ 1132(a)(1)(B), but remanding “for reconsideration of the issue of whether a remedy

exists under . . . § 1132(a)(3), in light of the Supreme Court’s decision in CIGNA”).
No. 10-5298 Lipker v. AK Steel Corp. Page 17

However, the majority refuses to do so here because “Lipker never pled below,

has not argued in this appeal, and has not even asserted, post-CIGNA,” a claim for

equitable relief. Opinion at 12 n.5. As discussed, Lipker’s failure to plead an equitable

claim below was reasonable under the circumstances. Regarding her failure to raise the

issue of equitable relief under § 1132(a)(3) during the pendency of this appeal, Lipker’s

brief on appeal was due and submitted before CIGNA was decided. Further, this court

never directed the parties to submit supplemental briefs addressing the impact of CIGNA

on this case. Tellingly, neither attorney in this matter has mentioned CIGNA to this court

– not during oral argument and not in any post-argument submission. In light of the

obvious relevance of that decision to this case and the fact that neither attorney has

brought the case to the court’s attention, it is likely that neither counsel is aware of the

decision. The majority’s insistence on forever barring Lipker from pursuing a form of

relief to which she may be entitled simply because her attorney is apparently unaware

of an intervening sea-change in the law is unreasonably harsh.

The majority holds that it is not the role of the court to order sua sponte a remand

for the purpose of allowing the district court to address an unasserted claim. See

Opinion at 12 n.5 (“The dissent’s position misconceives our role.”). While I agree with

the majority that courts generally should not raise issues and claims that were not raised

by the parties, there are plainly extenuating circumstances here justifying a remand –

namely, a significant change in the law (occurring after the district court proceedings

and after the deadline for briefing on appeal) that created the possibility of a viable cause

of action, previously viewed dubiously by the courts.

The power of an appellate court to remand sua sponte under circumstances that

are just is well established and deeply rooted. See 28 U.S.C. § 2106 (“The Supreme

Court or any other court of appellate jurisdiction may . . . remand the cause and direct

the entry of such appropriate judgment, decree, or order, or require such further

proceedings to be had as may be just under the circumstances.”); Underwood v. Comm’r

of Internal Revenue, 56 F.2d 67, 73 (4th Cir. 1932) (“In a number of instances, Circuit

Courts of Appeals have remanded cases for rehearing when it seemed necessary in order
No. 10-5298 Lipker v. AK Steel Corp. Page 18

to do justice to the parties. . . . In addition, there is the well-established rule that an

appellate court has the power, without determining and disposing of a case, to remand

it to the lower court for further proceedings if the case has been tried on a wrong theory,

or the record is not in condition for the appellate court to decide the question presented

with justice to all parties concerned.”). In Nuelsen v. Sorensen, 293 F.2d 454 (9th Cir.

1961), the court of appeals ordered a remand for the district court to consider issues not

raised before either court, explaining:

There is, however, no rigid and undeviating judicially declared practice

under which courts of review invariably and under all circumstances

decline to consider all questions which have not previously been

specifically urged. Indeed there could not be without doing violence to

the statutes which give federal appellate courts the power to modify,

reverse or remand decisions ‘as may be just under the circumstances.’

28 U.S.C. § 2106. Exceptional cases or particular circumstances may

prompt a reviewing court, where injustice might otherwise result or

where public policy requires, to consider questions neither pressed nor

passed upon below. The power to raise and decide question sua sponte

is, however, to be exercised sparingly and with full realization of the

restrictions and limitations inherent in its employment.

Rather than consider the matter sua sponte, of course, the appellate court

may note the existence of the unargued, undecided question and remand

the case to the lower court. This makes the decision on the matter one

reflecting the consideration of a trial court and the counsel in the case.

Id. at 462 (footnotes omitted).

Exceptional circumstances for a remand exist here where an unpled claim of

questionable validity became viable on appeal because of an intervening Supreme Court

decision. Given that there is no prejudice to AK Steel in ordering a remand to consider

such a claim, it is well within the role of this court, as a court of justice, to see that

Lipker receives a full opportunity to vindicate her rights under ERISA.

For all of these reasons, reversal of the district court should be accompanied by

a remand for a determination whether Lipker can proceed on an equitable theory under

§ 1132(a)(3) in light of CIGNA. Because the majority opinion does not order a remand

for this purpose and because of its failure to apply CIGNA properly, I must respectfully

dissent from Section II.D of the majority’s opinion.