O'Shea Ex Rel. O'Shea v. UPS Retirement Plan

United States Court of Appeals
For the First Circuit

No. 15-1923

BRIAN O'SHEA, through his Executor Michael O'Shea; MICHAEL
O'SHEA, in his personal capacity, on his own behalf as Plan
Beneficiary, and on behalf of other Plan Beneficiaries, Meghan
O'Shea, John O'Shea and Colleen O'Shea,

Plaintiffs, Appellants,

v.

UPS RETIREMENT PLAN; UNITED PARCEL SERVICE OF AMERICA, INC.;
UPS RETIREMENT PLAN ADMINISTRATIVE COMMITTEE,

Defendants, Appellees,

DOE DEFENDANTS 1, 2, AND 3,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]

Before

Thompson, Circuit Judge,
Souter, Associate Justice, and
Barron, Circuit Judge.

Stephen D. Rosenberg, with whom Caroline M. Fiore and The
Wagner Law Group were on brief, for appellants.
J. Timothy McDonald, with whom Megan S. Glowacki and Thompson
Hine LLP were on brief, for appellees.


The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
September 13, 2016
 THOMPSON, Circuit Judge. This suit, arising under the

Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001

et seq., presents the highly sympathetic case of a retiree whose

death one week before his official retirement date, but after his

final day of work, had the unexpected consequence of depriving his

beneficiaries of ten years of payments under an annuity plan.

Though we regret the heartbreaking outcome, after careful

consideration, we must affirm.

I.

We begin with the facts, which are not in dispute. Brian

O'Shea (O'Shea) worked for defendant-appellee United Parcel

Service of America, Inc. (UPS) for 37 years.1 As an employee of

UPS, he participated in the UPS Retirement Plan (Plan).

Unfortunately, in 2008, O'Shea was diagnosed with cancer. He

became eligible for retirement in 2009, and decided to retire at

the end of that year.

O'Shea met with a UPS human resources (HR) supervisor to

discuss the logistics of his retirement in December 2009. The HR

supervisor informed him that he could maximize his time on payroll

by taking his seven weeks of accrued vacation and personal time

1
For ease, to refer to the defendants-appellees UPS, UPS
Retirement Plan, and UPS Retirement Plan Administrative Committee
collectively, we will use "UPS."

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and, thus, delaying his official retirement date.2 It is standard

practice apparently for UPS to advise its employees that they can

redeem their vacation time before officially retiring.

Regrettably, the HR supervisor was not aware at the time that

O'Shea was terminally ill.3

O'Shea took the HR supervisor's advice. He submitted

his retirement application on January 7, 2010, his last day of

work, and indicated that his annuity starting date4 would be March

1, 2010, the day after his official retirement date of February

28, 2010. He chose the "Single Life Annuity with 120-Month

Guarantee" from a host of annuity payment plan options available

under the Plan, and named his four children -- plaintiffs-

appellants Michael O'Shea, Meghan O'Shea, John O'Shea, and Colleen

O'Shea (collectively, the O'Sheas) -- as his beneficiaries. Under

his selected annuity, "a reduced benefit [would] be paid to

[O'Shea] for his lifetime, with a guarantee of 120 monthly

payments."

The application for retirement benefits, executed by

O'Shea, provided, in pertinent part: "I will receive a monthly

2 Before retirement, O'Shea's monthly salary was $7,800.00.
His monthly annuity payments would have been $4,117.35.
3She did know that O'Shea was "in poor health," but apparently
did not realize the "severity of his illness."
4 The "Annuity Starting Date" is "the first day of the first
period for which an amount is payable as an annuity."

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benefit for my lifetime with a guarantee of monthly payments for

a period of 10 years. If I die within the 10-year guarantee

period, my beneficiar[ies] will continue to receive my monthly

benefit amount for the remainder of the guarantee period." The

section of the application where O'Shea listed his beneficiaries'

information provided: "If you die before the guarantee period ends,

your designated beneficiar[ies] will receive payments for the

remainder of the guarantee period." Nowhere in the retirement

benefits application, and at no point during his consultation with

the HR supervisor, was it made explicit that surviving to the

annuity starting date (i.e., March 1, 2010, the day after his

official retirement date) was a prerequisite to the ten-year

payment guarantee. It seems that O'Shea was therefore unaware he

risked forfeiting the ten years of guaranteed payments to his

beneficiaries by delaying his retirement date, especially while

terminally ill.

The retirement benefits application did explain,

however, that the summarized benefit plan designations would be

paid "subject to the terms of the Plan." Section 5.4(d)(iii) of

the Plan, which describes the "Single Life Annuity with 120-Payment

Guarantee" selected by O'Shea, clarifies that "[i]f the

Participant dies after the Annuity Starting Date but before

receiving 120 monthly payments, the monthly payments shall be paid

to the Participant's Beneficiary . . . ." (emphasis added). The

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only provision of the Plan that explicitly provides for a

retirement benefit if a participant dies prior to their annuity

starting date is Section 5.6, which states: "If a vested

Participant dies prior to his Annuity Starting Date, his Spouse or

Domestic Partner will be entitled to receive a Preretirement

Survivor Annuity . . . ."5 (emphasis added).

After submitting his application for retirement

benefits, O'Shea was invited to participate in UPS's Special

Restructuring Program (SRP), which incentivized early retirement

by offering one year's compensation to select employees in exchange

for signing a release of claims and retiring. O'Shea met with his

attorney on February 12, 2010. The same day, he accepted the SRP

and executed the release of claims. In return, O'Shea received a

single, pre-tax payment of $98,800.

The release, which is only a few paragraphs long, defined

the "Released Parties" broadly as UPS and "all related companies,"

including "employee benefit programs (and the trustees,

administrators, fiduciaries, and insurers of such programs)." The

released claims included "all known and unknown claims, promises,

[and] causes of action . . . that [O'Shea] may presently have . .

5
In a section titled "If You Die Before You Retire," the
Plan's summary plan description similarly provides: "If you die
after you become vested in your Plan benefit but before your
retirement benefit begins, your surviving spouse or surviving
Domestic Partner . . . may receive a monthly benefit from the
Plan."

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. against any Released Party." It did not bar claims that accrued

after execution of the agreement. But the release made clear that

O'Shea was "releasing [c]laims that [he] may not know about."

O'Shea passed away on February 21, 2010, one week before

his official retirement date, and eight days before his annuity

starting date. About a month later, defendant-appellee UPS

Retirement Plan Administrative Committee (the Committee) -- the

Plan's claims administrator -- sent the O'Sheas a letter denying

them payments under the annuity plan. The Committee explained

that only O'Shea's spouse, if he had one, would be able to recover

under the Plan.6

The O'Sheas appealed this decision, believing that the

ten years of annuity payments were guaranteed to them regardless

of when their father died. In particular, they argued that nothing

in the Plan "explains what happens if you select the 'Single Life

Certain Annuity With 10-Year Payment Guarantee' . . . and you die

before you retire (without a spouse or partner)."

The Committee denied the appeal on June 1, 2010. Relying

on Section 5.6 of the Plan, the denial letter explained that the

annuity payments were only guaranteed if O'Shea survived to his

6 According to the O'Sheas' initial letter appealing UPS's
denial of benefits, UPS had also called the O'Shea family in "early
March" and explained that the O'Sheas "would not get [their
father's] pension because he died while still an 'active' employee
and did not, in fact, retire."

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annuity starting date, and that O'Shea's death as an active UPS

employee triggered the "Preretirement Survivor Annuity" (payable

only to spouses or domestic partners) in lieu of the "Single Life

Annuity with 120-Month Guarantee."7

The O'Sheas filed a second administrative appeal, this

time with the help of counsel, arguing that UPS breached its

fiduciary duty to their father. Specifically, the O'Sheas asserted

that their father was talked into delaying his retirement date,

that the consequences of the delay were not made clear to him, and

that UPS had misrepresented to him that his payments were

"guaranteed." On October 1, 2010, the Committee once again denied

the appeal. This time the Committee highlighted language in the

retirement application ("if I die within the 10-year guarantee

period"), in addition to Section 5.6, noting that the application

itself "clearly informed [] O'Shea that the only payments to

beneficiaries were if he died within the 10-year guarantee period."

The Committee also explained that any breach of fiduciary duty or

misrepresentation claim had been released by their father when he

decided to participate in UPS's SRP.

7
Although O'Shea was single when he died, his ex-wife
subsequently brought a claim for the "Preretirement Survivor
Annuity" benefits pursuant to a Qualified Domestic Relations
Order. UPS approved her claim, and she began receiving $315.05 a
month under the "Preretirement Survivor Annuity" (as opposed to
the $4,117.35 UPS would have paid monthly under the "Single Life
Annuity with 120-Month Guarantee").

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 The O'Sheas then filed suit in district court, seeking

recovery of the ten years of annuity payments allegedly

"guaranteed" under the Plan. Their complaint included two counts:

a claim for benefits under ERISA § 502(a)(1)(B), 29 U.S.C. §

1132(a)(1)(B), and a claim for equitable relief under ERISA

§ 502(a)(3)(B), 29 U.S.C. § 1132(a)(3)(B). The equitable claim

was based on alleged misrepresentations made to O'Shea when he

selected his retirement benefits.

UPS first moved to dismiss the O'Sheas' equitable claim,

arguing that the claim: (1) was barred by the release O'Shea

executed under the terms of the SRP; (2) was barred by the statute

of limitations for breach of fiduciary duty claims under ERISA, 29

U.S.C. § 1113(2); and (3) was precluded by the O'Sheas' ability

"to avail themselves of other remedies." Ruling from the bench,

the district court granted the motion, concluding that any alleged

misrepresentations were made before O'Shea selected his retirement

benefits and, therefore, any potential claim based on those

misrepresentations would have been released under the terms of the

SRP. Because it held that O'Shea had released his equitable claim,

the district court did not address UPS's other arguments for

dismissal.

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 The parties then cross-moved for judgment as a case

stated8 on the O'Sheas' remaining claim for benefits under ERISA

§ 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B). The district court

ultimately granted UPS's motion for judgment, concluding that

UPS's construction of the Plan terms was not only "plausible," but

"correct" in light of the plain language of the Plan's terms.

O'Shea v. UPS Ret. Plan, 115 F. Supp. 3d 138, 151 (D. Mass. 2015).

The district court found Section 5.4 -- which describes the "Single

Life Annuity with 120-Month Guarantee" selected by O'Shea and

provides "that '[i]f the Participant dies after the Annuity

Starting Date but before receiving 120 monthly payments, the

monthly payments shall be paid to the Participant's Beneficiary,"

id. at 151 (quoting UPS Plan 62) -- to be "the most important

provision of the Plan" and determined that the O'Sheas' reading of

the Plan would render the first clause of Section 5.4 "useless."

Id. Moreover, the district court found UPS's reading of Section

5.6, which provides for "Preretirement Survivor Annuity" payments

8Since the facts were not in dispute, the parties agreed to
resolve the action at a case stated hearing. O'Shea v. UPS Ret.
Plan, 115 F. Supp. 3d 138, 139 & n.1 (D. Mass. 2015) (explaining
that "[a] case stated hearing is a procedure that allows the Court
to make a judgment based on the record in cases where there are
minimal factual disputes" and allows "the Court . . . to 'engage
in a certain amount of factfinding, including the drawing of
inferences'" (quoting TLT Constr. Corp. v. RI, Inc., 484 F.3d 130,
135 n.6 (1st Cir. 2007))).

- 10 -
to a participant's spouse or domestic partner, to be "[s]imilarly

reasonable." Id. This appeal followed.

II.

On appeal, the O'Sheas argue that UPS's interpretation

of the Plan is arbitrary and capricious, and that the district

court erred in concluding that UPS's reading of the Plan was

correct. The O'Sheas also contend that the district court erred

in dismissing their claim for equitable relief because, they argue,

the claim "came into existence only after the release was executed"

and O'Shea "did not intend knowingly and voluntarily to relinquish

claims involving annuity payments."

A. Claim for Benefits

Our review of the district court's decision is de novo.

Glista v. Unum Life Ins. Co. of Am., 378 F.3d 113, 125 (1st Cir.

2004). Where, as here, the ERISA plan provides the plan

administrator with the authority and discretion to interpret the

plan and to determine eligibility for benefits,9 we must uphold

the administrator's decision "unless it was 'arbitrary,

capricious, or an abuse of discretion.'" Niebauer v. Crane & Co.,

783 F.3d 914, 922-23 (1st Cir. 2015) (quoting Cusson v. Liberty

Life Assurance Co. of Bos., 592 F.3d 215, 224 (1st Cir. 2010)).

9Section 9.3 of the Plan provides that the Committee "shall
have the exclusive right to interpret the Plan and decide any
matters arising in the administration and operation of the Plan"
in a "conclusive and binding" capacity.

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This analysis focuses on whether the record as a whole supports a

finding that the plan administrator's decision was "plausible,"

"or, put another way, whether the decision is supported by

substantial evidence in the record." Id. at 923.

Under this standard, we need not decide the "best

reading" of the Plan. Stamp v. Metro. Life Ins. Co., 531 F.3d 84,

94 (1st Cir. 2008) (quoting Lennon v. Metro. Life Ins. Co., 504

F.3d 617, 624 (6th Cir. 2007)). We need only consider whether

UPS's interpretation of the Plan and its application of the Plan

terms to the facts of this case was "reasoned and supported by

substantial evidence."10 Id. (quoting Wright v. R.R. Donnelley &

10
As an initial matter, although the O'Sheas concede that the
arbitrary and capricious standard of review applies to this case,
they argue that the district court applied "an excessively broad
and incorrect interpretation" of the standard. In general, they
argue that the district court erred: (1) in applying a
"plausibility" standard instead of considering whether the
administrator's interpretation was "reasonable in light of the
facts" and "comport[ed] with the actual language" of the Plan; (2)
by "effectively ignor[ing] ambiguity in the Plan's terms"; and (3)
by improperly reading an exclusion into the Plan in violation of
our case law.
We think the O'Sheas largely misconstrue the district court's
analysis. Far from depending on an "excessively broad"
"plausibility" standard, the district court analyzed the Plan
language and concluded that UPS's interpretation of the Plan was,
in fact, "correct." O'Shea, 115 F. Supp. 3d at 151. Similarly,
the district court did not "ignore" ambiguity in the Plan terms;
it rejected the O'Sheas' arguments that the Plan was ambiguous,
concluding that because it had already ruled that UPS's reading of
the Plan was correct, the O'Sheas' ambiguity arguments "must fail."
Id. Moreover, the district court considered, and rejected, the
O'Sheas' argument that UPS's interpretation would improperly write
an exclusion into the Plan, determining that O'Shea was not, in
fact, excluded from coverage, but that he simply did not satisfy

- 12 -
Sons Co. Group Benefits Plan, 402 F.3d 67, 74 (1st Cir. 2005));

see also Coffin v. Bowater Inc., 501 F.3d 80, 93, 96 (1st Cir.

2007) (reviewing the plan administrator's determination of benefit

eligibility de novo and upholding its interpretation of the plan

because its interpretation was "significantly more persuasive"

than the plaintiffs' interpretation); Kolling v. Am. Power

Conversion Corp., 347 F.3d 11, 14 (1st Cir. 2003) (concluding that

"the Plan administrator has the discretion reasonably to determine

the meaning of [a] phrase [in the Plan]").

In denying the O'Sheas' claim for benefits, UPS

explained that because O'Shea died while still an active employee

(i.e., before his official retirement and subsequent annuity

starting date), O'Shea's spouse, if he had one, would be the only

person entitled to benefits under the terms of the Plan. And, in

fact, Section 5.6, which provides for payments to a participant's

spouse or domestic partner if the participant dies before the

a condition under the Plan that would allow him to receive the
specific benefit he requested. Id. (noting that "what is happening
in this case is not really an exclusion from coverage . . . .
O'Shea was included within the scope of the Plan -- he just did
not receive the benefit he wanted"). Because we conclude, however,
that UPS's interpretation of the Plan is "'significantly more
persuasive' than the interpretation offered by the [O'Sheas]," D
& H Therapy Assocs., LLC v. Boston Mut. Life Ins. Co., 640 F.3d
27, 36 (1st Cir. 2011) (quoting Coffin v. Bowater Inc., 501 F.3d
80, 93, 96 (1st Cir. 2007)), we need not parse the exact contours
of the district court's application of the standard of review, but
will proceed directly to our consideration of whether UPS's
interpretation of the Plan was arbitrary and capricious.

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annuity starting date, is the only provision in the entire Plan

that provides for a benefit when a participant dies before the

annuity starting date.

The provision, cited by UPS in its denial letter,

describes the "Preretirement Survivor Annuity" and provides that

"[i]f a vested Participant dies prior to his Annuity Starting Date,

his Spouse or Domestic Partner will be entitled to receive a

Preretirement Survivor Annuity . . . ." (emphasis added). Section

5.6 does not state explicitly that the "Preretirement Survivor

Annuity" is the exclusive benefit available if a participant dies

before the annuity starting date. But because no other term in

the Plan provides a benefit in that circumstance, UPS's

interpretation -- that Section 5.6 provides the exclusive benefit

when a participant dies before the annuity starting date -- is

certainly within "the bounds of reasonableness." D & H Therapy

Assoc. LLC v. Boston Mut. Life Ins. Co., 640 F.3d 27, 38 (1st Cir.

2011).

In response, the O'Sheas argue that Section 5.6 does not

reference the retirement benefit chosen by O'Shea -- the "Single

Life Annuity with 120-Month Guarantee" -- and, therefore, Section

5.6 does not address "the possible ramifications if a participant

elects that benefit but dies between . . . the retirement election

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and . . . the first annuity payment."11 In the O'Sheas' view,

Section 5.4 of the Plan, which describes the annuity selected by

their father, guarantees ten years of monthly payments to the

participant and his beneficiaries once the benefit is elected.12

In support, the O'Sheas note that Section 5.4 does not directly

state that the 120 months of payments will not be made if the

participant dies before reaching the annuity starting date. This

is true. Nevertheless, we read the plain language of Section 5.4

to comport with UPS's interpretation -- that Section 5.4 only

guarantees ten years of payments if the participant survives to

the annuity starting date.

The "Single Life Annuity with 120-Month Guarantee"

available under Section 5.4 of the Plan provides for a reduced

monthly benefit for the participant's lifetime, with 120 monthly

payments "guarantee[d]." Section 5.4(d)(iii) explains that "[i]f

the Participant dies after the Annuity Starting Date but before

11The O'Sheas also spend a substantial amount of time arguing
that because Section 5.6 was mandated by Congress to protect the
rights of surviving spouses, the section should be read narrowly.
This argument is not persuasive. Whether, or not, the language
was required by Congress is irrelevant. The section now appears
in the Plan, and it provides the only benefit available when a
participant dies before the annuity starting date.
12As UPS points out, under the O'Sheas' interpretation of the
Plan, it is not entirely clear when benefits would become
guaranteed: when the participant selects the benefit; when the
necessary paperwork is submitted; or when the paperwork is
accepted.

- 15 -
receiving 120 monthly payments, the monthly payments shall be paid

to the Participant's Beneficiary, until the Participant and his

Beneficiary have received a total of 120 payments." (emphasis

added). This language clearly seems to suggest that Section 5.4

only guarantees monthly payments to the participant's

beneficiaries when the participant dies after reaching the annuity

state date and, consequently, appears to create a clear

precondition to the "120-Month Guarantee" -- that the participant

reach the annuity start date.

We agree with the district court that the O'Sheas'

proposed interpretation of this section -- that it guarantees

monthly payments to a participant's beneficiaries even if the

participant dies prior to the annuity starting date -- "renders

the first clause of this key phrase completely useless." O'Shea,

115 F. Supp. 3d at 151. The O'Sheas suggest that the phrase is

included only "to reassure the reader that the payments to the

participant and the beneficiaries will still total 120" even if

the participant dies. But that interpretation still reads the

words "after the Annuity Starting Date" out of the clause. If, as

the O'Sheas argue, Section 5.4 guarantees all 120 payments to a

participant's beneficiaries even if the participant dies before

the annuity start date, the Plan would not need to specify that

beneficiaries will receive the 120 payments "[i]f the Participant

dies after the Annuity Starting Date." (emphasis added). It could

- 16 -
simply provide that if the participant dies before receiving 120

monthly payments, the monthly payments will be paid to the

participant's beneficiary. It does not.

Reading Sections 5.4 and 5.6 together, then, we find

UPS's interpretation of the Plan more than reasonable.13 O'Shea's

beneficiaries were eligible to receive either the "Single Life

Annuity with 120-Month Guarantee" -- if O'Shea passed away after

his annuity starting date -- or the "Preretirement Survivor

Annuity" -- if he passed away before the annuity starting date and

had a spouse or domestic partner. Because O'Shea tragically passed

away before his annuity start date, UPS reasonably concluded that

his spouse (or domestic partner) was entitled to the "Preretirement

Survivor Annuity," but that his beneficiaries were not entitled to

the "Single Life Annuity with 120-Month Guarantee."14

13Although not controlling, see CIGNA Corp. v. Amara, 563
U.S. 421, 438 (2011), contrary to the O'Sheas' arguments, the
summary plan documents and the retirement benefits application
also support UPS's interpretation of the Plan. The summary plan
description provides, for example, "[i]f you die after you become
vested in your Plan benefit but before your retirement benefit
begins, your surviving spouse or surviving Domestic Partner . . .
may receive a monthly benefit from the Plan." And the retirement
benefits application provides that the participant "will receive
a monthly benefit for [his] lifetime with a guarantee of monthly
payments for a period of 10 years. If [he] die[s] within the 10-
year guarantee period, [his] beneficiar[ies] will continue to
receive [his] monthly benefit amount for the remainder of the
guarantee period." (emphasis added).
14Because we find UPS's interpretation of the Plan language
much more reasonable than the O'Sheas' interpretation, we need not
consider the O'Sheas' arguments that the Plan is ambiguous (and
how to construe the Plan in the face of ambiguity). See D & H

- 17 -
 The O'Sheas attempt to blunt the impact of Section

5.4(d)(iii), arguing that because UPS did not rely on the section

in its denial letters, we may not consider it now. See Niebauer,

783 F.3d at 926 (explaining that "ERISA's notice provision . . .

requires plan administrators to 'provide adequate notice in

writing to any participant or beneficiary whose claim for benefits

under the plan has been denied, setting forth the specific reasons

for such denial, written in a manner calculated to be understood

by the participant'" (quoting 29 U.S.C. § 1133(1))). But the

purpose of ERISA's notice requirements is "to 'insure that when a

claimant appeals a denial to the plan administrator, [he] will be

able to address the determinative issues and have a fair chance to

present [his] case.'" Id. at 927 (alterations in original)

(quoting DiGregorio v. Hartford Comprehensive Emp. Benefit Serv.

Co., 423 F.3d 6, 14 (1st Cir. 2005)). "[S]trict compliance is not

required" so long as "'the beneficiary [was] supplied with a

statement of reasons that, under the circumstances of the case,

permitted a sufficiently clear understanding of the

administrator's position to permit effective review.'" Id.

Therapy Assocs., LLC, 640 F.3d at 36 (noting that although we have
never articulated precise guidelines for determining "when a plan
administrator's construction will be sufficiently reasonable to
warrant deference even though it is only as persuasive or less
persuasive than the interpretation offered by the plaintiffs," we
need not reach the issue when the plan administrator's construction
is "'significantly more persuasive'" than that offered by the
plaintiffs (quoting Coffin, 501 F.3d at 96)).

- 18 -
(second alteration in original) (quoting Terry v. Bayer Corp., 145

F.3d 28, 35 (1st Cir. 1998)).

Here, UPS consistently explained to the O'Sheas that

they were not entitled to the 10-year monthly annuity payments

because their father passed while he was an active (albeit on

leave) employee and prior to his annuity starting date. In its

initial denial, UPS cited to Section 5.6 to support its contention

that because O'Shea had passed away prior to his annuity start

date the "Preretirement Survivor Annuity" was triggered instead of

the annuity payments. In addition, the final denial highlighted

the retirement application's rephrasing of Section 5.4(d)(iii) --

"if I die within the 10-year guarantee period" -- to demonstrate

why their father reasonably should have understood that his

beneficiaries would only receive the annuity payments if he

survived to the annuity starting date. Therefore, the O'Sheas

were clearly on notice of UPS's position that the "Single Life

Annuity with 120-Month Guarantee" was only available to a

participant's beneficiaries if the participant died after reaching

the annuity start date. Given that the O'Sheas have "no credible

claim that [their] understanding of the issues at stake was so

muddled as to inhibit effective review," we see no error in relying

on Section 5.4(d)(iii) even though it was not cited by UPS in its

denial letters. Niebauer, 783 F.3d at 928.

- 19 -
 Finally, the O'Sheas argue that UPS's interpretation

improperly incorporates "an unwritten exclusion of a benefit

earned" into the Plan in violation of ERISA. We agree with the

O'Sheas that UPS may not "carve[] out an exclusion from coverage

that is nowhere expressed in the plan itself." Colby v. Union

Sec. Ins. Co. & Mgmt. Co. for Merrimack Anesthesia Assocs. Long

Term Disability Plan, 705 F.3d 58, 65 (1st Cir. 2013). But, as we

have discussed in some detail, the condition that O'Shea had to

survive until his annuity start date was "expressed in the plan

itself." Id.

Moreover, we agree with the district court that UPS's

interpretation of the Plan does not exclude O'Shea from coverage.

See O'Shea, 115 F. Supp. 3d at 151 (noting that "what is happening

in this case is not really an exclusion from coverage"). Rather,

UPS determined that O'Shea simply did not satisfy a condition under

the plan that would allow him to receive the benefit he requested.

If O'Shea had lived past the annuity starting date, his

beneficiaries would have been entitled to the 10-year guaranteed

benefits payments. Unfortunately, O'Shea did not meet this

mandatory precondition for coverage and, instead, his spouse or

domestic partner was entitled to receive the "Preretirement

Survivor Annuity."

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 B. Claim for Equitable Relief

The O'Sheas also argue that the district court erred in

dismissing their claim for equitable relief under ERISA

§ 502(a)(3), 29 U.S.C. § 1132(a)(3). They raise two related

arguments: (1) that the district court erred in concluding that

their equitable claim was barred by the SRP release because the

claim came into existence after their father agreed to the SRP;

and (2) that because the claim came into existence after their

father signed the release, he could not have "knowingly and

voluntarily" waived the claim. Although framed as two arguments,

since both arguments rise and fall on the premise that their

equitable claim did not arise until the annuity benefits were

denied by UPS, we will address them both together.

We review the district court's grant of a Rule 12(b)(6)

motion de novo, taking all factual allegations in the complaint as

true and drawing all reasonable inferences in the non-moving

party's favor. Guerra-Delgado v. Popular, Inc., 774 F.3d 776, 780

(1st Cir. 2014). In order to survive a motion to dismiss, a

complaint must contain sufficient factual material to state a

facially plausible claim. Id.

ERISA allows for the knowing and voluntary release of

claims. Smart v. Gillette Co. Long-Term Disability Plan, 70 F.3d

173, 181 (1st Cir. 1995). "To determine whether a waiver is

'knowing and voluntary,'" we examine the totality of the

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circumstances, including: (1) the employee's "education and

business sophistication"; (2) the roles of the employer and

employee in determining the terms of the release; (3) "the clarity

of the agreement"; (4) the amount of time given to the employee to

review the agreement; (5) whether the employee received

independent advice (particularly the advice of counsel); and (6)

the consideration paid in exchange for the release. Morais v.

Cent. Beverage Corp. Union Empls.' Supplemental Ret. Plan, 167

F.3d 709, 713 & n.6 (1st Cir. 1999) (quoting Smart, 70 F.3d at

181).

The O'Sheas do not seem to attack the validity of the

SRP release, and they concede that their father executed the

release paperwork and agreed to relinquish "all known or unknown

claims" in February 2010 -- approximately a month after he

submitted his retirement application and two months after he met

with UPS's HR supervisor.15 They simply argue that their equitable

claim arises from misrepresentations that did not become

actionable "until after [their father] died, when UPS declined,

solely due to [their father's] death, to pay the annuity." But,

by their own account, the alleged misrepresentations occurred when

15
We note that an examination of the relevant factors supports
the conclusion that the release was made knowingly and voluntarily:
the release is short and written in clear, simple language; O'Shea
was given 45 days to review the agreement; he met with his counsel
the same day he executed the agreement; and he was paid $98,800 in
consideration.

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O'Shea met with UPS's HR supervisor in December 2010 and when he

received the Plan documents. In essence, then, they argue that

even though the acts giving rise to the claim occurred before their

father signed the release, the claim did not arise until they

suffered monetary damages.16 This argument conflates the breach

and the remedy.

Under § 502(a)(3), a civil action may be brought "to

enjoin any act or practice which violates any provision of this

subchapter or the terms of the plan, or (B) to obtain other

appropriate equitable relief (i) to redress such violations or

(ii) to enforce any provisions of this subchapter or the terms of

the plan." 29 U.S.C. § 1132(a)(3). Here, the O'Sheas allege that

their father was "misled" by UPS about the terms of the Plan and

that the terms of the Summary Plan Description were unclear and

deceptive. These events occurred (i.e., he was allegedly misled

and provided with deficient Plan documents) when he met with UPS's

HR supervisor to discuss the logistics of his retirement in

December 2009. At that point, O'Shea could have sought equitable

relief -- reformation, for example -- despite the fact that his

beneficiaries had not yet been denied benefits.17 Therefore, when

16 Alternatively, the O'Sheas seem to imply that their
equitable claim did not arise until they discovered the alleged
misrepresentation. But because the SRP release explicitly covered
all undiscovered claims, this argument goes nowhere.
17Monetary loss is not a necessary component of a claim for
equitable relief under § 502(a)(3). See Amara v. CIGNA Corp., 775

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their father executed the release in February 2010, any equitable

claim based on alleged misrepresentations made to their father

when he selected his retirement benefits was released.

Although we are sympathetic to the unfortunate and

unexpected fallout resulting from his untimely death, we need go

no further. O'Shea's claim for equitable relief existed when he

signed the release, and is therefore barred.

III.

For the reasons articulated above, we affirm. Each side

to bear its own costs.

F.3d 510, 513-14, 518-19, 525-26 n.12 (2d Cir. 2014) (implementing
the Supreme Court's decision in Amara and affirming class
certification for plaintiffs who showed "likely harm" resulting
from an employer's inadequate plan summary).

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