[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15383
September 18, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-02075-CV-BBM-1
ROSS GLENN MOORMAN, JR.,
Plaintiff-Appellant,
versus
UNUMPROVIDENT CORPORATION,
a Delaware Corporation, in its individual capacity
and as controlling parent of its wholly owned
subsidiary, Unum Life Insurance Company of
America, a Maine Corporation,
UNUM LIFE INSURANCE COMPANY OF AMERICA,
a Maine Corporation, in its individual capacity
and as a wholly owned and controlled subsidiary
of UnumProvident Corporation,
UNUM CORPORATION,
a Maine Corporation merged to form UnumProvident
Corporation, in its individual capacity and as
controlling parent company of its wholly owned
subsidiary, Unum Life Insurance Company of
America, a Maine Corporation,
Defendants-Appellees.
_____________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 18, 2006)
Before EDMONDSON, Chief Judge, BIRCH and ALARCON,* Circuit Judges.
BIRCH, Circuit Judge:
The central issue in this interlocutory appeal is the proper reach of the
Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001
et seq. Ross Glenn Moorman, Jr., argues that the district court erred in ruling that
ERISA governed the disability insurance plan provided by UnumProvident
Corporation, Unum Life Insurance Company of America (“Unum Life”), and
Unum Corporation (collectively “Appellees”). After careful review of the facts in
this case, the relevant case law, and the underlying purposes of ERISA, we
AFFIRM the district court’s ruling that ERISA governs the plan in this case. As an
additional matter, Appellees ask us to review Moorman’s claims brought under the
Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. 1961 et
seq. We decline to review Moorman’s RICO claims, which were not certified for
appeal by the district court, because the district court has not had an adequate
*
Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
2
opportunity to address the defenses raised on appeal by the Appellees.
I. BACKGROUND
Quoting liberally and making additions as necessary, we largely adopt the
district court’s statement of the facts in this case: In a letter dated 17 October
1996, Brian Glenn, an agent for Unum Life, contacted Anne Rivers Carter, the
office manager of Southeastern Steam, Inc., (“Southeastern Steam”) to request the
opportunity to present the disability insurance plan to the company’s employees
and to solicit enrollment. Carter later met with Glenn and applied to Unum Life
for group coverages on behalf of Southeastern Steam. R.Exh. at 19-20; id. Exh. 3.
She signed a “Client Information” form, through which she selected various
eligibility requirements for the disability plan, including a 90-day waiting period
and a 35-hour minimum workweek requirement. Id. Exh 3.
On 24 April 1997, Glenn “met with company employees individually” to
discuss coverage under the plan. R4-30 Exh. 1 at 6. Carter stated that publicity
was conducted by “word of mouth, like, . . . there’s a guy coming, if you want
disability insurance, you can meet with him . . . he’ll explain it to you.” R.Exh. at
23. No representative from Southeastern Steam was present during these meetings.
The decision on whether to sign up for disability insurance was left to the
individual employee. Those who wished to enroll completed Disability Program
Enrollment Forms, which Glenn drafted and provided. The forms stated,
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“Southeastern Steam, Inc. is offering a comprehensive Disability program to
protect you and your family in the event a non-occupational accident or sickness
causes you to miss work.” R4-30 Exh. 2B. Carter, who signed up for the plan,
later stated that she never read this statement and that she believed Unum Life,
rather than Southeastern Steam, was providing the plan. At the meetings, Glenn
also discussed the benefits and premium amounts with each employee.
Carter testified that Southeastern Steam revised its employee handbook to
include a reference to the plan in question, which was the only disability plan
offered to the employees during that time. R.Exh. at 46. Under the heading
“Benefits,” Southeastern Steam’s employee handbook stated: “The company
makes available to employees access to benefits designed to meet the needs of
employees and provide protection from financial hardship. These benefits will be
reviewed periodically to assure that they keep pace with area practice and
employee needs.” Id. Exh. 5 at 22. In the same section, under the subheading
“Disability Insurance,” the handbook stated, “Disability insurance is available to
all full-time employees. The premium for this coverage is the sole responsibility of
the employee.” Id. Exh. 5 at 23.
At the time of their enrollment, the participating employees were not
provided copies of the plan nor any other written documents, apart from the
enrollment forms themselves. The plan booklets and included certificates were
4
later mailed to Carter, who filed them in a closet at Southeastern Steam. Carter
testified that, while she did not widely distribute the booklets, she gave a booklet to
Moorman and kept one for herself. Id. at 76. The plan certificate provides, inter
alia, that: “[t]his policy is delivered in and is governed by the laws of the
governing jurisdiction and to the extent applicable by the Employee Retirement
Income Security Act of 1974 (ERISA) and any amendments.” Id. Exh. 6 at 1. The
Summary Plan Description designated Southeastern Steam as the plan
administrator and as the agent for service of legal process on the plan. Id. Exh. 6 at
60-61.
Enrolled employees were required to pay their entire premium amounts on a
post-tax basis. Carter collected employee premiums from employees by way of
payroll deductions and remitted them to Unum Life by writing a check from
Southeastern Steam’s account. Id. at 33-34. While she provided Unum Life’s 1-
800 number to certain employees who asked questions regarding their claims and
benefits, Carter also admitted that she personally “may have tried to help”
employees who had such questions. Id. at 42, 52. Carter further stated that she had
on file some blank forms that Unum Life had given her. Id. at 44. When one
employee made a claim under the plan, Carter provided a form to that employee,
and she completed and submitted the employer verification form to Unum Life. Id.
at 44, 102-03; R4-30 Exh. 1 at 15-16. She also submitted an employer verification
5
form for Moorman, when he filed his claim. R4-30 Exh. 1 at 15-16
Moorman, formerly employed by Southeastern Steam signed up for the plan
during the 24 April 1997 meeting with Glenn. In February 1999, Moorman was
diagnosed with rectal cancer. After he initially qualified as disabled under the
plan, the Appellees determined that he no longer satisfied the definition of
disability. Moorman disputed the denial of his disability benefits to the Appellees
but he was unsuccessful. On 16 July 2004, Moorman filed the complaint in this
case, in which he alleged the wrongful denial of disability benefits and various
other state and federal law claims. On 26 August 2004, Appellees filed their
motion to dismiss. On 22 October 2004, the district court converted the Appellees’
motion to dismiss to a motion for summary judgment on the issue of whether the
plan is governed by ERISA, which would preempt Moorman’s state law claims.
In a subsequent order on 17 February 2005, from which this appeal is taken,
the district court: (1) granted Appellees’ converted motion for summary judgment
in ruling that the plan was governed by ERISA; (2) granted Appellees’ motion to
dismiss Moorman’s state law claims on grounds of ERISA preemption; and (3)
denied Appellees’ motion to dismiss Moorman’s federal RICO claim. On 4 March
2005, Moorman filed (1) a motion for reconsideration; (2) an alternative motion
seeking certification for interlocutory appeal; and (3) a motion to stay proceedings.
On 25 July 2005, the district court (1) denied Moorman’s motion for
6
reconsideration; (2) granted Moorman’s alternative motion for certification for
interlocutory appeal; (3) denied Appellees’ request for certification for
interlocutory appeal of the district court’s refusal to dismiss Moorman’s federal
RICO claims; (4) granted Moorman’s motion to stay proceedings; (5) denied
without prejudice certain discovery motions filed by Moorman; and (6) ordered
that the district court case be administratively terminated until remanded per the
instructions of our court. We later granted Moorman’s interlocutory appeal
pursuant to 28 U.S.C. § 1292(b).
II. DISCUSSION
On appeal, Moorman alleges that the district court committed various errors
in determining that ERISA governs the plan in this case. Specifically, he claims
that the district court (1) improperly limited discovery; (2) improperly determined
that ERISA governance was a question of fact for the district court, and not the
jury, to decide; and (3) made an impermissible credibility determination with
regard to a witness, and improperly construed and disregarded other evidence
favorable to Moorman. With regard to Moorman’s federal RICO claims,
Appellees ask us to review whether this claim should be dismissed. After a brief
examination of the relevant background law, we address these issues in turn.
A. Relevant Background Law
1. Standards of Review:
7
We review de novo the grant of a motion for summary judgment. Anderson
v. UNUM Provident Corp., 369 F.3d 1257, 1262 (11th Cir. 2004). Federal Rule of
Civil Procedure 56(c) requires summary judgment when “there is no genuine issue
as to any material fact and . . . the moving party is entitled to judgment as a matter
of law.” In deciding a summary judgment motion, the court must view all the
evidence in the light most favorable to the nonmoving party, and resolve all
disputes and draw all inferences in the nonmovant’s favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513 (1986); see also Burger
King Corp. v. Weaver, 169 F.3d 1310, 1315 (11th Cir. 1999). We review the
denial of a discovery order for abuse of discretion. Burger King Corp., 169 F.3d at
1315.
2. ERISA Law Generally
a. Purpose
Congress created ERISA “to promote the interests of employees and their
beneficiaries in employee benefit plans and to protect contractually defined
benefits.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113, 109 S. Ct.
948, 956 (1989) (citations and quotations omitted); see also 29 U.S.C. § 1001
(listing the congressional findings and declaration of policy regarding ERISA);
Dixon v. Life Ins. Co. of N. Am., 389 F.3d 1179, 1184 (11th Cir. 2004) (“ERISA’s
purpose [is] to promote the interests of employees and their beneficiaries.”).
8
b. Governance
ERISA governs employee welfare benefit programs provided by an
employer. See 29 U.S.C. § 1001 et seq. An employee welfare benefit plan
governed by ERISA is “any plan, fund, or program . . . established or maintained
by an employer” to provide benefits through an insurance policy. 29 U.S.C. §
1002(1); see Donovan v. Dillingham, 688 F.2d 1367, 1371 (11th Cir. 1982).
However, “no single act in itself necessarily constitutes the establishment of the
plan, fund, or program.” Donovan, 688 F.2d at 1373. Rather, “it is the reality of a
plan and not the decision to extend certain benefits that is determinative.” Id. An
ERISA plan “is established if from the surrounding circumstances a reasonable
person could ascertain the intended benefits, a class of beneficiaries, the source of
financing, and procedures for receiving benefits.” Id.
c. Safe Harbor Exemption
The United States Department of Labor explicitly exempts from ERISA
governance certain “group or group-type insurance programs offered by an insurer
to employees.” 29 C.F.R. § 2510.3-1(j). There are four elements necessary to
satisfy the safe harbor exemption: “(1) [n]o contributions are made by an employer
or employee organization; (2) [p]articipation in the program is completely
voluntary for employees or members; (3) [t]he sole functions of the employer . . .
with respect to the program are, without endorsing the program, to permit the
9
insurer to publicize the program to employees or members, to collect premiums
through payroll deductions or dues checkoffs and to remit them to the insurer; and
(4) [t]he employer receives no consideration in the form of cash or otherwise in
connection with the program, other than reasonable compensation, excluding any
profit, for administrative services.” Id.
B. Whether the District Court Made Specific Errors in Determining that ERISA
Governs the Plan
1. Whether the District Court Improperly Limited Discovery
Moorman complains that the district court improperly limited his discovery
regarding questions of ERISA governance and preemption when it denied his
motion for leave to depose Appellees’ witnesses and for additional time to submit
summary judgment materials. However, Moorman never specifically identifies in
his brief the issues on which he sought discovery. In denying Moorman’s motion,
the district court correctly noted that this new discovery request related to the issue
of whether the Southeastern Steam had contributed to the plan. The court then
observed that the Appellees had withdrawn any contention that Southeastern Steam
had contributed to the plan. Mindful that the standard of review for denials of a
discovery order is abuse of discretion, we conclude that Moorman’s argument on
this issue fails.
2. Whether ERISA Governance Is a Question of Fact for the Jury
10
In addition, Moorman argues that the district court erred because it stated
that the issue of whether ERISA governs the plan is a fact question for the district
court to determine. According to Moorman, because the district court already has
jurisdiction based on other claims, the district court has no need to determine the
factual existence of ERISA governance for jurisdictional purposes, and therefore
this question of fact should be determined by a jury. In its order, however, the
district court indicated that it would follow “the general restrictions placed on it at
the summary judgment stage, resolving issues based on material undisputed facts.”
R7-59 at 5. Notwithstanding any arguable errors in applying this standard by the
district court, this issue need not be resolved on appeal because the appeal concerns
only our de novo review of the threshold question of whether there is a genuine
issue of material fact as to whether ERISA governs the plan. This question is
necessarily for courts, and not juries, to decide. See Mackenzie v. City of
Rockledge, 920 F.2d 1554, 1558 (11th Cir. 1991).
3. Whether the District Court Made an Impermissible Credibility
Determination and Improperly Construed and Disregarded Other Evidence
Insofar as the district court may have erred in making an impermissible
credibility determination,1 or in improperly construing and disregarding other
1
Credibility determinations at the summary judgment stage are impermissible. See
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51, 120 S. Ct. 2097, 2110 (2000).
While our review of the district court’s grant of summary judgment is de novo, and any
11
credibility determinations by the district court are properly disregarded, we believe it is
appropriate to address the issue of whether there in fact was an impermissible credibility
determination made by the district court. Our decision is based in part on the amount of
attention devoted by Moorman in his brief on appeal regarding this issue.
The allegedly impermissible credibility determination concerns Carter’s affidavit. The
district court stated that:
Although the court realizes it should not be engaged in credibility analysis, Carter
herself acknowledged that she did not read her Affidavit closely before signing it.
Therefore, the court will not rely on the averments of Carter’s Affidavit,
particularly those contradicted by other evidence in this case.
R7-41 at 17-18 n.16
This conclusion was predicated on the following exchange between Carter and counsel
for the Appellees:
Q. [Counsel for Appellee] Okay. Well, your affidavit says in paragraph 31,
acting on behalf of Southeastern Steam, I received the plan booklets as mailed by
defendant Unum Life and distributed those to individual enrolled employees,
including plaintiff Moorman. Is it your testimony –
A. [Ms. Carter] No, I didn’t.
Q. – today that that is not correct?
A. Yeah, I didn’t distribute, I didn’t distribute to the employees. He [Moorman]
asked for one. If anybody came and asked for one, Mr. Moorman did ask for one.
And I think I actually got one and took it home with me, but, no, I didn’t
distribute.
Q. Well, did you review your affidavit before you signed it?
A. Yeah, but, I mean, I just – not every word like that.
Q. Well, did you not read every word before you signed it?
A. Yeah, but it didn’t click.
R.Exh. at 75-76. Moorman contends that this was an impermissible credibility determination
and that Carter’s statements should not be read for the proposition that she did not read her
affidavit closely before signing it.
If the district court used this exchange to discount completely Carter’s affidavit, then
there may be error. Construing the facts in the light most favorable to Moorman, the exchange
would call into question Carter’s statements in her affidavit regarding her “distribution” of the
materials.
In any event, it is unclear exactly how the district court treated Carter’s affidavit. For
example, the court did accept Carter’s statements that she “believed Unum Life, rather than
12
evidence favorable to Moorman, this analysis is subsumed within our overall de
novo review of whether there is a genuine issue of material fact on ERISA
governance, which is examined below.
C. Whether There Is a Genuine Issue of Material Fact on ERISA Governance
In his brief on appeal, Moorman argues that the “controlling questions of
law” in this case are the alleged laundry list of errors by the district court in
applying the summary judgment standard of review. See Appellant’s Br. at 4-5.
This misses the point. In applying de novo review, “we review the judgment, not
the soundness of the district court’s explanation for it.” Collado v. United Parcel
Serv., Co., 419 F.3d 1143, 1151 (11th Cir. 2005); see also SEC v. ETS Payphones,
Inc., 408 F.3d 727, 736 n.10 (11th Cir. 2005) (per curiam) (“We review the district
court’s judgments; we do not grade the opinions.”). Thus, even if the district court
erred by improperly making a credibility determination or by misconstruing and
disregarding certain evidence, Moorman still must show that there is a genuine
issue of material fact as to ERISA governance.
1. Safe Harbor Analysis
The requirements for a safe harbor exception under 29 C.F.R. § 2510.3-1(j)
Southeastern Steam, was providing the Plan.” R7-41 at 3. Moreover, even if the district court
were to have accepted her affidavit without reservation, Carter’s legal conclusions about whether
ERISA applied and any ruminations on what other employees thought of the plan and relevant
documents were properly disregarded.
13
are strict. See Butero v. Royal Maccabees Life Ins. Co, 174 F.3d 1207, 1213 (11th
Cir. 1999) (noting that the safe harbor regulation “explicitly obliges the employer
who seeks its safe harbor to refrain from any functions other than permitting the
insurer to publicize the program and collecting premiums”). Thus, the safe harbor
analysis is usually conducted before considering whether the plan is governed by
ERISA using the more factor-intensive analysis under 29 U.S.C. § 1002(1).
Anderson, 369 F.3d at 1263 n.2.
Appellees concede that three of the four elements of the safe harbor
exemption are met. The only element in contention is whether “(3) [t]he sole
functions of the employer . . . with respect to the program are, without endorsing
the program, to permit the insurer to publicize the program to employees or
members, to collect premiums through payroll deductions or dues checkoffs and to
remit them to the insurer.” 29 C.F.R. § 2510.3-1(j) (emphasis added). According
to the Department of Labor:
An employee organization will be considered to have endorsed
a group or group-type insurance program if the employee organization
expresses to its members any positive, normative judgment regarding
the program. An employee organization may, in the course of
permitting an insurer, insurance agent, or insurance broker to market
the group or group-type insurance program to its employees or
members, facilitate the publicizing and marketing of the program, but
only to an extent short of endorsing the program. An endorsement
within the meaning of [§] 2510.3-1(j) occurs if the employee
organization urges or encourages member participation in the program
or engages in activities that would lead a member reasonably to
14
conclude that the program is part of a benefit arrangement established
or maintained by the employee organization.
ERISA Op. Letter No. 94-26A, 1994 WL 369282 (July 11, 1994) (emphasis
added). For our purposes, the safe-harbor analysis turns on whether the employer
“endorsed” or undertook any additional “function[] . . . with respect” to the plan
within the meaning of § 2510.3-1(j).
In Butero, we determined that the employer had endorsed the plan because it
had chosen the insurer, “decided on key terms,” “deemed certain employees
ineligible” for participation, “incorporated the policy terms into the . . . summary
plan description for its cafeteria plan,” and “retained the [ability] to alter
compensation reduction for tax purposes.” 174 F.3d at 1213-14. While the issue
was not appealed to our court, the district court in Anderson concluded that an
employer’s actions rose to the level of endorsement when “it singled out the
UNUM Plan as the sole plan it offers to its hourly employees, played a role in
selecting the premium rates, restricted employee eligibility, displayed its corporate
logo on the policy documents which it provided to [its] employees, was named in
the policy documents as the plan administrator, and provided a summary plan
description to its employees that specifically referred to ERISA.” Anderson, 369
F.3d at 1262 (citing Anderson v. UnumProvident Corp., 322 F. Supp. 2d 1272,
1276-79 (M.D. Ala. 2002)).
15
Under the mandate of Butero, which states that “any functions” by the
employer apart from the two listed exceptions disqualify a plan from the safe
harbor exception, the plan at issue in this case does not qualify for this exception.
See Butero, 174 F.3d at 1213. Here, even though only one nonlisted employer
function would disqualify the plan under the safe harbor exception, several actions
by Southeastern Steam stand out as “endorsement” for the purposes of § 2510.3-
1(j).
First, as the district court noted, “it is undisputed that Southeastern Steam
decided on at least one of the eligibility terms under the Plan, the waiting period.”
R7-41 at 24. Moorman himself concedes in his brief on appeal that Southeastern
Steam determined the waiting period. Appellant’s Br. at 34.
Second, similar to the district court’s analysis in Anderson, the plan at issue
in this case was the “sole” long term disability plan offered by Southeastern Steam
to its employees. See 322 F. Supp. 2d at 1277. Specifically, there is no dispute
that Southeastern Steam identified the plan in its employee handbook as part of the
company’s employee benefits. The employee handbook stated that “[d]isability
insurance is available to all full-time employees.” R.Exh., Exh. 5 at 23. Carter
testified that Southeastern Steam did not offer disability insurance prior to the plan
at issue in this case, that no other plans were then offered, and that the provision in
the handbook was added to account for that policy. Id. at 10-11, 45-46. In
16
addition, all but one of the employees of Southeastern Steam enrolled for disability
coverage at the time of the original enrollment. Id. at 57. The enrollment forms
were signed by the employees, including Carter and Moorman, and included the
following language: “Southeastern Steam, Inc., is offering a comprehensive
Disability program . . . .” R4-30 Exh. 2B at unnumbered 3, 23.
Third, it is undisputed that Southeastern Steam maintained a limited supply
of claim forms and that Carter assisted with the filings of at least one or two claim
forms to Unum Life on behalf of employees. R.Exh. at 44, 102-04; R4-30 Exh. 1
at 15-16. Moorman argues that this was only a ministerial function, and that any
submissions to Unum Life for claims on the part of Southeastern Steam were the
employer verification forms, which were required by the insurer. Nevertheless,
given Butero’s low threshold for disqualification under the safe harbor exception,
i.e., the fact that “any” additional function by the employer with regard to the plan
bars the application, this accumulation of extraneous functions by Southeastern
Steam has rendered the safe harbor inapplicable in this case. Our discussion in the
next section regarding “establishment” and “maintenance” incorporates this safe
harbor analysis and addresses more fully the depth of Southeastern Steam’s
involvement with the plan.
2. “Establishment” and “Maintenance”: Statutory Coverage under 29
U.S.C. § 1002(1)
17
Even if the safe harbor is barred, “that does not necessarily mean that the
insurance policy is part of an ERISA plan.” Butero,174 F.3d at 1214; see also
Anderson, 269 F.3d at 1263 n.2 (“[A] plan that falls outside of the safe harbor
exception does not necessarily fall within the jurisdiction of ERISA.”).
The defendants must show five things to establish that an ERISA plan
governs its relationship with Plaintiff: “(1) a plan, fund, or program (2) [that has
been] established or maintained (3) by an employer . . . (4) for the purpose of
providing . . . disability . . . benefits (5) to participants or their beneficiaries.”
Donovan, 688 F.2d at 1371(internal quotations omitted). The only contested factor
is the third, whether the employer, Southeastern Steam, “established or
maintained” the plan within the meaning of 29 U.S.C. § 1002(1). “Our inquiry
thus necessarily focuses on ‘the employer . . . and [its] involvement with the
administration of the plan.” Anderson, 369 F.3d at 1263.
“In Butero, we suggested seven factors that may be relevant in determining
whether an employee welfare benefits program has been established [by an
employer]. These factors are equally important in determining whether an
employer has maintained the plan: ‘(1) the employer’s representations in internally
distributed documents; (2) the employer’s oral representations; (3) the employer’s
establishment of a fund to pay benefits; (4) actual payment of benefits; (5) the
employer’s deliberate failure to correct known perceptions of a plan’s existence;
18
(6) the reasonable understanding of employees; and (7) the employer’s intent.’”
Id. at 1265 (quoting Butero, 174 F.3d at 1215).
We cannot help but note that the facts in this case are similar to those in
Anderson, in which we determined that the employer “established and maintained”
the plan. See id. at 1259-62. In applying Butero’s seven listed factors to the facts
in this case and incorporating our previous analysis concerning the safe harbor
exception, we conclude, as we did in Anderson, that “almost all of the . . . factors
provide powerful reasons to conclude as a matter of law that [the employer] both
established and maintained an employee welfare benefit plan governed by
ERISA.” See id. at 1267.
With regard to the first Butero factor, as noted previously, Southeastern
Steam stated in its employee handbook that disability insurance was an available
benefit. Some courts have concluded that this alone is enough to trigger ERISA
governance. See, e.g., Cockey v. Life Ins. Co. of N. Am., 804 F. Supp. 1571, 1575
(S.D. Ga. 1992) (“Where a plan is presented to employees as one belonging to the
employer’s benefits package, however, as opposed to merely permitting the insurer
to publicize the program to employees, the plan is an ‘employee welfare benefit
plan’ under ERISA, 29 U.S.C. § 1002(1), even though the employees pay the
premiums.”).
With the possible exceptions of the disclosure of Unum Life’s 1-800 number
19
to certain employees and the word-of-mouth publicity for the Unum Life
representative’s visit to the company, which are not particularly probative of
whether Southeastern Steam established or maintained the plan, there are no
relevant facts discussed on appeal regarding Southeastern Steam’s oral
representations to its employees, so we move on to the third Butero factor. Here,
Southeastern Steam, similar to the employer in Anderson, “established a fund to
pay benefits [and] selected the UNUM plan as the sole long term disability plan . . .
and limited eligibility to [certain employees].” See Anderson, 369 F.3d at 1265
(citation omitted). By applying for UNUM Life coverage on behalf of its
employees, and deciding on key terms in the plan agreement, Southeastern Steam
made the plan “a benefit closely tied to the employer-employee relationship.” Id.
at 1265-66.
With regard to fourth factor, Anderson is once again on point. While
Southeastern Steam did “not actually pay benefits, it [was] directly involved in the
payment process” because it “maintain[ed] a supply of claim forms” and
“facilitated the payment of benefits.” See id. at 1266. Moorman disputes the level
of participation by Southeastern Steam and argues that the claim forms were filed
away. However, Carter admitted that she helped employees who had questions
regarding their claims and benefits and that she wrote a check on Southeastern
Steam’s account to pay for all of the coverages. R.Exh. at 33-34, 52. Carter also
20
assisted at least one or two employees in the filing of an actual claim. Id. at 44,
102-04; R4-30 Exh. 1 at 15-16.
The fifth and sixth Butero factors also favor the Appellees. It is not simply
the “subjective” understanding of individual employees like Carter (who admitted
she did not read the enrollment form) and Moorman, who maintained that they
believed Southeastern Steam was not offering the plan, but rather the viewpoint of
the objectively reasonable employee that is the primary consideration in this
analysis. See Anderson, 369 F.3d at 1266-67; Johnson v. Watts Regulator Co., 63
F.3d 1129, 1135 (1st Cir. 1995) (conducting ERISA analysis from “the viewpoint
of an objectively reasonable employee”). Here, Southeastern Steam created and
distributed the employee handbook, which referenced the plan in question as an
available benefit for all its full-time employees.2 Moreover, the employees signed
the enrollment forms that indicated Southeastern Steam was offering the program.
Though there is no affirmative evidence that Southeastern Steam knew of any
misconceptions regarding the disability plan, there is likewise no evidence that
Southeastern Steam company officials, including Carter and Moorman, who signed
the enrollment forms and who received the ERISA plan booklet and certificates,
2
While Carter stated that she did not distribute the plan booklets and certificates to
Southeastern Steam employees, which contained explicit language regarding ERISA
governance, she admitted that she gave one booklet to Moorman upon his request and took one
home for herself. R.Exh. at 76.
21
took any steps, over the course of several years, to refute the indications that
Southeastern Steam was offering the plan or to provide any necessary
clarifications. See Anderson, 369 F.3d at 1267 (finding relevant the fact that
company officials did nothing to change the ERISA language in any of the
documents until after the claim had been filed). Thus, it is clear that the
Southeastern Steam employees who signed and read the enrollment form and the
employee handbook could have reasonably believed that Southeastern Steam was
offering the plan in question.
The seventh Butero factor favors Moorman. More specifically, while some
of the actions of Southeastern Steam suggest otherwise, it does not appear, based
on Carter and Moorman’s affidavits, that Southeastern Steam company officials
had the intent to establish or maintain the plan at issue. This factor is not
dispositive, however, because ERISA can apply “regardless of the intent of the
plan administrators and fiduciaries” if the plan “satisfies the statutory definition.”
Anderson 369 F.3d at 1264.
Even if the Butero factors demonstrate that Southeastern Steam
“established” or “maintained” the plan, Moorman makes four other arguments that
ERISA governance is improper in this case. First, he alleges that ERISA was not
intended to cover such small employers as Southeastern Steam. This argument is
unpersuasive because we have said that an ERISA plan may consist of only a
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single employee. See, e.g., Williams v. Wright, 927 F.2d 1540, 1545 (11th Cir.
1991). Second, Moorman alleges that the Appellees fraudulently inserted
language regarding ERISA into plan documents and enrollment forms.
Notwithstanding the fact that Southeastern Steam officials signed the enrollment
forms and did nothing to refute the conspicuous ERISA language in the plan
documents after the company received them, this allegation is without support
from the evidence in the record. Third, Moorman argues that Appellees never
discussed the issue of ERISA governance with Southeastern Steam employees or
officials. Even assuming that Appellees had such a duty to explain, this argument
also fails in light of the failure of Southeastern Steam to correct or clarify language
in the enrollment forms and plan documents that reflects ERISA governance.
Moreover, “ERISA does not require that a beneficiary have any knowledge of a
written plan’s terms.” Henglein v. Informal Plan for Plan Shutdown Benefits for
Salaried Employees, 974 F.2d 391, 401 (3d Cir. 1992). Fourth, Moorman appears
to argue that any relevant actions by Southeastern Steam regarding the ERISA plan
governance were taken at the behest of the Appellees. This argument fails for two
reasons: As already discussed, there were several actions that Southeastern Steam
undertook on its own initiative, most notably the inclusion of the disability plan in
the employee handbook and the assistance provided by Carter to Southeastern
Steam employees. Furthermore, even if Southeastern Steam undertook actions at
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the behest of the Appellees, our primary inquiry must be from the vantage point of
the objectively reasonable understanding of the employees, who may be unaware
of the motivations behind their employer’s actions. See Anderson, 369 F.3d at
1266-67.
While there may be fewer facts to show that the employer established or
maintained the plan than there were in Anderson and Butero, insofar as the plan
booklets in this case were not widely distributed and few employees submitted
claims, those cases do not represent the absolute minimum of what must be proven
to show establishment or maintenance. We do not believe that Congress
established ERISA to prejudice the rights of employees or to needlessly squelch
state law actions that would otherwise provide a superior avenue for the
vindication of such rights. Instead, as noted previously, the raison d’etre of ERISA
was “to promote the interests of employees and their beneficiaries” and “to protect
contractually defined benefits.” Firestone Tire & Rubber Co., 489 U.S. at 113, 109
S. Ct. at 956. The bar triggering ERISA governance, therefore, should not be set
too high.
Thus, reviewing the Butero factors previously discussed, and keeping in
mind the underlying purposes of ERISA, we conclude that the plan in this case is
governed by ERISA. In reaching this decision, we note that Moorman does not
forfeit his rights against the Appellees; rather, he must litigate most, if not all, of
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his claims under ERISA, a statutory scheme enacted by Congress to protect the
rights of employees such as Moorman.3
D. Moorman’s Federal RICO Claims
Appellees seek dismissal of Moorman’s federal RICO claims on grounds
that it was inconsistent with ERISA’s exclusive remedial scheme. The district
court denied that portion of the motion, stating: “Defendants provide the court with
no legal authority that allowing a plaintiff to proceed under RICO would frustrate
the exclusive remedial scheme Congress devised for ERISA claims, and the court
will not dismiss the claim on grounds for which Defendants have presented no
legal authority.” R7-41 at 33. In its 25 July 2005 order, which expressly refused
to certify the question for appeal, the district court stated:
[T]he court is generally unable to certify a question for
interlocutory appeal when the question has not been considered by the
district court. In this case, the court previously determined it would
not be proper to grant Defendants’ motion to dismiss Plaintiff’s
federal RICO claim because Defendants had not presented legal
authority supporting their position. It is only now that Defendants
provide the court with such authority. An issue presented for the first
time on appeal will be considered only in extraordinary
circumstances. The court does not believe the inclusion or exclusion
of Plaintiff’s federal RICO claim presents an extraordinary
circumstance warranting the court’s certification of the question,
therefore the court will decline Defendant’s request for it to do so.
3
Because Moorman does not ask us to review the district court’s conclusions regarding
the extent to which ERISA preempts his state law claims, see Appellant’s Br. at 46, we need not
address that issue.
25
R7-59 at 27 (citations omitted).
The scope of review on appeal under 28 U.S.C. § 1292(b) “is not limited to
the precise question certified by the district court because the district court’s order,
not the certified question, is brought before the court.” Aldridge v. Lily-Tulip, Inc.
Salary Ret. Benefits Comm., 40 F.3d 1202, 1207 (11th Cir. 1994). Under
§ 1292(b), appellate review, even for certified questions, is discretionary.
McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th Cir. 2004). “The
proper division of labor between the district courts and the court of appeals and the
efficiency of judicial resolution of cases are protected by the final judgment rule,
and are threatened by too expansive use of the § 1292(b) exception to it. Because
permitting piecemeal appeals is bad policy, permitting liberal use of § 1292(b)
interlocutory appeals is bad policy.” Id. By extension, review by appellate courts
of noncertified questions is also discretionary. Cf. id.
There is no reason why the district court should not be afforded the
opportunity to answer this question more fully in the first instance. In their motion
to dismiss Moorman’s RICO claim, Appellees did raise the issue before the district
court, albeit briefly, and cited two cases: Pilot Life Ins. Co. v. Dedeaux, 481 U.S.
41, 107 S. Ct. 1549 (1987), and Gilbert v. Alta Health & Life Ins. Co., 276 F.3d
1292 (11th Cir. 2001). R1-3 at 24. However, we note that Appellees thereafter did
not request reconsideration of that court’s ruling on the issue. Rather, in its
26
response to Moorman’s motion for certification, Appellees for the first time
requested, in the event that the district court certified the ERISA governance
question for appeal, that the district court also certify the RICO question. R7-50 at
5.
The federal RICO issue is heavily briefed by Appellees on appeal, and
includes new theories not raised below (e.g., the proper application of a statute
concerning ERISA’s preclusive effect, 29 U.S.C. § 1144, on federal laws enacted
both before and after ERISA’s enactment). However, Appellees failed to afford
the district court the same opportunity for review. Even if this issue presents a
matter of first impression in our circuit, this is not a circumstance that would
warrant preemptive appellate review and resolution of an issue not fully addressed
by the district court, and we decline to liberally use § 1292(b) in the manner urged
by Appellees. See McFarlin, 381 F.3d at 1259.
Appellees also claim that Moorman failed to allege a viable RICO claim
because it lacked particularity. This question was also not certified for appeal. For
similar reasons regarding our refusal to address Appellees’ first RICO argument,
we will not address this issue on appeal.
III. CONCLUSION
Moorman appeals from an interlocutory order of the district court, which
concluded that ERISA governs his disability insurance plan. Because the evidence
27
in the record demonstrates that there is no genuine issue of material fact on this
issue, we affirm the order of the district court. Furthermore, we decline Appellees’
invitation to review Moorman’s RICO claims, which have not been certified for
appeal, because they have yet to be adequately addressed by the district court.
AFFIRMED.
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