In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1521
C HERYL A. B URNS,
Plaintiff-Appellant,
v.
O RTHOTEK, INC. E MPLOYEES’ P ENSION P LAN AND
T RUST, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:08-CV-190-PS—Philip P. Simon, Chief Judge.
A RGUED O CTOBER 26, 2010—D ECIDED S EPTEMBER 15, 2011
Before P OSNER, F LAUM, and S YKES, Circuit Judges.
S YKES, Circuit Judge. This case requires us to decide a
dispute over the pension benefits of the late Dr. Richard
Burns. Before his death Dr. Burns designated his three
sons as beneficiaries. But because the Employee Retire-
ment Income Security Act (“ERISA”) guarantees sur-
viving spouses certain benefits, this designation is only
effective if his widow, Cheryl Burns, consented. She
2 No. 10-1521
signed a written consent form, but after her husband
died, she claimed her consent was invalid because it was
not witnessed, as required by ERISA. The pension plan
found her consent valid and denied her claim for bene-
fits. The district court upheld that decision, invoking the
substantial-compliance doctrine and finding that the
consent form Mrs. Burns signed substantially complied
with ERISA.
We affirm, although on different grounds. For reasons
we will explain, the substantial-compliance doctrine
does not apply here. Nevertheless, the pension plan
was within its discretion to deny Mrs. Burns’s claim for
benefits. Although no witness signed the consent form
as a witness, under the unusual facts of this case, we
agree with the plan that Dr. Burns, the plan representa-
tive, witnessed his wife’s written consent to the waiver,
as required by ERISA.
I. Background
Dr. Burns was the principal shareholder, officer, and
sole director of Orthotek, Inc., an Indiana corporation
through which he conducted his orthodontics practice.
He created the Orthotek, Inc. Employees’ Pension Plan
and Trust, for which he was the plan administrator,
named fiduciary, and primary plan participant.
Dr. Burns died on May 11, 2004. He was survived
by his second wife, Cheryl Burns, and three sons from
his first marriage.
About a year before his death, on February 24 and 25,
2003, Dr. and Mrs. Burns signed three related Plan docu-
No. 10-1521 3
ments in which, respectively: (1) Dr. Burns waived his
right to a joint and survivor annuity, to which Mrs. Burns
consented; (2) Dr. Burns designated his sons as beneficia-
ries in the event of his death; and (3) Mrs. Burns con-
sented to Dr. Burns’s designation of his sons as bene-
ficiaries. Dr. Burns signed the first and second documents
on February 24, and Mrs. Burns signed the first and
third the next day, on February 25. For practical pur-
poses, the three documents comprise a single writing,
and we will refer to them this way. If valid, their com-
bined effect is to divest Mrs. Burns of her right to
Dr. Burns’s pension and designate his sons as beneficiaries.
After Dr. Burns’s death in May 2004, Mrs. Burns filed a
claim for benefits with the Plan. She argued that the
written consent she signed a year earlier was invalid
for three reasons: (1) She did not remember signing the
form; (2) its impact had not been explained to her; and
(3) her consent was not witnessed. Regarding the third
argument, she noted that Dr. Burns was the only other
person to sign the form and his signature is dated the
day before hers.
The Plan found Mrs. Burns’s consent valid and denied
her claim for benefits, relying in part on the fact that she
never denied signing the written consent and that her
signature and “CAB” initials appeared in multiple places
on the form and matched a verified signature she had
on file with the Plan. The Plan noted as well that the
consent form itself clearly explained its purpose and
Mrs. Burns signed or initialed in relevant places in-
dicating that she understood. Finally, the Plan found
4 No. 10-1521
that Dr. Burns, as plan representative, had witnessed
his wife’s written consent:
Here, Dr. Burns was the Plan representative at the time
these documents were executed. Whether Dr. Burns
and Cheryl Burns were physically in the same location
when she signed the waiver and consent forms or
whether they executed the documents on precisely the
same day is beside the point. . . . Given that: (1) she
would only have received the documents from
Dr. Burns; (2) Ms. Burns’ signature or initials appear
in four places on the same documents; (3) the docu-
ments are part of the Plan’s documents; and
(4) Dr. Burns and Ms. Burns clearly knew who each
other was, the purpose of ERISA’s requirement
that the waiver be witnessed has been satisfied.
Alternatively, the Plan found that the consent form sub-
stantially complied with ERISA’s witness requirement.
Mrs. Burns brought this suit against the Plan, its inde-
pendent fiduciary, and one of Dr. Burns’s sons who
served as successor trustee (collectively “the Plan”),
raising a claim for benefits under ERISA, 29 U.S.C.
§ 1132(a)(1)(B). The Plan moved for summary judgment.
The district court granted the motion, affirming the
Plan’s denial of Mrs. Burns’s claim. The court did
not directly address whether Dr. Burns witnessed
Mrs. Burns’s written consent to the waiver, relying
instead on the doctrine of substantial compliance.
Though the consent form contained no signature of a
witness as a witness, the court held that it nonetheless
substantially complied with the requirements of ERISA.
Mrs. Burns appealed.
No. 10-1521 5
II. Discussion
We review the district court’s grant of summary judg-
ment de novo. Righi v. SMC Corp., 632 F.3d 404, 408
(7th Cir. 2011). Because the Plan documents unambigu-
ously vest the Plan with decisionmaking discretion, we
review the denial of benefits under the arbitrary-and-
capricious standard. See Love v. Nat’l City Corp. Welfare
Benefits Plan, 574 F.3d 392, 396 (7th Cir. 2009). Under
this deferential standard, we will uphold the Plan’s
decision if:
“(1) it is possible to offer a reasoned explanation,
based on the evidence, for a particular outcome,
(2) the decision is based on a reasonable explanation
of relevant plan documents, or (3) the administrator
has based its decision on a consideration of the rele-
vant factors that encompass the important aspects
of the problem.”
Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010)
(quoting Williams v. Aetna Life Ins. Co., 509 F.3d 317, 321-22
(7th Cir. 2007)). Even where the arbitrary-and-capricious
standard applies, however, legal issues regarding the
interpretation of terms in ERISA are reviewed de novo.
Wetzler v. Ill. CPA Soc. & Found. Ret. Income Plan, 586 F.3d
1053, 1057 (7th Cir. 2009) (A determination of whether
certain terms in a pension plan violate ERISA is a
question of law subject to de novo review.); see also Holt
v. Winpisinger, 811 F.2d 1532, 1536 (D.C. Cir. 1987).
One of ERISA’s default rules is that a “survivor annuity
shall be provided to the surviving spouse of” a vested
6 No. 10-1521
pension-plan participant, like Dr. Burns, who dies before
the starting date for receipt of benefits. 29 U.S.C.
§ 1055(a)(2). However, a plan participant may elect to
waive this spousal-survivor annuity and designate a
beneficiary other than the surviving spouse. With ex-
ceptions not applicable here, this election is valid only
if “the spouse of the participant consents in writing,”
the election “designates a beneficiary,” and “the
spouse’s consent acknowledges the effect of such elec-
tion and is witnessed by a plan representative or a no-
tary.” Id. § 1055(c)(2)(A). Here, it is undisputed that
Dr. Burns executed a waiver of the survivor annuity,
designated his sons as beneficiaries, and complied with
the bulk of § 1055; it’s also clear that Mrs. Burns signed
the written consent form. The issue is whether Dr. Burns,
as plan representative, witnessed Mrs. Burns’s written
consent.1
The district court did not directly answer this
question, relying instead on the doctrine of substantial
compliance as applied in Davis v. Combes, 294 F.3d 931
(7th Cir. 2002), to validate Mrs. Burns’s written consent.
“The concept of substantial compliance is part of the body
of federal common law that the courts have developed
for issues on which ERISA does not speak directly.” Id.
at 940; see also Metro. Life Ins. Co. v. Johnson, 297 F.3d 558,
1
Mrs. Burns initially challenged the validity of her written
consent on two additional grounds: She did not remember
signing it and claimed that its purpose was not explained to
her. She has not pursued these arguments on appeal.
No. 10-1521 7
567 (7th Cir. 2002). The question in Davis was the
validity of an unsigned life-insurance designation-of-
beneficiary form. To validly designate a life-insurance
beneficiary, ERISA contains “no explicit requirement . . .
[that the designation] form must be signed and dated in
a specific manner.” Id. Because ERISA is silent on the
topic, in Davis we applied the doctrine of substantial
compliance and held that the unsigned beneficiary-desig-
nation form was nonetheless valid. Id.
In contrast to Davis, however, ERISA is not silent on
the specific issue presented here. To the contrary, ERISA
explicitly requires written spousal consent, witnessed
by a notary or plan representative, for a pension-plan
participant to validly waive a survivor annuity and
designate a new beneficiary. 29 U.S.C. § 1055(c)(2)(A)(iii).
Because of this explicit statutory requirement, the
doctrine of substantial compliance cannot cure an unwit-
nessed spousal consent. See Butler v. Encyc. Brittanica,
Inc., 41 F.3d 285, 294 (7th Cir. 1994) (“[W]e cannot adopt
a substantial compliance doctrine as a matter of
federal common law in this case if it would conflict with
ERISA’s literal requirement that a spousal consent be
‘witnessed.’ ”).
But “[w]e can affirm on any ground that the record
fairly supports and the appellee has not waived.” Martinez
v. United Autoworkers, 772 F.2d 348, 353 (7th Cir. 1985).
The Plan’s primary finding was that Dr. Burns did, in
fact, witness Mrs. Burns’s written consent. Although
the term “witnessed” is not defined in ERISA, we have
previously observed that the sole purpose of the § 1055
8 No. 10-1521
witness requirement is to verify the authenticity of the
consenting spouse’s signature. Butler, 41 F.3d at 293-94.
Whether the witness must be physically present when
the spouse signs the written consent or must attest in
writing to the signature’s authenticity are debatable
questions.
Our decision in Butler is instructive. There, a widower
sought a survivor annuity despite having consented
in writing to his late wife’s designation of her daughter
as beneficiary. He claimed that his notarized, written
consent was invalid because he signed it outside the
physical presence of the attesting notary. We observed
that a physical-presence requirement for witnessing
“has considerable appeal, given the usual dictionary
definition of the word ‘witness.’ ” Id. at 293. On the other
hand, we noted the absurdity that would result from
a strictly literal interpretation of the term:
Arguably, compliance with ERISA’s literal language
in this case would lead to the absurd result of invali-
dating a spousal consent form that [the consenting
spouse] admits that he signed but now attempts to
disavow on the technicality that he did not sign it
in the physical presence of the notary.
Id. at 294. In the end, we sidestepped the interpretive
question in Butler, holding instead that the notary’s
signature carried a presumption of regularity and the
husband lacked the clear and convincing evidence neces-
sary to overcome that presumption. Id. at 294-95.
Butler’s analysis, however, suggests two points that are
particularly relevant here: (1) § 1055 does not necessarily
No. 10-1521 9
require a witness (whether a notary or plan representa-
tive) to be physically present when a spousal consent
form is signed; and (2) the witness requirement should
not be interpreted to yield absurd results.2
With these principles in mind, we turn to whether
Mrs. Burns’s written consent was “witnessed” by a plan
representative. The only possible witness is Dr. Burns,
who was the sole plan representative when Mrs. Burns
signed the written consent. Dr. Burns signed the form,
but he did so the day before she did, and as such he
cannot be said to have signed as a witness to her act of
signing; her signature did not exist when he signed.
But does § 1055 require a witness to sign a consent form
in attestation of the consenting spouse’s signature?
Much like the physical-presence requirement at issue
2
Butler’s suggestion that § 1055 does not require the witness
to be physically present when the spousal consent form is
signed is bolstered by the provision in the Indiana Code
governing notaries and the Uniform Law on Notarial Acts.
I ND . C ODE § 33-42-2-2(a)(6)(B) (permitting a notary to acknowl-
edge an instrument’s execution if the person executing it “signs
the instrument before the notary” or “affirms to the notary that
the signature on the instrument is the person’s own”); U NIF .
L AW ON N OTARIAL A CTS § 2(c) (1983) (permitting a notary to
“witness” a signature if the notary determines “from satisfac-
tory evidence, that the signature is that of the person . . . named
therein”). If a notary in this case could have witnessed
Mrs. Burns’s signature without being physically present for
the signing, we see no reason why ERISA would require
more from a plan representative.
10 No. 10-1521
in Butler, an attestation requirement has some appeal
based on the common meaning of the word “witness” in
the context of legal documents. See, e.g., B RYAN A.
G ARNER, A D ICTIONARY OF M ODERN L EGAL U SAGE 938
(2d ed. 2001) (defining a “witness” as “one who, to
vouch for the genuineness of a signature, affixes his or
her name to an instrument that another has signed”).
But, again, as in Butler, it makes little sense to strictly
enforce an attestation requirement if doing so would
produce an absurd result.
It is undisputed that Dr. Burns, the primary plan partici-
pant and also the sole plan representative, signed the
waiver-and-designation form. As the embodiment of the
Plan itself, he himself must have given the form to his
wife to sign. Mrs. Burns signed it, something she has
never denied. And because the signed consent form
made its way into the Plan’s files, Mrs. Burns must have
returned it to Dr. Burns. Even if Dr. Burns was not physi-
cally present when she signed the form—not a known
fact—Dr. Burns obviously knew from his own personal
knowledge that the “Cheryl Burns” who signed and
returned the form to him was his wife, whose consent
was required to complete the necessary paperwork to
effectuate the waiver and designate his sons as his benefi-
ciaries. So we are left with this question: When a plan
participant, who is also the plan representative, signs a
beneficiary-designation form requiring spousal consent,
gives the form to his consenting wife, who in turn signs
it in multiple places acknowledging her consent and
returns it to her husband, must the consent be
invalidated because the husband did not sign the form a
No. 10-1521 11
second time as a “witness”? On these facts, invalidating
Mrs. Burns’s consent would produce an absurd result.
The unusual circumstances of this case lead us to
conclude that the Plan was within its discretion to find
that Dr. Burns, as a plan representative, verified the
authenticity of his wife’s signature on the written
consent form and this satisfied § 1055’s witness require-
ment.
Mrs. Burns relies heavily on Lasche v. George W. Lasche
Basic Profit Sharing Plan, 111 F.3d 863, 865-67 (11th Cir.
1997), but that case is factually distinguishable. In Lasche
a widow sought survivor benefits from her late
husband’s pension plan despite having signed a writ-
ten waiver and consent to his designation of his three
daughters from his first marriage as his beneficiaries.
The spousal-consent section of the waiver form had a
specific place for a witness to sign, but it was left blank.
Other sections of the form were signed by the husband,
who (as in this case) was also the plan representative. Id.
at 864-65. The pension plan argued that the husband’s
signature on the other sections of the form satisfied
§ 1055’s witness requirement. The Eleventh Circuit
rejected this argument for two reasons, one procedural
and one factual. First, the argument had not been raised
in the district court and was therefore waived. Second,
the consent form itself directed the witness to sign in a
particular place, which was not done. Id. at 866-67. The
court found the blank signature line conclusive: “[T]he
fact that George signed part five of the form as the Plan’s
Administrator is irrelevant to the undisputed fact that
the [plan representative] or notary public signature
12 No. 10-1521
space in part four of the Form [the spousal-consent part]
was blank.” Id. at 867. Thus, Lasche stands for the narrow
proposition that when a spousal-consent form directs
a witness to sign in a particular place, and that space is
left blank, the court should infer that the consenting
spouse’s signature was not in fact witnessed.
Importantly, Lasche does not gloss § 1055’s witness
requirement with special formalities; the court did not
suggest that a witness must sign the written spousal
consent in a particular place, or even that a plan repre-
sentative’s signature in another section of the form can
never be evidence that a spousal consent was witnessed.
ERISA itself requires only that the spousal consent be
witnessed. The critical question in Lasche, as here, was
whether the spousal consent was, in fact, witnessed. The
blank witness-signature line in Lasche implied the lack of
a witness, which makes sense. If there had been a
witness, he or she would have signed as directed by
the form. In our case Mrs. Burns’s consent form contains
no specific place for a witness to sign; the form itself
does not direct the required witness to do anything at
all. Although the consent form did not designate a place
for the witness to sign, it does not necessarily follow
that there was no witness. It only means we must look
further for evidence of a witness, as the Plan did.
Of course, when making benefits determinations, a
pension plan’s review typically centers on plan docu-
ments; as a matter of sound plan administration, a
pension plan ought to supply spousal-consent forms that
specify a place for the required witness to sign. That will
No. 10-1521 13
suffice in most cases to determine the validity of the
consent. As we have explained, however, this case is an
exception, largely because Dr. Burns for all intents and
purposes was the Plan. Under the unique circumstances
presented here, the Plan reasonably concluded that
Dr. Burns witnessed Mrs. Burns’s written consent, as
required by ERISA. Accordingly, Dr. Burns’s sons are
the proper beneficiaries of their father’s survivor
pension, and the Plan properly denied Mrs. Burns’s
claim for benefits.
A FFIRMED.
9-15-11