PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANDREW J. REGO,
Plaintiff-Appellant,
v.
WESTVACO CORPORATION; WESTVACO
CORPORATION SAVINGS AND No. 02-1336
INVESTMENT PLAN FOR SALARIED
EMPLOYEES; WESTVACO RETIREMENT
PLAN FOR SALARIED EMPLOYEES; ERIC
J. LANCELLOTTI,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CA-99-702)
Argued: December 3, 2002
Decided: February 10, 2003
Before WILKINSON, Chief Judge, KING, Circuit Judge, and
Joseph R. GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge King and Judge Goodwin joined.
COUNSEL
ARGUED: John David James, SMITH, JAMES, ROWLETT &
COHEN, L.L.P., Greensboro, North Carolina, for Appellant. Wood
2 REGO v. WESTVACO CORP.
Walter Lay, HUNTON & WILLIAMS, Charlotte, North Carolina, for
Appellees. ON BRIEF: Patricia K. Epps, Michael L. Walton, HUN-
TON & WILLIAMS, Richmond, Virginia, for Appellees.
OPINION
WILKINSON, Chief Judge:
Andrew Rego filed suit against his employer, two employee bene-
fits plans, and the administrator of those plans, alleging a series of
violations of the Employee Retirement Security Act (ERISA). The
gravamen of his complaint was a charge that defendants had pre-
vented him from withdrawing his share of one of the benefits plans
in time to take advantage of a high stock price. He also claimed that
defendants had failed to give him statutorily required information and
that they had improperly delayed his pension payments by a month.
The district court dismissed most of his allegations for failure to state
a claim and remanded several claims for administrative resolution.
The plan administrator granted Rego relief on one of his claims and
rejected the rest, and the district court affirmed the plan administrator.
We affirm the district court.
I.
Rego was employed by Westvaco Corporation from 1980 to 1997,
working as Southeast Region Sales Representative for most of that
time. During his employment, he participated in two employee benefit
plans administered by Westvaco: the Westvaco Corporation Savings
and Investment Plan for Salaried Employees ("Savings Plan") and the
Westvaco Retirement Plan for Salaried Employees ("Pension Plan").
The parties have stipulated that both the Savings Plan and the Pension
Plan are "employee benefit pension plan[s]" within the meaning of the
Employee Retirement Income Security Act. 29 U.S.C. § 1002(2)(A)
(2002). The Savings Plan is funded partly by contributions from par-
ticipants and partly by contributions from Westvaco. The Pension
Plan is funded entirely by Westvaco. Rego regularly received commu-
nications pertaining to each plan, including a Summary Plan Descrip-
tion. He also attended a Pre-Retirement Seminar in 1996 for Savings
Plan participants.
REGO v. WESTVACO CORP. 3
In May 1997, Westvaco notified Rego that his position with West-
vaco was going to be eliminated and that he would be terminated
effective October 15, 1997. He was told to contact human resources
employee Cheryl Blume with any questions he had regarding the
company Savings Plan and Pension Plan.
On October 16, 1997, Westvaco sent Rego a letter with information
about his company benefits and the mechanics of withdrawing funds
from the two Plans after his termination. The letter informed Rego
that he was eligible to submit distribution forms at any time, and that
if he chose to withdraw funds from the Plan, his "account would be
valued on the Tuesday next following or coincident with the receipt
of [his] distribution form." The Plan itself states that a terminated
employee will be able to withdraw all of his funds on "any Valuation
Date [any Tuesday when the New York Stock Exchange is open]
elected by the member." Likewise, the Summary Plan Description
states that a terminated employee can receive a distribution of all his
funds with an immediate valuation if he turns in his request by 4:15
p.m. on the Valuation Date of his choice.
Rego alleges that he and his wife repeatedly asked Blume to spec-
ify the earliest date that Rego’s funds in the Savings Plan could be
valued and distributed. According to Rego, Blume consistently
responded that the earliest point Rego could do this was November
4, 1997. Blume testified that she does not recall any such conversa-
tion, but offered one reason why she might have identified November
4 as the relevant date. Rego was actually entitled to a valuation and
distribution of some of his assets on October 21, 1997 — the first
Valuation Date following his termination. But because he did not
receive his final paycheck (a portion of which was automatically
invested in the Savings Plan on his behalf) until the end of October,
Rego could not actually have withdrawn all of his funds from the Plan
until November 4. Blume testified that, therefore, "if he had asked
me, when can I withdraw all of my funds, then I would have had to
tell him . . . November 4th."
Another employee who had been terminated on the same day as
Rego went directly to Blume on October 21, 1997 and told her that
he wanted his interest in the Savings Plan valued and distributed
4 REGO v. WESTVACO CORP.
effective that day. Blume executed the employee’s request, and he
received his distribution with a valuation date of October 21.
Based on the information given to him by Blume, Rego requested
that his holdings in the Savings Plan be valued and distributed to him
at the earliest time he thought possible: November 4. Had his holdings
been valued on October 21, they would have been worth $197,228.
However, on October 27, the value of the stock in the Plan fell sub-
stantially, and Rego notified Blume that he no longer wanted his por-
tion of the Savings Plan distributed on November 4.
More than a year later, on January 25, 1999, Rego submitted distri-
bution forms directing defendants to distribute his Savings Plan funds
by sending the cash proceeds to one IRA and the stock shares to
another IRA. Rather than filling out the pre-printed distribution forms
completely, he attached a separate sheet detailing his instructions for
the distribution. Blume approved the forms and told Rego that the val-
uation would be effective on February 9. The valuation on February
9 would have been $126,146. However, Blume was then told by
another Westvaco employee that Rego could not make multiple distri-
butions from his funds. She was told that this "was not company pol-
icy but a matter of cost and Westvaco chose not to do multiple
rollovers."
On February 16 and 17, another employee of Westvaco told Rego
and his wife that he could not make his distribution as requested, both
because multiple rollovers were impossible and because forms could
not be completed by reference to attached materials. Rego and his
wife replied that he should not have to file new forms, and that his
distribution should be valued based on the February 9, 1999 valua-
tion. However, on February 25 Rego received a letter stating that he
was required to file new forms, and that the valuation would be based
on the value on the Tuesday following the date of the receipt of the
forms. This letter did not inform him that he had a right to appeal the
determination about the Savings Plan distribution.
Ultimately, Rego’s interest in the Savings Plan was distributed to
him in the form of stock on March 2, 1999 and valued at $113,796.
He eventually sold the stock through several transactions at the end
of 1999 for a total of $182,288.
REGO v. WESTVACO CORP. 5
Besides the dispute over the Savings Plan distributions, the two
parties have also joined issue over Westvaco’s handling of Rego’s
Pension Plan participation. On May 6, 1998, Rego prepared, nota-
rized, and mailed forms to begin his pension payments on February
1, 1999. However, when his wife called Westvaco in January 1999 to
ensure that pension payments would begin as scheduled, she was told
that Westvaco could not find any retirement forms for Rego. She then
faxed copies of the forms to Westvaco, which were received on Janu-
ary 27. Westvaco took no action until February 5, 1999, at which
point Rego’s wife was informed that the forms were incorrect because
they were more than ninety days old. Rego had not been aware of the
ninety-day rule, because the statement of that rule was contained in
an April 1997 Pension Plan amendment that he never received.
Rego’s pension was not started until March.
Rego filed suit against Westvaco, its Plan Administrator, the Sav-
ings Plan, and the Pension Plan. His claims focused on four issues:
Westvaco’s failure to value his assets on October 21, 1997, Westva-
co’s failure to value his assets on February 9, 1999, Westvaco’s fail-
ure to begin his Pension Plan payments in February 1999, and
Westvaco’s failure to provide him with statutorily required informa-
tion. The district court dismissed most of his claims under Fed. R.
Civ. P. 12(b)(6). It remanded three of them — a claim for the differ-
ence in his Savings Plan assets between the October 21, 1997 and
March 2, 1999 valuation, a claim for the difference in those assets
between the February 9, 1999 and March 2, 1999 valuation, and a
claim for the money he would have received from the Pension Plan
between February 1 and March 1, 1999 — for exhaustion of adminis-
trative remedies before the Benefits Plans Administration Committee
(BPAC), the entity responsible for the resolution of administrative
claims related to the Savings Plan and the Pension Plan.
Administrative remedies resulted in an award to Rego of the pen-
sion money that should have been paid to him during February 1999,
with interest. His claims under the Savings Plan, however, were
rejected. The district court dismissed his challenge to the administra-
tive ruling on summary judgment. The court also refused to grant him
attorney’s fees for the expense of pursuing his Pension Plan claim
administratively. Rego now appeals.
6 REGO v. WESTVACO CORP.
II.
Rego first claims that he was entitled to relief under 29 U.S.C.
§ 1132(a)(3), which allows plaintiffs to obtain "appropriate equitable
relief" for ERISA violations in certain cases. 29 U.S.C. § 1132(a)(3)
(2002). Specifically, he argues that defendants breached their fidu-
ciary duty by failing to give him complete and accurate information
about his benefits plans when he requested it. He contends that com-
munications on plan benefits are a fiduciary function and that
§ 1132(a)(3) therefore provides him with a cause of action to remedy
defendants’ breach. He requests an order of specific performance
requiring defendants to issue him roughly $85,000 in Westvaco stock,
or the difference between the valuation on October 21, 1997 and
March 2, 1999.
The district court dismissed this claim on summary judgment, hold-
ing that Rego’s requested relief was not fairly classifiable as equita-
ble, which is required for a claim to proceed under § 1132(a)(3). We
agree.
Rego begins by arguing that, at common law, actions for breach of
fiduciary duty by a trustee could only be brought in equity. See Austin
Wakeman Scott & William Franklin Fratcher, The Law of Trusts
§ 197 (4th ed. 1988). He therefore contends that under § 1132(a)(3)
any "remedy, when sought for breach of fiduciary duty, is always an
equitable remedy." The Supreme Court has squarely rejected this
argument, holding that it would read the statute to render the modifier
"equitable" superfluous, since "all relief available for breach of trust
could be obtained from a court of equity." Mertens v. Hewitt Assocs.,
508 U.S. 248, 257 (1993) (emphasis in original). Defining equitable
relief, in other words, as "‘whatever relief a common-law court of
equity could provide in such a case’ would limit the relief not at all."
Mertens, 508 U.S. at 256 (emphasis in original). Rather, § 1132(a)(3)
authorizes only "those categories of relief that were typically available
in equity (such as injunction, mandamus, and restitution, but not com-
pensatory damages)." Id. at 257 (emphasis in original). And the scope
of this relief is emphatically not defined by reference to the "many sit-
uations" at common law "in which an equity court could establish
purely legal rights and grant legal remedies which would otherwise
be beyond the scope of its authority." Id. at 256 (internal quotation
REGO v. WESTVACO CORP. 7
omitted). Under Mertens, then, the relevant question is not whether
a given type of case would have been brought in a court of equity, but
whether a given type of relief was available in equity courts as a gen-
eral rule. And the relief Rego seeks was not available. In fact, "mone-
tary relief for all losses . . . sustained as a result of [an] alleged breach
of fiduciary duties. . . . [was] the classic form of legal relief." Id. at
255 (emphasis in original).
Rego then argues that his claim can be considered a request for
equitable restitution or a constructive trust — a type of relief which
was typically available in courts of equity. This claim fails as well.
In Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204
(2002), the Supreme Court addressed this issue in the course of deny-
ing a claim for relief under § 1132(a)(3). With a minor exception not
relevant here, a claim for equitable restitution must seek "not to
impose personal liability on the defendant, but to restore to the plain-
tiff particular funds or property in the defendant’s possession." Id. at
214. The plaintiff, in other words, must argue that "money or property
identified as belonging in good conscience to the plaintiff could
clearly be traced to particular funds or property in the defendant’s
possession." Id. at 213. It is only under such circumstances that plain-
tiffs can proceed in equity with a claim for restitution; other claims
for restitution are considered "restitution at law." Id. (emphasis in
original).
In this case, defendants possess no particular fund or property that
can be clearly identified as belonging in good conscience to the plain-
tiff. The "particular fund[ ] or property" that is the basis of Rego’s
claim was simply his share of the Savings Plan. And that share has
long since been transferred to Rego; it is no longer in defendants’ pos-
session.
Rego next argues that the relief he seeks is equitable because
make-whole relief has traditionally been available under trust law as
an equitable form of relief for a trustee’s breach of duty. But it is
obvious on the face of his complaint that Rego is not actually trying
to make himself whole. At most, defendants’ actions caused Rego to
lose approximately $24,500: the difference between the valuation on
October 21, 1997 and the amount for which he eventually sold his
shares. Rego, however, requests far more than that amount: approxi-
8 REGO v. WESTVACO CORP.
mately $80,000, a figure based on the difference between the October
21 valuation and the March 2, 1999 valuation. This claim in no way
corresponds to any out of pocket loss; it is thus in no sense a request
to be "restored to the position [he] would have occupied if the misrep-
resentations . . . had never occurred." Howe v. Varity Corp., 36 F.3d
746, 756 (8th Cir. 1994), aff’d, 516 U.S. 489 (1996). We decline to
consider it "appropriate equitable relief" authorized by § 1132(a)(3).
III.
Rego also brings a claim for relief under 29 U.S.C.
§ 1132(a)(1)(B), which entitles plaintiffs "to recover benefits due to
[them] under the terms of [their] plan." 29 U.S.C. § 1132(a)(1)(B)
(2002). He claims that the BPAC improperly denied him benefits by
refusing his claim for the difference between the October 21, 1997
valuation and the March 2, 1999 valuation. He argues that, had it not
been for the misinformation promulgated by Westvaco and its
employees, he would have withdrawn the lion’s share of his Savings
Plan assets on October 21, 1997 rather than on March 2, 1999, when
their value was substantially lower. He argues that under
§ 1132(a)(1)(B) he is therefore entitled to recover the difference
between the valuations on those two dates. The district court rejected
this claim, and we affirm.
A denial of benefits challenged under § 1132(a)(1)(B) is "reviewed
under a de novo standard unless the benefit plan gives the administra-
tor . . . discretionary authority to determine eligibility for benefits or
to construe the terms of the plan." Firestone Tire & Rubber Co. v.
Bruch, 489 U.S. 101, 115 (1989). When reviewing an administrative
decision regarding benefits, then, a court must determine whether the
plan’s language confers such discretion on the administrator, and if
so, whether the administrator’s decision falls within the scope of the
discretion conferred. Haley v. Paul Revere Life Ins. Co., 77 F.3d 84,
89 (4th Cir. 1996). If the administrator acted within the scope of dis-
cretion conferred on him by the plan, the decision is reviewed merely
for abuse of discretion. Id. If the administrator did not act within the
scope of such discretion, the decision is reviewed de novo. Bruch, 489
U.S. at 115.
In resolving this initial question, "[w]e have not . . . always
required an explicit grant of discretionary authority. Rather, we have
REGO v. WESTVACO CORP. 9
recognized that a plan’s terms can create discretion by implication."
Feder v. Paul Revere Life Ins. Co., 228 F.3d 518, 523 (4th Cir. 2000).
Such discretion can be inferred from the plain language of both the
plan itself and the Summary Plan Description. See Sheppard & Enoch
Pratt Hosp., Inc. v. Travelers Ins. Co., 32 F.3d 120, 124 (4th Cir.
1994); see also Buce v. Allianz Life Ins. Co., 247 F.3d 1133, 1138,
1141 (11th Cir. 2001). In United McGill Corp. v. Stinnett, 154 F.3d
168 (4th Cir. 1998), for example, discretionary authority was found
where a plan granted the administrator authority to "construe the
terms of the Plan and resolve any disputes which may arise with
regard to the rights of any persons under the terms of the plan." Id.
at 171. And in Boyd v. Trustees of the United Mine Workers Health
& Retirement Funds, 873 F.2d 57 (4th Cir. 1989), we found implied
discretionary authority where the administrator was given the power
of "full and final determination as to all issues concerning eligibility
for benefits" and was "authorized to promulgate rules and regulations
to implement this Plan." Id. at 59.
The language in the Savings Plan grants this kind of implied dis-
cretionary authority. Like the language in Boyd, the Savings Plan
instructs the administrator to "adopt such procedures and rules as he
deems necessary or advisable to administer the Plan." And like the
plans in Boyd and Stinnett, the Summary Plan Description provides
that the BPAC is responsible for both the "determination of partici-
pants’ eligibility to receive benefits" and the "determination of
appeals of denied claims." As the district court noted, these grants of
authority indicate that "the administrator is the ultimate and final
decision-maker with respect to coverage under the Savings Plan."
This in turn demonstrates that the Savings Plan gives the administra-
tor discretionary authority to make benefits eligibility determinations.
It is clear BPAC was acting within the scope of this discretion
when it made the decision currently under review. As discussed
above, BPAC is charged with making final determinations on appeals
of denied benefits claims. That is precisely what it did here. Since
BPAC was acting within the scope of the discretion conferred on it
by the Savings Plan, we review its decision only for abuse of discre-
tion.*
*Rego contends that we should actually apply a de novo standard
regardless of the language in the Savings Plan and the Summary Plan
10 REGO v. WESTVACO CORP.
There was ample evidence to support the BPAC’s refusal to grant
Rego the difference between the valuations on October 21, 1997 and
March 2, 1999. The Summary Plan Description, the Savings Plan
itself, and the letter sent to Rego on October 16, 1997 all informed
Rego that he would be able to make his first withdrawal from the plan
on the Tuesday following his termination — October 21, 1997. The
October 16 letter was particularly explicit in this regard. Furthermore,
Blume failed to confirm Rego’s contention that she had told him that
his earliest possible distribution date was November 4. Indeed, she
had processed distribution forms on October 21 for another employee
who had been terminated on the same day as Rego. In the words of
the report adopted by the BPAC, "[i]t does not make sense that she
would process [the other employee’s distribution request forms on
October 21, 1997], but tell Mr. Rego that he could not take his distri-
bution until November 4, 1997." In combination, these factors were
more than sufficient to support the BPAC’s conclusion that Westvaco
was not responsible for Rego’s failure to apply for a distribution
effective October 21, 1997.
IV.
Rego argues in the alternative that the BPAC improperly denied
him benefits by refusing his claim for the difference between the Feb-
ruary 9, 1999 valuation and the March 2, 1999 valuation. Asserting
that Westvaco’s reasons for denying him a distribution on February
9 were legally insufficient, he contends that he is therefore entitled to
"recover benefits due to him under the terms of his plan" in the form
of the difference between the valuations on those two dates. 29 U.S.C.
§ 1132(a)(1)(B). The district court rejected this claim, and we affirm.
Document, for two independent reasons. First, he argues that he did not
receive a full and fair review when the claim was initially denied. The
locus of our scrutiny, however, is the BPAC’s ultimate decision and not
any earlier proceedings in the case. And the fact that the parties offer
contradictory evidence about whether Blume gave Rego accurate infor-
mation about his earliest distribution date does not render the BPAC’s
review less than full and fair. Second, Rego argues in passing that the
BPAC’s decision was compromised by a conflict of interest. He does not
explain his contention, however, and certainly offers no basis for us to
overturn the district court’s rejection of this claim.
REGO v. WESTVACO CORP. 11
For the reasons discussed in Part III, we hold that the BPAC was
acting within the discretion conferred upon it by the Plan when it
denied Rego’s claim on this score. We therefore review its decision
under the deferential abuse of discretion standard prescribed by
Haley, 77 F.3d at 89, and hold that the BPAC did not abuse its discre-
tion in rejecting Rego’s request for benefits.
There was sufficient evidence before the BPAC to justify its denial
of Rego’s claim. When submitting his request for a distribution on
February 9, Rego made two errors. First, Rego submitted his instruc-
tions for the distribution in a letter to the administrators rather than
on the distribution form itself. But the Savings Plan Trustee,
Wachovia Bank — which is not a party to this lawsuit — refuses to
distribute a beneficiary’s funds if the distribution instructions are
written on the attachments rather than on the distribution form itself.
Second, Rego requested that his Savings Plan funds be distributed to
two different financial institutions. But longstanding Savings Plan
policy requires participants to distribute their Plan funds to only one
financial institution, since the alternative "would be too complex and
costly to administer." Despite these mistakes, the Savings Plan
promptly distributed Rego’s shares to him as soon as he corrected the
flaws in his request. Together, these facts presented a sufficient basis
for the BPAC to deny Rego’s claim for improperly-denied benefits.
Any complex administrative process requires uniformity and
adherence to basic filing rules. As the Seventh Circuit has noted, "[a]
plan administrator’s duty to act in the best interest of all the beneficia-
ries cannot mean that it must cater to the optimal needs of each indi-
vidual beneficiary." Ameritech Benefit Plan Comm. v.
Communication Workers of Am., 220 F.3d 814, 825 (7th Cir. 2000).
It was reasonable for the BPAC to find that Rego was not entitled to
a distribution of his funds until he had complied with the basic filing
regulations of the plan.
V.
Rego also attempts to fashion two claims under federal common
law: one for negligent misrepresentation and the other for breach of
fiduciary duty. He asserts that these causes of action must be created
in order to fill the gaps of the ERISA statutory scheme. The district
12 REGO v. WESTVACO CORP.
court dismissed this claim under Fed R. Civ. P. 12(b)(6), and we
affirm.
The Supreme Court has been unequivocal in its warning that courts
should be "especially reluctant to tamper with [the] enforcement
scheme embodied in the [ERISA] statute by extending remedies not
specifically authorized by its text." Knudson, 534 U.S. at 209 (internal
quotation omitted). The instant case presents no gap in ERISA that
requires an interstitial fix. Essentially, Rego is attempting to recover
damages for a denial of benefits and a breach of fiduciary duty, two
actions for which ERISA already creates remedies. See 29 U.S.C.
§ 1132(a)(1)(B) (denial of benefits); 29 U.S.C. § 1132(a)(3) (breach
of fiduciary duty); see generally Varity Corp. v. Howe., 516 U.S. 489,
510 (1996) (breach of fiduciary duty). Congress clearly contemplated
plaintiffs like Rego and explicitly created remedies for them within
the text of the statute itself. We may not disregard Congress’ decision
to limit the scope of those remedies.
Rego contends that the Fourth Circuit has already implemented a
common law version of the remedy he seeks. In Provident Life &
Accident Insurance Co. v. Waller, 906 F.2d 985 (4th Cir. 1990), the
court allowed an insurance company to proceed against a beneficiary
under a theory of unjust enrichment. "The use of a federal common
law theory claim of unjust enrichment in Waller," however, "was
clearly the exception and not the rule for ERISA cases." Elmore v.
Cone Mills Corp., 187 F.3d 442, 449 (4th Cir. 1999). In Waller, the
insurance company had issued a payment to the beneficiary to cover
medical costs for an injury sustained in a car accident. The benefi-
ciary subsequently collected damages from the other driver, but
refused to reimburse the insurance company as the plan explicitly
contemplated. Waller, 906 F.2d at 986-87. We allowed the insurance
company to proceed under federal common law because "ERISA
[did] not provide an explicit remedy" for the insurance company. Id.
at 990. The present case is quite different. As noted above, Rego
already has causes of action available to him within the explicit text
of ERISA. His lack of success on the merits of those claims does not
mean that ERISA suffers from a gap that requires plugging.
VI.
Rego also seeks liquidated damages for defendants’ failure to pro-
vide him with certain information relating to his rights as a benefi-
REGO v. WESTVACO CORP. 13
ciary. Rego contends that defendants did not inform him that he could
appeal their refusal to start his Pension Plan benefits on February 9,
1999. He further contends that defendants did not provide him notice
of amendments made to the Pension Plan that were a partial basis for
their refusal to begin his Pension Plan benefits on February 9, 1999.
Rego argues that he is therefore entitled to liquidated damages of
$100 per day under 29 U.S.C. § 1132(c)(1)(B). The district court dis-
missed this claim under Fed. R. Civ. P. 12(b)(6), and we affirm.
To state a claim under § 1132(c)(1)(B), a plaintiff must allege that
he submitted "a request for . . . information" which was ignored by
defendants. 29 U.S.C. § 1132(c)(1)(B); see also Hozier v. Midwest
Fasteners, Inc., 908 F.2d 1155, 1167 (3d Cir. 1990). Rego argues that
he did not need to submit such a request because defendants were
required to give him the information whether or not he requested it.
See 29 U.S.C. § 1133 (obligation to provide beneficiaries a reasonable
opportunity to appeal a denial of benefits); 29 U.S.C. § 1024(b)(1)
(obligation to inform beneficiaries about amendments to an ERISA-
covered plan). But even assuming arguendo that defendants violated
§ 1133 and § 1024(b)(1), it would contravene the clear text of
§ 1132(c)(1)(B) to choose liquidated damages as a remedy for those
violations absent an active "request for . . . information" by a benefi-
ciary. Rego’s amended complaint nowhere alleges that he requested
any information from defendants which they refused to deliver to
him. His failure to do so means that he also fails to state a claim.
VII.
Finally, Rego appeals the district court’s denial of attorney’s fees.
He argues that since administrative review of his Pension Plan claim
awarded him the substantive relief he had requested, he should
receive attorney’s fees and costs related to that claim. The district
court dismissed this claim, and we affirm.
A large portion of the fees in question stem from expenses incurred
during administrative proceedings. 29 U.S.C. § 1132(g) authorizes
district courts to allow "a reasonable attorney’s fee" in "any action
under [ERISA]." 29 U.S.C. § 1132(g)(1) (2002). While the word "ac-
tion" need not necessarily mean litigation in district court, see Penn-
sylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546,
14 REGO v. WESTVACO CORP.
559-61 (1986), here we agree with our sister circuits that have held
ERISA attorney’s fees to be categorically unavailable for expenses
incurred while exhausting administrative remedies. See Cann v. Car-
penters’ Pension Trust Fund for N. Cal., 989 F.2d 313, 316 (9th Cir.
1993) ("We construe [§ 1132(g)(1)] as limiting the award to fees
incurred in the litigation in court."); Anderson v. Procter & Gamble
Co., 220 F.3d 449, 455 (6th Cir. 2000) ("[Section] 1132(g)(1) should
not be interpreted to permit fee awards for legal expenses incurred in
the course of exhausting administrative remedies.").
ERISA is characterized in part by a congressional "desire not to
create a system that is so complex that administrative costs, or litiga-
tion expenses, unduly discourage employers from offering welfare
benefit plans in the first place." Varity Corp., 516 U.S. at 497. For this
reason, Congress required benefits plans to create internal dispute res-
olution procedures in order "to minimize the number of frivolous
ERISA lawsuits; promote the consistent treatment of benefit claims;
provide a nonadversarial dispute resolution process; and decrease the
cost and time of claims settlement." Makar v. Health Care Corp. of
Mid-Atlantic (Carefirst), 872 F.2d 80, 83 (4th Cir. 1989). If attorneys
were injected into those administrative procedures as a matter of
course, it would establish a far higher degree of formality and lead to
more protracted litigation in a great many cases. The resulting combi-
nation of increased litigation costs and decisions by benefits plans to
pay questionable claims so as to avoid such costs could severely
undermine the congressional purpose of promoting "the soundness
and stability of plans with respect to adequate funds to pay promised
benefits." 29 U.S.C. § 1001(a) (2002); see Cann, 989 F.2d at 317. It
is largely for this reason that ERISA claimants must exhaust the rem-
edies provided by their benefit plans before bringing an ERISA action
for denial of benefits. Makar, 872 F.2d at 81. The majority of claims
should thus be resolved through informal administrative processes,
for which no award of attorney’s fees is authorized.
Rego also seeks attorney’s fees for the time spent litigating the
Pension Plan dispute in district court. In this case, the only reason that
the administrative proceedings were mandated after court proceedings
had already begun was because Rego had failed to exhaust them in
the first place as required by Makar. If Rego had exhausted those
remedies before commencing litigation, he would have no litigation-
REGO v. WESTVACO CORP. 15
related expenses to which a fee award under § 1132(g)(1) could
apply, since he would have been successful at the administrative level
on his Pension Plan claim. We therefore hold that the district court
did not abuse its discretion in refusing to award any attorney’s fees
to Rego.
VIII.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.