FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LAWRENCE M. BECKER, as fiduciary

of the Xerox Corporation Savings

Plan and Xerox Corporation

Retirement Income Guarantee Plan,

Plaintiff,

CARMEN STEPHANIE MAYSWILLIAMS,

Defendant-Appellee,

v.

ASA WILLIAMS, JR., as personal

representative of the Estate of Asa

Willie Williams,

Defendant-Appellant.

No. 13-35069

D.C. No.

3:11-cv-05830-

BHS

OPINION

Appeal from the United States District Court

for the Western District of Washington

Benjamin H. Settle, District Judge, Presiding

Argued and Submitted

May 15, 2014—Seattle, Washington

Filed January 28, 2015

Before: Diarmuid F. O’Scannlain, Marsha S. Berzon,

and Richard C. Tallman, Circuit Judges.

Opinion by Judge O’Scannlain
2 MAYS-WILLIAMS V. WILLIAMS

SUMMARY*

Employee Retirement Income Security Act

The panel reversed the district court’s summary judgment

in an ERISA interpleader action seeking a determination as

to the proper beneficiary of proceeds under two employee

benefit plans.

The plan participant formally designated his wife as his

beneficiary. After their divorce, he designated his son as

beneficiary over the telephone but did not sign and return

beneficiary designation forms.

The panel held that the beneficiary designation forms

were not “plan documents” governing the plan

administrator’s award of benefits under 29 U.S.C.

§ 1104(a)(1)(D). The panel concluded that there was a

triable issue as to whether, under state law, the plan

participant strictly or substantially complied with the

governing plan documents’ requirements for changing his

beneficiary designation. The panel remanded the case for

further proceedings.

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

been prepared by court staff for the convenience of the reader.
MAYS-WILLIAMS V. WILLIAMS 3

COUNSEL

Steven P. Krafchick, Krafchick Law Firm PLLC, Seattle,

Wash., argued the cause and filed the briefs for the

Defendant-Appellant. With him on the briefs was Lisa V.

Benedetti, Krafchick Law Firm PLLC, Seattle, Wash.

Marcia P. Ellsworth, Peterson Russell Kelly, PLLC,Bellevue,

Wash., argued the cause and filed a brief for the DefendantAppellee. With her on the brief was Merryn B. DeBenedetti,

Peterson Russell Kelly, PLLC, Bellevue, Wash.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether a decedent succeeded in his

attempt to ensure that his son—and not his ex-wife—received

the benefits to which his employer’s retirement plans entitled

him.

I

A

When he retired in October 2004, Asa Williams, Sr.,

(“Asa, Senior”) had worked for the Xerox Corporation for

over thirty years. He participated in various benefit programs

that Xerox maintained for its employees, including the Xerox

Retirement Income Guarantee Plan (the “RIGP”) and the

Xerox Savings Plan (the “Savings Plan,” and, together with

the RIGP, collectively, the “Xerox Plans”), both of which are
4 MAYS-WILLIAMS V. WILLIAMS

subject to the Employee Retirement Income Security Act of

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

Asa, Senior, married Carmen Mays-Williams (“Carmen”)

in January 1993. In 2002, he formally designated Carmen as

his beneficiary under the Xerox Plans. Following his divorce

from Carmen in 2006, he attempted to change his designated

beneficiary under the Xerox Plans from his now ex-wife

Carmen to his son from an earlier marriage, Asa Williams,

Jr., (“Asa, Junior”). Specifically, in July 2007, Asa, Senior,

“telephonically undesignated” Carmen as his beneficiary

under the RIGP, and indicated that he wanted his son as

beneficiary instead. Asa, Senior, gave similar telephonic

instructions with respect to the RIGP in February 2008 and

with respect to both Xerox Plans in January 2011. In each

instance, following the telephone conversation with Xerox,

Asa, Senior, received, but did not sign and return, beneficiary

designation forms requesting that he confirm his selection of

his son as beneficiary.

On May 16, 2011, Asa, Senior, died.

B

A month later, Carmen wrote to Xerox claiming to be her

ex-husband’s beneficiaryunder the Xerox Plans. Asa, Junior,

likewise asserted a right to the plan proceeds. Rather than

resolve the competing claims, the fiduciary of the Xerox

Plans interpleaded the two parties in federal district court

seeking its determination as to the proper beneficiary. 

Carmen moved for summary judgment, asserting that because

Asa, Senior, failed to fill out and to return the beneficiary

designation forms, he did not properly designate Asa, Junior,

as beneficiary in her place.
MAYS-WILLIAMS V. WILLIAMS 5

The district court granted Carmen’s motion for summary

judgment, and declined, on the subsequent motion of Asa,

Junior, to reconsider its judgment. Asa, Junior, filed a timely

notice of appeal.

C

TheXerox Retirement Income Guarantee Plan Agreement

(the “RIGP Agreement”) provides the terms and procedures

under which Xerox extends retirement benefits to qualified

employees, including the procedure for designating a

beneficiary. By its terms, unmarried participants “shall

designate” a beneficiary, and “may change [the] designation

of beneficiary from time to time.” A married participant, in

contrast, before “designat[ing] one other than his Spouse as

beneficiary,” must first obtain “the requisite spousal consent

complying in every respect with regulations promulgated by

the Secretary of the Treasury.” The Agreement also bestows

upon the plan administrator the discretion to “construe and

interpret the provisions of the Plan, determine all questions of

fact, and make rules and regulations under the Plan to the

extent deemed advisable or helpful.”

The Xerox Retirement Income Guarantee Plan Summary

Plan Description (the “RIGP SPD,” or “SPD”) similarly notes

that, while unmarried participants “can name anyone [they]

want to be the beneficiary of any death benefit that may

become payable,” ERISA restricts married participants from

freely designating beneficiaries. 29 U.S.C. § 1055(c)(2). 

Specifically, the SPD explains that if a married participant

age 35 or older wishes to designate a beneficiary other than

his wife, he must “submit [his]spouse’s written and notarized

consent to do so on forms available . . . .” The SPD does not

outline any further requirements for designating a
6 MAYS-WILLIAMS V. WILLIAMS

beneficiary. Rather, it explains that a participant “may visit

the Your Benefits Resources web site . . . or call the Xerox

Benefits Center . . . to complete or change [his] beneficiary

designation at any time.” Elsewhere, the SPD explains that,

upon the death of an unmarried participant, “a valid

beneficiary designation must be on file with the Xerox

Benefits Center prior to . . . death,” or Xerox will disburse

benefits to the participant’s estate.

The Xerox Savings Plan Agreement (together with the

RIGP Agreement, collectively, the “Plan Agreements”) was

not in the record before the district court at the time of

Carmen’s motion for summary judgment. Rather, Carmen

attached five pages of “excerpts” from the Agreement as an

exhibit to her response to a subsequent motion for

reconsideration. These excerpts—which do not include a

signature page, a date of adoption, or any authentication

besides the affidavit of Carmen’s attorney—outline a similar

procedure for beneficiarydesignations to the one described in

the RIGP Agreement. They also delegate to the plan

administrator the authority “to prescribe such schedules or

forms which he deems necessary or helpful to carry out the

purposes of the Plan . . . .”

The Xerox Savings Plan Summary Plan Description (the

“Savings Plan SPD,” and, together with the RIGP SPD,

collectively, the “SPDs”) contains similar language to the

RIGP SPD regarding beneficiarydesignations, except that the

Savings Plan SPD omits any reference to any required

“form,” even when describing the restrictions on a married

participant’s freedom to designate beneficiaries.
MAYS-WILLIAMS V. WILLIAMS 7

II

An ERISA fiduciary must distribute benefits “in

accordance with the documents and instruments governing

the plan.” 29 U.S.C. § 1104(a)(1)(D). In granting summary

judgment in favor of Carmen, the district court determined

that the beneficiary designation forms themselves constituted

“plan documents” which Asa, Senior, needed to sign and to

return in order to change his beneficiary designation. Asa,

Junior, disputes this determination, and argues that the

beneficiary forms do not constitute “plan documents.”

A

In Kennedy v. Plan Administrator for DuPont Savings &

Investment Plan, 555 U.S. 285 (2009), the Supreme Court

declined to decide whether the category of “documents and

instruments governing the plan” described in § 1104(a)(1)(D)

included beneficiary designation forms such as those at issue

in this case. Id. at 304. Nor have we yet addressed the

question.1 Thus, whether such beneficiary forms constitute

1 Only one court of appeals has confronted the issue. The Third Circuit,

in a pre-Kennedy case, suggested that potentially all “documents on file

with the Plan,” including beneficiary designation forms, fit within the

statutory definition. See McGowan v. NJR Serv. Corp., 423 F.3d 241,

245–46 (3d Cir. 2005) (Van Antwerpen, J.), abrogated on other grounds

by Kennedy, 555 U.S. 285. But see id. at 258 n.17 (Fuentes, J., dissenting)

(“[Although] Judge Van Antwerpen’s opinion reads this provision as

allowing all documents filed with the Plan to govern its administration,

including forms filed to designate beneficiaries[,] . . . I note in passing that

the governing documents could reasonably be limited to those that set

forth the terms of the plan.”).

But McGowan provides little guidance for this case. In McGowan,

the claimant sought to require the plan administrator to abide by the terms
8 MAYS-WILLIAMS V. WILLIAMS

“plan documents” presents this court with a question of first

impression.

We draw guidance from our previous interpretation of a

similar ERISA provision, 29 U.S.C. § 1024(b)(4). See

Hughes Salaried Retirees Action Comm. v. Adm’r of the

Hughes Non-Bargaining Ret. Plan, 72 F.3d 686 (9th Cir.

1995) (en banc). Under § 1024(b)(4), plan administrators are

required, upon the request of a participant or beneficiary, to

provide the requesting party with a copy of various plan

documents, including SPDs, annual reports, terminal reports,

bargaining agreements, trust agreements, contracts, and

“other instruments under which the plan is established or

operated.” 29 U.S.C. § 1024(b)(4). In Hughes Salaried

Retirees Action Committee v. Administrator of the Hughes

Non-Bargaining Retirement Plan, we interpreted that

category to include only “those documents that provide

individual participants with information about the plan and

benefits.” Id. at 690. Citing legislative history, the en banc

panel explained that § 1024(b)(4) includes only those

documents that elucidate “exactly where [the participant]

stands with respect to the plan—what benefits he may be

entitled to, what circumstances may preclude him from

obtaining benefits, what procedures he must follow to obtain

benefits . . . .” Id. (quoting S. Rep. No. 93–127, at 27 (1974))

of a marital settlement agreement instead of the beneficiary designation

form. The lead opinion drew a contrast between those instruments duly

filed with the plan, such as beneficiary designation forms, and extrinsic

documents, such as “outside private agreements between beneficiaries and

participants.” Id. at 246 (Van Antwerpen, J.). Asa, Junior, in the present

case, does not argue that extrinsic documents prevail over those filed with

the plan. Rather, he contends that the provisions of the Plan Agreements

should control over any purportedly additional requirements imposed by

the beneficiary designation forms.
MAYS-WILLIAMS V. WILLIAMS 9

(internal quotation marks omitted). Notably, the en banc

panel specifically rejected an interpretation of § 1024(b)(4) to

include “all documents that are critical to the operation of the

plan.” Id. (internal quotation marks omitted). Rather, the en

banc panel limited the “other instruments” category to those

“similar in nature” to the documents specifically listed in

§ 1024(b)(4). Id. at 691.2

In Kennedy, the Supreme Court suggested that the “other

instruments” category described in § 1024(b)(4) overlaps

with the “documents and instruments governing the plan”

category in § 1104(a)(1)(D). 555 U.S. at 304. Indeed, the

category described in § 1104(a)(1)(D) may be even narrower

than that described in § 1024(b)(4).3 Thus, only those that

provide information as to “where [the participant]stands with

respect to the plan,” such as an SPD or trust agreement might,

could qualify as governing documents with which a plan

administrator must comply in awarding benefits under

§ 1104(a)(1)(D). Because the beneficiary designation forms

2 Other circuits have similarly construed § 1024(b)(4) as encompassing

only formal documents that govern the operation of the plan. See, e.g.,

Mondry v. Am. Family Mut. Ins. Co., 557 F.3d 781, 797–98 (7th Cir.

2009) (collecting cases from across the circuits consistent with the view

that “instruments” in § 1024(b)(4) “reaches only formal legal documents

governing a plan” (internal quotation marks omitted)); Faircloth v. Lundy

Packing Co., 91 F.3d 648, 654 (4th Cir. 1996) (“The clear and

unambiguous meaning ofthis statutory language encompasses only formal

or legal documents under which a plan is set up or managed.”).

3 The Supreme Court has specifically excluded the statutorily mandated

summary plan description, listed in § 1024(b)(4), as a source of the plan’s

governing terms. See CIGNA Corp. v. Amara, 131 S. Ct. 1866, 1878

(2011) (“[T]he summary documents, important as they are, provide

communication with beneficiaries about the plan, but . . . their statements

do not themselves constitute the terms.”).
10 MAYS-WILLIAMS V. WILLIAMS

in this case provide no such information—rather, they simply

confirm the participant’s attempt to change his designated

beneficiary—the forms are not “plan documents” governing

the administrator’s award of plan benefits.

B

Nor do any of the actual plan documents incorporate the

beneficiary designation forms so as to bring them into the

§ 1104(a)(1)(D) category of governing documents. The

RIGP Agreement defines the “Plan” as the provisions “set

forth [t]herein or in any amendment [t]hereto.” While the

Agreement expressly contemplates the incorporation of

certain other documents, such as trust agreements, to be

“deemed to form a part of the Plan,” nowhere does the

Agreement allude to beneficiary designation forms, and none

of the schedules annexed to the Agreement contain even the

vaguest reference to a beneficiary designation form.

Moreover, while the RIGP SPD refers to the use of forms for

married participants to change their beneficiarydesignations,

nowhere does the RIGP SPD refer to the use of any form for

unmarried participants. Finally, the Xerox representative,

whose declaration Carmen attached to her motion for

summary judgment, did not list among the “plan documents”

those beneficiarydesignation forms that appear in the record.4

In sum, nothing in the record indicates that the beneficiary

designation forms themselves constituted, or were in any way

4 Even if the panel were to review the excerpts from the Savings Plan

Agreement submitted by Carmen in response to Asa, Junior’s motion to

reconsider, the excerpts do not allude to the mandatory use of specific

forms, and therefore fail to demonstrate the incorporation of the

beneficiary forms into the governing plan documents.
MAYS-WILLIAMS V. WILLIAMS 11

incorporated into, governing plan documents. Therefore, the

district court erred in determining that Asa, Senior, was

required to abide by the language contained in the forms—but

not in the governing plan documents—to change his

beneficiary designation from Carmen to Asa, Junior.

III

Carmen counters that even if the beneficiary forms were

not “plan documents,” Asa, Senior, still needed to comply

with them because Xerox exercised its authority to require

their use.

Under Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101 (1989), if a plan grants the administrator discretion to

interpret it or to determine benefit eligibility, a court will

uphold such interpretation or determination if reasonable. Id.

at 115. Here, the RIGP Agreement bestows upon Xerox the

discretion to “construe and interpret the provisions of the

Plan, determine all questions of fact, and make rules and

regulations under the Plan to the extent deemed advisable or

helpful.” Assuming without deciding that such language

bestows discretion on the plan administrator, we must

determine whether the administrator actually exercised such

discretion by sending the beneficiary designation forms to

Asa, Senior.5

Carmen argues that the forms themselves are evidence of

Xerox’s exercise of discretion to require Asa, Senior, to

complete and to return the beneficiary designation forms in

order to effect the change. The forms indicate that “to

5 We also assume that the Savings Plan Agreement would require similar

judicial deference to administrative determinations thereunder.
12 MAYS-WILLIAMS V. WILLIAMS

finalize” and “to validate” the beneficiary designations, the

participant must “[s]ign, date, and return” them. The forms

also state that they “confirm[] your beneficiary designations

that you made” and refer to the date of Asa, Senior’s phone

call.

Asa, Junior, on the other hand, contends that the record

fails to establish that the plan administrators were vested with

discretion to require their use. Notably, while the forms

conspicuously display the Xerox logo and indicate the

benefits plan to which they pertain, they also include the

insignia and other information of Hewitt Associates LLC,

which the Xerox Plans hired as an agent, but apparently did

not nominate as a plan administrator or other fiduciary. 

Furthermore, nothing in the record indicates that the plan

administrator required any other plan participants to sign and

to return such beneficiary forms in order to change

beneficiary designations.

Moreover, rather than award benefits to Carmen due to

Asa, Senior’s alleged failure to return the signed beneficiary

forms, the plan administrator declined to award benefits to

either party, and instead chose to file this present interpleader

action. Thus, the plan administrator impliedly declined to

exercise any discretion in determining whether Asa, Senior’s

telephonic designation of Asa, Junior, as beneficiary was

valid under the plan. See, e.g., Liberty Life Assurance Co. of

Boston v. Kennedy, 358 F.3d 1295, 1299 (11th Cir. 2004)

(finding that a plan administrator did not exercise discretion

granted to it under the plan when the administrator filed an

interpleader action to determine whether a beneficiary

designation form filed in accordance with plan documents or

a subsequently executed will governed benefit eligibility).
MAYS-WILLIAMS V. WILLIAMS 13

Thus, as there has been no exercise of discretion to which

we could defer, we review de novo whether Carmen or Asa,

Junior, is entitled to plan benefits—a question answered by

reference to the governing plan documents. See Thomas v.

Or. Fruit Prods. Co., 228 F.3d 991, 993 (9th Cir. 2000); see

also Liberty Life, 358 F.3d at 1299 (applying de novo review

when the plan administrator declined to exercise its

discretionary authority to interpret benefit eligibility).

IV

The inquiry thus is whether Asa, Senior, strictly or

substantially complied with the governing plan documents. 

See BankAmerica Pension Plan v. McMath, 206 F.3d 821,

830 (9th Cir. 2000). Such an inquiry is one of state law, see

id., and one that implicates Asa, Senior’s intentions, see, e.g.,

Sun Life Assurance Co. of Canada v. Sutter, 95 P.2d 1014,

1016 (Wash. 1939) (“[I]n cases in which the insurer is not

interested, the intent of the insured is entitled to great

consideration.”); see also Krishna v. Colgate Palmolive Co.,

7 F.3d 11, 16 (2d Cir. 1993) (“Summary judgment is

notoriously inappropriate for determination of claims in

which issues of intent, good faith and other subjective

feelings play dominant roles.” (internal quotation marks

omitted)).

Nothing in the governing plan documents prevents

unmarried participants from designating beneficiaries by

telephone call. The RIGP Agreement provides that

unmarried participants “may change [the] designation of

beneficiary from time to time.” In clarifying the

requirements of the underlying Plan Agreements, both SPDs

instruct unmarried participants to call the Xerox Benefits

Center or to visit the Xerox website in order to change or to
14 MAYS-WILLIAMS V. WILLIAMS

complete a beneficiary designation. And while the plan

documents require written designations for married

participants, they decline to impose any sort of writing

requirement on unmarried participants. Thus, the governing

plan documents permit unmarried participants to change their

beneficiary designations by telephone.

In light of the evidence before us, including Xerox’s call

log from January 10, 2011, reflecting that Asa, Senior, called

Xerox to change his beneficiary designation from Carmen to

Asa, Junior, a reasonable trier of fact could determine that

Asa, Senior, intended to change his beneficiary to Asa,

Junior, and that his phone calls to Xerox constituted

substantial compliance with the governing plan documents’

requirements for changing his beneficiary designation.

Accordingly, we cannot sustain the grant of summary

judgment in favor of Carmen.

V

We therefore REVERSE the judgment of the district

court and REMAND the case for further proceedings

consistent with this opinion.