Cross v. Bragg

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-1699

JAMES CROSS; CHARLES CALKINS; EDWARD HUYLEBROECK; JAMES
LEE; JERRY BUTLER; PAMELA WELLS; PATRICIA J. WILLIAMSON;
HEIDI SCHULLER, and all other similarly situated plan
participants and beneficiaries in the Fleet Reserve
Association Defined Benefit Pension Plan,

Plaintiffs – Appellees,

v.

NOEL BRAGG; FLEET RESERVE ASSOCIATION PENSION PLAN,

Defendants – Appellants,

and

RICHARD B. SMITH; RALPH A. SCHMIDT; LAWRENCE J. BOUDREAUX;
EUGENE SMITH; ROBERT E. KING; RUSSELL E. BELT; FOREST E.
HARRELL; VICTOR MIRANDA; LINDELL C. CLYMER; DEAN F. MILLER,

Defendants.

No. 07-1755

JAMES CROSS; CHARLES CALKINS; EDWARD HUYLEBROECK; JAMES
LEE; JERRY BUTLER; PAMELA WELLS; PATRICIA J. WILLIAMSON;
HEIDI SCHULLER, and all other similarly situated plan
participants and beneficiaries in the Fleet Reserve
Association Defined Benefit Pension Plan,

Plaintiffs – Appellants,

v.
NOEL BRAGG; FLEET RESERVE ASSOCIATION PENSION PLAN,

Defendants – Appellees,

and

RICHARD B. SMITH; RALPH A. SCHMIDT; LAWRENCE J. BOUDREAUX;
EUGENE SMITH; ROBERT E. KING; RUSSELL E. BELT; FOREST E.
HARRELL; VICTOR MIRANDA; LINDELL C. CLYMER; DEAN F. MILLER,

Defendants.

No. 08-1190

JAMES CROSS; CHARLES CALKINS; EDWARD HUYLEBROECK; JAMES
LEE; JERRY BUTLER; PAMELA WELLS; PATRICIA J. WILLIAMSON;
HEIDI SCHULLER, and all other similarly situated plan
participants and beneficiaries in the Fleet Reserve
Association Defined Benefit Pension Plan,

Plaintiffs – Appellants,

v.

NOEL BRAGG; FLEET RESERVE ASSOCIATION PENSION PLAN,

Defendants – Appellees,

and

RICHARD B. SMITH; RALPH A. SCHMIDT; LAWRENCE J. BOUDREAUX;
EUGENE SMITH; ROBERT E. KING; RUSSELL E. BELT; FOREST E.
HARRELL; VICTOR MIRANDA; LINDELL C. CLYMER; DEAN F. MILLER,

Defendants.

Appeals from the United States District Court for the District
of Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:05-cv-00001-WDQ)

Argued: March 24, 2009 Decided: July 24, 2009

2
Before MICHAEL, MOTZ, and KING, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished
opinion. Judge King wrote the opinion, in which Judge Michael
and Judge Motz joined.

ARGUED: Joseph Semo, SEMO LAW GROUP, Washington, D.C., for Noel
Bragg and Fleet Reserve Association Pension Plan. Richard Paul
Neuworth, LEBAU & NEUWORTH, LLC, Baltimore, Maryland, for James
Cross; Charles Calkins; Edward Huylebroeck; James Lee; Jerry
Butler; Pamela Wells; Patricia J. Williamson; Heidi Schuller,
and all other similarly situated plan participants and
beneficiaries in the Fleet Reserve Association Defined Benefit
Pension Plan.

Unpublished opinions are not binding precedent in this circuit.

3
KING, Circuit Judge:

The defendants, Fleet Reserve Association Pension Plan (the

“Plan”) and its Administrator, Noel Bragg, appeal from the

district court’s award of summary judgment to the plaintiffs in

this civil action, pursued under the Employee Retirement Income

Security Act of 1974, 29 U.S.C. §§ 1001-1461 (“ERISA”). More

specifically, the defendants contend that the court erred in

prohibiting them from altering the benefits calculation formula

of the Plan, thus rendering them liable to the plaintiffs for

additional benefits. By cross-appeal, the plaintiffs challenge

the court’s denial — on the basis of a timeliness ruling — of

their request for attorney’s fees. As explained below, we

affirm the award of summary judgment, vacate the denial of

attorney’s fees, and remand.

I.

A.

The Plan was established by the Fleet Reserve Association

(the “Association”) in 1972, and its terms were reissued in 1985

(the “1985 plan”). The 1985 plan included a benefits

calculation formula referred to by the parties and the district

court as the “Step Formula.” In 1996, the Association’s Board

of Directors (the “Board”) revised the 1985 plan and issued a

4
full restatement thereof (the “1996 plan”). 1 The 1996 plan

adopted a different benefits calculation formula — referred to

by the parties and the district court as the “Integrated

Formula” — that replaced the Step Formula. Importantly, the

Integrated Formula provides for substantially greater benefits

to the Plan’s participants and beneficiaries. 2 Between 1996 and

2002, the plaintiffs in this proceeding were paid benefits under

the 1996 plan, but those benefits were calculated under the Step

Formula of the 1985 plan, rather than under the Integrated

Formula of the 1996 plan.

The Association was apparently unaware of any issue

concerning the proper calculation of the plaintiffs’ benefits

until early 2002. At this point, Bragg, as the Plan’s

Administrator, undertook an investigation to determine the

correct benefits calculation formula. He concluded that the

1996 revision of the Plan — from the Step Formula to the

1
The “Plan,” as referred to herein, is the ERISA trust
named as a defendant. The terms “1985 plan” and “1996 plan” are
used to refer to differing versions of the Plan.
2
ERISA defines a plan “participant” as “any employee or
former employee of an employer, or any member or former member
of an employee organization, who is or may become eligible to
receive a benefit of any type from an employee benefit plan,” 29
U.S.C. § 1002(7), and a plan “beneficiary” as “a person
designated by a participant, or by the terms of an employee
benefit plan, who is or may become entitled to a benefit
thereunder,” id. § 1002(8).

5
Integrated Formula — had been a mistake, and that inclusion of

the Integrated Formula in the 1996 plan was simply a scrivener’s

error. Bragg explained the mistake to the Board at its July

2002 meeting, and the Association announced the scrivener’s

error at its National Convention later that year. In August

2002, Bragg, on behalf of the Plan, sought permission from the

IRS to revert to the Step Formula for tax purposes and thus not

be subjected to tax penalties. The Plan’s request to the IRS

contended that the Board should be authorized to so revise the

1996 plan because its inclusion of the Integrated Formula was a

scrivener’s error. The IRS granted the Plan’s request in

October 2003, and, in December 2003, the Board formally revised

the Plan to include the Step Formula.

On April 24, 2004, having ascertained that they were

entitled to benefits under the Integrated Formula rather than

the Step Formula, the plaintiffs filed claims with the Plan for

additional benefits. Bragg promptly denied these claims, and

the plaintiffs then pursued administrative appeals. In his

January 14, 2005 letter rejecting the plaintiffs’ final

administrative appeal, Bragg relied on three findings: first,

there was “no substantial evidence that the Integrated Formula

was written into the Plan before 1996”; second, there was “clear

and convincing evidence that the Integrated Formula was written

into the Plan in 1996 as a result of a scrivener’s error”; and

6
third, there had been no violation of “ERISA, . . . the Internal

Revenue Code, or any provision of the Plan” because inclusion of

the Integrated Formula was a scrivener’s error. J.A. 295. 3

B.

On January 3, 2005, the plaintiffs filed this civil action

in the District of Maryland. 4 The Complaint, as amended on April

12, 2005, alleged four ERISA violations: that the defendants

had violated ERISA’s reporting and disclosure requirements

(Count I); breached their fiduciary duties to the plaintiffs

(Count II); contravened the ERISA mandate on plan amendments and

notification (Count III); and, of importance here, erroneously

denied the plaintiffs’ claims for additional benefits under the

Integrated Formula (Count IV).

On August 11, 2005, in connection with a motion to transfer

venue, the defendants asserted that the claims of one plaintiff

3
Citations herein to “J.A. __” refer to the Joint Appendix
filed by the parties in this appeal.
4
The plaintiffs are James Cross, Charles Calkins, Edward
Huylebroeck, James Lee, Jerry Butler, Pamela Wells, Patricia J.
Williamson, and Heidi Schuller. The Complaint also named as
plaintiffs “all other similarly situated plan participants and
beneficiaries in the Fleet Reserve Association Defined Benefit
Pension Plan,” but, despite this allegation, certification of a
class action was never sought. J.A. 1. Although the individual
Board members were named as defendants in the Complaint, the
claims against them were voluntarily dismissed.

7
— James Cross — were time-barred under the applicable three-

year statute of limitations. In rejecting this contention, the

court explained that the limitations period “does not begin to

run until there has been a formal and final denial of a benefits

claim.” See Cross v. Fleet Reserve Ass’n Pension Plan, No.

1:05-cv-00001, slip op. at 12 (D. Md. Aug. 23, 2005) (the “Venue

Opinion”). 5 According to the Venue Opinion, the limitations

period had not been triggered when this litigation commenced, in

that the Complaint was filed on January 3, 2005, eleven days

before Bragg’s denial of the plaintiffs’ final administrative

appeal.

On May 26, 2006, the defendants sought summary judgment on

the four claims of the Complaint. With respect to Count IV —

the only claim disputed on appeal — the defendants contended

that the district court was obliged to defer to the “scrivener’s

error” determinations of Bragg, as the Plan’s Administrator, and

the IRS. The plaintiffs submitted a cross-motion for summary

judgment on Count IV, maintaining that the requirements for

correction of a scrivener’s error had not been satisfied, and

that the IRS ruling was irrelevant.

On September 28, 2006, the district court ruled on the

summary judgment motions. See Cross v. Fleet Reserve Ass’n

5
The Venue Opinion is found at J.A. 228-40.

8
Pension Plan, No. 1:05-cv-00001 (D. Md. Sept. 28, 2006) (the

“Summary Judgment Opinion” and the “Summary Judgment Order”). 6

The court awarded summary judgment to the plaintiffs on Count

IV, explaining in its Summary Judgment Opinion that they were

entitled to receive benefits under the Integrated Formula. In

so ruling, the court rejected the defendants’ contention that

inclusion of the Integrated Formula in the 1996 plan was a

correctable scrivener’s error. More specifically, the court

determined that the exceptional circumstances necessary for an

equitable reformation of the 1996 plan had not been shown, and

that Bragg had thus exceeded his authority in reforming the

Plan. The court did not address the defendants’ contention

regarding the IRS ruling. Finally, the court also granted

summary judgment to the plaintiffs on Count III, to the

defendants on Count I, and also to the defendants on Count II

(as to all plaintiffs save Charles Calkins). 7

On October 5, 2006, the defendants filed a motion to alter

or amend the district court’s judgment on Counts II, III, and

IV, pursuant to Rule 59(e) of the Federal Rules of Civil

6
The Summary Judgment Opinion is found at J.A. 921-41, and
the Summary Judgment Order is found at J.A. 942.
7
In the Summary Judgment Opinion, the district court found
that only plaintiff Calkins possessed standing to pursue the
claim in Count II.

9
Procedure. By their Rule 59(e) motion, the defendants

requested: (1) summary judgment on Count II with respect to all

plaintiffs; (2) clarification of whether the court’s rulings had

disposed of all claims; and (3) a more specific recitation of

the relief granted to the plaintiffs on Counts III and IV. The

plaintiffs responded to the Rule 59(e) motion on October 27,

2006, and at the same time submitted notice that they intended

to seek an attorney’s fee award under the provisions of 29

U.S.C. § 1132(g)(1). 8

On December 18, 2006, the district court disposed of the

Rule 59(e) motion and purported to enter final judgment. See

Cross v. Fleet Reserve Ass’n Pension Plan, No. 1:05-cv-00001 (D.

Md. Dec. 18, 2006) (the “First Reconsideration Opinion” and the

“First Reconsideration Order”). 9 First of all, the court ruled

that Calkins, as the sole remaining plaintiff in Count II,

lacked standing to pursue his claim; thus, the court entered

summary judgment for the defendants on Count II with respect to

all plaintiffs. The court ruled on Counts III and IV, however,

that the defendants were obliged to “pay the Plaintiffs all

8
In an ERISA civil action by a participant or beneficiary,
“the court in its discretion may allow a reasonable attorney's
fee and costs of action to either party.” 29 U.S.C.
§ 1132(g)(1).
9
The First Reconsideration Opinion is found at J.A. 943-52,
and the First Reconsideration Order is found at J.A. 953-54.

10
benefits owed under the terms of the Plan, together with

prejudgment interest.” First Reconsideration Order 2. As a

result, the court directed the parties to “determine the actual

dollar amount of pension benefits owed, including prejudgment

interest, and communicate the result to the Court no later than

30 days from the date of this Order.” Id. Finally, the First

Reconsideration Order set forth a timetable for attorney’s fee

claims and declared that “[t]his case BE, and HEREBY IS,

CLOSED.” Id.

On January 8, 2007, the defendants filed a notice of appeal

from the First Reconsideration Order. On January 16, 2007,

while the appeal was pending, the plaintiffs filed their motion

for attorney’s fees. We dismissed the defendants’ appellate

effort as interlocutory on March 26, 2007, and our mandate on

the dismissal was issued on April 17, 2007. 10 On April 26, 2007,

the plaintiffs submitted a memorandum in support of their

attorney’s fee motion. The defendants replied to the

plaintiffs’ fee request on June 5, 2006, contending, inter alia,

that the plaintiffs’ supporting memorandum was untimely.

10
In disposing of the defendants’ interlocutory appeal, we
granted the plaintiffs’ motion to dismiss, which relied on the
fact that the district court had not entered a final judgment
because it had failed to determine individual award amounts and
prejudgment interest issues.

11
 On June 1, 2007, the defendants filed yet another motion

for reconsideration, seeking an assessment of whether the

plaintiffs possessed standing to assert their claim in Count III

and alleging that all the claims in the Complaint were untimely.

In this second reconsideration motion, the defendants asserted

that the plaintiffs’ claims were time-barred by not only the

applicable statute of limitations, which had already been

asserted with respect to plaintiff Cross in the venue

proceedings, but also time-barred under the administrative

provisions of the 1996 plan, an assertion then raised for the

first time. The plaintiffs replied that both limitations

arguments had been waived, in that they should have been raised

prior to the issuance of the Summary Judgment Order.

On July 3, 2007, the district court issued its final

decision in this case. See Cross v. Fleet Reserve Ass’n Pension

Plan, No. 1:05-cv-00001 (D. Md. July 3, 2007) (the “Second

Reconsideration Opinion” and the “Second Reconsideration

Order”). 11 First, the court ruled that the plaintiffs’

attorney’s fee claim was untimely. Second, it revisited Count

III, vacated its earlier ruling in favor of the plaintiffs, and

instead granted summary judgment to the defendants because the

11
The Second Reconsideration Opinion is found at J.A. 955-
73, and the Second Reconsideration Order is found at J.A. 974-
76.

12
plaintiffs lacked standing to pursue the Count III claim.

Finally, the court rejected the defendants’ statute of

limitations contention on the reasoning of its Venue Opinion,

and it determined that the defendants’ administrative

limitations contention had been waived. As a result, the court

awarded summary judgment to the defendants on Counts I, II, and

III, and to the plaintiffs on Count IV. 12

On January 28, 2008, the district court denied the

plaintiffs’ fee request reconsideration motion. See Cross v.

Fleet Reserve Ass’n Pension Plan, No. 1:05-cv-00001 (D. Md. Jan.

28, 2008) (the “Final Fee Opinion”). 13 The parties filed timely

notices of appeal, and we possess jurisdiction pursuant to 28

U.S.C. § 1291. 14

12
Under the district court’s rulings, the plaintiffs were
entitled to a total award on Count IV of $460,009.19, plus post-
judgment interest. This amount was determined by calculating
the difference between the Step Formula and Integrated Formula
for each plaintiff, including prejudgment interest through
September 28, 2006. The individual awards were as follows:
Wilfred Butler, $27,693.88; Charles Calkins, $61,018.04; James
Cross, $123,215.31; Edward Huylebroek, $159,895.75; James Lee,
$65,556.25; Heidi Schuller, $935.41; Pamela Wells, $7,577.66;
and Patricia Wilson, $14,116.89. See Second Reconsideration
Order 2-3.
13
The Final Fee Opinion is found at J.A. 981-85.
14
In summary, there have been four appeals in these
proceedings, three of which are consolidated for disposition
here. The defendants’ first effort to appeal, filed on January
8, 2007 (No. 07-1031), was disposed of as interlocutory by our
March 26, 2007 dismissal order. Next, the defendants, on July
(Continued)
13
 II.

In their appeal, the defendants challenge only the district

court’s award of summary judgment to the plaintiffs on Count IV

— the ERISA benefits claim. The plaintiffs contend in Count IV

that they should have been paid benefits under the Integrated

Formula of the 1996 plan rather than under the Step Formula of

the 1985 plan, and they have pursued their claim for additional

benefits due under 29 U.S.C. § 1132(a)(1)(B). We review de novo

a district court’s award of summary judgment. See Denzler v.

Questech, Inc., 80 F.3d 97, 101 (4th Cir. 1996).

Procedurally, the defendants assert on appeal that the

Count IV claim was untimely. They contend that the plaintiffs

failed to exhaust their administrative appeals within the

authorized time frame and, in the alternative, that the

20, 2007, filed a notice of appeal from the district court’s
summary judgment award to the plaintiffs on Count IV (No. 07-
1699). On August 2, 2007, the plaintiffs cross-appealed the
summary judgment award to the defendants on Count III (No. 07-
1755). Finally, the plaintiffs, on February 8, 2008, filed a
notice of appeal from the Final Fee Order (No. 08-1190).
Because the plaintiffs did not raise their Count III contentions
in their briefs or at oral argument, we deem the plaintiffs’
appeal in No. 07-1755 to be waived and thus decline to address
it. See Fed. R. App. P. 28(a)(9)(A) (“[T]he [appellant’s]
argument . . . must contain . . . appellant's contentions and
the reasons for them, with citations to the authorities and
parts of the record on which the appellant relies.”); see also
Carter v. Lee, 283 F.3d 240, 252 n.11 (4th Cir. 2002); Edwards
v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999).

14
plaintiffs’ claims are barred by the applicable three-year

statute of limitations. On the merits, the defendants maintain

that they are entitled to equitable reformation of the

scrivener’s error in the 1996 plan for three reasons: (1) the

actuary who prepared the 1996 plan acknowledged that the

Integrated Formula was erroneously included therein; (2) the

defendants did not know of the inclusion of the Integrated

Formula until they were informed of it by the Plan; and (3) the

IRS determined that the Integrated Formula was a scrivener’s

error. As explained below, these contentions are unpersuasive.

A.

We first assess the defendants’ contention that the

plaintiffs’ Count IV claim is procedurally barred. The

defendants maintain that it is barred as untimely for two

reasons: first, that the plaintiffs failed to file their

administrative appeals within sixty days of receiving their

benefit payments, as required by the 1996 plan; and second, that

the Count IV claim was not filed within the applicable three-

year limitations period. We examine these contentions in turn.

1.

First, the defendants assert that the plaintiffs failed to

exhaust their administrative remedies because they did not

request an administrative review within the limitations period

established by the 1996 plan. In that respect, “internal appeal

15
limitations periods in ERISA plans are to be followed just as

ordinary statutes of limitations,” and “[f]ailure to file a

request for review within [a plan's] limitations period is one

means by which a claimant may fail to exhaust her administrative

remedies.” Gayle v. United Parcel Serv., Inc., 401 F.3d 222,

226 (4th Cir. 2005) (internal quotation marks omitted). These

principles, however, are of no assistance to the defendants in

this dispute.

Put succinctly, although an administrative limitations

defense might have had some merit, the defendants failed to

assert it in a timely fashion. The district court began its

analysis of this issue by correctly concluding that the

defendants’ second motion for reconsideration was filed under

Federal Rule of Civil Procedure 60(b). 15 As such, we review the

court’s denial of the reconsideration motion for abuse of

15
Pursuant to our precedent, “[i]n cases where a party
submits a motion [for reconsideration], which . . . does not
refer to a specific Federal Rule of Civil Procedure, [we will]
consider[] that motion either a Rule 59(e) motion to alter or
amend a judgment, or a Rule 60(b) motion for relief from a
judgment or order.” In re Burnley, 988 F.2d 1, 2 (4th Cir.
1992). Rule 59(e) provides that “[a] motion to alter or amend a
judgment must be filed no later than 10 days after the entry of
the judgment,” but the deadline for filing a Rule 60(b) motion
is at least a year after the entry of judgment, see Fed. R. Civ.
P. 60(c). Here, the defendants’ second motion for
reconsideration was submitted on June 1, 2007 — significantly
longer than ten days after the September 28, 2006 Summary
Judgment Order and the December 18, 2006 First Reconsideration
Order.

16
discretion. See Heyman v. M.L. Mktg. Co., 116 F.3d 91, 94 (4th

Cir. 1997) (recognizing that we review for abuse of discretion

court’s denial of Rule 60(b) motion for relief from judgment).

Rule 60 has long been recognized as an “attempt[] to strike

a proper balance between the conflicting principles that

litigation should be brought to an end and that justice must be

done.” 11 Charles Alan Wright, Arthur R. Miller & Mary Kay

Kane, Federal Practice and Procedure § 2851 (2d ed. 1995). In

disposing of the administrative limitations issue, the district

court concluded that the defendants did not present any

“exceptional circumstances” contemplated under Rule 60(b),

explaining that

[t]he contention that the Plaintiffs’ benefits claims
are barred because of their failure to file a timely
administrative appeal was cognizable prior to the
Court’s September 28, 2006 judgment, and the
Defendants waived that defense by failing to assert it
promptly in their Answer or motion for summary
judgment. See Peterson v. Air Line Pilots Ass’n,
Int’l., 759 F.2d 1161, 1164 (4th Cir. 1985) (“defense
of limitations is waived unless asserted promptly by
way of answer or motion”).

Second Reconsideration Opinion 8-9. Put simply, in waiting more

than eight months after the district court ruled on the summary

judgment motions to first assert its contention on the

administrative limitations issue, the defendants — as the court

ruled — waived the sixty-day limitations defense provided by the

1996 plan. We thus agree with the court’s analysis and are

17
unable to perceive an abuse of discretion in its denial of the

Rule 60(b) relief.

2.

The defendants next contend that Maryland’s three-year

statute of limitations for civil actions bars the plaintiffs’

Count IV claim. See Md. Code Ann., Cts. & Jud. Proc. § 5-101

(“A civil action at law shall be filed within three years from

the date it accrues . . . .”). Because ERISA itself establishes

no limitations period for initiating a cause of action under 29

U.S.C. § 1132, “the federal courts look to state law for an

analogous limitation provision to apply.” Dameron v. Sinai

Hosp. of Baltimore, Inc., 815 F.2d 975, 981 (4th Cir. 1987).

When an ERISA plan is alleged to have breached its duty to

provide beneficiaries with the benefits due them, the analogous

state cause of action is breach of contract. See id.

On this point, the parties agree: the three-year Maryland

statute of limitations for individual contract actions applies

in this dispute. Nonetheless, the parties disagree on when the

limitations period was triggered. The defendants maintain that

it was triggered when the plaintiffs received their lump-sum

benefit payments from the Plan. The plaintiffs, however,

contend that the three-year limitations period was not triggered

until they had exhausted the internal administrative appeals

18
provided by the 1996 plan. As explained below, we agree with

the plaintiffs.

Just as ERISA is silent on whether a plaintiff must exhaust

his administrative remedies before seeking relief in the courts,

it provides no explicit guidance as to when the limitations

period begins to run on a benefits claim. We have previously

examined this question, however, and recognized that “Congress

intended plan fiduciaries, not the federal courts, to have

primary responsibility for claims processing.” Makar v. Health

Care Corp. of Mid-Atlantic (Carefirst), 872 F.2d 80, 83 (4th

Cir. 1989). Because access to the courts is meant to be a fail-

safe for ERISA claims, “[a]n ERISA cause of action does not

accrue until a claim of benefits has been made and formally

denied.” Rodriguez v. MEBA Pension Trust, 872 F.2d 69, 72 (4th

Cir. 1989).

In this proceeding, the plaintiffs’ administrative appeals

were not finally denied until January 14, 2005, and their

request for reconsideration of such denial was rejected on April

11, 2005. The plaintiffs filed their Complaint in the district

court on January 3, 2005 — well before the 2008 limitations

deadline imposed under Maryland law. We thus reject the

defendants’ statute of limitations contention, and conclude that

the Complaint was timely filed.

19
 B.

Next, we turn to the defendants’ contention that inclusion

of the Integrated Formula in the 1996 plan was simply a mistake

— a “scrivener’s error” — entitling them to equitable

reformation of the 1996 plan. We review a district court’s

denial of equitable relief “for abuse of discretion, accepting

the court's factual findings absent clear error, while examining

issues of law de novo.” Dixon v. Edwards, 290 F.3d 699, 710

(4th Cir. 2002). The defendants assert three bases for

equitable reformation of the 1996 plan due to a scrivener’s

error: first, the actuary who drafted the 1996 plan

acknowledged that the Integrated Formula was erroneously

included therein; second, the plaintiffs did not rely on the

Integrated Formula being a part of their pension plan; and

third, the IRS agreed that inclusion of the Integrated Formula

in the 1996 plan was a scrivener’s error. These issues each

turn on questions of law, and, assessing them de novo, we agree

with the district court that equitable reformation is not

warranted.

1.

In assessing the defendants’ “scrivener’s error”

contention, we are guided by the principle that “ERISA plans are

contractual documents which, while regulated, are governed by

established principles of contract and trust law.” Haley v.

20
Paul Revere Life Ins. Co., 77 F.3d 84, 88 (4th Cir. 1996); see

also Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111

(1989) (declaring that courts should be “guided by principles of

trust law” in determining standard of review for ERISA claims);

Wheeler v. Dynamic Eng’g, Inc., 62 F.3d 634, 638 (4th Cir. 1995)

(explaining that terms of ERISA plans are interpreted “under

ordinary principles of contract law”). In reviewing benefits

claims under ERISA, “we turn to the federal common law of

contracts.” Denzler, 80 F.3d at 101. We may, however, “use

principles of state common law to guide our analysis.” Wheeler,

62 F.3d at 638. Importantly, we have recognized that “‘a

scrivener’s error, like a mutual mistake, occurs when the

intention of the parties is identical at the time of the

transaction but the written agreement does not express that

intention because of that error; this permits a court acting in

equity to reform an agreement.’” Blackshear v. Reliance

Standard Life Ins. Co., 509 F.3d 634, 642 (4th Cir. 2007)

(quoting 27 Samuel Williston & Richard A. Lord, A Treatise on

the Law of Contracts § 70.93 (4th ed. 2003)). Further, the

power to recognize and correct a scrivener’s error in an ERISA

plan rests exclusively with the courts, and an “administrator

cannot simply ‘reform’ a plan to correct what it unilaterally

perceives to be a mistake or error contained in the plan’s

written terms.” Id.

21
 A primary purpose of ERISA was to require that participants

and beneficiaries be fully advised of their rights under

employee benefit plans. See, e.g., 29 U.S.C. § 1102(a)(1)

(requiring benefit plans to be written); id. § 1021(a)

(requiring plan administrator to deliver summary plan

description to participants); id. § 1022(a) (requiring summary

plan descriptions to be “written in a manner calculated to be

understood by the average plan participant”). Consistent with

congressional intent, the Supreme Court has held that a “written

[benefit] plan is to be required in order that every employee

may, on examining the plan documents, determine exactly what his

rights and obligations are under the plan.” Curtiss-Wright

Corp. v. Schoonejongen, 514 U.S. 73, 83 (1995) (internal

quotation marks omitted). Thus, when the terms of an ERISA plan

are clear and unambiguous, a federal court is obliged to apply

it as written.

In limited circumstances, however, a court is entitled to

reform an ERISA plan to correct a mutual mistake or to mitigate

a fraud scheme. See Audio Fidelity Corp. v. Pension Benefit

Guarantee Corp., 624 F.2d 513, 518 (4th Cir. 1980). Such an

action requires that the party seeking reformation present clear

and convincing evidence showing that “the mistake [was] mutual,

or if unilateral, it [was] accompanied by fraud on the part of

the other contracting party.” Id.; see also Restatement

22
(Second) of Contracts § 155 (1979) (providing that reformation

is only available “[w]here a writing that evidences or embodies

an agreement in whole or in part fails to express the agreement

because of a mistake of both parties as to the contents or

effect of the writing”).

In order to establish a mutual mistake, the party seeking

reformation must show that the parties to the contract intended

to agree to terms that are different from those reflected in the

writing. See Restatement (Second) of Contracts § 152 (1979)

(providing that if “mistake of both parties at the time a

contract was made as to a basic assumption on which the contract

was made has a material effect on the agreed exchange of

performances, the contract is voidable by the adversely affected

party unless he bears the risk of the mistake”); Oliver Wendell

Holmes, Jr., The Common Law 280 (G. Edward White ed., Harvard

Univ. Press 2009) (1881) (explaining that a mutual mistake

exists when there is “a difference in kind between the actual

subject-matter and that to which the intention of the parties

was directed,” resulting in “the terms of the supposed contract,

although seemingly consistent, [being] contradictory in matters

that [go] to the root of the bargain”); Williston & Lord, supra,

§ 70:9 (“The law permits reformation of instruments to reflect

the true intention of the parties when . . . the party seeking

relief is able to establish to the court’s satisfaction that

23
both parties intended something other than what is reflected in

the instrument in question.”). By its very nature, mutual

intent requires a manifestation of will from both parties. See

Restatement (Second) of Contracts § 155 cmt. a (1979) (requiring

“some agreement between the parties prior to the writing” for

court reformation due to mutual mistake).

2.

Applying these principles to the dispute on the Integrated

Formula of the 1996 plan, the defendants have failed to show

that inclusion of that formula in the 1996 plan resulted from a

mutual mistake. They have asserted two bases for equitable

reformation of the 1996 plan — that the actuary admitted that

inclusion of the Integrated Formula was a mistake and that the

plaintiffs did not rely thereon — but neither of these

contentions demonstrates the intent of the plaintiffs. 16

The actuary’s discovery deposition in this case establishes

only that the defendants did not intend to alter the benefits

calculation formula — it says nothing about the intent of the

plaintiffs. Further, though each of the plaintiffs

“acknowledged by affidavit that he had not relied . . . upon the

16
The defendants do not allege fraud with respect to the
plaintiffs, which is essential to reformation of a contract due
to unilateral mistake. See Audio Fidelity, 624 F.2d at 518. We
therefore need only consider whether a mutual mistake — as
opposed to a unilateral one — existed.

24
unambiguous plan documents that included the error . . . , nor

[was he] aware of the erroneous Integrated Formula until the

plan sponsor announced its investigation into whether an error

existed in the plan documents,” Br. of Appellants 24, ignorance

of a mistake is insufficient proof of a party’s intent to the

contrary. See Williston & Lord, supra, § 70:9 (“[A] clear

mistake by one party, coupled with ignorance by the other party,

is not a mutual mistake and will not be corrected.”). Taken

together, the defendants’ assertions fail to establish a mutual

mistake. Put succinctly, the defendants have produced no

evidence of the plaintiffs’ intent, nor have they alleged or

shown that there were negotiations with respect to the benefits

calculation formula through which such intent could be

ascertained. Because its terms are unambiguous and there is a

patent lack of evidence of mutual mistake, the district court

committed no error by declining to equitably reform the 1996

plan.

3.

Finally, the defendants urge us to defer to the IRS

determination that inclusion of the Integrated Formula in the

1996 plan was a scrivener’s error, thus justifying an equitable

25
reformation of that provision. 17 Put simply, however, the IRS

determination is neither helpful nor controlling in this appeal.

A primary purpose of the IRS program — and the only purpose of

the IRS ruling on the 1996 plan — is to authorize an ERISA plan

to amend its provisions without losing the tax exemption

provided for by 26 U.S.C. § 501(a). 18 Notably, such IRS

proceedings are ex parte, predicated only on the submissions of

the ERISA plan seeking relief. The IRS determination thus only

resolves issues between the IRS and the ERISA plan — it is not a

formal adjudication, and it does not impact on the relationship

between an ERISA plan and its beneficiaries. Even though the

IRS may decide whether to tax an ERISA plan, it is not entitled

to alter the contractual rights of a plan beneficiary. Although

we accord great deference to the IRS with respect to tax policy

and regulation, the judiciary retains its dominion in ERISA

civil actions. See Blackshear, 509 F.3d at 642 (“[R]eformation

. . . is most decidedly a remedy available in a court of

17
The IRS ruling was made by the IRS Employee Plans
Compliance Resolution System (“EPCRS”). The Plan’s application
to EPCRS was governed by Rev. Proc. 2002-47, 2002-2 C.B. 133.
18
Section 411(d)(6)(A) of Title 26 provides that “[a] plan
shall be treated as not satisfying the requirements of this
section [and therefore will not constitute a qualified trust
under 26 U.S.C. § 401(a)] if the accrued benefit of a
participant is decreased by an amendment of the plan.” Section
501(a) provides that “[a]n organization described in . . .
section 401(a) shall be exempt from [income] taxation.”

26
equity.”). Thus, despite the defendants’ arguments to the

contrary, the IRS ruling relied on by the defendants is not

entitled to deference in this proceeding.

III.

Finally, we turn to the plaintiffs’ cross-appeal on the

attorney’s fee issue. In this regard, the plaintiffs seek a fee

award, pursuant to 29 U.S.C. § 1132(g)(1), for legal services

rendered in the district court. As explained below, we vacate

the district court’s rejection of the plaintiffs’ attorney’s fee

motion as untimely.

A.

The guidelines for the submission of motions for attorney’s

fees in the District of Maryland are spelled out in the court’s

Local Rule 109.2. That Rule, in relevant part, provides as

follows:

Unless otherwise . . . ordered by the Court, any
motion requesting the award of attorneys’ fees must be
filed within fourteen days of the entry of judgment.
The [supporting memorandum] must be filed within
thirty-five days from the date the motion is filed:
or (unless otherwise ordered by the Court) in the
event an appeal is taken from the underlying judgment,
within fourteen days of the issuance of the mandate of
the Court of Appeals. Any opposition to the motion
shall be filed within fourteen days of service of the
memorandum. Non-compliance with these time limits
shall be deemed to be a waiver of any claim for
attorneys’ fees.

27
D. Md. R. 109.2.a. The district court initially addressed the

attorney’s fee issue in its First Reconsideration Order of

December 18, 2006. The court then established a timetable for

the relevant submissions:

The parties [are ordered to] submit briefs on the
issue of attorneys fees and costs, including the
amount thereof, in accordance with the following
schedule:

a. Petition by the Plaintiffs, within 15
days of the date of this Order;

b. Response by the Defendants, within 25
days of the date of this Order; and

c. Reply by the Plaintiffs, within 30 days
of the date of this Order;

First Reconsideration Order 2. Finally, the Order concluded by

declaring that “[t]his case BE, and HEREBY IS, CLOSED.” Id.

Two days thereafter, on December 20, 2006, the plaintiffs

filed an unopposed motion to extend the time for the filing of

their attorney’s fee motion until January 17, 2007. This

extension motion was premised on the assertion that, “[u]nder

Local Rule 109 (1) and (2), Plaintiffs Motion for Attorneys Fees

and Bill of Costs is due on January 2, 2007.” Cross v. Fleet

Reserve Ass’n Pension Plan, No. 1:05-cv-00001 (D. Md. Dec. 20,

2006). The court granted the unopposed extension request the

following day, directing that “Plaintiffs’ Motion for Attorneys

Fees and Bill of Costs is due on January 17, 2007.” Cross v.

Fleet Reserve Ass’n Pension Plan, No. 1:05-cv-00001 (D. Md. Dec.

28
21, 2006) (the “Extension Order”). Soon thereafter, however, on

January 8, 2007, the defendants filed their notice of appeal

from the First Reconsideration Order, incorrectly perceiving it

to be an appealable final decision under 28 U.S.C. § 1291.

The plaintiffs filed their motion for attorney’s fees on

January 16, 2007, explaining that their supporting memorandum

would follow. On January 22, 2007, the defendants filed an

opposition to the motion, asserting, inter alia, that the

plaintiffs had waived their attorney’s fee claim by failing to

file a supporting memorandum by January 17, 2007. The

plaintiffs replied on January 26, 2007, contending that, under

Local Rule 109.2.a, the defendants’ January 8, 2007 notice of

appeal served to reset the briefing schedule on the attorney’s

fee issue. Local Rule 109.2.a, if applicable here, would accord

the plaintiffs fourteen days after the mandate on that appeal to

file their supporting memorandum.

On March 26, 2007, we dismissed as interlocutory the

defendants’ effort to appeal from the First Reconsideration

Order. Our mandate on that appeal issued on April 17, 2007, and

the plaintiffs submitted their supporting memorandum on the

attorney’s fee motion nine days later, on April 26, 2007. The

defendants responded to the plaintiffs’ attorney’s fee

memorandum on May 11, 2007. In addition to briefing the merits

of the fee claim, the defendants reasserted their timeliness

29
contention, particularly with respect to legal services rendered

prior to the Summary Judgment Order of September 28, 2006. The

court, in its Second Reconsideration Opinion of July 3, 2007,

concluded that the plaintiffs had waived their attorney’s fee

claim, explaining that

[b]y failing to comply with the schedule dictated by
Court’s December 18, 2006 Order, as extended by the
Court on December [21], 2006, the Plaintiffs waived
their claim for attorneys’ fees. Accordingly, their
motion for attorneys’ fees will be denied.

Second Reconsideration Opinion 17.

B.

Generally speaking, we are obliged to accord deference to a

district court’s interpretation of its own order. See Saudi v.

Northrop Grumman Corp., 427 F.3d 271, 279 (4th Cir. 2005).

Importantly, however, the Extension Order can at best be

characterized as ambiguous. As such, we “must construe its

meaning, and in so doing may resort to the record upon which the

judgment was based.” In re Tomlin, 105 F.3d 933, 940 (4th Cir.

1997) (internal quotation marks omitted). Because this record

cannot be squared with the district court’s interpretation of

the Extension Order, we are constrained to conclude that the

court abused its discretion in denying the plaintiffs’

attorney’s fee request as untimely. See United States v.

Delfino, 510 F.3d 468, 470 (4th Cir. 2007) (recognizing that a

court may “abuse[] its discretion when it acts arbitrarily or

30
irrationally, . . . relies on erroneous factual or legal

premises, or commits an error of law”), cert. denied, 129 S. Ct.

41 (2008).

1.

First of all, in denying the attorney’s fee request as

untimely by its July 3, 2007 Second Reconsideration Order, the

district court failed to recognize that there had been no final

judgment in the case until that very Order, thus rendering any

attorney’s fee submissions by the plaintiffs prior to that date

premature. It is manifest that the federal courts prefer to

conduct attorney’s fee proceedings after the entry of a final

judgment. Indeed, the default mechanism in Federal Rule of

Civil Procedure 54(d)(2)(B)(i) requires attorney’s fee motions

“to be filed no later than 14 days after the entry of judgment.”

This mandate is predicated on the assumption that “the court

will want to consider attorneys’ fee issues immediately after

rendering its judgment on the merits of the case.” Fed. R. Civ.

P. 54 advisory committee’s note. Local Rule 109.2.a echoes this

preference, and, although there is no “legislative history” with

respect to Rule 109.2.a, we must assume that it is predicated on

the same bases as Rule 54(d).

Arguably, the district court possessed the authority under

Local Rule 109.2.a to direct the plaintiffs to file their

attorney’s fee motion and memorandum prior to the entry of a

31
final judgment. Nevertheless, this plainly is not what the

court intended when it set the briefing schedule on the

attorney’s fee issue in its December 18, 2006 First

Reconsideration Order. The court contemplated that Order as a

final judgment, declaring therein that “[t]his case BE, and

HEREBY IS, CLOSED.” First Reconsideration Order 2. As a result

of the First Reconsideration Order, summary judgment was granted

on all four claims in the Complaint — to the defendants on

Counts I and II, and to the plaintiffs on Counts III and IV.

The court also declined to reform the terms of the 1996 plan,

and it ordered the defendants to pay all benefits owed to the

plaintiffs, plus prejudgment interest. After entry of the First

Reconsideration Order, however, at least two unresolved issues

remained — the individual award amounts and prejudgment interest

issues.

When the defendants sought to appeal from the First

Reconsideration Order, we dismissed that appeal as

interlocutory. In so doing, we rejected the central premise for

establishing the attorney’s fee briefing schedule in the First

Reconsideration Order: that such Order constituted a final

judgment. Importantly, the final judgment was not entered until

the Second Reconsideration Order of July 3, 2007. Rather than

acknowledging in the Second Reconsideration Order that it had

directed the plaintiffs to prematurely submit their attorney’s

32
fee request, however, the district court abused its discretion

by denying such request as being briefed in a tardy fashion.

2.

Additionally, assuming final judgment had been entered by

way of the December 18, 2006 First Reconsideration Order, the

plaintiffs’ fee memorandum would nevertheless have been timely

filed in accordance with the December 21, 2006 Extension Order.

In so concluding, we have considered three possible

interpretations of the Extension Order, which granted the

plaintiffs’ unopposed motion for an extension of time.

Significantly, that motion explicitly referenced Local Rule

109.2.a as the governing authority for the attorney’s fee

proceedings, and the court declared in its single-sentence

Extension Order only that “Plaintiffs’ Motion for Attorneys Fees

and Bill of Costs is due on January 17, 2007.” Extension Order

1 (emphasis added). Moreover, the Extension Order makes no

reference to the December 18, 2006 briefing schedule, nor the

new due dates of the plaintiffs’ supporting memorandum, the

defendants’ response, and the plaintiffs’ reply.

First, the Extension Order could be read to extend the due

date of the plaintiffs’ attorney’s fee motion only, leaving the

December 18, 2006 briefing schedule in place for all other

submissions. Such an interpretation, however, leads to the

nonsensical result that the plaintiffs’ supporting memorandum

33
was due fifteen days prior to their motion. Further, the

defendants would have been obliged to file their response brief

by January 12, 2007 — five days before the plaintiffs were to

file their attorney’s fee motion.

Second, the Extension Order could be read as the district

court interpreted it — as simply having “extended the [December

18, 2006] briefing schedule by fifteen days.” Second

Reconsideration Opinion 16. But this interpretation is also

untenable because it requires too much supposition. The

Extension Order contains no reference to the December 18, 2006

briefing schedule, any “fifteen-day extension” thereof, or any

document other than the plaintiffs’ attorney’s fee motion.

Indeed, the Extension Order establishes just one deadline:

January 17, 2007, as the due date for the plaintiffs’ motion.

The Extension Order simply does not convey that the plaintiffs’

supporting memorandum — in addition to their motion — was due

on January 17, 2007. And the Extension Order by no means

implies that fifteen days should also be added to the due dates

for the defendants’ response and the plaintiffs’ reply as a

result of the plaintiffs being granted a fifteen-day extension

from the December 18, 2006 briefing schedule.

The only reasonable reading of the Extension Order is the

third one: that the Order invalidated the December 18, 2006

briefing schedule in favor of the timetable set forth in Local

34
Rule 109.2.a. Indeed, the plaintiffs’ unopposed motion for an

extension of time explicitly referenced Rule 109.2.a as the

governing authority for the attorney’s fee proceedings — a

notion uncontroverted at that time by either the district court

or the defendants. Under Rule 109.2.a, a supporting memorandum

“must be filed within thirty-five days from the date the motion

is filed.” In the event an appeal is taken, the Rule

specifically extends the deadline for the memorandum to “within

fourteen days of the issuance of the mandate of the Court of

Appeals.” Here, the plaintiffs filed their attorney’s fee

motion on January 16, 2007 — a day before they were required to

do so under the Extension Order. Eight days earlier, however,

the defendants filed their notice of appeal, which, pursuant to

Rule 109.2.a, extended the plaintiffs’ supporting memorandum

deadline to fourteen days from the issuance of our mandate.

When the plaintiffs filed their supporting memorandum on April

26, 2006 — nine days after the mandate issued — they were thus

in compliance with Rule 109.2.a. In such circumstances, the

district court abused its discretion in ruling that the

plaintiffs’ memorandum was untimely. 19

19
The plaintiffs also seek an award of attorney’s fees for
their work on appeal. Because this request is premature, we
reject it without prejudice.

35
 IV.

Pursuant to the foregoing, we affirm the district court’s

summary judgment award on the Count IV ERISA claim. We vacate

its denial of an attorney’s fees award to the plaintiffs,

however, and remand for further proceedings.

AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

36