464 F.

3d 1260

Ross Glenn MOORMAN, Jr., Plaintiff-Appellant,

v.
UNUMPROVIDENT CORPORATION, a Delaware
Corporation, in its individual capacity and as controlling
parent of its wholly owned subsidiary, Unum Life Insurance
Company of America, a Maine Corporation, Unum Life
Insurance Company of America, a Maine Corporation, in its
individual capacity and as a wholly owned and controlled
subsidiary of UnumProvident Corporation, Unum
Corporation, a Maine Corporation merged to form
UnumProvident Corporation, in its individual capacity and as
controlling parent company of its wholly owned subsidiary,
Unum Life Insurance Company of America, a Maine
Corporation, Defendants-Appellees.
No. 05-15383.

United States Court of Appeals, Eleventh Circuit.

September 18, 2006.

COPYRIGHT MATERIAL OMITTED Rhonda Michele Moorman,

Moorman Med. Legal Consulting, Inc., Douglas, GA, for Moorman.
Elizabeth J. Bondurant, Kenton Jones Coppage, Nikole Marie Crow,
Carter & Ansley, LLP, Atlanta, GA, for Defendants-Appellees.
Appeal from the United States District Court for the Northern District of
Georgia.
Before EDMONDSON, Chief Judge, and BIRCH and ALARCON,*
Circuit Judges.
BIRCH, Circuit Judge:

The central issue in this interlocutory appeal is the proper reach of the

Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C.

1001 et seq. Ross Glenn Moorman, Jr., argues that the district court erred in
ruling that ERISA governed the disability insurance plan provided by
UnumProvident Corporation, Unum Life Insurance Company of America
("Unum Life"), and Unum Corporation (collectively "Appellees"). After careful
review of the facts in this case, the relevant case law, and the underlying
purposes of ERISA, we AFFIRM the district court's ruling that ERISA governs
the plan in this case. As an additional matter, Appellees ask us to review
Moorman's claims brought under the Racketeer Influenced and Corrupt
Organizations Act ("RICO"), 18 U.S.C. 1961 et seq. We decline to review
Moorman's RICO claims, which were not certified for appeal by the district
court, because the district court has not had an adequate opportunity to address
the defenses raised on appeal by the Appellees.
I. BACKGROUND
2

Quoting liberally and making additions as necessary, we largely adopt the

district court's statement of the facts in this case: In a letter dated 17 October
1996, Brian Glenn, an agent for Unum Life, contacted Anne Rivers Carter, the
office manager of Southeastern Steam, Inc., ("Southeastern Steam") to request
the opportunity to present the disability insurance plan to the company's
employees and to solicit enrollment. Carter later met with Glenn and applied to
Unum Life for group coverages on behalf of Southeastern Steam. R.Exh. at 1920; id. Exh. 3. She signed a "Client Information" form, through which she
selected various eligibility requirements for the disability plan, including a 90day waiting period and a 35-hour minimum workweek requirement. Id. Exh. 3.

On 24 April 1997, Glenn "met with company employees individually" to

discuss coverage under the plan. R4-30 Exh. 1 at 6. Carter stated that publicity
was conducted by "word of mouth, like, ... there's a guy coming, if you want
disability insurance, you can meet with him ... he'll explain it to you." R.Exh. at
23. No representative from Southeastern Steam was present during these
meetings. The decision on whether to sign up for disability insurance was left
to the individual employee. Those who wished to enroll completed Disability
Program Enrollment Forms, which Glenn drafted and provided. The forms
stated, "Southeastern Steam, Inc. is offering a comprehensive Disability
program to protect you and your family in the event a non-occupational
accident or sickness causes you to miss work." R4-30 Exh. 2B. Carter, who
signed up for the plan, later stated that she never read this statement and that
she believed Unum Life, rather than Southeastern Steam, was providing the
plan. At the meetings, Glenn also discussed the benefits and premium amounts
with each employee.

Carter testified that Southeastern Steam revised its employee handbook to

include a reference to the plan in question, which was the only disability plan
offered to the employees during that time. R.Exh. at 46. Under the heading
"Benefits," Southeastern Steam's employee handbook stated: "The company
makes available to employees access to benefits designed to meet the needs of
employees and provide protection from financial hardship. These benefits will
be reviewed periodically to assure that they keep pace with area practice and
employee needs." Id. Exh. 5 at 22. In the same section, under the subheading
"Disability Insurance," the handbook stated, "Disability insurance is available
to all full-time employees. The premium for this coverage is the sole
responsibility of the employee." Id. Exh. 5 at 23.

At the time of their enrollment, the participating employees were not provided
copies of the plan nor any other written documents, apart from the enrollment
forms themselves. The plan booklets and included certificates were later mailed
to Carter, who filed them in a closet at Southeastern Steam. Carter testified that,
while she did not widely distribute the booklets, she gave a booklet to Moorman
and kept one for herself. Id. at 76. The plan certificate provides, inter alia, that:
"[t]his policy is delivered in and is governed by the laws of the governing
jurisdiction and to the extent applicable by the Employee Retirement Income
Security Act of 1974 (ERISA) and any amendments." Id. Exh. 6 at 1. The
Summary Plan Description designated Southeastern Steam as the plan
administrator and as the agent for service of legal process on the plan. Id. Exh.
6 at 60-61.

Enrolled employees were required to pay their entire premium amounts on a

post-tax basis. Carter collected employee premiums from employees by way of
payroll deductions and remitted them to Unum Life by writing a check from
Southeastern Steam's account. Id. at 33-34. While she provided Unum Life's 1800 number to certain employees who asked questions regarding their claims
and benefits, Carter also admitted that she personally "may have tried to help"
employees who had such questions. Id. at 42, 52. Carter further stated that she
had on file some blank forms that Unum Life had given her. Id. at 44. When
one employee made a claim under the plan, Carter provided a form to that
employee, and she completed and submitted the employer verification form to
Unum Life. Id. at 44, 102-03; R4-30 Exh. 1 at 15-16. She also submitted an
employer verification form for Moorman, when he filed his claim. R4-30 Exh.
1 at 15-16

Moorman, formerly employed by Southeastern Steam signed up for the plan

during the 24 April 1997 meeting with Glenn. In February 1999, Moorman was
diagnosed with rectal cancer. After he initially qualified as disabled under the

plan, the Appellees determined that he no longer satisfied the definition of

disability. Moorman disputed the denial of his disability benefits to the
Appellees but he was unsuccessful. On 16 July 2004, Moorman filed the
complaint in this case, in which he alleged the wrongful denial of disability
benefits and various other state and federal law claims. On 26 August 2004,
Appellees filed their motion to dismiss. On 22 October 2004, the district court
converted the Appellees' motion to dismiss to a motion for summary judgment
on the issue of whether the plan is governed by ERISA, which would preempt
Moorman's state law claims.
8

In a subsequent order on 17 February 2005, from which this appeal is taken, the
district court: (1) granted Appellees' converted motion for summary judgment
in ruling that the plan was governed by ERISA; (2) granted Appellees' motion
to dismiss Moorman's state law claims on grounds of ERISA preemption; and
(3) denied Appellees' motion to dismiss Moorman's federal RICO claim. On 4
March 2005, Moorman filed (1) a motion for reconsideration; (2) an alternative
motion seeking certification for interlocutory appeal; and (3) a motion to stay
proceedings.

On 25 July 2005, the district court (1) denied Moorman's motion for
reconsideration; (2) granted Moorman's alternative motion for certification for
interlocutory appeal; (3) denied Appellees' request for certification for
interlocutory appeal of the district court's refusal to dismiss Moorman's federal
RICO claims; (4) granted Moorman's motion to stay proceedings; (5) denied
without prejudice certain discovery motions filed by Moorman; and (6) ordered
that the district court case be administratively terminated until remanded per the
instructions of our court. We later granted Moorman's interlocutory appeal
pursuant to 28 U.S.C. 1292(b).

II. DISCUSSION
10

On appeal, Moorman alleges that the district court committed various errors in
determining that ERISA governs the plan in this case. Specifically, he claims
that the district court (1) improperly limited discovery; (2) improperly
determined that ERISA governance was a question of fact for the district court,
and not the jury, to decide; and (3) made an impermissible credibility
determination with regard to a witness, and improperly construed and
disregarded other evidence favorable to Moorman. With regard to Moorman's
federal RICO claims, Appellees ask us to review whether this claim should be
dismissed. After a brief examination of the relevant background law, we
address these issues in turn.

A. Relevant Background Law

1. Standards of Review:
11

We review de novo the grant of a motion for summary judgment. Anderson v.

UNUM Provident Corp., 369 F.3d 1257, 1262 (11th Cir.2004). Federal Rule of
Civil Procedure 56(c) requires summary judgment when "there is no genuine
issue as to any material fact and . . . the moving party is entitled to judgment as
a matter of law." In deciding a summary judgment motion, the court must view
all the evidence in the light most favorable to the nonmoving party, and resolve
all disputes and draw all inferences in the nonmovant's favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202
(1986); see also Burger King Corp. v. Weaver, 169 F.3d 1310, 1315 (11th Cir.
1999). We review the denial of a discovery order for abuse of discretion.
Burger King Corp., 169 F.3d at 1315.
2. ERISA Law Generally

a. Purpose
12

Congress created ERISA "to promote the interests of employees and their
beneficiaries in employee benefit plans and to protect contractually defined
benefits." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113, 109 S.Ct.
948, 956, 103 L.Ed.2d 80 (1989) (citations and quotations omitted); see also 29
U.S.C. 1001 (listing the congressional findings and declaration of policy
regarding ERISA); Dixon v. Life Ins. Co. of N. Am., 389 F.3d 1179, 1184 (11th
Cir.2004) ("ERISA's purpose [is] to promote the interests of employees and
their beneficiaries.").

b. Governance
13

ERISA governs employee welfare benefit programs provided by an employer.

See 29 U.S.C. 1001 et seq. An employee welfare benefit plan governed by
ERISA is "any plan, fund, or program ... established or maintained by an
employer" to provide benefits through an insurance policy. 29 U.S.C.
1002(1); see Donovan v. Dillingham, 688 F.2d 1367, 1371 (11th Cir. 1982).
However, "no single act in itself necessarily constitutes the establishment of the
plan, fund, or program." Donovan, 688 F.2d at 1373. Rather, "it is the reality of
a plan and not the decision to extend certain benefits that is determinative." Id.
An ERISA plan "is established if from the surrounding circumstances a
reasonable person could ascertain the intended benefits, a class of beneficiaries,
the source of financing, and procedures for receiving benefits." Id.

c. Safe Harbor Exemption

14

The United States Department of Labor explicitly exempts from ERISA

governance certain "group or group-type insurance programs offered by an
insurer to employees." 29 C.F.R. 2510.3-1(j). There are four elements
necessary to satisfy the safe harbor exemption: "(1) [n]o contributions are made
by an employer or employee organization; (2) [p]articipation in the program is
completely voluntary for employees or members; (3) [t]he sole functions of the
employer ... with respect to the program are, without endorsing the program, to
permit the insurer to publicize the program to employees or members, to collect
premiums through payroll deductions or dues checkoffs and to remit them to
the insurer; and (4) [t]he employer receives no consideration in the form of cash
or otherwise in connection with the program, other than reasonable
compensation, excluding any profit, for administrative services." Id.

15

B. Whether the District Court Made Specific Errors in Determining that ERISA
Governs the Plan

16

1. Whether the District Court Improperly Limited Discovery

17

Moorman complains that the district court improperly limited his discovery
regarding questions of ERISA governance and preemption when it denied his
motion for leave to depose Appellees' witnesses and for additional time to
submit summary judgment materials. However, Moorman never specifically
identifies in his brief the issues on which he sought discovery. In denying
Moorman's motion, the district court correctly noted that this new discovery
request related to the issue of whether the Southeastern Steam had contributed
to the plan. The court then observed that the Appellees had withdrawn any
contention that Southeastern Steam had contributed to the plan. Mindful that
the standard of review for denials of a discovery order is abuse of discretion,
we conclude that Moorman's argument on this issue fails.

18

2. Whether ERISA Governance Is a Question of Fact for the Jury

19

In addition, Moorman argues that the district court erred because it stated that
the issue of whether ERISA governs the plan is a fact question for the district
court to determine. According to Moorman, because the district court already
has jurisdiction based on other claims, the district court has no need to
determine the factual existence of ERISA governance for jurisdictional
purposes, and therefore this question of fact should be determined by a jury. In
its order, however, the district court indicated that it would follow "the general

restrictions placed on it at the summary judgment stage, resolving issues based

on material undisputed facts." R7-59 at 5. Notwithstanding any arguable errors
in applying this standard by the district court, this issue need not be resolved on
appeal because the appeal concerns only our de novo review of the threshold
question of whether there is a genuine issue of material fact as to whether
ERISA governs the plan. This question is necessarily for courts, and not juries,
to decide. See Mackenzie v. City of Rockledge, 920 F.2d 1554, 1558 (11th Cir.
1991).
20

3. Whether the District Court Made an Impermissible Credibility

Determination and Improperly Construed and Disregarded Other Evidence

21

Insofar as the district court may have erred in making an impermissible

credibility determination, 1 or in improperly construing and disregarding other
evidence favorable to Moorman, this analysis is subsumed within our overall de
novo review of whether there is a genuine issue of material fact on ERISA
governance, which is examined below.

22

C. Whether There Is a Genuine Issue of Material Fact on ERISA Governance

23

In his brief on appeal, Moorman argues that the "controlling questions of law"
in this case are the alleged laundry list of errors by the district court in applying
the summary judgment standard of review. See Appellant's Br. at 4-5. This
misses the point. In applying de novo review, "we review the judgment, not the
soundness of the district court's explanation for it." Collado v. United Parcel
Serv., Co., 419 F.3d 1143, 1151 (11th Cir. 2005); see also SEC v. ETS
Payphones, Inc., 408 F.3d 727, 736 n. 10 (11th Cir. 2005) (per curiam) ("We
review the district court's judgments; we do not grade the opinions."). Thus,
even if the district court erred by improperly making a credibility determination
or by misconstruing and disregarding certain evidence, Moorman still must
show that there is a genuine issue of material fact as to ERISA governance.
1. Safe Harbor Analysis

24

The requirements for a safe harbor exception under 29 C.F.R. 2510.3-1(j) are
strict. See Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207, 1213 (11th
Cir.1999) (noting that the safe harbor regulation "explicitly obliges the
employer who seeks its safe harbor to refrain from any functions other than
permitting the insurer to publicize the program and collecting premiums").
Thus, the safe harbor analysis is usually conducted before considering whether
the plan is governed by ERISA using the more factor-intensive analysis under

29 U.S.C. 1002(1). Anderson, 369 F.3d at 1263 n. 2.

25

Appellees concede that three of the four elements of the safe harbor exemption
are met. The only element in contention is whether "(3) [t]he sole functions of
the employer ... with respect to the program are, without endorsing the
program, to permit the insurer to publicize the program to employees or
members, to collect premiums through payroll deductions or dues checkoffs
and to remit them to the insurer." 29 C.F.R. 2510.3-1(j) (emphasis added).
According to the Department of Labor:

26

An employee organization will be considered to have endorsed a group or

group-type insurance program if the employee organization expresses to its
members any positive, normative judgment regarding the program. An
employee organization may, in the course of permitting an insurer, insurance
agent, or insurance broker to market the group or group-type insurance program
to its employees or members, facilitate the publicizing and marketing of the
program, but only to an extent short of endorsing the program. An endorsement
within the meaning of [] 2510.3-1(j) occurs if the employee organization
urges or encourages member participation in the program or engages in
activities that would lead a member reasonably to conclude that the program is
part of a benefit arrangement established or maintained by the employee
organization.

27

ERISA Op. Letter No. 94-26A, 1994 WL 369282 (July 11, 1994) (emphasis
added). For our purposes, the safe-harbor analysis turns on whether the
employer "endorsed" or undertook any additional "function[ ] ... with respect"
to the plan within the meaning of 2510.3-1(j).

28

In Butero, we determined that the employer had endorsed the plan because it
had chosen the insurer, "decided on key terms," "deemed certain employees
ineligible" for participation, "incorporated the policy terms into the . . .
summary plan description for its cafeteria plan," and "retained the [ability] to
alter compensation reduction for tax purposes." 174 F.3d at 1213-14. While the
issue was not appealed to our court, the district court in Anderson concluded
that an employer's actions rose to the level of endorsement when "it singled out
the UNUM Plan as the sole plan it offers to its hourly employees, played a role
in selecting the premium rates, restricted employee eligibility, displayed its
corporate logo on the policy documents which it provided to [its] employees,
was named in the policy documents as the plan administrator, and provided a
summary plan description to its employees that specifically referred to ERISA."
Anderson, 369 F.3d at 1262 (citing Anderson v. UnumProvident Corp., 322
F.Supp.2d 1272, 1276-79 (M.D.Ala. 2002)).

29

Under the mandate of Butero, which states that "any functions" by the
employer apart from the two listed exceptions disqualify a plan from the safe
harbor exception, the plan at issue in this case does not qualify for this
exception. See Butero, 174 F.3d at 1213. Here, even though only one nonlisted
employer function would disqualify the plan under the safe harbor exception,
several actions by Southeastern Steam stand out as "endorsement" for the
purposes of 2510.3-1(j).

30

First, as the district court noted, "it is undisputed that Southeastern Steam
decided on at least one of the eligibility terms under the Plan, the waiting
period." R7-41 at 24. Moorman himself concedes in his brief on appeal that
Southeastern Steam determined the waiting period. Appellant's Br. at 34.

31

Second, similar to the district court's analysis in Anderson, the plan at issue in
this case was the "sole" long term disability plan offered by Southeastern
Steam to its employees. See 322 F.Supp.2d at 1277. Specifically, there is no
dispute that Southeastern Steam identified the plan in its employee handbook as
part of the company's employee benefits. The employee handbook stated that "
[d]isability insurance is available to all full-time employees." R.Exh., Exh. 5 at
23. Carter testified that Southeastern Steam did not offer disability insurance
prior to the plan at issue in this case, that no other plans were then offered, and
that the provision in the handbook was added to account for that policy. Id. at
10-11, 45-46. In addition, all but one of the employees of Southeastern Steam
enrolled for disability coverage at the time of the original enrollment. Id. at 57.
The enrollment forms were signed by the employees, including Carter and
Moorman, and included the following language: "Southeastern Steam, Inc., is
offering a comprehensive Disability program. . . ." R4-30 Exh. 2B at
unnumbered 3, 23.

32

Third, it is undisputed that Southeastern Steam maintained a limited supply of

claim forms and that Carter assisted with the filings of at least one or two claim
forms to Unum Life on behalf of employees. R.Exh. at 44, 102-04; R4-30 Exh.
1 at 15-16. Moorman argues that this was only a ministerial function, and that
any submissions to Unum Life for claims on the part of Southeastern Steam
were the employer verification forms, which were required by the insurer.
Nevertheless, given Butero's low threshold for disqualification under the safe
harbor exception, i.e., the fact that "any" additional function by the employer
with regard to the plan bars the application, this accumulation of extraneous
functions by Southeastern Steam has rendered the safe harbor inapplicable in
this case. Our discussion in the next section regarding "establishment" and
"maintenance" incorporates this safe harbor analysis and addresses more fully
the depth of Southeastern Steam's involvement with the plan.

33

2. "Establishment" and "Maintenance": Statutory Coverage under 29 U.S.C.

1002(1)

34

Even if the safe harbor is barred, "that does not necessarily mean that the
insurance policy is part of an ERISA plan." Butero, 174 F.3d at 1214; see also
Anderson, 369 F.3d at 1263 n. 2 ("[A] plan that falls outside of the safe harbor
exception does not necessarily fall within the jurisdiction of ERISA.").

35

The defendants must show five things to establish that an ERISA plan governs
its relationship with Plaintiff: "(1) a plan, fund, or program (2) [that has been]
established or maintained (3) by an employer ... (4) for the purpose of
providing ... disability ... benefits (5) to participants or their beneficiaries."
Donovan, 688 F.2d at 1371 (internal quotations omitted). The only contested
factor is the third, whether the employer, Southeastern Steam, "established or
maintained" the plan within the meaning of 29 U.S.C. 1002(1). "Our inquiry
thus necessarily focuses on `the employer . . . and [its] involvement with the
administration of the plan.'" Anderson, 369 F.3d at 1263.

36

"In Butero, we suggested seven factors that may be relevant in determining

whether an employee welfare benefits program has been established [by an
employer]. These factors are equally important in determining whether an
employer has maintained the plan: `(1) the employer's representations in
internally distributed documents; (2) the employer's oral representations; (3) the
employer's establishment of a fund to pay benefits; (4) actual payment of
benefits; (5) the employer's deliberate failure to correct known perceptions of a
plan's existence; (6) the reasonable understanding of employees; and (7) the
employer's intent.'" Id. at 1265 (quoting Butero, 174 F.3d at 1215).

37

We cannot help but note that the facts in this case are similar to those in
Anderson, in which we determined that the employer "established and
maintained" the plan. See id. at 1259-62. In applying Butero's seven listed
factors to the facts in this case and incorporating our previous analysis
concerning the safe harbor exception, we conclude, as we did in Anderson, that
"almost all of the ... factors provide powerful reasons to conclude as a matter of
law that [the employer] both established and maintained an employee welfare
benefit plan governed by ERISA." See id. at 1267.

38

With regard to the first Butero factor, as noted previously, Southeastern Steam
stated in its employee handbook that disability insurance was an available
benefit. Some courts have concluded that this alone is enough to trigger ERISA
governance. See, e.g., Cockey v. Life Ins. Co. of N. Am., 804 F.Supp. 1571,

1575 (S.D.Ga.1992) ("Where a plan is presented to employees as one belonging

to the employer's benefits package, however, as opposed to merely permitting
the insurer to publicize the program to employees, the plan is an `employee
welfare benefit plan' under ERISA, 29 U.S.C. 1002(1), even though the
employees pay the premiums.").
39

With the possible exceptions of the disclosure of Unum Life's 1-800 number to
certain employees and the word-of-mouth publicity for the Unum Life
representative's visit to the company, which are not particularly probative of
whether Southeastern Steam established or maintained the plan, there are no
relevant facts discussed on appeal regarding Southeastern Steam's oral
representations to its employees, so we move on to the third Butero factor.
Here, Southeastern Steam, similar to the employer in Anderson, "established a
fund to pay benefits [and] selected the UNUM plan as the sole long term
disability plan . . . and limited eligibility to [certain employees]." See Anderson,
369 F.3d at 1265 (citation omitted). By applying for UNUM Life coverage on
behalf of its employees, and deciding on key terms in the plan agreement,
Southeastern Steam made the plan "a benefit closely tied to the employeremployee relationship." Id. at 1265-66.

40

With regard to fourth factor, Anderson is once again on point. While

Southeastern Steam did "not actually pay benefits, it [was] directly involved in
the payment process" because it "maintain[ed] a supply of claim forms" and
"facilitated the payment of benefits." See id. at 1266. Moorman disputes the
level of participation by Southeastern Steam and argues that the claim forms
were filed away. However, Carter admitted that she helped employees who had
questions regarding their claims and benefits and that she wrote a check on
Southeastern Steam's account to pay for all of the coverages. R.Exh. at 33-34,
52. Carter also assisted at least one or two employees in the filing of an actual
claim. Id. at 44, 102-04; R4-30 Exh. 1 at 15-16.

41

The fifth and sixth Butero factors also favor the Appellees. It is not simply the
"subjective" understanding of individual employees like Carter (who admitted
she did not read the enrollment form) and Moorman, who maintained that they
believed Southeastern Steam was not offering the plan, but rather the viewpoint
of the objectively reasonable employee that is the primary consideration in this
analysis. See Anderson, 369 F.3d at 1266-67; Johnson v. Watts Regulator Co.,
63 F.3d 1129, 1135 (1st Cir.1995) (conducting ERISA analysis from "the
viewpoint of an objectively reasonable employee"). Here, Southeastern Steam
created and distributed the employee handbook, which referenced the plan in
question as an available benefit for all its full-time employees.2 Moreover, the
employees signed the enrollment forms that indicated Southeastern Steam was

offering the program. Though there is no affirmative evidence that

Southeastern Steam knew of any misconceptions regarding the disability plan,
there is likewise no evidence that Southeastern Steam company officials,
including Carter and Moorman, who signed the enrollment forms and who
received the ERISA plan booklet and certificates, took any steps, over the
course of several years, to refute the indications that Southeastern Steam was
offering the plan or to provide any necessary clarifications. See Anderson, 369
F.3d at 1267 (finding relevant the fact that company officials did nothing to
change the ERISA language in any of the documents until after the claim had
been filed). Thus, it is clear that the Southeastern Steam employees who signed
and read the enrollment form and the employee handbook could have
reasonably believed that Southeastern Steam was offering the plan in question.
42

The seventh Butero factor favors Moorman. More specifically, while some of
the actions of Southeastern Steam suggest otherwise, it does not appear, based
on Carter and Moorman's affidavits, that Southeastern Steam company officials
had the intent to establish or maintain the plan at issue. This factor is not
dispositive, however, because ERISA can apply "regardless of the intent of the
plan administrators and fiduciaries" if the plan "satisfies the statutory
definition." Anderson, 369 F.3d at 1264.

43

Even if the Butero factors demonstrate that Southeastern Steam "established"

or "maintained" the plan, Moorman makes four other arguments that ERISA
governance is improper in this case. First, he alleges that ERISA was not
intended to cover such small employers as Southeastern Steam. This argument
is unpersuasive because we have said that an ERISA plan may consist of only a
single employee. See, e.g., Williams v. Wright, 927 F.2d 1540, 1545 (11th
Cir.1991). Second, Moorman alleges that the Appellees fraudulently inserted
language regarding ERISA into plan documents and enrollment forms.
Notwithstanding the fact that Southeastern Steam officials signed the
enrollment forms and did nothing to refute the conspicuous ERISA language in
the plan documents after the company received them, this allegation is without
support from the evidence in the record. Third, Moorman argues that Appellees
never discussed the issue of ERISA governance with Southeastern Steam
employees or officials. Even assuming that Appellees had such a duty to
explain, this argument also fails in light of the failure of Southeastern Steam to
correct or clarify language in the enrollment forms and plan documents that
reflects ERISA governance. Moreover, "ERISA does not require that a
beneficiary have any knowledge of a written plan's terms." Henglein v.
Informal Plan for Plant Shutdown Benefits for Salaried Employees, 974 F.2d
391, 401 (3d Cir.1992). Fourth, Moorman appears to argue that any relevant
actions by Southeastern Steam regarding the ERISA plan governance were

taken at the behest of the Appellees. This argument fails for two reasons: As
already discussed, there were several actions that Southeastern Steam
undertook on its own initiative, most notably the inclusion of the disability plan
in the employee handbook and the assistance provided by Carter to
Southeastern Steam employees. Furthermore, even if Southeastern Steam
undertook actions at the behest of the Appellees, our primary inquiry must be
from the vantage point of the objectively reasonable understanding of the
employees, who may be unaware of the motivations behind their employer's
actions. See Anderson, 369 F.3d at 1266-67.
44

While there may be fewer facts to show that the employer established or
maintained the plan than there were in Anderson and Butero, insofar as the plan
booklets in this case were not widely distributed and few employees submitted
claims, those cases do not represent the absolute minimum of what must be
proven to show establishment or maintenance. We do not believe that Congress
established ERISA to prejudice the rights of employees or to needlessly squelch
state law actions that would otherwise provide a superior avenue for the
vindication of such rights. Instead, as noted previously, the raison d'etre of
ERISA was "to promote the interests of employees and their beneficiaries" and
"to protect contractually defined benefits." Firestone Tire & Rubber Co., 489
U.S. at 113, 109 S.Ct. at 956. The bar triggering ERISA governance, therefore,
should not be set too high.

45

Thus, reviewing the Butero factors previously discussed, and keeping in mind
the underlying purposes of ERISA, we conclude that the plan in this case is
governed by ERISA. In reaching this decision, we note that Moorman does not
forfeit his rights against the Appellees; rather, he must litigate most, if not all,
of his claims under ERISA, a statutory scheme enacted by Congress to protect
the rights of employees such as Moorman.3
D. Moorman's Federal RICO Claims

46

Appellees seek dismissal of Moorman's federal RICO claims on grounds that it

was inconsistent with ERISA's exclusive remedial scheme. The district court
denied that portion of the motion, stating: "Defendants provide the court with
no legal authority that allowing a plaintiff to proceed under RICO would
frustrate the exclusive remedial scheme Congress devised for ERISA claims,
and the court will not dismiss the claim on grounds for which Defendants have
presented no legal authority." R7-41 at 33. In its 25 July 2005 order, which
expressly refused to certify the question for appeal, the district court stated:

47

[T]he court is generally unable to certify a question for interlocutory appeal

47

[T]he court is generally unable to certify a question for interlocutory appeal

when the question has not been considered by the district court. In this case, the
court previously determined it would not be proper to grant Defendants' motion
to dismiss Plaintiff's federal RICO claim because Defendants had not presented
legal authority supporting their position. It is only now that Defendants provide
the court with such authority. An issue presented for the first time on appeal
will be considered only in extraordinary circumstances. The court does not
believe the inclusion or exclusion of Plaintiff's federal RICO claim presents an
extraordinary circumstance warranting the court's certification of the question,
therefore the court will decline Defendant's request for it to do so.

48

R7-59 at 27 (citations omitted).

49

The scope of review on appeal under 28 U.S.C. 1292(b) "is not limited to the
precise question certified by the district court because the district court's order,
not the certified question, is brought before the court." Aldridge v. Lily-Tulip,
Inc. Salary Ret. Benefits Comm., 40 F.3d 1202, 1207 (11th Cir.1994). Under
1292(b), appellate review, even for certified questions, is discretionary.
McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th Cir.2004). "The
proper division of labor between the district courts and the court of appeals and
the efficiency of judicial resolution of cases are protected by the final judgment
rule, and are threatened by too expansive use of the 1292(b) exception to it.
Because permitting piecemeal appeals is bad policy, permitting liberal use of
1292(b) interlocutory appeals is bad policy." Id. By extension, review by
appellate courts of noncertified questions is also discretionary. Cf. id.

50

There is no reason why the district court should not be afforded the opportunity
to answer this question more fully in the first instance. In their motion to
dismiss Moorman's RICO claim, Appellees did raise the issue before the
district court, albeit briefly, and cited two cases: Pilot Life Ins. Co. v. Dedeaux,
481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987), and Gilbert v. Alta Health
& Life Ins. Co., 276 F.3d 1292 (11th Cir.2001). R1-3 at 24. However, we note
that Appellees thereafter did not request reconsideration of that court's ruling on
the issue. Rather, in its response to Moorman's motion for certification,
Appellees for the first time requested, in the event that the district court
certified the ERISA governance question for appeal, that the district court also
certify the RICO question. R7-50 at 5.

51

The federal RICO issue is heavily briefed by Appellees on appeal, and includes
new theories not raised below (e.g., the proper application of a statute
concerning ERISA's preclusive effect, 29 U.S.C. 1144, on federal laws
enacted both before and after ERISA's enactment). However, Appellees failed

to afford the district court the same opportunity for review. Even if this issue
presents a matter of first impression in our circuit, this is not a circumstance that
would warrant preemptive appellate review and resolution of an issue not fully
addressed by the district court, and we decline to liberally use 1292(b) in the
manner urged by Appellees. See McFarlin, 381 F.3d at 1259.
52

Appellees also claim that Moorman failed to allege a viable RICO claim
because it lacked particularity. This question was also not certified for appeal.
For similar reasons regarding our refusal to address Appellees' first RICO
argument, we will not address this issue on appeal.

III. CONCLUSION
53

Moorman appeals from an interlocutory order of the district court, which

concluded that ERISA governs his disability insurance plan. Because the
evidence in the record demonstrates that there is no genuine issue of material
fact on this issue, we affirm the order of the district court. Furthermore, we
decline Appellees' invitation to review Moorman's RICO claims, which have
not been certified for appeal, because they have yet to be adequately addressed
by the district court.

54

AFFIRMED.

Notes:
*

Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth Circuit,
sitting by designation

Credibility determinations at the summary judgment stage are

impermissibleSee Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
150-51, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000). While our review of
the district court's grant of summary judgment is de novo, and any credibility
determinations by the district court are properly disregarded, we believe it is
appropriate to address the issue of whether there in fact was an impermissible
credibility determination made by the district court. Our decision is based in
part on the amount of attention devoted by Moorman in his brief on appeal
regarding this issue.
The allegedly impermissible credibility determination concerns Carter's
affidavit. The district court stated that:

Although the court realizes it should not be engaged in credibility analysis,

Carter herself acknowledged that she did not read her Affidavit closely before
signing it. Therefore, the court will not rely on the averments of Carter's
Affidavit, particularly those contradicted by other evidence in this case.
R7-41 at 17-18 n.16.
This conclusion was predicated on the following exchange between Carter and
counsel for the Appellees:
Q. [Counsel for Appellee] Okay. Well, your affidavit says in paragraph 31,
acting on behalf of Southeastern Steam, I received the plan booklets as mailed
by defendant Unum Life and distributed those to individual enrolled employees,
including plaintiff Moorman. Is it your testimony
A. [Ms. Carter] No, I didn't.
Q. today that that is not correct?
A. Yeah, I didn't distribute, I didn't distribute to the employees. He [Moorman]
asked for one. If anybody came and asked for one, Mr. Moorman did ask for
one. And I think I actually got one and took it home with me, but, no, I didn't
distribute.
Q. Well, did you review your affidavit before you signed it?
A. Yeah, but, I mean, I just not every word like that.
Q. Well, did you not read every word before you signed it?
A. Yeah, but it didn't click.
R.Exh. at 75-76. Moorman contends that this was an impermissible credibility
determination and that Carter's statements should not be read for the
proposition that she did not read her affidavit closely before signing it.
If the district court used this exchange to discount completely Carter's affidavit,
then there may be error. Construing the facts in the light most favorable to
Moorman, the exchange would call into question Carter's statements in her

affidavit regarding her "distribution" of the materials.

In any event, it is unclear exactly how the district court treated Carter's
affidavit. For example, the court did accept Carter's statements that she
"believed Unum Life, rather than Southeastern Steam, was providing the Plan."
R7-41 at 3. Moreover, even if the district court were to have accepted her
affidavit without reservation, Carter's legal conclusions about whether ERISA
applied and any ruminations on what other employees thought of the plan and
relevant documents were properly disregarded.
2

While Carter stated that she did not distribute the plan booklets and certificates
to Southeastern Steam employees, which contained explicit language regarding
ERISA governance, she admitted that she gave one booklet to Moorman upon
his request and took one home for herself. R.Exh. at 76

Because Moorman does not ask us to review the district court's conclusions
regarding the extent to which ERISA preempts his state law claims,see
Appellant's Br. at 46, we need not address that issue.