W. Ashton Haus v. Bechtel Jacobs Co., LLC

*567ALICE M. BATCHELDER, Circuit Judge,

dissenting.

I write separately because I view the record differently than the majority does, and with due adherence to the law, I conclude that the district court was in error and that error warrants reversal. Accordingly, I must respectfully dissent.

I.

Until March 31, 1998, W. Ashton Haus worked for Lockheed Martin Energy Systems (LMES), which operated the Padu-cah (Kentucky) Gaseous Diffusion Plant under a contract with the Department of Energy (DOE). On April 1, 1998, the LMES-DOE contract expired and Bechtel Jacobs Company LLC replaced LMES as the primary contractor under Environmental Management Contract No. DE-AC05-980R22700 (U.S. DOE 12/18/97), i.e., “the contract.” According to the excerpts in the record, this contract describes the specific environmental services that Bechtel would provide to DOE at several of its facilities, including the Paducah Gaseous Diffusion Plant.

On April 2, 1998, Mr. Haus began work with a first-tier subcontractor to Bechtel, and therefore, was not transferred to Bechtel’s payroll, as his coworkers had been. Mr. Haus worked for one first-tier contractor (Entech Corp.) and then another (Camp Dresser & McKee) before gaining direct employment with Bechtel on July 17, 2000. Bechtel has asserted, repeatedly and from the very outset of this dispute with Mr. Haus, that Entech did not perform any former-LMES work (i.e., particular environmental projects) under this DOE contract and, although CDM did assume and perform certain former-LMES projects, Mr. Haus did not actually work on those projects himself.

When Bechtel took over from LMES, the Bechtel-DOE contract required Bechtel to develop and implement a “transition plan” by which LMES’s incumbent workforce would be transferred to Bechtel or its first-tier subcontractors, effective April 1, 1998. These employees were entitled to continuation of accumulated benefits (i.e., “grandfathering”) under certain pension, healthcare, severance, or 401 k plans. This “grandfathered status” meant that when these transitioned employees began employment with their new employers (i.e., Bechtel or its first-tier subcontractors, such as Entech and CDM): (1) these transitioned employees would participate in the transition plans, rather than a plan or plans offered by the new employer; (2) their accumulated service time with LMES would be credited toward those transition plans; and (3) they would continue to accumulate benefits under the transition plans as if there had been no discontinuation of employment with LMES (i.e., they would not start accumulating benefits at zero or be forced into a new plan).

By his own admission, Mr. Haus voluntarily resigned from LMES on March 31, 1998, to take a preferred position with Entech, and he was, therefore, not part of the transition program. During his two years at Entech and CDM (April 1,1998 to July 17, 2000), Mr. Haus did not work on former-LMES projects and was not part of the transition program, and therefore, he never sought to participate in the transition plans, to accumulate time towards those plans, or to be classified as an LMES grandfathered employee. Mr. Haus stated in an email to Bechtel:

I was eligible for transition on 4/1/98. I then worked for a BJC 1 st tier subcontractor, and now for BJC. I do not understand why I can not receive credit for time spent with LMES prior to 4/1/98 and the subsequent time now spent employed by BJC. I am not asking for time credit earned while work*568ing with 1st tier subcontractors, I am only asking for the %. years employed with LMES and now the 6 months (and counting) spent with BJC.

(emphasis added). This undermines the supposition that Mr. Haus was working under the contract while employed by En-tech and CDM, or that Bechtel could not prove that Mr. Haus was not working under the contract, or that, as an unsophisticated lay employee, he might have mistakenly assumed that he was working under the contract. Mr. Haus was neither unsophisticated, nor confused, nor misled into thinking he was working under the contract. While others have suggested otherwise, Mr. Haus knew all along that his employment with Entech and CDM did not count as work under the contract. Moreover, Bechtel has insisted consistently and continuously since the very beginning of the dispute that Mr. Haus’ employment with Entech and CDM did not fall under the contract.

On July 17, 2000, Mr. Haus began direct employment with Bechtel, and later (circa December 13, 2000), he sought for the first time to be classified as a grandfathered employee under the “employee benefit plans” arising from the LMES-to-Bechtel transition. There are four separate plans, and as a practical matter, Mr. Haus was actually seeking grandfathered status as to only one plan, the pension plan. As evidenced by the correspondence in the record, Mr. Haus really just wanted his time with LMES (i.e., pre-Entech or CDM) to be aggregated with his then-accumulating time at Bechtel, and all of it applied toward his total pension benefits under a pension plan. Bechtel disagreed with his claim to grandfathered status and explained to him that the DOE contract also prevented his attaining such status.

In an effort to overrule this decision by Bechtel’s plan administrator, Mr. Haus sued Bechtel in federal district court, pursuant to ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B). In his complaint, he urged the court to declare him a “grandfathered employee” in some unspecified “defined benefit plan,” based on the definition of “grandfathered employee” contained in Bechtel’s employee handbook, which he quoted in his complaint and appended thereto. Mr. Haus basically claimed that: (1) Bechtel’s decision to deny him grandfathered status was arbitrary and capricious, and (2) Bechtel’s plan(s) did not sufficiently apprise him of his rights.

Ultimately, the district court denied the former, but agreed with the latter. In reaching its decision, the district court acknowledged that each plan expressly granted the Bechtel plan administrator the discretion to determine eligibility and construe the plan’s terms, which meant that the court was bound to a very limited standard of review: whether the plan administrator’s decision was arbitrary or capricious. Based on that review, the district court concluded that the administrator’s decision was not arbitrary or capricious. However, rather than “respect such decisions” as it had promised, the district court continued on and ruled that Mr. Haus was in fact entitled to be instated into all four (4) plans as a “grandfathered employee” on the theory that Bechtel had violated a certain ERISA reporting provision. The district court concluded:

[I]t is abundantly clear that Bechtel has violated ERISA’s requirement that plan descriptions be “sufficiently accurate and comprehensive to reasonably apprise participants and beneficiaries of their rights and obligations.” 29 U.S.C. § 1022(a)(1). In this case the harm to Mr. Haus is all the more grevious [sic] because the conflict is not just between the summary plan and the plan itself, *569but among various plans offered by Bechtel.... Bechtel has consciously or unconsciously issued conflicting plan descriptions and definitions of “Grandfathered Employees.” Mr. Haus fits some of those definitions, but not all. In such circumstances, Bechtel cannot rely on the ambiguity it created in order to deny him a benefit to which he is, under most of the plans they issued, clearly entitled.

Although Mr. Haus prevailed in the district court, his theory on appeal is different from the district court’s theory, and the majority’s theory in affirming the decision is different from both. I believe all three are in error, and while I would affirm the district court’s finding that the administrator’s decision was not arbitrary or capricious, I would vacate the rest as beyond the court’s prescribed role.

II.

If an ERISA plan grants the plan administrator the discretion to determine eligibility and construe the plan’s terms, then the reviewing court is limited to reviewing that administrator’s decision to ensure that it was neither arbitrary nor capricious. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 108 L.Ed.2d 80 (1989). A plan administrator’s decision will not be deemed arbitrary or capricious so long as “it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome.” Davis v. Ky. Fin. Cos. Ret. Plan, 887 F.2d 689, 693 (6th Cir.1989). Under the established law, we may not simply interject our own view or preference in place of the plan administrator’s. See Henry Ford Health Sys. v. Shalala, 238 F.3d 907, 911 (6th Cir.2000) (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)).

Each of the Bechtel plans granted the plan administrator the discretion to determine eligibility and construe the plan’s terms. Furthermore, the district court found that the administrator’s decision was not arbitrary or capricious. Having made this decision, the district court was not at liberty to engage in further review so as to obtain a different outcome. This alone is a sufficient basis to reverse, and for this same reason I must disagree with the majority’s analysis.

The majority renewed the inquiry into the plan administrator’s decision (despite the absence of any claim of error in this regard on appeal), found the district court’s factual determination to be incorrect, and concluded that the administrator’s decision was arbitrary and capricious. In its analysis, however, the majority plainly identified the administrator’s “reasoned explanation,” which was that the plan administrator had applied a narrow interpretation of the transition plan, as intended by Bechtel and the DOE, and even noted that this explanation was supported by the record. I would hold that such a “reasoned explanation” is all that is necessary to overcome a claim that a decision is arbitrary or capricious. See Davis, 887 F.2d at 693. I would also decline to proceed any further and refuse to interject my own preferences into this case. See Henry Ford, 233 F.3d at 911.

The majority, however, unabashedly interjects its own views, deeming the administrator’s interpretation “unreasonable” and imposing its own preferred interpretation. Central to the majority’s interpretation is its conclusory — and incorrect— statement that Bechtel “nowhere disputes that Haus worked under the contract.” On the contrary, Bechtel’s position all along has been that Mr. Haus’ employment with Entech and CDM did not fall “under the contract.” Bechtel explains:

Given the language of the underlying DOE contract, it was reasonable for *570Bechtel Jacobs to interpret “work under the Contract” as meaning transition scope of work — i.e., work formerly self-performed by LMES transitioned to Bechtel Jacobs and then (in most instances) to its subcontractors. That is the work that was shifting from one employer to another as a result of the DOE Contract transition and it was the incumbent workers performing that work who were the subject of the workforce transition provisions in the Contract.
In assessing the reasonableness of Bechtel Jacobs interpretation, it is significant that the DOE agreed with that interpretation. As noted above, when Mr. Haus appealed to the DOE, the DOE responded that Mr. Haus did not satisfy the requirements for grandfathered employee status because “neither Entech, Inc. nor CDM were first or second-tier work force transition subcontractors.”

Appellant’s Br. at 25, quoting a DOE letter to Haus, dated March 18, 2003. As explained previously, even Mr. Haus had conceded that his work at Entech and CDM was not “under the Contract.”

On appeal, Mr. Haus has not argued that he worked “under the Contract.” Instead, he contends that the Bechtel Employee Handbook is the SPD for all of Bechtel’s benefit plans (i.e., Mr. Haus insists that the individual SPDs for each of the individual plans are not the actual SPDs, but rather the Employee Handbook is). He quoted the “Grandfathered Employees” provision repeatedly in his brief, at one point quoting it in full, but elsewhere quoting just the pertinent parts:

Grandfathered Employees shall mean individuals who meet both of the following conditions:
(A) The individual was ... an employee of Lockheed Martin Energy Systems, Lockheed Martin Utility Services, or Lockheed Martin Energy Research (collectively, LM) on March SI, 1998;....
(B) The individual was either: (1) subsequently employed by the Contractor or its 1st- or 2nd-tier Subcontractors for work under the Contract prior to April 1, 2000;....

Appellee’s Br. at 19, quoting the Bechtel “Your Employee Handbook,” (emphasis by Appellee). The “Contract” is, of course, the DOE-Bechtel Environmental Management Contract. Purporting to rely on this employee handbook description, Mr. Haus argued:

The primary characteristics that qualified Haus for “grandfathered” status were that (1) he was employed with Lockheed on March 31, 1998, and (2) he was employed by a Bechtel first-tier or second-tier subcontractor before April 1, 2000.

Appellee’s Br. at 8 (emphasis in original).

By omitting the “under the Contract” requirement, he deems himself entitled to grandfathered status merely because he was employed at the time in question by a company that was also a Bechtel subcontractor. To give this some perspective, note that he could make the same argument if he had left LMES to become the night security guard at CDM’s Boston headquarters or for an Entech office in Europe. The argument would be fine if not for the “under the Contract” language.

As stated above, Mr. Haus quotes the entire employee handbook provision in his brief, and even includes the “under the Contract” phrase in his emphasized portions, but after doing so he retreats back to his excised version, arguing:

Haus was a Lockheed employee on March 31, 1998, and Haus was also thereafter employed by Bechtel’s first-*571tier subcontractors before April 1, 2000. Consequently, Haus believed that he met the definition of a “grandfathered” employee under the summary plan description in the employee handbook.

Appellee’s Br. at 10. The structure of this argument speaks volumes in that, rather than arguing that he was doing work “under the Contract,” Mr. Haus crafts his entire theory around the argument that it was not necessary for him to have actually done work “under the Contract.” According to Mr. Haus’ theory, all that was necessary was that he be “a Lockheed employee on March 31, 1998, and ... also thereafter employed by Bechtel’s first-tier subcontractors before April 1, 2000.”

In its Footnote 3, the majority asserts that, “at oral argument the Appellant [i.e., Bechtel] admitted [there] was only one contract.” This type of misstatement infects the entire majority opinion. In support of this proposition, the majority quotes an exchange from early in the appellate argument, during which Bechtel’s obviously harried attorney attempts to explain his position, answering “Well, I think that’s true, but....” Recorded Transcript of Oral Argument at 6:40. The majority asserts this proposition as if it had been succinctly and unequivocally admitted, while even the quoted passage demonstrates that it was not. In fact, most of Bechtel’s time at appellate argument was directed to this question, which eventually culminated in the following (far more thorough) exchange during rebuttal argument:

Court: So, I thought you said you only had one contract with the Department of Energy? Did you have more than one contract with the Department of Energy and you gave some to this tier one contractor and then you had other contracts with the Department of Energy that you gave to others? Is there more than one contract? Did you do work other than for the Department of Energy?
Attorney: Does Bechtel Jacobs do....
Court: Yes, at that site.
Attorney: Its not part of the record ... I don’t ... I don’t ... I don’t know.
Court: Well, the question that’s being asked here is, if there’s only one contract with the Department of Energy, how can you have subcontractors working for Bechtel Jacobs doing anything other than work subcontracted under the Department of Energy contract? Now, I asked the question, “are some of those subs doing work under the Department of Energy contract and also doing work that isn’t under the Department of Energy contract,” which I thought you answered in the affirmative.
Attorney: I think the answer is “yes.” I mean, if you read the materials, thafis exactly what’s said.
Court: So, in other words, there is work going on, at this site, by Bechtel Jacobs, with these subcontractors, that is NOT covered by the Department of Energy Contract?
Attorney: Yes.
Court: What contract is it covered by?
Attorney: I guess there are other contracts that Bechtel has with those ... those subcontractors, I mean, if you read, if you....
Court: Under what was the “lasagna” work being done?
Attorney: Excuse me, your honor?
Court: Under what contract was the “lasagna” work being done?
Attorney: I believe it was a separate contract between Bechtel Jacobs and Entech.
Court: Well, what about the Department ... wasn’t it work you were *572doing for the Department of Energy-under this, this umbrella contract?
Attorney: Ah ...
Court: You weren’t doing it for free were you?
Attorney: No ...

Recorded Transcript of Oral Argument at 31:54-33:48. At that point, the Court interrupted and took the discussion in another direction. The obvious conclusion of the above exchange, however, is that Bechtel Jacob’s appellate attorney did not concede at oral argument that there “was only one contract,” and certainly did not fail to “dispute[] that Haus worked under the DOE contract.”

Even this is beside the point, however, as the very most that the majority can offer is that Bechtel’s appellate counsel was equivocal on the matter. But, this is not evidence. In fact, there is no evidence in the record — admissible or otherwise — to support this contention; there is no Rule 36 admission, no interrogatory answer, no stipulation, no deposition testimony, no trial testimony ... nothing ... not even by Mr. Haus, who does not himself contend that he was doing work under the contract (as has been amply demonstrated herein). And, this is the true point: Bechtel’s failure to “explain what other contract Haus’s employers operated under” is irrelevant. Inexplicably, the majority fails to credit the most rudimentary concept of our adversarial system: it is the plaintiff who bears the burden of proof. Mr. Haus is the plaintiff in this case, and therefore, Mr. Haus was obliged to carry the burden of proof as to the controlling contract. Of course, since Mr. Haus never argued that he was working “under the Contract,” it would have been extraordinary for him to have produced evidence that he was. It is only the majority that ever made such an allegation. On the other hand, Bechtel, relying on established law, clearly anticipated that the plan administrator’s decision would be upheld unless it was found to be arbitrary or capricious, and that a court of law would proceed on that standard.

Thus, the majority, in pursuing its desired outcome, construes the record much differently than I do, which of itself would require me to write separately. More im portantly, however, even if the majority’s interpretation were in fact correct, the majority exceeds its prescribed role by imposing its own preferences on the plan administrator in this circumstance. The plan administrator provided a reasoned explanation for his interpretation, and therefore — right or wrong — his decision is not arbitrary or capricious. The district court agreed and no one (other than the majority) has challenged this factual determination on appeal. This aspect of the decision should be affirmed.

III.

By its plain terms, 29 U.S.C. § 1022 (titled “Summary plan description”) applies only to summary plan descriptions:

A summary plan description of any employee benefit plan shall be furnished to participants and beneficiaries as provided in [ ] this title. The summary plan description shall include the information described in [] this section, shall be written in a manner calculated to be understood by the average plan participant, and shall be sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan.

29 U.S.C. § 1022(a). This statute provides no support for the (mis)applieation of it to full plan documents, or for a comparison and contrast of independent plans (as was done by the district court).

*573If the full plan and the summary plan description (SPD) are consistent, then the plain language of either the plan or the SPD may govern. Wendy’s Int’l Inc. v. Karsko, 94 F.3d 1010, 1013 (6th Cir.1996). However, “statements in a summary plan are binding and if such statements conflict with those in the plan itself, the summary shall govern.” Edwards v. State Farm, Mut. Auto. Ins. Co., 851 F.2d 134, 136 (6th Cir.1988). This common sense rule was intended to ensure fairness to employees who reasonably rely on the summary plan: “It is of no effect to publish and distribute a plan summary booklet designed to simplify and explain a voluminous and complex document and then proclaim that any inconsistencies will be governed by the plan.” Id.

In the present case, the district court found no inconsistency between any SPD and its associated plan. In fact, the record did not even contain the actual plan for the 401k (“Plan IV”), but contained only its SPD, so there was no way for the district court to find any conflict of the type criticized in Edwards, 851 F.2d at 136. Similarly, the record did not contain the SPD for the health plan (“Plan I”), only the full plan, so again, there was no way for a reviewing court to find an Edwards-type conflict. As for the other two plans, the district court stated frankly, “each is consistent and unambiguous with itself,” and I find no basis to conclude differently.

The district court, having found no ambiguity between any plan and its SPD, took a statute that was designed to ensure that “summary booklets” are not misleading, and used it to find ambiguity among four intentionally independent things, i.e., the four independent plans. Under such an approach, the court could have compared the plans to any corporate document — a travel reimbursement plan, a policy on company uniforms, a cafeteria lunch menu, etc. — and upon finding inconsistency, deemed the plan ambiguous. Nothing in the cited statute supports such an action.

In finding a violation, the district court exclaimed, “[t]he conflict between Plan I and Plan II-IV creates ambiguity not among the internal definitions of the plans — each is consistent and unambiguous with itself — but with each other.” However, this conflict, such as it is, does not violate 29 U.S.C. § 1022. Under ERISA, each plan is a distinct legal entity. ERISA § 502(d), 29 U.S.C. § 1132(d). I find no authority for the proposition that, if a company has more than one plan, then it must adopt uniform definitions among all of them. The district court’s assertion — that “the harm to Mr. Haus is all the more [grievous] because the conflict is ... among the various plans offered by Bechtel” — is erroneous, as is the conclusion that Mr. Haus is entitled to participate in all of the plans (including those for which he is admittedly not covered), because he “fits some of those definitions, but not all,” and “is, under most of the plans they issued, clearly entitled.” I believe this is reversible error, and the district court should not have even reached this issue.

The majority chooses to reach this issue as well, however, and in doing so expands Edwards, 851 F.2d at 136 (“statements in a summary plan are binding and if such statements conflict with those in the plan itself, the summary shall govern”) to cover perceived (or in this case, fabricated) conflicts between “Plans as interpreted and their corresponding summaries.” In this, the majority creates a new rule: this court need not review the actual plan to find a conflict and determine if the SPD controls; it need only consider whether the administrator interpreted (or appears to have interpreted, or could be said to have interpreted) the full plan in a way that is *574different from the way the court is presently interpreting the SPD. In the abstract, this is an unprincipled and unjustifiable explosion of this court’s power into the realm of ERISA plan review. It would also seem to overrule the practical rule in Wendy’s, 94 F.3d at 1013, that either the full plan or the SPD may govern absent a direct conflict. Under the majority’s rule, this court can henceforth interpret an SPD any way it likes, and if that interpretation conflicts with the plan administrator’s decision (i.e., the “plan as interpreted”), this court can impose its own preferred interpretation, purportedly based on Edwards. This is de novo review — I fail to see how it could be anything less — and thus, it is an entirely new rule of ERISA plan review. Moreover, this rule appears to be unjustified and unwarranted in this specific case, as there is no evidence to suggest that the administrator was interpreting the plans rather than the SPDs. It is just as likely, if not more likely, that the plan administrator was interpreting the SPDs, although the distinction is probably artificial, in that, as the district court expressly recognized, the plans exhibit no conflict between plan and SPD (at least for Plans II and III, the two plans for which both plan and SPD are included in the record).

Finally, the majority makes the inexplicable and unsupportable assertion — essential to its desired outcome — that “[t]he ambiguity between the four plans’ respective definitions of the term grandfathered employee undoubtedly did create confusion for the Plaintiff-Appellee and other lay beneficiaries, but did not serve as the basis for the district court’s decision.” On the contrary, the contradiction among the four plans was assuredly the basis for the district court’s decision, as any reading of the district court’s opinion makes evident.

IV.

Because I believe that the majority has miscast the facts, ignored the controlling law, and created a decision that will cause confusion and harm in future cases, I must respectfully dissent.