Tetreault v. Reliance Standard Life Insurance

United States Court of Appeals
For the First Circuit

No. 13-2353

MICHELE C. TETREAULT,

Plaintiff, Appellant,

v.

RELIANCE STANDARD LIFE INSURANCE COMPANY;
THE LIMITED LONG TERM DISABILITY PROGRAM,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Thompson, Kayatta and Barron,
Circuit Judges.

Jonathan M. Feigenbaum, for appellant.
Joshua M. Cachrach, with whom Wilson, Elser, Moskowitz,
Edelman & Dicker LLP was on brief, for appellees.

October 6, 2014
 BARRON, Circuit Judge. The Employee Retirement Income

Security Act of 1974 (ERISA) governs employee benefit plans. 29

U.S.C. § 1001 et seq. Among other things, the statute permits

beneficiaries to go to court to challenge their plan's decision to

deny or cut off their benefits. Id. § 1132(a)(1)(B). Before

filing suit, however, beneficiaries must first use -- or, as it is

often put, "exhaust" -- their plan's procedures for making claims.

Madera v. Marsh USA, Inc., 426 F.3d 56, 61 (1st Cir. 2005). The

main question for us concerns which document a benefit plan must

use to set forth those procedures.

The beneficiary who brings this appeal, Michele

Tetreault, argues that ERISA requires a benefit plan to use one

particular type of document, which the statute calls the "written

instrument." 29 U.S.C. § 1102(a)(1). And she further argues that

we should excuse her failure to comply with what her benefit plan

contends was one of its claims procedures -- a 180-day deadline for

filing an internal appeal of an adverse benefits decision --

because the benefit plan's written instrument did not mention it.

But Tetreault is mistaken on that point. That is because the

written instrument in this case expressly incorporated a document

that clearly sets forth the appeals deadline. For that reason, we

affirm the District Court's decision to dismiss Tetreault's

benefits challenge. We also affirm the District Court's dismissal

-2-
of Tetreault's two other ERISA claims, which, respectively, are for

statutory penalties and for breach of fiduciary duty.

I.

Michele Tetreault injured her back in 2000 while working

as a store manager at The Limited, a nationwide clothing retailer.

She then filed a claim under The Limited's long-term disability

benefit plan, which is called The Limited Long Term Disability

Program. The benefit plan initially denied Tetreault's claim but

then, in 2004, reversed course after Tetreault successfully

challenged the denial in court.

The situation changed yet again in 2008. By then,

Reliance Standard Life Insurance Company had started administering

claims for The Limited Long Term Disability Program. In that role,

Reliance Standard informed Tetreault on December 18 that, after

reviewing her medical records, it had determined she could perform

"sedentary" work and thus was no longer eligible for the benefits

she had been receiving. Reliance Standard also informed Tetreault

at that time that she could appeal the decision in writing to

Reliance Standard, but that she would have to do so "within 180

days of your receipt of this letter or the last date to which we

have paid, whichever is later."

On January 14, 2009, Tetreault's counsel wrote to

Reliance Standard and requested "[t]he Summary Plan Description and

the Plan documents for the LTD plan." Tetreault's counsel also

-3-
requested that Reliance Standard provide "[a] complete copy of Ms.

Tetreault's file in Reliance's possession."

Nine days later, Reliance Standard responded. It sent

Tetreault's counsel the requested file, which contained certain of

her medical records as well as other documents that related to her

claim for benefits. Reliance Standard also sent the document that

established the 1998 version of the benefit plan. That document

made no reference to an appeals deadline.

Reliance Standard did not at that time send the "Summary

Plan Description" Tetreault's counsel had requested. Reliance

Standard also did not send some other documents that, though not

then in its possession, are relevant to the merits of Tetreault's

arguments to this Court. These documents concerned a 2005 version

of The Limited Long Term Disability Program. They included both

the document that established that version of the benefit plan and

another document that described its terms. This last document,

which identified itself as the "summary plan description," set

forth the 180-day deadline for making an internal appeal of an

adverse benefit decision.

On June 15, 2009 -- four days before the 180-day period

was set to run out -- Tetreault's counsel sent a letter to Reliance

Standard stating that Tetreault "w[ould] be appealing" the

termination decision to Reliance Standard and that she expected to

complete that appeal within 30 days. Reliance Standard responded

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by letter faxed to Tetreault's counsel on June 17. The letter

reminded Tetreault's counsel that the 180-day period was about to

expire. The letter also stated that Reliance Standard would not

accept an appeal filed after that period. Finally, the letter

warned Tetreault's counsel that if he filed Tetreault's appeal

late, the "'failure to exhaust' defense" would bar her from

challenging the decision to terminate her benefits.

The appeals deadline expired on June 19, 2009. Tetreault

did not file an appeal with Reliance Standard until nearly a year

later, on May 27, 2010. Reliance Standard then denied the appeal

as untimely, at which point Tetreault filed suit.

The District Court declined to excuse Tetreault's failure

to appeal to Reliance Standard within the 180-day period. In doing

so, the District Court first rejected Tetreault's argument that

ERISA required the benefit plan to include the deadline in the

"written plan instrument." The District Court then held in the

alternative that Tetreault's suit could not proceed because the

"written plan instrument" in this case actually did include the

deadline through its express incorporation of the "summary plan

description." The District Court also rejected additional ERISA

claims Tetreault pressed that stemmed from Reliance Standard not

having produced the documents that established and summarized the

2005 version of the benefit plan.

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 II.

We begin with Tetreault's argument that we should excuse

her failure to file her appeal with Reliance Standard within the

180-day period. Tetreault reads ERISA to say that only the "plan

instrument" -- to use her words -- can impose a claims procedure

that a claimant must exhaust before going to court. From that

premise, Tetreault argues that her suit may proceed -- despite her

failure to exhaust -- because the relevant "plan instrument" never

set forth the 180-day appeals deadline.

Other courts (including the District Court in this case)

have considered whether ERISA imposes the requirement Tetreault

describes. See, e.g., Kaufmann v. Prudential Ins. Co. of Am., 840

F. Supp. 2d 495 (D.N.H. 2012); Merigan v. Liberty Life Assurance

Co. of Bos., 826 F. Supp. 2d 388 (D. Mass. 2011). But we need not

join in that inquiry. That is because Tetreault is wrong to

contend that in this case the "plan instrument" omitted the 180-day

deadline.

To explain why we reach this conclusion, we first need to

say a bit more about that last quoted phrase -- "plan instrument."

Those words do not actually appear in ERISA. But a provision in

ERISA does require a benefit plan to be "established and maintained

pursuant to a written instrument." 29 U.S.C. § 1102(a)(1). We

thus understand Tetreault to argue that the benefit plan document

known under ERISA as the "written instrument" must set forth a

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claims procedure. And so, we start by looking to see if the

written instrument in this case contains the appeals deadline

Tetreault says was missing.1

The Limited Long Term Disability Program and Reliance

Standard both say the written instrument does contain the deadline.

For support, they point to the documents that concern the 2005

version of the benefit plan. The first of these documents refers

to itself as "the formal plan document." Among other things, it

specifies the procedures for funding, amending, and administering

the benefit plan, just as ERISA requires of a "written instrument."

29 U.S.C. § 1102(b)(1)-(3). There is thus no question this

document is the written instrument for the 2005 version of the

benefit plan, and the parties do not contend otherwise.

This document does not, however, set forth the appeals

deadline. Instead, it "incorporates by reference . . . the terms

1
Section 1102(b) of ERISA specifies what must be included in
the written instrument. Among other things, that provision of
ERISA requires the instrument to "specify the basis on which
payments are made to and from the plan." 29 U.S.C. § 1102(b)(4).
But Tetreault does not rely on this provision for her argument that
ERISA requires claims procedures to be set forth in the written
instrument. She instead appears to argue that the requirement
stems from section 1133, which requires "every employee benefit
plan" to provide claims procedures. Id. § 1133. It is not at all
clear that the text of this provision is best read to mandate a
benefit plan to set forth its claims procedures in the written
instrument. But that is of no moment here. Because we conclude
that the written instrument in this case includes the relevant
procedure, we do not need to decide whether ERISA required that it
do so, let alone which provision of ERISA, singly or in
combination, might support such an argument.

-7-
of the [Limited Long Term Disability] Program as set forth in"

another document. This other document is the summary plan

description for the 2005 version of the benefit plan, and it is

this document that expressly sets forth the benefit plan's claims

procedures, including the 180-day appeals deadline.2

Against this background, the question we must decide is

a straightforward one of law that we review de novo, Orndorf v.

Paul Revere Life Ins. Co., 404 F.3d 510, 516-17 (1st Cir. 2005):

does ERISA permit the benefit plan to incorporate the appeals

deadline into the written instrument through the 2005 summary plan

description? If so, then the written instrument contains the very

term Tetreault says it omits.

Background legal principles strongly suggest that such

express incorporation is permitted. The Supreme Court in Firestone

Tire & Rubber Co. v. Bruch held that "established principles of

trust law" are relevant in construing ERISA documents. 489 U.S.

101, 115 (1989). The written instrument for The Limited Long Term

2
This document specifies that claims must be sent to
"MetLife," even though Reliance Standard by 2009 had assumed the
role of administering claims for the benefit plan. But while
Tetreault tries to attach significance to this reference to
MetLife, Tetreault's counsel corresponded directly with Reliance
Standard, negating any suggestion that Tetreault was misled as to
who the benefit plan's claims administrator was. Nor did Tetreault
attempt to file an appeal with MetLife. And Tetreault does not
develop in her brief, and thus has waived, any argument that this
reference to MetLife rendered the appeals deadline unenforceable.
See Harron v. Town of Franklin, 660 F.3d 531, 535 n.2 (1st Cir.
2011) (declining to consider "perfunctory arguments" made without
citations or facts).

-8-
Disability Program identifies Ohio law as the relevant state law

for construing it, and we thus look to that state's trust law for

guidance on this issue. In Ohio, "[i]nterpreting a trust is akin

to interpreting a contract," Arnott v. Arnott, 972 N.E.2d 586, 590

(Ohio 2012), so we treat Ohio's contract-law rules as instructive

here. And what we find is, not surprisingly, that, "[i]n Ohio,

under general principles of contract law, separate agreements may

be incorporated by reference into a signed contract." KeyBank

Nat'l Ass'n v. Sw. Greens of Ohio, LLC, 988 N.E.2d 32, 39 (Ohio Ct.

App. 2013); cf. Nash v. Trs. of Bos. Univ., 946 F.2d 960, 967 (1st

Cir. 1991) (following "Massachusetts contract principles governing

fraud in the inducement [as] an appropriate model from which to

fashion federal common law principles" applicable under ERISA).

As a general matter, ERISA does nothing to disturb these

background legal rules permitting incorporation by reference.

ERISA certainly permits more than one document to make up a benefit

plan's required written instrument. See Wilson v. Moog Auto., Inc.

Pension Plan, 193 F.3d 1004, 1008-09 (8th Cir. 1999) (where the

"Pension Plan explicitly refers to, and attempts to incorporate" a

separate document, that document "is a plan document" that "cannot

be ignored" and "it is not true . . . that the written instrument

ERISA requires is the Pension Plan alone"); Horn v. Berdon, Inc.

Defined Benefit Pension Plan, 938 F.2d 125, 127 (9th Cir. 1991)

(accepting "documents claimed to collectively form the employee

-9-
benefit plan" even if not formally labeled as a "written

instrument"); cf. Fenton v. John Hancock Mut. Life Ins. Co., 400

F.3d 83, 88-89 (1st Cir. 2005) (discussing the need to identify

which "documents and instruments" set forth the terms of the plan,

although concluding on the facts that only one document did). And,

at least prior to the Supreme Court's decision in CIGNA Corp. v.

Amara, 131 S. Ct. 1866 (2011), courts regularly concluded that

ERISA also counted summary plan descriptions as being among the

documents that could make up a benefit plan's written instrument.

See Pettaway v. Teachers Ins. & Annuity Ass'n of Am., 644 F.3d 427,

434 (D.C. Cir. 2011) (citing cases).

The only possible concern with the written instrument's

express incorporation of the summary plan description in this case,

then, arises from some language in the Supreme Court's decision in

Amara that drew distinctions between summary plan descriptions and

written instruments. 131 S. Ct. at 1877-78. Amara explained that

a summary plan description is, like a plan's written instrument, a

creature of ERISA. Id. (citing 29 U.S.C. § 1022). And Amara

emphasized that ERISA distinguishes between these two types of

documents as to both their origins and their functions.

As to the two types of documents' origins, Amara said the

distinction arises because, under ERISA, the benefit plan's sponsor

creates the written instrument that establishes the benefit plan

and sets forth its terms, while a different entity, the benefit

-10-
plan's administrator, typically writes the summary plan

description. Id. Amara observed that, in consequence, making the

summary plan description automatically binding would "mix [those]

responsibilities by giving the administrator the power to set plan

terms indirectly by including them in the summary plan

description." Id. at 1877. Giving the administrator such power,

Amara said, might allow the plan administrator to circumvent the

written instrument's required "'procedure' for making amendments."

Id.

As to the two types of documents' functions, Amara

explained that the summary plan description is intended to give

beneficiaries a reader-friendly account of the terms that the

written instrument establishes. Id. at 1877-78. Thus, Amara

stated, summary plan descriptions "do not themselves constitute the

terms of the plan." Id. at 1878. Amara further explained that the

"syntax" of the statutory provision that requires summary plan

descriptions to describe rights "'under the plan[]' suggests that

the information about the plan provided by those disclosures is not

itself part of the plan." Id. at 1877 (citing 29 U.S.C.

§ 1022(a)).

Tetreault seizes on Amara's description of these

distinctions to argue that The Limited Long Term Disability

Program's attempt to incorporate the summary plan description into

-11-
the written instrument was impermissible. But Amara does not

support Tetreault's contention.

The problem for Tetreault is that Amara did not concern

a case of express incorporation at all. Instead, it concerned a

case in which the written instrument for the benefit plan at issue

was silent as to the significance of the language set forth in the

benefit plan's summary plan description. Amara thus held only that

terms from summary plan descriptions should not "necessarily . . .

be enforced" as terms of the benefit plan, and the Court set forth

the distinctions it identified between written instruments and

summary plan descriptions solely in support of that conclusion.

Id. (emphasis added). Amara, in other words, simply did not

address whether summary plan description terms could be enforced

when the written instrument expressly indicated that they should

be.

Amara's silence on that point is what matters for our

purposes. For while it is true that, standing alone, a document

that merely advises participants and beneficiaries of "their rights

and obligations 'under the plan'" does not itself create rights and

duties, id., that may change when the document that unquestionably

does create such rights and duties -- namely, the document that

ERISA calls the "written instrument" -- expressly states that the

language in the advisory document does too. It is not surprising,

therefore, that every court that has considered the issue has held

-12-
that Amara poses no automatic bar to a written instrument's express

incorporation of terms contained in a summary plan description.

See, e.g., Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663

F.3d 1124, 1131 (10th Cir. 2011); Langlois v. Metro. Life Ins. Co.,

833 F. Supp. 2d 1182, 1185-86 (N.D. Cal. 2011); Henderson v.

Hartford Life & Accident Ins. Co., No. 2:11CV187, 2012 WL 2419961,

at *5 (D. Utah June 26, 2012).3

Of course, it is possible that, even though generally

permissible, the written instrument's express incorporation of the

terms of a summary plan description could in certain applications

raise concerns under ERISA. For example, such express

incorporation might in some cases raise concerns that a "plan's

administrator" -- rather than a "plan's sponsor" -- had changed the

terms of the written instrument through its revision of the

expressly incorporated summary plan description after the time at

which the summary had been first incorporated. Amara, 131 S. Ct.

at 1877. But that possibility does not provide a reason to

prohibit express incorporation of the summary plan description in

all cases, as the express incorporation involved in this case

demonstrates. The written instrument in this case incorporated the

terms set forth in the 2005 summary plan description, and the

summary plan description term at issue here -- the deadline -- was

3
In Pettaway, issued only two months after Amara, the D.C.
Circuit reached the same holding without addressing Amara at all.
644 F.3d 427.

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not subsequently revised. Thus, there is no concern -- nor any

contention by Tetreault -- that the incorporation in this case

resulted in the revision of the relevant parts of the written

instrument through some means that ERISA might prohibit.

Similarly, this case shows there is no reason to worry

that, in consequence of express incorporation, the summary plan

description will necessarily fail to "describe plan terms" in the

"clear, simple communication" that ERISA intends for such summary

documents. Id. at 1877-78. That is because the incorporation in

this case concerns a particular type of term -- a deadline for

making an internal appeal -- which by regulation the summary plan

description must not merely summarize, but instead must set forth

in full. 29 C.F.R. § 2520.102-3(s) (requiring that "the procedures

governing claims for benefits," including "applicable time limits,"

be included in the summary plan description). And the summary plan

description at issue here did exactly that in setting forth the

180-day deadline.

Our holding is a narrow one. We do not decide that

claims procedures must be included in a benefit plan's written

instrument. Nor do we address issues not presented in this case

but that, in theory, might arise from the express incorporation of

a summary plan description. We decide only that a benefit plan may

expressly incorporate its internal appeals deadline into the

written instrument through a summary plan description and that,

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when a benefit plan does so, a beneficiary's failure to meet that

deadline may bar her attempt to challenge an adverse benefit

decision in court. Having decided that much, though, we have

necessarily decided an important issue in this appeal: Tetreault's

primary argument for excusing her failure to comply with the

internal appeals deadline must fail.4

III.

In an attempt to overcome this obstacle, Tetreault argues

in the alternative that she did not have to follow the claims

procedures set forth in the 2005 version of the benefit plan at

all. She argues she needed to follow only the procedures set forth

in the 1998 version. And because, as all parties agree, the

written instrument for the 1998 version neither contained nor

incorporated the internal appeals deadline, Tetreault contends we

4
Tetreault argues half-heartedly that she actually did comply
with the deadline because her counsel's June 15th letter stating
that she "w[ould] be appealing" "arguably" was sufficient to bring
her into compliance with the requirement that she "notify the
claims administrator in writing within 180 days of receiving the
determination." The claims procedures further require, however,
that the written notice specify "[t]he reason you believe the claim
should be paid" and provide "[d]ocuments, records or other
information to support your appeal." The letter from Tetreault's
counsel provided no such information, and Tetreault does not
address its absence in her brief, nor does she elaborate on her
"argu[ment]" in this regard beyond simply stating it. We thus deem
her argument that she in fact met the 180-day deadline waived. See
Harron, 660 F.3d at 535 n.2. In addition, because we conclude that
The Limited Long Term Disability Program incorporated the claims
procedures into its written instrument, we need not consider
whether Tetreault would have to show that she was prejudiced by the
deadline's omission in order to be excused for failing to have
appealed within the 180-day period.

-15-
must for that reason excuse her failure to file her appeal within

the 180-day period.5

Tetreault bases this argument on her contention that The

Limited Long Term Disability Program should be estopped from

enforcing the appeals deadline. She rests her estoppel claim on

the fact that Reliance Standard did produce the written instrument

for the 1998 version of the benefit plan but failed to produce the

documents concerning the 2005 version of the benefit plan --

including the corresponding summary plan description -- when her

counsel sent the January 2009 letter requesting "the Summary Plan

Description and the Plan documents for the LTD plan."

But even if such an argument for estoppel were cognizable

under ERISA, an issue we have previously declined to reach, see

City of Hope Nat'l Med. Ctr. v. HealthPlus, Inc., 156 F.3d 223, 230

n.9 (1st Cir. 1998), estoppel would not free Tetreault from having

to satisfy the 180-day appeals deadline. We have previously

5
At oral argument, Tetreault for the first time offered an
additional argument as to why the 1998 version of the benefit plan
should control. She contended that because her benefits "vested"
under that earlier version of the benefit plan, she was bound only
by the procedures contained in the written instrument for that
version. There is no Circuit precedent directly on point, though
the Third Circuit has explained in a different context that with
respect to "[p]rocedural provisions" of ERISA plans, courts "look
to the plan in effect at the time benefits were denied." Smathers
v. Multi-Tool, Inc./Multi-Plastics, Inc. Emp. Health & Welfare
Plan, 298 F.3d 191, 196-97 (3d Cir. 2002). In any event, Tetreault
did not raise the argument below, or in her brief to this court,
and we thus consider it waived. United States v. Richardson, 225
F.3d 46, 52 n.2 (1st Cir. 2000) (holding that arguments presented
for the first time at oral argument are waived).

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explained that, if an estoppel claim could be raised under ERISA,

it would require a showing of both a "definite misrepresentation of

fact" and reasonable reliance on that misrepresentation. See Law

v. Ernst & Young, 956 F.2d 364, 368 (1st Cir. 1992). Here,

however, any reliance by Tetreault on the written instrument for

the 1998 version of the benefit plan was unreasonable.

Reliance Standard warned Tetreault's counsel, twice, that

a 180-day internal appeals deadline applied to her case.

Tetreault's counsel apparently believed that this statement

contradicted the benefit plan's written instrument, yet he never

asked Reliance Standard about the inconsistency. In considering

estoppel in another context, we have explained that "[t]he law does

not . . . countenance reliance on one of a pair of contradictories

simply because it facilitates the achievement of one's goal."

Trifiro v. N.Y. Life Ins. Co., 845 F.2d 30, 34 (1st Cir. 1988).

Instead, when "[c]onfronted by such conflict[,] a reasonable person

investigates matters further." Id. at 33. Tetreault offers no

reason why this principle should not apply equally in this case,

particularly where she had legal counsel, and discerning none

ourselves, we must reject Tetreault's estoppel argument.

IV.

Tetreault presses two other claims. She first seeks

statutory penalties of one hundred and ten dollars per day under 29

U.S.C. § 1132(c)(1)(B). She claims she is owed those penalties

-17-
because of Reliance Standard's failure to provide complete and

current copies of the "Plan documents" in response to her January

14, 2009 request. She also seeks to hold Reliance Standard liable

for breach of fiduciary duty for not producing the documents

concerning the 2005 version of the benefit plan in response to that

request. Like the District Court, we hold that Tetreault's first

claim lacks merit and that her second claim has been waived.

A.

Tetreault bases her claim for statutory penalties against

Reliance Standard on two provisions of ERISA: 29 U.S.C. §§ 1021(a)

and 1132(c)(1)(B). They require the benefit plan's "administrator"

to produce certain documents within thirty days of a written

request from a beneficiary. See id. § 1132(c)(1)(B). They also

impose penalties of up to one hundred and ten dollars per day for

the "administrator['s]" failure to do so. Id. § 1132.6

Tetreault argues that Reliance Standard counts as the

"administrator" within the meaning of the ERISA penalties

provisions because Reliance Standard is The Limited Long Term

Disability Program's "claims administrator." And she argues that

Reliance Standard, as the "administrator," should pay such ERISA

6
The statute itself provides for penalties of up to one
hundred dollars per day, but the Department of Labor has raised it
to up to one hundred and ten dollars pursuant to the Debt
Collection Improvement Act of 1996. See Final Rule Relating to
Adjustment of Civil Monetary Penalties, 62 Fed. Reg. 40,696 (July
29, 1997).

-18-
penalties because it did not send her both the written instrument

establishing the 2005 version of the benefit plan and the

corresponding summary plan description.

But Tetreault is wrong to characterize Reliance Standard

as the "administrator" to which the statute refers.

"Administrator" is a defined term under ERISA. The

"administrator," the statute tells us, is "(i) the person

specifically so designated by the terms of the instrument under

which the plan is operated; or (ii) if an administrator is not so

designated, the plan sponsor; or (iii) in the case of a plan for

which an administrator is not designated and a plan sponsor cannot

be identified, such other person as the Secretary may by regulation

prescribe." Id. § 1002(16)(A). When the written instrument does

designate an "administrator," courts often refer to it as the "plan

administrator." See, e.g., Law, 956 F.2d at 372. That entity is

a "trustee-like fiduciary" responsible for "manag[ing] the plan."

Amara, 131 S. Ct. at 1877. And, consistent with Amara's

description of that statutory role, see id., the 2005 written

instrument for this benefit plan designates a "Plan Administrator"

and grants it "[t]he authority to control and manage the operation

and administration of the [Long Term Disability] Program." The

record does not conclusively establish who that "Plan

-19-
Administrator" is, but the parties agree that the written

instrument does not designate Reliance Standard as such.7

The 2005 written instrument does refer to a "Claims

Administrator," and that is the role Reliance Standard filled. But

the "Claims Administrator" is not tasked in the written instrument

with "manag[ing]" the Program as a whole. Id. Instead, the

written instrument provides that the "Claims Administrator," who is

selected by the "Plan Administrator," is authorized only to

"receive, review and process claims for Program benefits." For

this reason, the written instrument does not designate Reliance

Standard to be the "administrator" to which the penalties

provisions in ERISA refer, and Reliance Standard is thus not

subject to statutory penalties under 29 U.S.C. § 1132(c)(1)(B).

To avoid this result, Tetreault argues that Reliance

Standard should be treated as the "administrator" despite the

written instrument's contrary designation. And she bases that

argument on her contention that Reliance Standard acted as the de

facto "administrator" when it responded to the request for benefit

plan documents Tetreault's counsel sent in January of 2009.

7
The 2005 written instrument provides that the "Plan
Administrator" "means the Plan Administrator under the Health
Benefits Plan," and the "Health Benefits Plan" document is not in
the record. The 2005 summary plan description, however, lists
"Limited Brands, Inc. Welfare Benefits Plan Assoc. Benefits
Committee" as the "Plan Administrator," and Tetreault does not
contest the accuracy of that identification.

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 To make this argument, Tetreault relies on this Circuit's

decision in Law. But Law does not help Tetreault. In Law, the

claimant asked for benefit plan documents from his former employer

rather than from his former employer's retirement committee.

Contending the former employer did not make an adequate response,

the claimant then sought statutory penalties against the former

employer, even though the written instrument for the benefit plan

designated the retirement committee as the "administrator." Law,

956 F.2d at 372. The Court held that the employer (rather than the

retirement committee) was the de facto "administrator" under ERISA

not only because the employer responded to the claimant's request,

but also because there was other evidence that the employer in fact

controlled the retirement committee. Id. at 373. And, on that

basis, the Court held the employer was subject to penalties even

though the written instrument did not designate it as the

"administrator." Id.

In so holding, however, Law was careful to distinguish

the case before it, which involved an employer with "little, if

any, separate identity" from the internal retirement committee that

had been designated as the "plan administrator," from cases

involving "attempts to recover against entities which were clearly

distinct from the plan administrator." Id. at 374. And this same

distinction takes care of Tetreault's argument here. Tetreault

seeks penalties from an entity -- Reliance Standard -- that is

-21-
entirely separate from the expressly designated "administrator."

For that reason, the mere fact that Reliance Standard responded to

a letter seeking documents relevant to the benefit plan does not

make Reliance Standard the de facto "administrator." We thus

affirm the District Court in dismissing Tetreault's statutory

penalties claim.

B.

Finally, Tetreault contends Reliance Standard breached

its fiduciary duty to her when it produced only the written

instrument for the 1998 version of the benefit plan in response to

her 2009 request for the "Plan documents." In support of this

argument, Tetreault argues that ERISA fiduciaries have a duty to

"speak the truth" to plan beneficiaries, see Varity Corp. v. Howe,

516 U.S. 489, 506 (1996), and that Reliance Standard breached that

duty by sending only the document that established the 1998 verison

of the benefit plan and not the documents that concerned the 2005

version. But this claim is not properly before us.

The District Court found that Tetreault failed to include

this claim in her second amended complaint, and then denied

Tetreault's motion to amend her complaint a third time to add it.

Because Tetreault advances no argument for rejecting the District

Court's determination of waiver, nor any reason for concluding the

District Court abused its discretion in declining to permit her to

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amend her complaint, we affirm the dismissal of any separate

fiduciary duty claim Tetreault advances.

V.

We conclude that Tetreault failed to meet a deadline for

appealing internally the decision to cut off her long-term

disability benefits. We further conclude that her benefit plan had

expressly incorporated that deadline into the benefit plan's

written instrument. On that basis, we affirm the District Court's

dismissal of her benefits challenge. We also conclude the District

Court did not err in ruling that Tetreault could not recover

statutory penalties against Reliance Standard or that she had

waived her claim for breach of fiduciary duty. Accordingly, we

affirm the District Court's dismissal of those claims as well.

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