Ross Glenn Moorman, Jr. v. UnumProvident

[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:

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 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

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 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.

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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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