# Petition for Writ of Certiorari — Delta Air Lines, Inc. v. Air Line Pilots Ass'n, International > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1552%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 493 U.S. 821 ## Text IN THE Supreme Court of the United States OCTOBER TERM, 1988 DELTA AIR LINES, INC., Petitioner, Vv. Air LINE PILOTS ASSOCIATION, INTERNATIONAL, DONALD R. HAZELTINE and EARL E. MEECH, Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Of Counsel: *WILLIAM J. KILBERG WALTER A. BRILL BARUCH A. FELLNER GreEGorY L. RIGGS JANET M. Cook DELTA AIR LINEs, INC. G1BSON, DUNN & CRUTCHER 1030 Delta Boulevard 1050 Connecticut Avenue, N.W. Atlanta, Georgia 30320 Washington, D.C. 20036 (404) 765-2600 (202) 955-8500 Attorneys for Petitioner, Delta Air Lines, Inc. *Counsel of Record i QUESTIONS PRESENTED |. Whether benefit claims denied by the fiduciaries named in an ERISA employee benefit plan, with “final and exclusive” authority to decide all claims for benefits under the plan, may subsequently be submitted to an arbitrator for de novo consideration under a collective bargaining agree- ment merely because that agreement incorporates the plan by reference and recites certain plan terms, or must claim denials be appealed to a district court under section 502 of ERISA. 2. Whether the threshold question of an arbitrator’s jurisdiction to decide claims for ERISA plan benefits may be deferred to the arbitrator, merely because the plan is incorporated into a collective bargaining agreement, or must be decided by the courts under the Supreme Court’s decisions in AT&T Technologies, Inc. vy. Communications Workers of America, 475 U.S. 643 (1986), and the Steelworkers Trilogy. 1] RULE 28.1 LISTING All parties to this case are named in the caption. The following are all of the publicly owned parents, subsidiaries. and affiliates of Delta Air Lines, Inc.: Atlantic Southeast Airlines, Inc.; Comair, Inc.; SkyWest, Inc.; and Gatwick Handling, Limited. 11) TABLE OF CONTENTS NER II IEG LE RR IO OES AONE T OTT EET OTE 8 Eo pee ne Le ss Snap vahiabundabebandeiepaes snk unacoeinks shiiosbidanabapsannnnies Statutes and Regulations Involved....................cseeceeeeeeees A. Employee Retirement Income Security Act of SEE ES eer 1. Plan and Summary Plan Description ...... ee er MOINS ooo cc ccnnccasiucssbbausesneanninseuass 3. Claims Resolution Procedures................. oo cs ccsacunsnstvesenenssnnsens i os cam abdbbunibehnesnsednsasnnene A. Exclusive Claims Review Procedures Under The Plan Pursuant To Section 503 of ERISA. B. The Plan Denied Meech’s And Hazeltine’s Claims For Benefits For Which They Applied After Their Employment With Delta Termi- a a a aa dicans chin dash ahaa benmbniabincennne 6 C. The District Court Found For Delta On The Basis Of The Incorporation Of Plan Language Into The CBA, And The Court Of Appeals Reversed For The Same Reason....................... 9 Reasons For Granting The Writ........ ip baeescasacaeabaphasiavsians 10 A. The Decision Below, Which Ignores The Provi- sions Of The Plan Vesting In Named Fiduciar- ies The “Final And Exclusive” Authority to Decide Claims For Benefits Under The Plan: (1) Undermines ERISA’s Mandate That Plan Terms Govern Plan Claims; (2) Conflicts With Other Circuit Law; And (3) Creates Duplica- tive And Conflicting Claims Review Proce- ala dices cha ndhiusnanabaenatebaanianiiks 12 1. ERISA Mandates That Plan Terms Govern The Disposition Of Plan Claims, Including The Identification Of Plan Fi- duciaries Who Administer The Plan ....... 13 The Decision Below Conflicts With Cir- cuit Law Allowing ERISA Plans To Estab- lish Independent Claims Review Proce- esc on ence cu cudnicgeesegnnchaninlaes 18 "~ WN 2 Bh WN NN lL NNeae if to 1V 3. The Decision Below Creates Duplicative And Conflicting Claims Review Proce- SPIN Gain hansoonatuinibanasecanehetsumsaemmediacenanaioadcone: B. The Decision Below Conflicts With The Stee/- workers Trilogy And AT&T By Deferring To An Arbitrator The Threshold Jurisdictional Question As To Whether The Arbitrator Has Jurisdiction To Award Plan Benefits Notwith- standing The Determination Of The Plan Fi- IE sccmntstbicinses methadcanstseteen ie oak RII oacon chatcr nt ee ee ee eee 22 Vv TABLE OF AUTHORITIES Cases: Air Line Pilots Ass'n v. Northwest Airlines, Inc., 627 F Oe 27 ee Sls De cries essai 11,19,20 Air Line Pilots Ass’n v. Northwest Airlines, Inc., 444 FF Somme. 1 CEE Fe ric taccniseincscltensicots 20 AT&T Technologies, Inc. v. Communications Work- ers of America, 475 U.S. 643 (1986) ............ ee Passim Birmingham v. SoGen-Swiss International Corpora- tion Retirement Plan, 718 F.2d 515 (2d Cir. 1983) 14-16 Bonin v. American Airlines, Inc., 621 F.2d 635 (Sth CO, SPIE vexseravaniscaceronccatacéessscepsanascmmeicdciodntaanan 11,18-22 Brotherhood of Teamsters Local No. 70 v. Interstate Distributor Co., 832 F.2d 507 (9th Cir. 1987)..... 25 Connolly v. Pension Benefit Guaranty Corporation, S75 US. 2) CU tice emda 10 Cummings v. Briggs & Stratton Retirement Plan, 797 F.2d 383 (7th Cir.), cert. denied, 479 U.S. ROD CUI e stcctsiexasisscairccestscntaaadesincnmainnanapie 14 Davidian v. Southern California Meat Cutters Union and Food Employees Benefit Fund, 859 F.2d 134 (OU Ce. Ci icici ncmaaunens 14 Degan v. Ford Motor Co., 869 F.2d 889 (Sth Cir. SFO) incscsnsssstntnden seasssastatupasciagammaaniadameesiionaa 14 Delgrosso v. Sprang and Company, 769 F.2d 928 (3d Cir. 1985), cert. denied, 476 U.S. 1140 CE FIN jnchinnapessnccauaicedcbiunmcmntnabasessananipsrenaeasia 15 Dzinglski v. Weirton Steel Corp., —_— F.2d —__, 1989 WL 51356 (4th Cir. 1989)... eee 14 Firestone Tire & Rubber Co. v. Bruch, U.S ; BOD B.C Fe Cae acincccicessactestaaeianaonncesn 10,17,23 Halstead & Mitchell Co. v. United Steelworkers of America, 421 F.2d 1191 (3d Cir. 1969)............... 22 Johnson v. Central States Southeast and Southwest Areas Pension Fund, 513 F.2d 1173 (10th Cir. BST FD cciscedncessnincdicaenesvaatmmecaniare aac 15 LAWI/CSA Consolidators, Inc. v. Teamsters Local 63, 849 F.2d 1236 (9th Cir. 1988) ........ ee 25 Massachusetts v. Morash, U.S , 109 S. Ct. NGG CGD siviaveiiccsticcasioncsccocseansnnsscasisensncen eagienaaeies 10 Moore v. Metropolitan Life Insurance Co., 856 F.2d Oe (08 GAL, FI iicroacnnnenisienecncacatenn 16-17 Nachman Corp. v. Pension Benefit Guaranty Corp., GO UB. FO CD vesncsatincttectianncbalitattciadennins. 10 Nachwalter v. Christie, 805 F.2d 956 (11th Cir. L SUD Railway Labor Act, 45 U.S.C. § 15! et seq. (hereinafter “RLA”). “The complete text of statutes and regulations cited in this section can be found in Appendix E. * Federal jurisdiction in the district court was invoked under 45 U.S.C. §§ 151, 153 and 184, and 28 U.S.C. §§ 1331, 1337, 2201 and 2202. 5 A. Exclusive Claims Review Procedures Under The Plan Pur- suant To Section 503 of ERISA The respondents in this case, the Air Line Pilots Associa- tion (*ALPA”), Donald R. Hazeltine (“Hazeltine”) and Earl E. Meech (“Meech”)® seek System Board review’ of disability benefit claims denied by and pursuant to the Delta Air Lines, Inc. Pilots Disability and Survivorship Plan (“Plan”), an ERISA employee benefits plan. As required by ERISA (29 U.S.C. § 1022; 29 C.F.R. § 2560.503-1 (b) (1) (i1)), the Plan’s SPD clearly sets forth the exclusive procedures for review of denied claims. These procedures do not provide for arbitra- tion of denied claims, but instead establish an independent review of claims through Pian procedures by named Plan fiduciaries with a right of review in federal court under section 502 of ERISA. To receive disability benefits under the Plan, a pilot must submit an application for benefits to the Plan. The application is reviewed, an initial determination is made, and the claim- ant is notified of the result. If the claim is initially denied, a written explanation of the reasons for the denial is sent to the claimant who may appeal the decision to the Administrative Subcommittee of the Plan. If the claim is denied by the Administrative Subcommittee, the claimant has 90 days to appeal the denial to the entire Administrative Committee. At both levels of review, claimants or their representatives may review pertinent documents, and submit comments and documentary evidence. If the Administrative Committee denies the claim, the claimant may challenge the decision in federal court pursuant to section 502 of ERISA. Nothing in the Plan or the SPD provides for arbitration of Plan disputes. The written terms of the Plan explicitly provide that, subject only to the mght to bring an action in United States District Court, the decisions of the Administrative Commit- tee are final: “The decisions of the Administrative Committee as to interpretation and application of the Plan shall be final.” The Administrative Committee shall have the power to “in- ° Collectively referred to as “ALPA” or “respondents.” ; “Arbitration” and “System Board review” are used interchangeably throughout this petition. 6 terpret the Plan, and decide all questions of eligibility of any Employee to participate in the Plan or to receive benefits under it, its interpretation thereof in good faith to be final and conclusive.” Similarly, the exclusive authority to interpret the Plan lies with the Plan Administrator: “The operation and administration of the Plan ..., the exclusive power to inter- pret it, and the responsibility for carrying out its provisions are vested in an Administrative Committee ....” (J.A. 82- 83)*® Thus, the SPD concludes: “The above review procedures are the exclusive procedures provided under the Plans.” (J.A. 90) These provisions of the Plan are incorporated into the collective bargaining agreement between Delta and ALPA (“CBA” or “Agreement”) by reference. Thus, the Plan lan- guage giving the Administrative Committee the final and exclusive authority to determine eligibility for benefits has been made part of the CBA between the parties. The CBA also contains an arbitration clause which provides for System Board review of “disputes between any pilot covered by [the] Agreement and the Company growing out of grievances or out of interpretation or application of the terms of [the] Agreement.” (J.A. 46) B. The Plan Denied Meech’s And Hazeltine’s Claims For Benefits For Which They Applied After Their Employment With Delta Terminated. The respondents in this case worked for Delta as airline pilots. Both pilots were fired by Delta for misconduct.’ Both * “JA.” citations are to the Joint Appendix filed in the court below. * On January 24, 1985, Meech was indicted by a federal grand jury in Dallas, Texas on eleven felony charges involving fraud and conspiracy for filing false insurance claims. (J.A. 114-15) On February 8, 1985, Meech was suspended by Delta without pay following his indictment on these criminal charges. On May 30, 1985, a superseding indictment added three additional counts. On June 28, 1985, Meech pled guilty to two felony charges and admitted that he had filed fraudulent insurance claims alleging the theft of a boat, motor, and trailer which were in his possession. (J.A. 120) Upon his conviction of fraud and sentencing to jail for five years, Meech’s suspension at Delta was converted into a termination, effective July 31, 1985. Hazeltine was placed on a one-year disciplinary suspension on June 1, 1983, after 15 years of disciplinary infractions, resulting in approxi- mately 20 registered complaints, which had triggered two pricr suspensions. 7 terminations were upheld by a System Board. Both pilots submitted claims for permanent disability benefits after they were terminated.'® The claims of both pilots were fully processed through the dispute resolution procedures of the Plan and were denied by the Plan at each level of review. The Plan denied respondents’ claims because at the time of their terminations, neither pilot was disabled within the meaning of the Plan."' At the System Board hearing regarding the propriety of Hazeltine’s termination, the issue of System Board jurisdic- tion to award disability benefits was directly addressed and representatives of both ALPA and Delta agreed that the System Board did not have the jurisdiction to consider a claim for disability benefits.'? The System Board upheld the (J.A. 98-105) As part of this one-year suspension, Delta required Hazeltine to seek psychiatric treatment for a personality disorder which interfered with his ability to get along with people. Jd. On June 18, 1984, Hazeltine’s psychiatrist reported that he could “see no medical or psychological reason at this time that would prevent [Hazeltine’s] return to full duty... .” (J.A. 102) Hazeltine was reinstated as of June 20, 1984, and returned to work with the following understanding as stated in a memorandum to Hazeltine from Delta: “You were expressly advised ...[that this was your] final opportunity to correct your attitude toward your job and fellow employees.” Declaration of Odom and Davis at Exhibit 21 (emphasis in original). On July 3, 1984, while reporting for his first line flight since his reinstatement, Hazeltine resumed his pattern of misconduct, resulting in his termination. (J.A. 98-103) '° Before he was terminated, Meech submitted a claim for temporary disability benefits which was denied because he claimed to have become temporarily disabled more than thirty days after he was placed on a disciplinary suspension, which made him ineligible for benefits. After he was terminated, Meech claimed he had become permanently disabled. '' Under the Plan, a pilot becomes disabled when the FAA determines that the pilot does not meet FAA medical requirements for a first class medical certificate. (§ 1.08 at J.A. 72) When their employment with Delta terminated, both pilots still held FAA first class medical certificates and therefore were not disabled under the Plan. '? At the hearing Delta objected to Hazeltine’s request for disability benefits on two separate grounds: First, there’s a very basic legal problem. The Board does not have jurisdiction to consider medical disability or to award medical disability. Under the pilot’s plan, which is governed by federal statute and is highly regulated, the only authority that has or may consider a disability claim would be the Administrative Committee. Again, this Board just does not have jurisdiction to consider that claim. Second, the Company has not been put on notice... that there’s going to be a claim for disability. (footnote continued) 8 propriety of Hazeltine’s discharge’? and also stated that even though he was no longer an employee, Hazeltine was not precluded from applying for disability benefits to the disabil- ity Plan and the Administrative Committee was not precluded from considering his application for benefits nor was bound by Hazeltine’s current employment status in making its deter- mination. The System Board did not state that if Hazeltine applied for disability benefits, they should be awarded. On April 28, 1986, after the Plan denied their claims for disability benefits, Hazeltine and Meech filed nearly identical grievances with Delta protesting the denial of disability bene- fits by the Plan’s Administrative Committee. The factual predicate for both grievances filed under the CBA was that under the Plan “[t]he Administrative Committee denied my application for disability benefits. ...” (J.A. 111, 126) Delta denied the grievances and refused to participate in any System Board proceedings. “Because applications for disability bene- fits lie exclusively within the province of the Administrative Committee, it is clear that the System Board has no jurisdic- tion over these matters, and accordingly the grievances cannot be entertained.” (J.A. 129) Instead of availing themselves of court review of ERISA plan determinations pursuant to section 502(a), respondents filed this action to compel Delta to arbitrate the decisions of the Plan’s Administrative Committee. Declarations of Odom and Davis at Exhibit 27 at 30-31 (emphasis added). In response, Robert H. Drew, the ALPA Contract Administrator who represented Hazeltine before the System Board, acknowledged the exclusivity of Plan provisions and procedures in resolving disability claims. [By Mr. Drew:] Mr. Kassin is toially correct in his position that says that the System Board is not the proper body to consider whether Captain Hazeltine is disabled or not. We all recognize that that obligation and responsibility rests with the federal air surgeon, and we also recognize that the pilot’s disability retirement pian sets forth very precise conditions which must be met for purposes of receiving disability retirement. Id. at 33-34 (emphasis added). '3 “The general pattern of the grievant’s unsatisfactory conduct during his 16-year employment with the Company together with the previous discipline imposed by the Company and the war. ings received by the grievant justify the Company’s action in terminating the gnevant’s employ- ment for his most recent incident of misconduct.” (J.A. 97) 9 C. The District Court Found For Delta On The Basis Of The Incorporation Of Plan Language Into The CBA, And The Court Of Appeals Reversed For The Same Reason. The district court held that disputes under an ERISA employee benefit plan are not arbitrable where plan terms designating exclusive plan fiduciaries with “final” and “con- clusive” authority to decide benefit claims are incorporated into a collective bargaining agreement. The district court concluded, that the provisions of the Collective Bargaining Agreement incorporating the Delta Pilots Disability and Survivorship Plan therein by reference (Section 26 A), in conjunction with the provisions of the Plan itself which vest in the Administrative Committee thereof the exclusive power to interpret it, and to decide all questions of eligibility to receive benefits thereunder (Sections 11.01, 11.07(b)), render this dispute with respect to disability benefits cognizable only by the Committee and not subject to arbitration before the System Board.... App. B. The court of appeals reversed, holding that, notwith- standing a plan’s express terms reserving to itself claims dispute resolution, the mere incorporation of a plan and recitation of its terms in the CBA render such benefit claims arbitrable.'* (App. A at 13-18) Nevertheless, the court de- clared that: Our decision should in no way be interpreted as binding on the System Board as it reviews the Meech and Hazeltine grievances. The System Board might well determine that the exclusivity and finality lan- guage in the Plan means that all (or some portion) of disputes over the Plan’s administration are not normally to be submitted to the System Board. Id. at 18-19. '* The court of appeals properly held that the RLA did not require arbitration of disputes over employees’ claims for ERISA plan benefits in all cases — i.e., that the parties have the right to establish independent claims review procedures under ERISA — and that such disputes “were not arbitrable at all if not arbitrable under the collective bargaining agreement.” (App. A at 8-9, n.2) 10 Thus, the court below remanded to the arbitrator not only the merits of the Hazeltine and Meech claims but also the threshold jurisdictional question of whether the parties agreed to arbitrate claims for disability Plan benefits. The court concluded that it is up to the arbitrator and not the courts to determine whether the description of plan proce- dures as “exclusive” and “final” excludes benefit claims from the CBA’s aruitration clause. The court’s decision deferring this jurisdictional issue to the arbitrator squarely conflicts with Supreme Court precedent, including the Steelworkers Trilogy, (United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); United Steelworkers of America v. American Mfg. Co., 363 U.S. 564 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960)) and most recently, AT&T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643 (1986). REASONS FOR GRANTING THE WRIT The decision below unravels ERISA—what this Court has repeatedly called a “comprehensive and reticulated stat- ute.” Nachman Corp. v. Pension Benefit Guaranty Corp. 446 U.S. 359, 361 (1980); Massachusetts v. Morash,_— U.S.___., 109 S. Ct. 1668 (1989); Firestone Tire & Rubber Co. v. Bruch, U. S.___, 109 S. Ct. 948 (1989); Connolly v. Pension Benefit Guaranty Corporation, 475 U.S. 211, 214 (1986). An essential element of ERISA is the express designation of plan fiduciaries to administer ERISA pians. With respect to the disposition of claims under a plan, section 503 of ERISA requires that a plan identify the “appropriate named fiduciary.”- The disability plan at issue expressly designates the decisions of such fiduciaries as final and exclu- sive. The court below has added the arbitrator as the final, yet de novo, level in the claims review process notwithstanding the absence of any reference to arbitration in the Plan or the SPD. The effects of the court’s decision are far reaching. It is axiomatic that under ERISA, plan terms govern the disposi- tion of substantive and procedural issues under the plan. See 11 infra at 13-18. The court below would have it otherwise. In grafting the arbitral mechanism onto “final” and “exclusive” plan procedures, the court virtually ignores the exclusivity provisions of the Plan. To so tur a blind eye to plan provisions undermines the fundamental purpose of ERISA— substantive and procedural certainty as reflected in plan terms. The decision below renders plan terms nugatory, designates new fiduciaries not named in the plan, and creates a duplicative dispute resolution process which requires the use of both of the alternative claims review procedures autho- rized by ERISA. Such a result fosters confusion and uncer- tainty, is clearly inconsistent with Supreme Court precedent and creates a conflict with other circuit law. The impact of this decision is not limited to ERISA. It affects the broader scope of labor-management relations as a whole. In an unbroken line of precedent, from the Steelwork- ers Trilogy to AT&T, it has been well settled that the jurisdic- tional question as to whether, by “express exclusion or other forceful evidence, ” a specific dispute is not subject to arbitra- tion should be decided by the courts and not referred to ihe arbitrator, AT&T, 475 U.S. at 652. See also Bonin v. American Airlines, Inc., 621 F. 2d 635 (Sth Cir. 1980) (court decides dispute is not arbitrable under the RLA); Air Line Pilots Association v. Northwest Airlines, Inc., 627 F. 2d 272 (D.C. Cir. 1980) (court determines which portion of the dispute over benefits is arbitrable under the RLA). The court below determined that, in the final analysis, it is for the arbitrator to decide whether the incorporation of “exclusive” and “final” Plan procedures into the CBA yieids authority over benefit claims to the arbitrator or constitutes express exclusion of such claims from arbitration. Although the court concluded that the incorporation and recitation of such “final” and “exclusive” plan procedures in the CBA makes the claims arbitrable, the court nevertheless deferred the issue to the arbitrator. Such a result does violence to labor-management relations and cannot be squared with the decisions of this Court and other circuits. 12 A. The Decision Below, Which Ignores The Provisions Of The Plan Vesting In Named Fiduciaries The “Final And Exclusive” Authority To Decide Claims For Benefits Under The Plan: (1) Undermines ERISA’s Mandate That Plan Terms Govern Plan Claims; (2) Conflicts With Other Circuit Law; And (3) Creates Duplicative And Conflicting Claims Review Procedures. The principal holding of the court below is that by virtue of a plan’s incorporation into a CBA and the recitation of certain plan provisions in a CBA, arbitrators have jurisdiction under the CBA’s general arbitration provision to award bene- fits under the plan, notwithstanding plan terms which desig- nate plan fiduciaries with exclusive and final authority to resolve such claims. Such a result does violence to ERISA’s fundamental purpose that plans be administered by named fiduciaries according to their written terms. Moreover, ERISA clearly contemplates that plans may choose between arbitration and exclusive plan mechanisms to resolve bencfit claims. The court below obliterates that choice and requires an arbitral remedy for all plans that are referred to and whose provisions are copied into a CBA. The court’s decision will affect many hundreds of employee welfare and pension benefit plans and many thousands of claims.'* While ERISA provides a choice between dispute resolution procedures, it does not provide for two indepen- dent and parallel dispute resolution mechanisms. Duplicative and conflicting claims resolutions, interpretations of plan terms, and standards of review are the inevitable outcome of the court’s decision. 'S Almost all of those employers responding to a member survey by the National Association for Manufacturers offer employee benefit plans which are incorporated into and described by collective bargaining agree- ments. Only six plans, out of 338, provide for arbitration of disputes over plan benefits; the remaining 333 are independently administered. See Appendix F. 13 1. ERISA Mandates That Plan Terms Govern The Dispo- sition Of Plan Claims, Including The Identification Of Pian Fiduciaries Who Administer The Plan. It is beyond cavil that ERISA employee benefit plans are to be administered in accordance with their written terms. The language of the statute could not be clearer: (a)(1) Every employee benefit plan shall be estab- lished and maintained pursuant to a written instru- ment. Such instrument shall provide for one or more named fiduciaries who jointly or severally shall have authority to control and manage the operation and administration of the plan. (2) For purposes of this title, the term “named fiduciary” means a fiduciary who is named in the plan instrument, or who, pursuant to a procedure specified in the plan, is identified as a fiduciary (A) by a person who is an employer or employee organization with respect to the plan or (B) by such an employer and such an employee organization acting jointly. ERISA § 402(a), 29 U.S.C. §1102(a). In addition, ERISA sets forth the requirement that employee benefit plans contain procedures allocating responsibility for their operation and administration: (b) Every employee benefit plan shall— **s** (2) describe any procedure under the plan for the allocation of responsibilities for the operation and administration of the plan (including any procedure described in section 405(c)(1)). Id. at § 1102(b){2). (c)(1) The instrument under which a plan is main- tained may expressly provide for procedures (A) for allocating fiduciary responsibilities (other than trustee responsibilities) among named fiduciaries, 2s 14 and (B) for named fiduciaries to designate persons other than named fiduciaries to carry out fiduciary responsibilities (other than trustee responsibilities) under the plan. ERISA § 405(c)(1), 29 U.S.C. § 1105(c)(1).'© ERISA also requires plan fiduciaries to comply with plan terms: [A] fiduciary shall discharge his duties with respect to a plan ... in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this title or Title IV. ERISA § 404(a)(1)(D), 29 U.S.C. § 1104(a)(1)(D). Furthermore, the case law is legion that ERISA plans must be administered in a manner which is consistent with their written terms.'’ Birmingham v. SoGen-Swiss Interna- ‘© Underscoring the clear language of the statute, the legislative history also supports Congress’ conclusion that the provisions of the plan and the SPD be in writing, and that they fully and accurately describe benefits and claims review procedures available to plan participants. See H.R. Conf. Rep. No. 1280, 93rd Cong., 2d Sess., reprinted in, 1974 U.S. Code Cong. & Admin. News 5038, 5041. Further, the legislative history makes clear that any delegation or allocation of fiduciary duty must be specifically and expressly provided for by the plan’s written terms. /d. at 5081-82 (“The plan must specifically allow such allocation or delegation, and the plan must expressly provide a procedure for it.”) (emphasis added). '” See e.g. Degan v. Ford Motor Co., 869 F.2d 889, 895 (Sth Cir. 1989) (ERISA mandates that a plan be in writing; claim of an alleged oral modification of pension plan dismissed because to allow such a claim “would threaten the stability and solvency of many plans upon which sO many other emloyees are dependent”); Dzinglski v. Weirton Steel Corp. F.2d , 1989 WL 51356 (4th Cir. 1989) (Retirement Com- mittee did not breach fiduciary duty because it acted in accordance with the terms of the plan); Straub v. Western Union Telegraph Co., 851 F.2d 1262 (10th Cir. 1988) (plaintiff is only entitled to the benefits promised under the express terms of the plan); Davidian v. Southern California Meat Cutters Union and Food Employees Benefit Fund, 859 F.2d 134 (9th Cir. 1988) (claim against fund was dismissed in the face of contrary, written plan provisions); Cummings v. Briggs & Stratton Retirement Plan, 797 F.2d 383, 389 (7th Cir.), cert. denied, 479 U.S 1008 (1986) (divorce decree i may not override written provisions of a plan; “[florcing trustees of a plan to pay benefits which are not part of the written terms of the program disrupts the actuarial balance of the Plan and potentially jeopardizes the pension rights of others aren entitled to receive them”); Nachwalter v. Christie, 805 F.2d 956, 959-961 (11th Cir. 1986) — oral agreement which seeks to vary the express written terms of an ERISA plan is not enforceable; central policy goal of ERISA would be undermined if such modifications were allowed; plan not amended in accordance with plan 15 tional Corporation Retirement Plan, 718 F.2d 515 (2d Cir. 1983) is directly analogous to this case. In Birmingham, the Second Circuit held that the Company’s Board of Directors lacked the power to overrule the Retirement Committee’s interpretation of the pension plan because such power was not explicitly reserved with precision in plan documents. Unlike the case at bar where plan documents yield no author- ity to the arbitrator, in Birmingham, plan language indicated that the Committee’s actions were “subject to the Board of Directors.” However, in the absence of a defined procedure set out in the plan for an appeal from the Committee to the Board, the Second Circuit concluded that the Committee’s fiduciary decisions could not be routinely appealed to the Board. In so concluding, the Second Circuit held that ERISA would be violated if the Board of Directors were given the power to override interpretations of the plan by the desig- nated plan fiduciaries — without explicit and precise plan language delegating such authority to the Board. However, we need not define the precise rela- tionship between the Board and the Retirement Committee under the terms of the Plan since the Retirement Committee’s authority is derived from ERISA as well as from the Plan. Under ERISA, a procedures); Delgrosso v. Sprang and Company, 769 F.2d 928, 930-936 (3d Cir. 1985), cert. denied, 476 U.S. 1140 (1986) (employer breached fiduciary duty by failing to administer the plan in accordance with the documents governing the plan); Phillips v. Kennedy, 542 F.2d 52, 55 n.8 (8th Cir. 1976) (doctrine of estoppel not applied to pension benefits in recognition of the fact that “[t]he actuarial soundness of pension funds is, absent extraordinary circumstances, too important to permit trustees to obligate the fund to pay pensions to persons not entitlied to them under the express terms of the pension plan.”); Johnson v. Central States Southeast and Southwest Areas Pension Fund, 513 F.2d 1173 (10th Cir. 1975) (judgment of district court enforcing benefits per booklet and letter which are inconsistent with plan terms is reversed as clearly erroneous); Saret v. Triform Corp., 662 F. Supp. 312, 316 (N.D. Ill. 1986) (the writing require- ment is a “central feature” of ERISA such thai enforcement of agreements which conflict with the express terms of the plan conflicts with ERISA’s “basic purpose and design”); Schoenholtz v. Doniger, 628 F. Supp. 1420, 1428-1430 (S.D.N.Y. 1986) (plan trustees held liable for, inter alia, failure to fulfill obligations as trustees in accordance with the specific written instructions of the plan); Wilken v. AT&T Technologies, 632 F. Supp. 772 (E.D. Mo, 1984), aff'd, 822 F.2d 1095 (8th Cir. 1987) (practice of offsetting plan benefits with workers compensation benefits unlawful because it was not provided for in the plan). 16 “named fiduciary” has the “authority to control and manage the operation and administration of the plan.” 29 U.S.C. § 1102(a)(1). We have no difficulty in concluding that these powers, even apart from Section 10.2(b) of the Plan, include the rendering of interpretations as to the meaning of the provisions of the Plan. We also have no difficulty in holding that the “subject to” language does not by itself alter the statutory grant of authority embodied in Section 1102 (a)(1). /d. at 521-522. Moreover, the court expressed a concern that any other result would undermine ERISA’s statutory scheme which focuses responsibility for plan operations in clearly identified plan fiduciaries. A valid plan under ERISA must designate “a named fiduciary” so that responsibility for managing and operating the Plan — and liability for mismanage- ment — are focused with a degree of certainty. See H.R. Conf. Rep. No. 1280, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Ad. News 5038, 5075-78, 5081. This is in the interest of the beneficiaries, but it is also in the interest of a sponsoring corporation .... The very purpose of requiring the designation of a “named fiduciary” would thus be undermined by [the Company’s] inter- pretation. It would diffuse responsibility where Congress intended to focus it.... [S]uch a reserva- tion in derogation of a statutory grant of power must be done explicitly and with precision . . . the “subject to” language fails to accomplish that end. Id. at 522 (footnote omitted) (emphasis added). In Moore v. Metropolitan Life Insurance Co., 856 F.2d 488 (2d Cir. 1988), the court dismissed a claims for benefits that were contrary to the express terms of the plan because to ignore plan language is to undermine ERISA’s framework and reduce ERISA protections: Plaintiffs’ argument, if accepted, would undermine ERISA’s framework which ensures that plans be 17 governed by written documents filed under ERISA’s reporting requirements and that SPDs, drafted in understandable language, be the primary means of informing participants and beneficiaries. ses ** Congress intended that plan documents and the SPDs exclusively govern an employer’s obligations under ERISA plans. This intention was based on a sound rationale. *s* While these plaintiffs would be helped by a decision in their favor, such a ruling would not only fly in the face of ERISA’s plain language but would also decrease protection for future employees and retirees. Id. at 492. It follows a fortiori that ERISA is violated if an arbitrator is allowed to review eligibility determinations and plan inter- pretations made by the designated fiduciaries of the plan, when plan language reserves for the designated fiduciaries the “exclusive” power to interpret the plan and to decide all questions of eligibility for benefits, such decisions to be “final and conclusive.” This Court has recently underscored the over-arching importance of plan terms in defining the standard of court review of benefit determinations: [T]he validity of a claim to benefits under an ERISA plan is likely to turn on the interpretation of terms in the plan at issue. Consistent with established principles of trust law, we hold that a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretion- ary authority to determine eligibility for benefits or to construe the terms of the plan. Firestone Tire & Rubber Co. v. Bruch, U.S. 109 S. Ct. 948, 956 (1989). The Court has unmistakably concluded 18 that plan terms govern the validity of benefit claims, and that plan terms designating named fiduciaries even govern the standard of review to be applied by a court in an appeal of such claims. It therefore follows that plan terms designating an exclusive plan procedure and fiduciaries for resolving benefit claims must control the procedural disposition of such claims. In contravention of ERISA, the court below holds that explicit provisions contained in a plan and described in the SPD,'® are irrelevant to a court’s analysis of the procedures for resolving benefit claims, merely because that plan is incorporated by reference into a collective bargaining agree- ment and certain plan provisions are recited therein. In so holding, the court of appeals renders nugatory the “exclusive,” “final” and “conclusive” power to determine eligibility for benefits granted in plan documents to the designated plan fiduciaries. This Court should grant certiorari in order to prevent the erosion of fundamental protections guaranteed by ERISA to participants, sponsors and administrators of employee benefit plans, that an ERISA plan must be adminis- tered by the named fiduciaries in accordance with plan documents. 2. The Decision Below Conflicts With Circuit Law Allowing ERISA Plans To Establish Independent Claims Review Procedures. The court below holds that the Plan is maintained pursu- ant to the CBA and, therefore, that the CBA’s arbitral mecha- nism trumps the Plan’s exclusive dispute resolution mecha- nism. In so holding, the D.C. Circuit’s opinion directly conflicts with the Fifth Circuit’s opinion in Bonin v. American Airlines, Inc., 621 F.2d 635 (Sth Cir. 1980) (“Bonin”). In Bonin, the Fifth Circuit concluded that plan terms govern the procedures for resolving plan disputes; here, the court ignores ~ '® The SPD, in addition to the Plan, details a claims review procedure which is independently administered and makes no provision for arbitra- tion of disputes over plan benefits. Pursuant to section 102 of ERISA and Labor Department regulation, 29 C.F.R. § 2560.503-1(b), the SPD must detail the claims review procedure and provide for either arbitration of plan disputes or independent administration of plan disputes. 19 plan terms because they were incorporated into the CBA. The Bonin court held: Congress by enactment of ERISA endorsed in effect two alternative methods of administering pension plan claims for employers whose collective bargai- ning disputes are governed by the Railway Labor Act: (1) arbitration of employee pension claims or (2) independent administration of claims by the pension plan administrator with a federal right of review pursuant to ERISA: “The most that can be gathered from ... [ERISA’s] background is that Congress did not wish to require a// benefit plans to offer an arbitral remedy, nor did it desire to make it possible for any collective bargai- ning agreement, no matter in what industry or business, to make $$ arbitration compulsory.” Air Line Pilots Ass'n v. Northwest Airlines, Inc., ... [627 F.2d 272 (D.C. Cir. 1980)] (emphasis in original). Since the pension plan in this case is not maintained pursuant to a collective bargaining agreement, the district court has jurisdiction of plaintiffs pension claim under ERISA. Id. at 639.'° The D.C. Circuit concludes that the Plan is “maintained” pursuant to Delta’s CBA with ALPA because part of the Plan is “reproduced in the contract” (App. A at 16) and because '? In Bonin, the Fifth Circuit recognized that ERISA gives the parties a choice of dispute resolution mechanisms. The choice made by Delta and ALPA is reflected in the provisions of the Plan. Through the collective bargaining process ALPA has tried to change these provisions by proposing that a specialized System Board be created to resolve “all issues arising from disputes over retirement, disability, medical insurance and other employee benefits.” (J.A. 148) Delta has not agreed to this proposal and ALPA has ultimately agreed to a contract which continues to provide for independently administered employee benefit plans. If ALPA wants to change the Plan’s dispute resolution process, it must do so with Delta’s agreement through the collective bargaining process. ALPA should not be allowed to achieve through this lawsuit what it has failed to achieve through collective bargaining. 20 the Plan is incorporated by reference into the CBA. /d. at 18. According to the D.C. Circuit, the simple expedient of duplication of Plan terms and incorporation of a Plan into a CBA transforms the Plan into one “maintained” pursuant to the CBA. In so holding, the court below ignores the Bonin standard for distinguishing between plans “maintained” pursuant to a collective bargaining agreement and those that are indepen- dently administered apart from the collective bargaining agreement. That standard is not whether the plan is incorpo- rated by reference or reproduced by duplicating machine. Rather, it is whether the plan provides that the arbitral machinery in the collective bargaining agreement will be used to resolve benefit disputes. See supra at 13-18. The court below even ignores prior D.C. Circuit precedent (Air Line Pilots Ass’n v. Northwest Airlines, Inc., 627 F.2d 272 (D.C. Cir. 1980)) which had been recognized and properly under- stood by the Fifth Circuit in Bonin. Thus, as described in Bonin, “the parties [in Northwest] agreed as part of their pension plan that the adjustment board would hear all dis- putes arising out of the application and interpretation of the pension plan.” 621 F.2d at 639 (emphasis added). As the district court, affirmed in relevant part by the court of appeals in Northwest, concluded: The parties have also agreed as part of their collec- tively bargained pension plan that, “[T]he Retire- ment Board shall hear all disputes arising out of the application and interpretation of the Plan... .” Amended Pension Plan, section 9.3. Air Line Pilots Ass'n v. Northwest Airlines, Inc., 444 F. Supp. 1138, 1141 (D.D.C. 1978) (emphasis added). The conflict between the court below and Bonin is clear. Under Bonin, a plan is independently administered unless the plan itself provides for arbitral remedies to resolve claim disputes. Here, the Plan does not provide for arbitration. Accordingly, Bonin would require benefit disputes to be appealed directly to the courts under section 502 of ERISA rather than to an arbitrator. 21 Moreover, although the court below recognizes Bonin as the “leading case,” it fails to distinguish the exclusivity language of Delta’s Plan from the exclusivity language of the plan in Bonin. There, the plan read in relevant part: “Notwithstanding any other provision of this Plan, neither the interpretation of the Plan nor its administration shall as such be within the jurisdiction of [the collective bargaining agreements],” Bonin, supra, 621 F.2d at 636.7? Thus, the Bonin plan stated, in the negative, that the interpretation and administration of the plan shall not be within the jurisdiction of the Bonin agreement. Delta’s Plan affirmatively provides, in numerous provisions, that the Administrative Committee’s “interpretation,” “application,” “operation” and “adminis- tration” of the Plan are “exclusive,” “final” and “conclusive.” For example, the Delta Plan states: “The operation and administration of the Plan...the exclusive power to inter- pret it, and the responsibility for carrying out its provisions are vested in an Administrative Committee... .” Whether a plan is independently administered should not depend on whether the plan uses proscriptive language, as in Bonin, or prescriptive language, as in the case at bar. Indeed, the Supreme Court has recognized that there are two ways to exclude a matter from the ambit of arbitration: A specific collective bargaining agreement may ex- clude contracting out from the grievance procedure. Or a written collateral agreement may make clear that contracting out was not a matter for arbitration. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 584 (1960) (emphasis added). The Plan in this case is a written collateral agreement which makes it clear that claim disputes are not a matter for arbitration. 20 In the very same provision, the Bonin plan also stated that “The Administrator shall not administer the Plan in any manner inconsistent with a final determination under [the collective bargaining agreements].” Id. Despite the latter provision, the court in Bonin held that the Bonin plan was not maintained pursuant to a collective bargaining agreement and that the plan administrator did not even have to “defer action on Mr. Bonin’s pension claim until a final determination is made by the . . . System Board . . . regarding the arbitration of the plaintiff's discharge.” Bonin, 621 F.2d at 639. 22 The Plan’s words of exclusivity are equivalent to words of exclusion. 7'See Halstead & Mitchell Co. v. United Steelwork- ers of America, 421 F.2d 1191 (3d Cir. 1969). This Court should grant certiorari to reconcile the conflict between the decision below and the Fifth Circuit’s decision in Bonin in order to restore certainty to the administration of employee benefit plans. 3. The Decision Below Creates Duplicative And Conflict- ing Claims Review Procedures. The court’s decision to inject the arbitrator into plan- designated claims review procedures profoundly affects the day-to-day administration of employee benefit plans. In this case, Meech and Hazeltine sought and were denied disability benefits by the fiduciaries named in the Plan and the SPD. Instead of holding that the claimants’ right of review, pursu- ant to Plan language and the SPD, was to appeal the claim denials to the district court under section 502 of ERISA, ”*the court below allows the claimants a second bite at the apple— arbitration of their disability claims. Having failed under Plan terms and exclusive Plan procedures to obtain their benefits, Meech and Hazeltine can pursue their disability claims before the arbitrator. The potential for inconsistency, forum shopping, protracted benefit reviews, and conflicting standards of court review cannot be avoided. The effect of the decision below is to create two parallel and potentially inconsistent mechanisms for the administra- tion of ERISA plans incorporated into collective bargaining agreements. The same plan terms will be interpreted and *! The court of appeals also relies on “the apparent absence of indica- tion in the collective bargaining agreement [in Bonin] of an intent to incorporate the plan,” which, combined with the proscnptive language, “led the /Bonin/ court to conclude that the plan was wholly independent.” (App. A at 11) There is no indication in Bonin, that the Fifth Circuit was presented with the question of incorporation or lack thereof. To the contrary, non-incorporation played no apparent role in the court’s conclu- sion that the plan was not maintained pursuant to a collective bargaining agreement because the parties had not agreed, as part of their plan, that the System Board “would hear all disputes arising out of the application and interpretation of the pension plan.” Bonin, 621 F.2d at 639. 2 The district court expressly held that its decision did not preclude “judicial review of the merits of the decision of the Administrative Commit- tee ...” pursuant to section 502 of ERISA. (App. B at n.1) 23 enforced by designated fiduciaries with exclusive authority under the plan, and arbitrators exercising authority under the CBA. Some claimants will be successful at persuading their unions to invoke the arbitral mechanism. Other claimants may choose to appeal “final” claim decisions directly to the court under section 502 of ERISA. Some arbitrators will be guided by plan terms and will sustain the benefit claim dispositions of exclusive plan administrators. Others may disregard previous interpretations of plan terms and eligibil- ity criteria.2> Unpredictable plan administration will be the inevitable result of such parallel and independent procedures for the interpretation and enforcement of ERISA employee benefit plans. Confusion and inconsistency will also extend to court review of benefits claims. In Firestone, supra, this Court resolved the standard of review which applies to benefit determinations—a de novo standard if the plan does not give to its fiduciaries discretionary authority and the arbitrary and capricious standard if it does. Here, of course, the Plan gives its administrators exclusive and conclusive authority over Plan_benefits, but the court below compromises that discre- tion by the addition of arbitral review. The question that would then have to be resolved under Firestone is which standard of review would apply in such a hybrid situation. The issue is further complicated by yet a third, exceptionally narrow, review standard to be applied under the Railway Labor Act to decisions by System Board arbitrators.7* Thus, depending upon whether a “final” decision by plan adminis- trators is appealed directly to a district court under section 502 of ERISA or whether it is reviewed by an arbitrator, different standards of review will be applied by reviewing courts. Such a result will undermine the uniform and consis- tent administration of ERISA plans. ?3 Plaintiffs urged below that the arbitrator had the authority, inter alia, to ignore Plan eligibility terms requiring that an FAA medical certificate be withdrawn prior to discharge before a participant may qualify for a disability benefit. See Plaintiffs’ Motion for Summary Judgment at 3. ?4 A System Board decision may be set aside only for failure to comply with the requirements of the RLA, failure to confine itself to matters within the scope of its jurisdiction, or fraud or corruption. 45 U.S.C. § 153(First\(q). ** In sum, the Court should grant certiorari because the decision below undermines the foundation of ERISA—that plan terms govern the administration of ERISA employee benefit plans; conflicts with Supreme Court and circuit law; and interferes with the day-to-day administration of ERISA plans. B. The Decision Below Conflicts With The Steelworkers Tril- ogy And AT&T By Deferring To An Arbitrator The Thresh- old Jurisdictional Question As To Whether The Arbitrator Has Jurisdiction To Award Plan Benefits Notwithstanding . The Determination Of The Plan Fiduciaries. The sweeping impact of the court’s holding on the admin- istration of ERISA plans has been described in Argument A. The court below must have recognized the effect of its broad holding. Thus, despite its conclusion that the disputes over plan benefits are arbitrable, the court remanded the Meech and Hazeltine claims asserting that it was “not deciding” (App. A at 18) that their claims, much less all claims, were subject to arbitration. Rather, the court deferred to the arbitrator the question of whether the Plan’s exclusivity and finality terms mean what they say — that Plan-designated fiduciaries have exclusive jurisdiction over resolving benefit claims — or whether the arbitrator’s jurisdiction extends to such claims by virtue of incorporation of the Plan into the CBA. By allowing the arbitrator to determine the ambit of the arbitrator’s own jurisdiction, the court below contravenes thirty years of precedent, from the Steelworkers Trilogy to AT&T. As this Court stated in AT&T: The issue in the case [AT&T] is whether, because of express exclusion or other forceful evidence, the dispute over the interpretation of Article 20 of the contract, the layoff provision, is not subject to the arbitration clause. That issue should have been decided by the District Court and reviewed by the 25 Court of Appeals; it should not have been referred to the arbitrator. AT&T, supra, 475 U.S. at 652 (emphasis added). In referring the meaning of the Plan terms “final” and “exclusive” to the arbitrator (App. A at 19), the court below made the identical error made by the Seventh Circuit in AT&T. It was incumbent on the court below to decide what this Court has called the “threshold question” (AT&T, supra at 649), whether these terms constitute an “express exclusion” of disputes over plan benefits”* from the ambit of the CBA’s arbitration clause. To allow the arbitrator to construe plan terms in order to define the arbitrator’s and the plan’s respec- tive jurisdictions is to violate the mandate of AT&T.** Perhaps the court believed that the interpretation of “final” and “exclusive” only goes to the “potential merits of the underlying claims,” (App. A at 19) and, therefore, should be properly left to the arbitrator. The interpretation of the Plan’s exclusivity provisions, however, has nothing to do with the grievants’ eligibility for benefits and everything to do with the proper forum for resolving those grievances, /.e., the very jurisdictiona! question AT&T directs the court to decide. Accordingly, in light of the clear error by the court of appeals, this Court should follow the course charted in thirty 25 As noted supra, p.21, express exclusion of a controversy from arbitration can be established by either the collective bargaining agreement itself “or a written collateral agreement.” United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 584 (1960). Clearly, the Plan at issue constitutes such a collateral agreement. © Nor is this a case where the parties have provided in their collective bargaining agreement that questions of arbitrability will be decided by the arbitrator rather than the court. To so provide the parties must act “clearly and unmistakably.” AT&T, supra, 475 U.S. at 649; See generally F. Elkoun and E. Elkouri, How Arbitration Works 215 (4th ed. 1985) (“Under the federal law the question of substantive arbitrability is for the court when asked to stay or compel arbitration, unless the arbitration clause clearly specifies that the arbitrator shall make the determination.”); LAWI/CSA Consolidators, Inc. v. Teamsters Local 63, 849 F.2d 1236, 1239 (9th Cir. 1988) (“Courts refer the question of arbitrability to the arbitrator ‘only if [the parties] leave no doubt that such was their intent.’ ”) (citing Brother- hood of Teamsters Local No. 70 v. Interstate Distributor Co., 832 F.2d 507, 510 (9th Cir. 1987)). In the case at bar, the court correctly held that the parties did not clearly and unmistakably leave questions of arbitrability for determination by the arbitrator. (App. A at 9-10) 26 years of precedent — from the Steelworkers Trilogy to AT&T. The Court should grant certiorari, reverse the court below, and remand the matter to the district court for further proceedings in accord with its opinion. CONCLUSION For the foregoing reasons, the Court should grant the petition for a writ of certiorari. June 16, 1989 Respectfully submitted, Of Counsel: *WILLIAM J. KILBERG Wa ctTeR A. BRILL BARUCH A. FELLNER Grecory L. RiGGs JANET M. Cook De ctTA AiR Lines, INC. GiBSON, DUNN & CRUTCHER 1030 Delta Boulevard 1050 Connecticut Avenue, N.W. Atlanta, Georgia 30320 Washington, D.C. 20036 (404) 765-2600 (202) 955-8500 Attorneys for Petitioner, Delta Air Lines, Inc. *Counsel of Record APPENDIX A A-l Notice: This opinion is subject to formal revision before publication in the Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the Clerk of any formal errors in order that corrections may be made before the bound volumes go to press. United States Comt of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued November 1, 1988 Decided December 16, 1988 No. 88-7054 AtR LINE PILOTS ASSOCIATION, INTERNATIONAL, et al., APPELLANTS Vv. DELTA AIR LINES, INC. Appeal from the United States District Court for the District of Columbia (C.A. No. 87-00673) Eugene B. Granof, with whom Gary Green was on the brief, for appellants. Baruch A. Fellner, with whom William J. Kilberg was on the brief, for appellee. Before: RuTH B. GINSBURG, SILBERMAN and D.H. GINSBURG, Circuit Judges. Opinion for the Court filed by Circuit Judge SILBERMAN. Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time. — A-2 SILBERMAN, Circuit Judge: The Air Line Pilots As- sociation (“ALPA”) brought suit against Delta Air Lines, Inc. in the district court—pursuant to the Rail- way Labor Act (“RLA’), 45 U.S.C. §§ 151-188 (1982) —seeking injunctive relief to compel arbitration before a System Board of Adjustment of disputes allegedly aris- ing from a collective bargaining agreement between the parties. The district court held that the disputes at issue, which concerned the eligibility.of two pilots for disability benefits from the Delta Pilots Disability and Survivor- ship Plan, were not subject to arbitration before the Sys- tem Board. The court thus granted summary judgment for Delta, and ALPA appealed. We conclude that the disability benefit disputes arguably do arise under the collective bargaining agreement and are thus subject to arbitration before the System Board. Therefore, we re- verse the judgment of the district court. te, I The Railway Labor Act has governed disputes between air carriers and their employees since 1936. 45 U.S.C. § 181 (1982). The RLA provides that “disputes between an employee or group of employees and a carrier or car- riers by air growing out of grievances, or out of the in- terpretation or application of agreements concerning rates of pay, rules, or working conditions .. . may be referred by petition of the parties or by either party to an ap- propriate adjustment board.” 45 U.S.C. § 184. Each car- rier has a duty to establish a board of adjustment. /d. The statutory grievance procedure is “mandatory, ex- clusive, and comprehensive,” Brotherhood of Locomotive Engineers v. Louisville & N.R.R., 373 U.S. 33, 38 (1963), and judicial review of a System Board’s decision is nar- rowly limited to three categories provided in the Act. Union Pacific R.R. v. Sheehan, 439 U.S. 89, 98 (1978) ; 45 U.S.C. § 153 First (p).? 1 The Act states that an order of a System Board may be set aside only “for failure of the division to comply with the A-3 In section 19 of their 1982 collective bargaining agree- ment, Delta and ALPA established a System Board of Adjustment in order to comply with the RLA. The agree- ment states that the Board’s purpose is to “adjust{] and decide[] disputes which may arise under the terms of the Pilots’ Agreement and which are properly submitted to it.” Its jurisdiction includes “disputes between any pilot covered by [the] Agreement and the Company growing out of grievances or out of interpretation or application of any of the terms of [the] Agreement.” The Board is composed of four members, two appointed by Delta and two appointed by ALPA. A majority vote of the Board members establishes a final and binding decision on any matter properly before it; in the case of deadlock, the agreement provides for the selection of a fifth Board member from a panel of neutrals established by the parties. Section 26 of the contract describes retirement, dis- ability, and survivor benefits for the pilots. Two parts of that section are directly implicated in this case. Sec- tion 26.A states that “[t]he Company shall pay the full cost of the Delta Pilots Retirement Plan and the Delta Pilots Disability and Survivorship Plan, plans regulated under the Employee Retirement Income Security Act of 1974 (“ERISA”), such plans hereby incorporated by ref- erence into this Agreement,” and section 26.C provides that “[a] pilot who becomes disabled prior to his normal retirement date shall be provided a monthly disability benefit from the Delta Pilots Disability and Survivorship Plan equal to fifty percent (50%) of his highest twelve (12) consecutive months of normal earnings during the last thirty-six (36) months of active service as defined in the Plan.” requirements of {the RLA], for failure of the order to con- form, or confine itself, to matters within the scope of the division’s jurisdiction, or for fraud or corruption by a member of the division making the order.” 45 U.S.C. § 153 First (p). A-4 The Delta Pilots Disability and Survivorship Plan pro- vides benefits for pilots employed by Delta. The Plan vests the exclusive power to interpret its terms and the responsibility for carrying out its provisions in an Ad- ministrative Committee of at least three members, who are appointed by the Board of Directors of Delta. Of particular relevance to this appeal, section 11.02 of the Plan states that “decisions of the Administrative Com- mittee as to interpretation and application of the Plan shall be final.” Like virtually all employee benefit plans, the Delta Plan is regulated by ERISA, which was passed by Con- gress in 1974 to establish minimum standards for such plans. 29 U.S.C. §1001(a) (1982). Administrators of the Plan are designated fiduciaries, see 29 U.S.C. § 1102, and ERISA imposes certain duties on them as a matter of federal law. 29 U.S.C. §§ 1102-1113. ERISA also im- poses a series of disclosure and reporting requirements to protect the interests of participants and beneficiaries. 29 U.S.C. §§ 1021-1031. Section 502 of ERISA provides for civil enforcement of the various provisions of the Act through actions brought by participants, beneficiaries, and fiduciaries. 29 U.S.C. § 1132(a) (1). The first of two grievances underlying this dispute in- volves former Delta pilot Donald R. Hazeltine. Delta discharged Hazeltine on July 23, 1984, after an incident at the Houston airport on July 3, 1984, during which, according to Delta, Hazeltine “created an unnecessary scene with security checkpoint personnel at [the airport] in front of numerous passengers.” This episode was the last in a series of events since 1969 which Delta believed made Hazeltine a “constant source of embarrassment to the Company.” Hazeltine had been progressively disci- plined through suspensions of increased durations, so Delta concluded that termination was warranted after the Houston incident. A-5 Hazeltine appealed the termination of his employment to the System Board, claiming that he should be placed on disability and that his conduct did not justify his ter- mination. The Board sustained Hazeltine’s discharge and ruled that the “initial determination of the medical merits [of the disability claim] are properly determined by the Administrative Committee of the Delta Pilots Disability and Survivorship Plan.” (emphasis added). But the Board concluded that “the grievant shall not be barred from making application for disability under the Delta Pilots Disability and Survivorship Plan; the Administra- tive Committee of the Plan shall not be barred from con- sidering his application, and that the Administrative Committee shail not be bound by the grievant’s current employment status in making its determination.” ALPA had sought such a determination, because it feared that the Committee would deny Hazeltine’s claim on the ground that he was not disabled at the time of his dis- charge. When terminated, Hazeltine was arguably not yet “disabled” as that term is defined by both section 26.C.4 of the agreement and section 1.08 of the Plan, because he had not “los[t] his [Federal Aviation Admin- istration] license to fly as an airline pilot,” and section 7.01 of the Plan states that “[t]here are no benefits un- der this Plan in the event of Termination of Continuous Employment.” Hazeltine subsequently applied for issuance of an air- man medical certificate from the FAA, which the agency denied on July 18, 1985. He then sought disability bene- fits under the Plan in August 1985. The Plan’s Admin- istrative Committee denied his claim on April 15, 1986, stating that “at the time of the termination of [his] em- ployment with Delta, {Hazeltine] held a first class medi- cal certificate.” The Committee reasoned that “the on- set of disability must occur during employment,” and “no post termination benefits are available under the Plan.” Its decision made no mention of the Board’s ear- lier seemingly inconsistent award. A-6 The second underlying grievance was brought by for- mer Delta pilot Earl E. “Ed” Meech. On January 24, 1985, Meech was indicted by a federal grand jury in Dallas, Texas on eleven felony charges of fraud and con- spiracy. Delta thereafter suspended him without pay and benefits on February 8, pending resolution of the crimi- nal charges. The company said that the “serious nature of the criminal charges” called into question Meech’s “judgment and integrity” and that Meech’s prepara- tion of a legal defense would prevent him from giving “undivided attention to [his] duties and responsibilities as a pilot for the Company.” In March 1985, while on suspension, Meech fell from a ladder and seriously aggravated a prior back injury. On the 19th of that month Meech received a “Disability Certificate” from an FAA-certified medical examiner, attesting that Meech was physically unable to perform his job duties. This certificate, however, was not tech- nically equivalent to the denial of an FAA license, which Delta argues is a prerequisite to disability benefits un- der the Plan and the agreement. In June 1985, Meech was convicted on two felony charges, and Delta converted his suspension into a termination on July 31, 1985. Some- time thereafter, Meech applied for, and was denied, an FAA license. During his suspension, on July 10, 1985, Meech applied for long term disability benefits under the Plan. Delta denied his claim on August 16, on the ground that his alleged disability commenced after 30 days from the date he was suspended. Although section 4.02 of the Plan, which delineates the requirements for income benefits, does not explicitly include a 30 day limitation period, Delta explained that section 4.02 had been “interpreted to be consistent with the provisions of Section 25.A.1. of the Agreement.” The latter section provides that a pilot is eligible for short term weekly disability benefits while A-7 under disciplinary suspension only if the disability occurs within the first 30 days of the suspension. Meech appealed this decision to the Administrative Committee of the Plan, which upheld the decision on a different basis. It wrote to Meech, stating: “With re spect to your claim for permanent disability benefits, the Committee noted that through the time of your termina- tion, you had never been denied a first class medical certificate. Denial of such a certificate is required in or- der to qualify for permanent disability benefits.” This is the same reason that the Committee gave for denying Hazeltine’s application for benefits. On May 27, 1986, Hazeltine and Meech both submitted grievances to the System Board for consideration and decision. They alleged that the Administrative Commit- tee’s denials of their disability applications violated the collective bargaining agreement. Delta refused to par- ticipate in a Board proceeding, however, because in its view “applications for disability benefits lie exclusively within the province of the Administrative Committee, [and] it is clear that the System Board has no jurisdic- tion over these matters.” ALPA then sued to compel arbitration. IT. As a threshold matter, ALPA maintains that the district court should not have decided whether the griev- ances are within the jurisdiction of the System Board. Rather, appellant contends that the Board should deter- mine its own jurisdiction in the first instance—in other words, it has primary jurisdiction to decide its own jurisdiction. The court should rule on the Board’s juris- diction, ALPA argues, only if the Board’s jurisdiction is challenged after it has acted. See 45 U.S.C. § 153 First (p). ALPA premises its primary jurisdiction argument on the language of the agreement; section 19.C defines the jurisdiction of the Board, and section 19.G.7 provides A-8 that “(t]he Board shall have the authority for the ad- ministration and interpretation of this Section of the Agreement.” The Supreme Court has recently announced the general rule—at least in cases arising under the National Labor Relations Act—that “{u]niess the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator.” AT&T Technologies, Inc. v. Communications Workers of America, 475 U.S. 648, 649 (1986). This is so because “arbitrators derive their au- thority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitra- tion.” Jd. at 648-49. The Court explained that “([t]he duty to arbitrate being of contractual origin, a compul- sory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty.” Id. at 649 (quoting John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546-47 (1964) (citations omitted) ). ALPA argues that the AT&T rule should not apply here, because this case arises under the RLA, under which the duty to arbitrate is not only a contractual obligation but a mandatory statutory requirement. We think, how- ever, that the instant dispute really does center on the scope of the parties’ contractual grant of jurisdiction to the System Board. As we explained above, the purpose of the Board is to decide disputes arising under the agree- ment. We have implied previously that arbitration is a matter of contract in an RLA case—at least where a collective bargaining agreement is in effect "because an 2 ALPA argues in its brief that any claim founded upon some incident of the employment relationship, whether or not it is covered by the collective bargaining agreement, is a “minor dispute”—a term of art under the RLA—which must be submitted to the System Board. To be sure, the Supreme Court has said that some claims independent of those covered A-9 issue need not be subject to arbitration if there is “posi- tive assurance that the arbitration clause is not suscep- tible of an interpretation that covers the asserted dis- pute.” Northwest Airlines v. ALPA, 808 F.2d 76, 82 (D.C. Cir. 1987) (quoting AT&T, 475 U.S. at 650 (quoting Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83 (1960))). We are confronted with the question whether the Hazeltine and Meech grievances “arise under the terms of the Pilots’ Agreement”—as required by section 19.A of the compact—in which case they would be within the jurisdiction of the System Board, or whether they are really independent disputes between the pilots and the Plan fiduciaries. The arbitra- bility question here is, in essence, an issue of contract in- terpretation, and we thus think AT&T applies. Appellant does not really contend that the agreement provides clear and unmistakable evidence of a contractual intent that the court be ousted of primary jurisdiction to determine arbitrability, and we think that the contract certainly does not so provide. The mere statement that the Board shall administer and interpret the section of by the agreement are subject to mandatory arbitration. Elgin, J. &@ BE. RR. v. Burley, 325 U.S. 711, 728 (1945). When there is a collective bargaining agreement in effect (as in this case), however, all disputes that arguably are covered by the agreement are minor disputes under the RLA and must go to the System Board. Railway Labor Executives v. Con- solidated Rail Corp., 845 F.2d 1187, 1190 (3d Cir. 1988) ; Brotherhood of Locomotive Engineers v. Burlington Northern R.R., 838 F.2d 1087, 1091 (9th Cir. 1988). Insofar as ALPA argues that the RLA gives it the independent right to take to the Board grievances over Plan applications, its theory is contrary to Bonin v. American Airlines, 621 F.2d 635 (5th Cir. 1980), which concluded that employees’ rights to pension benefits were not arbitrable at all if not arbitrable under the collective bargaining agreement. Moreover, the union’s view would undermine the parties’ ability to agree to the jurisdiction of the Board through bargaining. A-10 the agreement that includes the jurisdictional provision does not satisfy the AT&T test. Such general provisions are quite common in labor agreements, and we feel con- fident that the Supreme Court meant to require some thing more direct and explicit in order to deprive the courts of jurisdiction to decide the arbitrability issue be- fore the System Board considers it. The district court was thus correct to address the arbitrability dispute, and we turn now to that question. ITI. Delta asserts that since all claims for disability bene- fits from the Plan are to be resolved by the Plan’s Administrative Committee, denials of such claims are not subject to arbitration before a System Board. The plain language of the Plan, Delta says, shows that it is meant to be administered independently from the collective bar- gaining agreement. Delta relies on sections 11.01, 11.02, and 11.07 of the Plan, which provide respectively: ‘The operation and administration of the Plan... , the ex- clusive power to interpret it, and the responsibility for carrying out its provisions are vested in an Administra- tive Committee ....” “The decisions of the Administra- tive Committee as to interpretation and application of the Plan shall be final.” The Administrative Committee shall have the power to “interpret the Plan, and decide all questions of eligibility of any Employee to participate in the Plan or to receive benefits under it, its interpre- tation thereof in good faith to be final and conclusive.” The union, on the other hand, maintains that the System Board has the power to define the relationship between the Administrative Committee and the Board. It contends that the entire Plan is subsumed within, or incorporated by reference into, the collective bargaining agreement. Therefore, according to ALPA, it may insist that any benefit claim under the Plan follow the same grievance machinery as other claims under the contract. A-11 In support of its argument, Delta points to a group of circuit court decisions that have recognized the independ- ence of pension and disability plans from collective bar- gaining agreements. The leading case is Bonin v. Amer- ican Airlines, Inc., 621 F.2d 635, 639 (5th Cir. 1980), in which the court held that since the employee pension plan involved was “not maintained pursuant to a col- lective bargaining agreement,” jurisdiction over employee pension claims was in the district court under ERISA rather than in the System Board under the RLA. In Bonin, the pension plan provided that “neither the inter- pretation of the Plan nor its administration shall as such be within the jurisdiction” of the collective bargaining agreement. Id. This statement, combined with the ap- parent absence of indication in the collective bargaining agreement of an intent to incorporate the plan, led the court to conclude that the plan was wholly independent. Other courts have reached similar results in cases involving collective bargaining agreements governed by the NLRA. In RCA Corp. v. Local 241, International Fed. of Prof. & Tech. Engineers, 700 F.2d 921 (3d Cir. 1983), the court held that where a retirement plan fails to provide an independent basis for mandatory arbitra- tion, and where no provision in the general collective bargaining agreement either brings or seeks to bring the retirement plan within the ambit of the general agree- ment, disputes over the retirement plan are not arbi- trable. The court stressed that “[{t]he mere mentioning of the Retirement Plan in the General Agreement is in- sufficient reason to construe the Retirement Plan as part and parcel of the General Agreement.” Jd. at 927. Simi- larly, in Printing Specialties, Local 680 v. Nabisco Brands, Inc., 833 F.2d 102 (7th Cir. 1987), the court stated that a “passing reference to the Pension Plan in the collective bargaining agreement does not bring spe- cific pension disputes . . . under the umbrella of the ar- bitration clause of the agreement.” Jd. at 105. Because A-12 there was no “clear relationship between the Pension Plan and the collective bargaining agreement,” id., the court held that grievances over denials of pension bene- fits were not arbitrable. Against this background, we proceed to analyze the Hazeltine and Meech grievances. A. The Hazeitine Grievance Even if no other disputes over eligibility for Plan benefits were subject to arbitration, we think it clear that the facts of Hazeltine’s grievance require the System Board to entertain his claim. In his appeal of termination of employment to the Board, Hazeltine sought and re- ceived a specific provision in the Board’s decision that arguably pertains to his eligihility for disability benefits under the Plan. Such an arbitral decision operates as an interpretation of the original agreement; it might be said therefore that a “Hazeltine clause” concerning the relevant criteria to determine his eligibility for disability benefits was incorporated into the contract. Fournelle v. NLRB, 670 F.2d 331, 344 (D.C. Cir. 1982) (“[a]n award interpreting a collective bargaining agreement us- ually becomes a binding part of the agreement... .”) (quoting F. Elkouri & E. Elkouri, How Arbitration Works 377 (1973)); Local Union No. 9735, UMW v. NLRB, 258 F.2d 146, 148 (D.C. Cir. 1958) (arbitrator’s decision generally becomes part of the contract) ; Szewe- zuga v. NLRB, 686 F.2d 962, 973 n.84 (D.C. Cir. 1982) (“collective bargaining process” includes certain arbitral results as well as the terms of the collective agreement reduced to writing). Delta does not squarely deny that the parties could have agreed in collective bargaining to modify any provision of the pension plan or could do so ad hoc for Hazeltine alone. Whether or not Hazeltine could reach the System Board without this earlier Board decision (a question we explore below), the Board’s first ruling, which is an interpretation of the collective bar gaining agreement, may affect Hazeltine’s status vis-a-vis ee | A-13 the Plan, and the Board therefore must hear his griev- ance, We do not hold that the Board must interpret its prior decision in any particular way. Delta’s counsel main- tained at oral argument that it was not the intention of the original Board decision to allow Hazeltine to obtain disability benefits regardless of his employment status at the time he was deemed disabled. If the Board finds that contention determinative, it can so rule. Rather, we hold only that because the agreement now contains the equiva- lent of a collectively bargained term arguably addressing Hazeltine’s eligibility for disability benefits, his grievance is within the mandatory jurisdiction of the System Board. B. The Meech Grievance The Meech grievance raises substantially different questions than the Hazeltine claim, and it comes much closer to presenting the large issue of whether all claims under the Plan are subject to arbitration before the Sys- tem Board. We conclude that the Board must entertain Meech’s grievance, but in doing so we need not decide whether the System Board has jurisdiction over all ap- peals from denials of benefits by the Plan’s Administra- tive Committee. We have recently explained in an RLA case that doubts about the arbitrability of issues should be resolved in favor of coverage. Northwest Airlines v. ALPA, 808 F.2d 76, 82 (D.C. Cir. 1987). In order to establish that the System Board has no jurisdiction over Meech’s claim, Delta must provide “positive assurance that the arbitra- tion clause is not susceptible of an interpretation that covers the asserted dispute.” Jd. (quoting AT&T, 475 U.S. at 650 (quoting Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83 (1960))). Unlike the company in Bonin, we think Delta has failed to offer “positive assurance” that its disability plan is entirely independent from the collective bargaining agreement. A-14 Significantly, the agreement between Delta and ALPA provides that the Plans are incorporated by reference into the agreement. Section 25.A.1 states that “[e]ach pilot ... shall... be provided with the following group benefits pursuant to the Delta Pilots Disability and Survivorship Plan, and the Delta Pilots Medical Plan, plans . . . hereby incorporated by reference into this Agreement.” (emphasis added). Likewise, section 26.A.1 says “(t]he Company shall pay the full cost of the Delta Pilots Retirement Plan and the Delta Pilots Disability and Survivorship Plan, . .. such plans hereby incorpo- rated by reference into this Agreement.” (emphasis added). It is generally held that “[w]hen a document incorporates outside material by reference, the subject matter to which it refers becomes a part of the incor- porating document just as if it were set out in full.” Cunha v. Ward Foods, Inc., 804 F.2d 1418, 1428 (9th Cir. 1986). Both ALPA and Delta seemed to intend this in section 26.6 of the contract, when they referred to the Plans as “contained herein.” An explicit incorporation by reference is a far cry from the “mere mentioning of the Retirement Plan in the General Agreement” that courts have found insufficient to bring pension disputes under the umbrella of collective bargaining agreements in Nabisco and RCA. See Nabisco, 833 F.2d at 105; RCA, 700 F.2d at 927. Meech’s disability claim, moreover, is based on col- lectively bargained provisions that appear both in the agreement and in the Plan. His request for benefits, as we explained earlier, was eventually denied on the ground that Meech had never been denied a first-class medical certificate before his termination by Delta.* Meech now * Meech also contends that his grievance is within the jurisdiction of the Board, because it involves a dispute over whether his suspension was properly characterized as a “‘dis- ciplinary’” suspension under sections 18.B and 25.A.1 of the agreement. We need not decide that question, however, be- CC ee A-15 contends that he clearly was disabled before his discharge, even though he had not technically been denied an FAA license. He also maintains that Delta made independent promises in the contract to provide disability benefits to pilots in his situation. The first relevant provision, sec- tion 1.08 of the Plan, which defines “disabled” for pur- poses of benefits, is reproduced in the agreement, at sec- tion 26.C.4.* Likewise, section 5.01 of the Plan, which provides that “[a] Participant who becomes disabled . .. Shall be entitled to a monthly income benefit .. .,” is set forth almost verbatim in section 26.C.1 of the con- tract.* This parallel structure suggests that the key terms cause only Delta’s original denial of Meech’s claim for per- manent disability benefits relied on the fact that he had not become disabled during the first 30 days of a “disciplinary suspension.” The final resolution of the claim for permanent disability benefits by the Administrative Committee relied solely on the fact that Meech was not disabled at the time of his discharge; it did not rest at all on the nature of Meech’s suspension. * Section 1.08 of the Plan provides: A Participant shall be considered disabled when he loses his FAA license to fly as an airline pilot, and has been denied res‘oration of such license by the FAA and has appealed or is in the process of appealing such denial to the FAA at its highest appeal levei because of acci- dental bodily injury or any sickness or disease, including natural deterioration, which shall result in his being prevented from flying as an airline pilot.... Section 26.C.4 of the agreement states: A pilot shall be considered disabled when he loses his FAA license to fly as an airline pilot, has been denied restoration of such license by the FAA and has appealed or is in the process of appealing such denial to the FAA at its highest appeal level because of accidental bodily injury or any sickness or disease, including natural de- terioration, which shall result in his being prevented from flying as an airline pilot.... § Section 5.01 of the Plan states in relevant part: A Participant who becomes Disabled in accordance with the definition in Section 1.08 shall be entitled to a monthly A-16 in the Meech dispute were products of negotiation and bargaining. See Nabisco, 833 F.2d at 105 (“[WJe might reach a different result if Nabisco and the Union had explicitly bargained over the terms of the Pension Plan and made their agreement a part of the collective bar- gaining agreement.’’). The distinction between the instant case and those relied upon by Delta is highlighted by the Nabisco court’s statement that, in its case, “(t]he collective bargaining agreement did not incorporate the provisions of the Pen- sion Plan.” Nabisco, 833 F.2d at 105 (emphasis added). The ALPA—Delta agreement doubly incorporated the relevant terms of the Plan: it purported to incorporate the whole Plan by reference, and it literally incorporated the terms relating to disability benefits.* The plan in Bonin gave “positive assurance” that it was separate from the collective bargaining agreement because it stated that “neither the interpretation of the Plan nor its ad- ministration shall as such be within the jurisdiction” of the agreement. Bonin, 621 F.2d at 639. Here, by con- trast, we have indications to the contrary. Thus, unlike the pension plan in Bonin, we think that the Delta Plan— at least the part of it reproduced in the contract—is income benefit equal to 50% of the average of his highest twelve consecutive months of normal earnings during the last 36 months of active pay status. Section 26.C.1 of the agreement says: A pilot who becomes disabled prior to his normal retire- ment date shall be provided a monthly disability benefit from the Delta Pilots Disability and Survivorship Plan equal to fifty percent (50%) of his highest twelve (12) consecutive months of normal earnings during the last thirty-six (36) months of.active service as defined in the Plan. * We need not and do not decide in this case whether the agreement’s statement that the Plans are “incorporated by reference” is sufficient, in and of itself, to give the System Board jurisdiction over all benefit claims. A-17 “maintained pursuant to a collective bargaining agree- ment.” Id. In addition to arguing that the Plan’s own language shows that it is entirely separate from the agreement, Delta also suggests-—unfortunately with no supporting authority—that ERISA prohibits the System Board from reviewing decisions by the Administrative Committee, absent an explicit statement in the Plan that permits such review. In its brief, Delta states rather boldly that “ERISA as it now reads .. . requires that the plan itself state that it is subject to the arbitration provision of a collective bargaining agreement,” but it refers us to no statutory language in support.” On the contrary, the Department of Labor’s own regulations imply the oppo- site. The rules on claims procedure state that: “In the case of a plan established and maintained pursuant to a collective bargaining agreement .. . [s]uch plan will be deemed to comply with the provisions of paragraphs (g) and (h) of this section [concerning review proced- ures] ... if the collective bargaining agreement pursuant to which the plan is established or maintained sets forth . . . &@ grievance and arbitration procedure to which de- nied claims are subject... .” 29 C.F.R. § 2560.503-1 (b) 7 Delta does cite Sinai Hospital v. National Benefit’ Fund, 697 F.2d 562 (4th Cir. 1982), for the proposition that an employer and a union cannot alter the terms of a trust agree ment “unless the power te ‘o so was reserved when the trust was created or properly amended.” Jd. at 567. Sinai Hospital is inapposite, however, because it involved a national, multi- employer trust fund that received contributions from and provided benefits for the employees of 1500 employers. Obvi- ously, one employer and its employees could not change the terms of a multiemployer trust fund. The court’s analysis was limited to trust instruments “such as the one involved in th{at] case.” Id. It does not seem to apply to the situation in this dispute, where the Plan is designed specifically for a par- ticular employer-employee relationship and is maintained, at least in part, pursuant to the corresponding collective bargain- ing agreement. A-18 (2) (ii) (1986). In short, Delta has not brought any- thing to our attention establishing that a plan is not “maintained” pursuant to a collective bargaining agree- ment unless the plan itself so states. As we stated earlier, the combined incorporation by reference of the Plan with the duplication of certain Plan terms in the contract satisfy us that this Plan is, at least in relevant part, maintained pursuant to the contract. Delta also asserts that acceptance of ALPA’s position would give the System Board “jurisdiction to compel the Administrative Committee to commit a breach of fiduci- ary responsibilities under ERISA.” Although there may exist some hypothetical case where an order of the Board would be in tension with the Administrative Committee’s fiduciary responsibilities, we see nothing in ERISA that prohibits a System Board from hearing appeals from de- cisions of a plan’s administrators. The statute itself says that a fiduciary shall discharge his duties “in accordance with the documents and instruments governing the plan insofar as such document and instruments are consistent with the provisions [of ERISA].” 29 U.S.C. § 1104(a) (1)(D). If, as we have said, the agreement governs the terms of the Delta Plan involved in these grievances, the Plan’s fiduciaries must act in accordance with rulings of the Board as long as they are consistent with ERISA. If an order of the Board is inconsistent with the fiduci- ary, disclosure, or other requirements of the statute, a participant, beneficiary, or fiduciary may bring an inde- pendent action in the district court under section 502 of ERISA, 29 U.S.C. § 1132 (1982). ALPA v. Northwest Airlines, Inc., 627 F.2d 272, 277 (D.C. Cir. 1980) (ex- clusive System Board jurisdiction over benefit claims does not deprive district court of jurisdiction over claims pre- mised on a violation of ERISA); Bonin, 621 F.2d at 639 (same). Finally, it is important to state what the court is not deciding. Our decision should in no way be interpreted A-19 as binding on the System Board as it reviews the Meech and Hazeltine grievances. The System Board might well determine that the exclusivity and finality language in the Plan means that all (or some portion) of disputes over the Plan’s administration are not normally to be submitted to the System Board. That depends, of course, on how the System Board interprets the Plan’s terms— including words like “exclusive” and “final”—which have been brought into its ambit by collective bargaining. The crucial point, it seems to us, is that it is up to the Sys- tem Board to determine the relationship between the Plan administration and the Board with respect to those aspects of the Plan maintained pursuant to the collective bargaining agreement.* As the Supreme Court has made clear, “in deciding whether the parties have agreed to submit a particular grievance to arbitration, a court is not to rule on the potential merits of the underlying claims.” AT&T, 475 U.S. at 649. The ultimate decision on the benefit claims is left to the Board. For the foregoing reasons, the judgment of the district court is reversed and the case is remanded to that court with instructions to grant ALPA’s request for injunctive relief to compel arbitration before the System Board of the Meech and Hazeltine grievances. It is 30 ordered. * Delta also complains that adoption of ALP4A’s position would generate a cumbersome and duplicative mechanism for resolving disability claims. The simple answer to this “prob- lem” is that the parties are free to agree to any procedures that they choose. Even assuming the extra layer of review at the System Board would be Delta’s “procedural nightmare” (which we doubt), nothing in the RLA restricts the parties’ right to make such a contract. APPENDIX B we B-1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AIR LINE PILOTS ) ASSOCIATION, INTERNATIONAL, et al., Plaintiffs, } Civil Action No. 87-673 ¥. DELTA AIR LINES, INC., Defendant. J ORDER Upon consideration of plaintiff's motion and defendant’s cross-motion for summary judgment, and the respective op- positions thereto, the Court being of the opinion that the provisions of the Collective Bargaining Agreement incorpora- ting the Delta Pilots Disability and Survivorship Plan therein by reference (Section 26 A), in conjunction with the provi- sions of the Plan itself which vest in the Administrative Committee thereof the exclusive power to interpret it, and to decide all questions of eligibility to receive benefits thereun- der (Sections 11.01, 11.07(b)), render this dispute with respect to disability benefits cognizable only by the Committee and not subject to arbitration before the System Board, and it further appearing to the Court that such an arrangement is lawful, see Bonin v. American Airlines, 621 F.2d 635 (Sth Cir. 1980); see also Airline Pilots Association v. Northwest Airlines, 627 F.2d 272 (D.C. Cir. 1980), it is, this 2/st day of January, 1988, ORDERED, that plaintiffs motion for summary judg- ment is denied; and defendant’s motion for summary judgment is granted; and it is FURTHER ORDERED, that the seediniacs is dismissed with prejudice.* THOMAS PENFIELD JACKSON U.S. District Judge * This decision is without prejudice to the rights of plaintiffs Hazeltine and Meech to judicial review of the merits of the decisions of the Administrative Committee denying them disability benefits under the Plan. APPENDIX C C-1 United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT AIR LINE PILOTS ae ee et al No. $8-7054 ; A seit i September Term, 1988 2 aint D.C. Civil No. 87-00673 DELTA AIR LINES, INC. , APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Before: RUTH B. GINSBURG, SILBERMAN and D.H. GINSBURG, Circuit Judges JUDGMENT This cause came on to be heard on the record on appeal from the United States District Court for the District of Columbia, and was argued by counsel. On consideration thereof, it is ORDERED and ADJUDGED, by the Court, that the judgment of the District Court appealed from in this cause is hereby reversed and the case is remanded with instructions, in accordance with the Opinion for the Court filed herein this date. Per Curiam FOR THE COURT: CONSTANCE L. DUPRE, CLERK Date: December 16, 1988 Opinion for the Court filed by Circuit Judge Silberman. APPENDIX D Neon eceg? Wyeem D-1 United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT AIR LINE PILOTS 1 ASSOCIATION ; No. 88-7054 INTERNATIONAL, et al., | September Term, 1988 Appellants CA 87-00673 Vv. DELTA AIR LINES, INC., ! BEFORE: Ruth G. Ginsburg, Silberman and D. H. Ginsburg, Circuit Judges ORDER Upon consideration of appellee’s petition for rehearing, filed January 17, 1989, it is ORDERED, by the Court, that the petition is denied. FOR THE COURT: CONSTANCE L. DUPRE, CLERK BY: Robert A. Bonner Deputy Clerk APPENDIX E CONRAD eh eM ORE pee ST Pm EOIN ac BR ERISA ERISA § 102, 29 U.S.C. §1022—Plan description and summary plan description (a)(1) A summary plan description of any employee benefit plan shall be furnished to participants and beneficiaries as provided in section 104(b). The sum- mary plan description shall include the information described in subsection (b), 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 partici- pants and beneficiaries of their rights and obligations under the plan. A summary of any material modifica- tion in the terms of the plan and any change in the information required under subsection (b) shall be written in a manner calculated to be understood by the average plan participant and shall be furnished in accordance with section 104(b)1). (2) A plan description (containing the information required by subsection (b)) of any employee benefit plan shall be prepared on forms pre- scribed by the Secretary, and shall be filed with the Secretary as required by section 104(a)(1). Any material modification in the terms of the plan and any change in the information de- scribed in subsection (b) shall be filed in accord- ance with section 104(a)(1)(D). (b) The plan description and summary plan description shall contain the following information: The name and type of administration of the plan; the name and address of the person designated as agent for the service of legal process, if such person is not the administrator; the name and address of the adminis- trator; names, titles and addresses of any trustee or trustees (if they are persons different from the E-2 administrator); a description of the relevant provi- sions of any applicable collective bargaining agree- ment; the plan’s requirements respecting eligibility for participation and benefits; a description of the provisions providing for nonforfeitable pension benefits; circumstances which may result in disquali- fication, ineligibility, or denial or loss of benefits; the source of financing of the plan and the identity of any organization through which benefits are pro- vided; the date of the end of the plan year and whether the records of the plan are kept on a calendar, policy, or fiscal year basis; the procedures to be followed in presenting claims for benefits under the plan and the remedies available under the plan for the redress of claims which are denied in whole or in part (including procedures required under section 503 of this Act). ERISA § 402, 29 U.S.C. § 1102—Establishment of plan (a) Named fiduciaries. (1) Every employee benefit plan shall be established and maintained pursuant to a written instrument. Such instrument shall provide for one or more named fiduciaries who jointly or severally shall have authority to contro! and manage the operation and administration of the plan. (2) For purposes of this title, the term “named fiduciary” means a fiduciary who is named in the plan instrument, or who, pursuant to a procedure specified in the plan, is identified as a fiduciary (A) by a person who is an employer or employee organization with respect to the plan or (B) by such an employer and such an employee organization acting jointly. (b) Requisite features of plan. Every employee benefit plan shall— (1) provide a procedure for establishing and carry- ing out a funding policy and method consistent E-3 with the objectives of the plan and the require- ments of this title, (2) describe any procedure under the plan for the allocation of responsibilities for the operation and administration of the plan (including any procedure described in section 405(c)(1), (3) provide a procedure for amending such plan, and for identifying the persons who have authority to amend the plan, and (4) specify the basis on which payments are made to and from the plan. (c) Optional features of plan. Any employee benefit plan may provide— (1) that any person or group of persons may serve in more than one fiduciary capacity with respect to the plan (including service both as trustee and administrator); (2) that a named fiduciary, or a fiduciary designated by a named fiduciary pursuant to a plan proce- dure described in section 405(c)(1), may employ one or more persons to render advice with regard to any responsibility such fiduciary has under the plan; or (3) that a person who is a named fiduciary with respect to control or management of the assets of the plan may appoint an investment manager or managers to manage (including the power to acquire and dispose of) any assets of a plan. ERISA § 404, 29 U.S.C. § 1104—Fiduciary duties (a) Prudent man standard of care. (1) Subject to sections 403(c) and (d), 4042, and 4044, a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and— E-4 (A) for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of ad- ministering the plan; (B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; (C) by diversifying the investments of the plan sO as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and (D) in accordance with the documents and in- struments governing the plan insofar as such documents and instruments are con- sistent with the provisions of this title or title IV. ERISA § 405(c), 29 U.S.C. § 1105(c)—Liability for breach by co-fiduciary (c) Allocation of fiduciary responsibility; designated per- sons to carry out fiduciary responsibilities. (1) The instrument under which a plan is main- tained may expressly provide for procedures (A) for allocating fiduciary responsibilities (other than trustee responsibilities) among named 4- duciaries, and (B) for named fiduciaries to desig- nate persons other than named fiduciaries to carry out fiduciary responsibilities (other than trustee responsibilities) under the plan. (2) If a plan expressly provides for a procedure described in paragraph (1), and pursuant to such procedure any fiduciary responsibility of a (3) E-5 named fiduciary is allocated to any person, or a person is designated to carry out any such responsibility, then such named fiduciary shall not be liable for an act or omission of such person in carrying out such responsibility except to the extent that— (A) the named fiduciary violated section 404(a)(1) (i) with respect to such allocation or designation, (ii) with respect to the establishment or implementation of the procedure under paragraph (1), or (iii) in continuing the allocation or designa- tion; or (B) the named fiduciary would otherwise be liable in accordance with subsection (a). For purposes of this subsection, the term “trustee responsibility” means any responsibility pro- vided in the plan’s trust instrument (if any) to manage or control the assets of the plan, other than a power under the trust instrument of a named fiduciary to appoint an investment manager in accordance with section 402(c)(3). ERISA § 502, 29 U.S.C. § 1132—Civil enforcement (a) Persons empowered to bring a civil action. A civil action may be brought — (1) by a participant or beneficiary — (A) for the relief provided for in subsection (c) of this section, or (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights E-6 to future benefits under the terms of the plan; (2) by the Secretary, or by a participant, beneficiary or fiduciary for appropriate relief under section 409; (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this title or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this title or the terms of the plan; (4) by the Secretary, or by a participant, or benefi- ciary for appropriate relief in the case of a viola- tion of 105(c); (5) except as otherwise provided in subsection (b), by the Secretary (A) to enjoin any act or practice which violates any provision of this title, or (B) to obtain other appropriate equitable relief (i) to redress such violation or (ii) to enforce any provision of this title; or (6) by the Secretary to collect any civil penalty under subsection (i). (b) Plans qualified under Internal Revenue Code; mainte- nance of actions involving delinquent contributions. (1) In the case of a plan which is qualified under section 401(a), 403(a), or 405(a) of the Internal Reve- nue Code of 1954 (or with respect to which an application to so qualify has been filed and has not been finally determined) the Secretary may exercise his authority under subsection (a)(5) with respct [respect] to a violation of, or the enforcement of, parts 2 and 3 of this subtitle (relating to participation, vesting, and funding), only if — (A) requested by the Secretary of the Treasury, or E-7 (B) one or more participants, beneficiaries, or fiduciaries, of such plan request in writing (in such manner as the Secretary shall pre- scribe by regulation) that he exercise such authority on their behalf. In the case of such a request under this paragraph he may exercise such authority only if he deter- mines that such violation affects, or such enforcement is necessary to protect, claims of participants or beneficiaries to benefits under the plan. (2) The Secretary shall not initiate an action to enforce section 515. (c) Administrator’s refusal to supply requested informa- tion. (1) Any administrator (A) who fails to meet the requirements of paragraph (1) or (4) of section 606 with respect to a participant or beneficiary, or (B) who fails or refuses to comply with a request for any information which such administrator is required by this title to furnish to a participant or beneficiary (unless such failure or refusal results from matters reasonably beyond the control of the administrator) by mailing the material requested to the last known address of the requesting participant or beneficiary within 30 days after such request may in the court’s discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day from the date of such failure or refusal, and the court may in its discretion order such other relief as it deems proper. (2) The Secretary may assess a civil penalty of up to $1,000 a day from the date of a plan adminis- trator’s failure or refusal to file the annual report required to be filed with the Secretary under section 101(b)(4). For purposes of this para- graph, an annual report that has been rejected under section 104(a)(4) for failure to provide E-8 material information shall not be treated as having been filed with the Secretary. (d) Status of employee benefit plan as entity. (1) An employee benefit plan may sue or be sued under this title as an entity. Service of summons, subpena [subpoena], or other legal process of a court upon a trustee or an administrator of an employee benefit plan in his capacity as such shall constitute service upon the employee benefit plan. In.a case where a plan has not designated in the summary plan description of the plan an individual as agent for the service of legal process, service upon the Secretary shall constitute such service. The Secretary, not later than 15 days after receipt of service under the preceding sentence, shall notify the administrator or any trustee of the plan of receipt of such service. (2) Any money judgment under this title against an employee benefit plan shall be enforceable only against the plan as an entity and shall not be enforce- able against any other person unless liability against such person is established in his individual capacity under this title. (e) Jurisdiction. (1) Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this title brought by the Secretary or by a participant, beneficiary, or fiduciary. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdic- tion of actions under subsection (a)(1)(B) of this section. (2) Where an action under this title is brought in a district court of the United States, it may be brought in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found, and process may be served in any other district where a defendant resides or may be found. (f) (g) E-9 Amount in controversy; citizenship of parties. The district courts of the United States shall have jurisdic- tion, without respect to the amount in controversy or the citizenship of the parties, to grant the relief provided for in subsection (a) of this section in any action. Attorney’s fees and costs; awards in actions involving delinquent contributions. (1) In any action under this title (other than an action described in paragraph 2) by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party. (2) In any action under this title by a fiduciary for or on behalf of a plan to enforce section 515 in which a judgment in favor of the plan is awarded, the court shall award the plan— (A) the unpaid contributions, (B) interest on the unpaid contributions, (C) an amount equal to the greater of— (i) interest on the unpaid contributions, or (ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent (or such higher percentage as may be permitted under Federal or State law) of the amount determined by the court under subparagraph (A), (D) reasonable attorney’s fees and costs of the action, to be paid by the defendant, and (E) such other legal or equitable relief as the court deems appropriate. For purposes of this paragraph, interest on unpaid contributions shall be determined by using the rate provided under the plan, or, if none, the rate pre- scribed under section 6621 of the Internal Revenue Code of 1954. E-10 (h) Service upon Secretary of Labor and Secretary of the (i) G) Treasury. A copy of the complaint in any action under this title by a participant, beneficiary, or fidu- ciary (other than an action brought by one or more participants or beneficiaries under subsection (a)(1)(B) which is solely for the purpose of recovering benefits due such participants under the terms of the plan) shall be served upon the Secretary and the Secretary of the Treasury by certified mail. Either Secretary shall have the right in his discretion to intervene in any action, except that the Secretary of the Treasury may not intervene in any action under part 4 of this subtitle. If the Secretary brings an action under subsection (a) on behalf of a participant or beneficiary, he shall notify the Secretary of the Treasury. Administrative assessment of civil penalty. In the case of a transaction prohibited by section 406 by a party in interest with respect to a plan to which this part applies, the Secretary may assess a civil penalty against such party in interest. The amount of such penalty may not exceed 5 percent of the amount involved in each such transaction (as defined in sec- tion 4975(f)(4) of the Internal Revenue Code of 1986) for each year or part thereof during which the prohib- ited transaction continues, except that, if the transac- tion is not corrected (in such manner as the Secretary shall prescribe in regulations, which shall be consis- tent with section 4975(f)(5) of such Code within 90 days after notice from the Secretary (or such longer period as the Secretary may permit), such penalty may be in an amount not more than 100 percent of the amount involved. This subsection shall not apply to a transaction with respect to a plan described in section 4975(e)(1) of such Code. Direction and control of litigation by Attorney General. In all civil actions under this title, attorneys appointed by the Secretary may represent the Secretary (except as provided in section 51 8(a) of title 28, United States E-11 Code), but all such litigation shall be subject to the direction and control of the Attorney General. (k) Jurisdiction of action against Secretary of Labor. Suits by an administrator, fiduciary, participant, or beneficiary of an employee benefit plan to review a final order of the Secretary, to restrain the Secretary from taking any action contrary to the provisions of this Act, or to compel him to take action required under this title, may be brought in the district court of the United States for the district where the plan has its principal office, or in the United States District Court for the the District of Columbia. ERISA § 503, 29 U.S.C. § 1133—Claims procedure In accordance with regulations of the Secretary, every employee benefit plan shall— (1) provide adequate notice in writing to any partici- pant or beneficiary whose claim for benefits under the plan has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the par- ticipant, and (2) afford a reasonable opportunity to any partici- pant whose claims for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim. ERISA REGULATIONS 29 C.F.R. § 2560.503-1 Claims procedure (a) Scope and purpose. (1) This section sets out certain minimum requirements for employee benefit plan procedures pertaining to claims by participants and beneficiaries (claimants) for plan benefits, consider- ation of such claims, and review of ciaim denials, E-12 hereinafter referred to in the aggregate as “claims procedures.” Except as otherwise noted, these re- quirements apply to every employee benefit plan described in section 4(a) and not exempted under section 4(b) of the Employee Retirement Income Security Act of 1974 (the Act). (b) Obligation to establish a reasonable claims procedure. Every employee benefit plan shall establish and main- tain reasonable claims procedures. (1) Aclaims procedure will be deemed to be reason- able only if it: (i) Complies with the provisions of paragraphs (d) through (h) of this section, except to the extent that it is deemed to comply with some or all of such provisions under the authority of paragraph (b)(2) or paragraph (j) of this section. (ii) Is described in the summary plan descrip- tion, as required by § 2520.102-3, (iii) Does not contain any provision, and is not administered in a way, which unduly inhibits or hampers the initiation or proces- sing of plan claims, and (iv) Provides for informing participants in writ- ing, in a timely fashion, of the time limits set forth in paragraphs (e)(3) and (g)(3) and paragraph (h) of this section. (2) In the case of a plan established and maintained pursuant to a collective bargaining agreement (other than a plan subject to the provisions of section 302(c)(5) of the Labor Management Relations Act, 1947 concerning joint representa- tion on the board of trustees): (i) Such plan will be deemed to comply with the provisions of paragraphs (d) through (h) of this section if the collective bargaining E-13 agreement pursuant to which the pian is established or maintained sets forth or incor- porates by specific reference. (A) Provisions concerning the filing of ben- efit claims and the initial disposition of benefit claims, and (B) A grievance and arbitration procedure to which denied claims are subject. (ii) Such plan will be deemed to comply with the provisions of paragraphs (g) and (h) of this section (but will not be deemed to comply with paragraphs (d) through (f)) if the collective bargaining agreement pursu- ant to which the plan is established or main- tained sets forth or incorporates by specific reference a grievance and arbitration proce- dure to which denied claims are subject (but not provisions concerning the final and initial disposition of benefit claims). (c) Claims procedure for an insured welfare or pension plan. (1) (2) To the extent that benefits under an employee benefit plan are provided or administered by an insurance company, insurance service, or other similar organization which is subject to regula- tion under the insurance laws of one or more States, the claims procedure pertaining to such benefits may provide for filing of a claim for benefits with and notice of decision by such company, service or organization. See paragraph (g) regarding review and final decision on denied claims by insurance compan- ies, insurance services and similar organizations. (d) Filing of a claim for benefits. For purposes of this section, a claim is a request for a plan benefit by a participant or beneficiary. A claim is filed when the E-14 requirements of a reasonable claim filing procedure of a plan have been met. If a reasonable procedure for filing claims has not been established by the plan, a claim shall be deemed filed when a written or oral communication is made by the claimant or the claimant’s authorized representative which is reasonably calculated to bring the claim to the atten- tion of: (1) (2) (3) (4) In the case of a single employer plan, either the organizational unit which has customarily handled employee benefits matters of the em- ployer, or any officer of the employer. In the case of a plan to which more than one unafhliated employer contributes, or which is established or maintained by an employee orga- nization, either the joint board, association, committee or other similar group (or any member of any such group) administering the plan, or the person or organizational unit to which claims for benefits under the plan custom- arily have been referred. In the case of a plan the benefits of which are provided or administered by an insurance company, imsurance service, or other similar organization, which is subject to regulation under the insurance laws of one or more States, the person or organizational unit which handles claims for benefits under the plan or any officer of the insurance company, insurance service, or similar organization. For purposes of paragraphs (d){1)}, (2), and (3) of this section, acommunication shall be deemed to have been brought to the attention of an organizational unit if it is received by any person employed in such unit. (e) Notification to claimant of decision. (1) If a claim is wholly or partially denied, notice of the decision, meeting the requirements of E-15 paragraph (f) of this section, shall be furnished to the claimant within a reasonable period of time after receipt of the claim by the plan. (2) If notice of the deniai of a claim is not furnished in accordance with paragraph (e)(1) of this sec- tion within a reasonable period of time, the claim shall be deemed denied and the claimant shall be permitted to proceed to the review stage described in paragraph (g) of this section. (3) For purposes of paragraphs (e)(1) and (2), of this section, a period of time will be deemed to be unreasonable if it exceeds 90 days after receipt of the claim by the plan, unless special circum- stances require an extension of time for pro- cessing the claim. If such an extension of time for processing is required, written notice of the extension shall be furnished to the claimant prior to the termination of the initial 90-day period. In no event shall such extension exceed a period of 90 days from the end of such initial period. The extension notice shall indicate the special circumstances requiring an extension of time [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1552%3A1. Public record. Not legal advice.