Halline Overby and Paulette M. Overby v. National Association of Letter Carriers, Et Al .

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 20, 2009 Decided February 26, 2010
No. 09-7050
HALLINE OVERBY AND PAULETTE M. OVERBY ,
APPELLEES
v.
NATIONAL ASSOCIATION OF LETTER CARRIERS, ET AL .,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cv-01356)
John C. Hayes, Jr. argued the cause for appellants. With
him on the briefs was Kenneth J. Nichols.
Stephen R. Bruce argued the cause for appellees. With him
on the brief was Allison C. Pienta.
Before: SENTELLE , Chief Judge, ROGERS , Circuit Judge,
and EDWARDS , Senior Circuit Judge.
Opinion for the Court filed by Chief Judge SENTELLE .
SENTELLE , Chief Judge: Halline Overby, an annuitant in a
retirement trust fund operated by National Association of Letter

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1 Unless the context indicates otherwise, “NALC” refers
collectively to the four defendant-appellants in this case: the National
Association of Letter Carriers, the National Association of Letter
Carriers Annuity Trust Fund, William H. Young, and the Board of
Trustees of the National Association of Letter Carriers Annuity Trust
Fund.
Carriers (NALC), and his wife Paulette Overby brought suit in
district court seeking a declaration that a purported amendment
to the trust plan which would have rendered Paulette Overby
ineligible to receive benefits under the plan as a surviving
spouse was not properly adopted and is therefore inoperative.
The district court found that the trustees of the plan had not
submitted the amendment to the fund’s actuaries for an
evaluation and estimate of its cost, as required by the governing
provisions of the plan, and therefore held that the amendment
was not properly adopted. NALC appeals, arguing that the
district court erred both in its findings of fact and in its
conclusions of law. 1 Upon review, for the reasons more fully set
forth below, we hold that the district court committed no
reversible error in either its factual determinations or in its
conclusions of law. We therefore affirm the judgment of the
district court.
I. BACKGROUND
The National Association of Letter Carriers (NALC) is a
national labor union which sponsors a retirement plan, the
National Association of Letter Carriers Annuity Trust Fund
(ATF or plan). The ATF is a “qualifying plan” under the
Employee Retirement Income Security Act of 1974, 29 U.S.C.
§ 1001 et seq. (ERISA). The plan provides retirement annuities
for NALC’s national officers, national business agents, certain
branch officers, headquarters employees, and employees of
NALC’s health plan, though not postal carriers themselves. The

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president of NALC serves as the plan administrator for the ATF,
and the board of trustees of NALC has oversight responsibilities
for the plan.
Appellee Halline Overby became a letter carrier in 1960.
He was elected president of his local union in 1969. Halline
Overby then joined NALC’s Board of Trustees in 1978. When
he joined the Board of Trustees, he also became a participant in
the ATF and has remained so ever since. Over his career of
working for NALC, he has been a trustee of the ATF, a member
of the Executive Council, and the Assistant Secretary Treasurer.
Halline Overby retired from NALC on October 22, 1990, and
began receiving his annuity payments on February 1, 1991. In
May of 1991, he married Paulette Overby, his co-plaintiff in the
district court and co-appellee before this court.
One provision of the plan provides a benefit to a surviving
spouse of a deceased annuitant, calculated at 60% of the benefits
of the deceased. When Mr. Overby experienced serious health
difficulties in the late 1990s, Mrs. Overby, concerned about her
own financial stability, inquired into life insurance and
survivorship benefits. NALC’s accounting office informed her
that she would not be eligible to receive surviving spouse
benefits because a purported amendment to the plan made in
1985 changed the definition of “surviving spouse.”
The parties agree that prior to the purported amendment, the
plan followed a “one-year-at-death” rule, under which the
surviving spouse was “one to whom the Annuitant was married
for at least one year immediately preceding the Annuitant’s
death, or is the parent of issue by such marriage.” Overby v.
Nat’l Ass’n of Letter Carriers, 601 F. Supp. 2d 101, 103 (D.D.C.
2009). In order to qualify as a surviving spouse under the
purported amendment, a claimant must be “one to whom the
Annuitant was married for at least the year immediately

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2 While there is a discrete exception qualifying spouses who
were married to the annuitant within the year before the
commencement of the annuity and for at least one year ending on or
before the annuitant’s death, that exception has no application to the
facts before us.
preceding and ending on the Annuitant’s annuity
commencement date.”2 Id. However, the parties dispute
whether the plan was effectively amended to replace the “one-
year-at-death” rule with the so-called “marriage-at-
commencement” methodology for determining who qualifies as
a surviving spouse.
After receiving the bad news, the Overbys brought the
instant action, seeking a declaration that, inter alia, “the alleged
1985 amendment to the survivor annuity rule was not adopted
in accordance with the Plan’s amendment procedures in Article
IX, Section I, as amended, and is therefore invalid.” Pls. Compl.
16. The district court received evidence on the requirements of
the plan and the purported adoption of the surviving spouse
amendment. Considering the evidence in the light of the
requirements of ERISA, the court held that the amendment had
not been properly adopted, that the amendment was therefore
ineffective, and that Paulette Overby would qualify as a
surviving spouse under the plan in its unamended form. Overby
v. Nat’l Ass’n of Letter Carriers, 601 F. Supp. 2d 101 (D.D.C.
2009). NALC appeals.
II. ANALYSIS
A. Amendment of the Plan
As the district court held, ERISA requires in 29 U.S.C.
§ 1102(b)(3) “that every employee benefit plan ‘provide a
procedure for amending such plan, and for identifying the

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persons who have authority to amend the plan.’” 601 F. Supp.
2d at 108 (quoting 29 U.S.C. § 1102(b)(3)). The statute is silent
as to the level of detail and as to the nature of procedural
requirements, but “[t]he provision requires . . . that there be an
amendment procedure.” Curtiss-Wright Corp. v.
Schoonejongen, 514 U.S. 73, 80 (1995) (emphasis in original).
The statutory scheme further “follows standard trust law
principles in dictating only that whatever level of specificity [an
employer] ultimately chooses, in an amendment procedure or
elsewhere, it is bound to that level.” Id. at 85. Therefore, as the
district court correctly held, “a proposed amendment not done
in accordance with a plan’s amendment procedure is ineffective
and does not amend a plan.” 601 F. Supp. 2d at 108 (citing,
inter alia, Curtiss-Wright Corp., 514 U.S. at 78).
As the statute requires, the ATF’s plan includes a formal
amendment procedure. That procedure includes the following
three requirements:
(1) The trustees must first submit the proposed
amendment to the Fund’s actuaries “for an evaluation and
estimate of its cost;”
(2) The trustees must then “adopt” the proposed
amendment; and
(3) NALC’s Executive Council must then “approve”
the proposed amendment.
Id. at 108. The district court held that on the evidence before it
the trustees had not met the first of those requirements; that is,
they had not submitted the proposed amendment to the fund’s
actuaries for an evaluation and estimate of its cost. The district
court therefore held that the amendment had not been validly
adopted, and that the effective definition of surviving spouse

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would entitle Paulette Overby to that status should she survive
Halline while still married to him.
Appellants do not challenge the district court’s ruling as to
the nature of the amendment process required under the plan,
but challenge its conclusions on two principal bases. First, they
contend that the district court did not have sufficient evidence to
have reached the finding that the amendment was not submitted
to the actuaries, as required by the amendment process. Second,
they contend that even if the court had sufficient evidence for
the finding, it nonetheless erred in its conclusion that this
invalidated the amendment. Before considering appellants’
other assignments of error, we will dispose of these two
principal arguments in turn.
1. The Sufficiency of the Evidence
We note at the outset that an appellant seeking reversal of
a trial court’s findings of fact in a bench trial faces a daunting
task. Such findings, “whether based on oral or other evidence,
must not be set aside unless clearly erroneous, and the reviewing
court must give due regard to the trial court’s opportunity to
judge the witnesses’ credibility.” FED . R. CIV . P. 52(a)(6). We
further note that “[t]his standard applies to the inferences drawn
from findings of fact as well as to the findings themselves.”
Halberstam v. Welch, 705 F.2d 472, 486 (D.C. Cir. 1983).
Cases addressing the question of the sufficiency of evidence to
support a trial court’s findings are similar. We will determine
that the evidence is sufficient if a reasonable fact finder could
have reached the conclusion adopted by the trial court.
Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)
(“If the district court’s account of the evidence is plausible in
light of the record viewed in its entirety, the court of appeals
may not reverse it . . . . Where there are two permissible views
of the evidence, the factfinder’s choice between them cannot be

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clearly erroneous.”). Appellants have not met this standard.
Appellants argue that “the District Court based its finding
that the ‘married at commencement’ amendment was never
submitted for an actuarial cost review on the fact that the review
is not explicitly mentioned in either the April 19, 1985 trustee
meeting minutes or the contemporaneous notes of NALC’s
outside counsel, Jani Rachelson.” Appellants’ Br. 15. It is true
that one of the evidentiary bases relied upon by the trial court
was the undeniable fact that the submission of the proposed
amendment for the actuarial cost review was never mentioned
at all in the minutes of the meeting at which it was purportedly
adopted, or in the contemporaneous notes of the outside counsel.
However, it is not true that the absence of an “explicit” reference
is not evidence that it was never done. It is, of course, not direct
evidence, but that does not mean it is not evidence.
It is inherently difficult to prove a negative. See Elkins v.
United States, 364 U.S. 206, 218 (1960) (“[A]s a practical
matter it is never easy to prove a negative . . . .”). It was
plaintiffs’ task below to prove that something had not been
done. If that proof requires plaintiffs to produce direct evidence,
then plaintiffs’ burden can virtually never be carried. Rare will
be the case in which a plaintiff can offer witnesses who will
testify “I saw him not do it.” Thus, if direct evidence of
negatives were required, there would be little point in the law
requiring any person to do anything as the failure to do it could
rarely be proved. Therefore, we must expect negatives to be
proved by circumstantial evidence.
Where, as here, the law requires an act to be done, and the
person whom the law requires to act has maintained minutes of
the time during which the act should have been done, it is
certainly probative that the written record does not include a
recording of the required act. That evidence is even more

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probative in this case, where the district court found that “[t]he
omission of [the] actuarial evaluation and estimation is telling
when juxtaposed against the next subparagraph of those same
minutes, in which it is recorded that before the trustees adopted”
another amendment at the same meeting, the opinion of the
actuaries had been obtained and the cost estimate produced by
the actuaries is set forth. Overby, 601 F. Supp. 2d at 109. The
district court further found it “telling” that the minutes of
another meeting in December of 1985 specifically records that
the fund’s actuaries undertook an actuarial evaluation of another
subject matter. Id. Thus, the district court’s opinion, id. at 106-
07, sets forth significantly more evidence than the appellants
admit to exist.
Though appellants contest the district court’s reliance on
Ms. Rachelson’s testimony, it is only after discussing the lack of
record evidence before the court for the submission of the
amendment to the actuaries and the conspicuous omission of
such an actuarial evaluation in the face of the fund’s apparent
practice with respect to other amendments that the district court
expressed additional reliance on the testimony of outside
counsel. As the district court put it, “[t]hat no actuarial
evaluation or estimation ever occurred with respect to the
‘marriage-at-commencement’ rule prior to its asserted
‘adoption’ is further established by the testimony [of the outside
counsel].” Id. at 109 (emphasis added).
Therefore, the issue before us has never been whether the
testimony of the outside counsel would be sufficient standing
alone, but whether the record evidence including corroboration
by her lack of memory is sufficient to support the district court’s
factual finding. While we are not implying that the court’s
findings would have been questionable in the absence of the
deferential standard, given the deferential standard, the record
is more than ample to support what the district court found and

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the inferences it drew from the evidence before it. The trial
court’s findings were certainly not clearly erroneous.
2. The Effect of the Omission
Appellants next argue that a “procedural irregularity” in the
adoption of an amendment “cannot support a holding
invalidating it.” Appellants’ Br. 19. In appellants’ view,
“[c]ourts should not invalidate amendments to ERISA plans that
are adopted without strict adherence to plan amendment
procedures unless there is evidence of bad faith regarding the
amendment procedure, active concealment of the amendment
itself, or plaintiff’s detrimental reliance on the plan procedures.”
Id. Unfortunately for appellants, that is not the law.
The Supreme Court has told us that “ERISA . . . follows
standard trust law principles in dictating only that whatever level
of specificity a company ultimately chooses, in an amendment
procedure or elsewhere, it is bound to that level.” Curtiss-
Wright Corp. v. Schoonejongen, 514 U.S. 73, 85 (1995). While
arguably the Curtiss-Wright statement qualifies as dicta,
“carefully considered language of the Supreme Court, even if
technically dictum, generally must be treated as authoritative.”
U.S. v. Dorcely, 454 F.3d 366, 375 (D.C. Cir. 2006) (quotation
omitted). This is especially so here as the Supreme Court has
reiterated the same teaching in Inter-Modal Rail Employees
Ass’n v. Atchison, Topeka and Santa Fe Railway Co., 520 U.S.
510, 515-16 (1997) (“An employer may, of course, retain the
unfettered right to alter its promises, but to do so it must follow
the formal procedures set forth in the plan.”) (discussing ERISA
plans).
The clear implication of the Supreme Court’s language is
that there must be amendment procedures in a plan, and those
amendment procedures must be followed for the valid adoption

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of an amendment. Our sibling circuits follow this view of the
law with near unanimity. In Coffin v. Bowater Inc., 501 F.3d 80,
91-92 (1st Cir. 2007), the First Circuit stated that “an ERISA
plan amendment must be in writing; it must be executed by a
party authorized to amend the plan; the language of the
amendment must clearly alert the parties that the plan is being
amended; and the amendment must meet any other requirements
laid out for such amendments in the plan’s governing
documents.”
Similarly, in Halliburton Co. Benefits Committee v. Graves,
463 F.3d 360, 371-72 (5th Cir. 2006), the Fifth Circuit opined
that “[i]n order to amend a welfare benefit plan governed by
ERISA, the employer must provide a procedure for amending
such plan, and for identifying the persons who have authority to
amend the plan. . . . [O]nly an amendment executed in
accordance with the plan’s procedures is effective.” (internal
citations and quotations omitted).
The Third Circuit in Depenbrock v. Cigna Corp., 389 F.3d
78, 82-83 (3d Cir. 2004), held that “an amendment is ineffective
if it is inconsistent with the governing instruments. . . . ERISA
specifies that a valid amendment can only be made in the
manner specified in the plan document.”
Other circuits have acted consistently. See Winterrowd v.
Am. Gen. Annuity Ins. Co., 321 F.3d 933, 937 (9th Cir. 2003)
(“Section 402 of ERISA requires employee benefit plans to
specify both an amendment procedure and a procedure for
identifying persons with authority to amend. These amendment
procedures, once set forth in a benefit plan, constrain the
employer from amending the plan by other means.”) (citation
omitted); Aramony v. United Way Replacement Benefit Plan,
191 F.3d 140, 148-49 (2d Cir. 1999) (looking to corporate
formalities to see whether a pension plan was amended); Miller

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v. Coastal Corp., 978 F.2d 622, 624 (10th Cir. 1992) (“ERISA
requires all modifications to an employee benefit plan . . . to
conform to the formal amendment procedures . . . .”); Coleman
v. Nationwide Life Ins. Co., 969 F.2d 54, 58-59 (4th Cir. 1992)
(“[A]ny modification to a plan must be implemented in
conformity with the formal amendment procedures and must be
in writing.”); Confer v. Custom Eng’g Co., 952 F.2d 41, 43 (3d
Cir. 1991) (“Only a formal written amendment, executed in
accordance with the Plan’s own procedure for amendment,
could change the [ERISA medical] Plan.”); Albedyll v. Wi.
Porcelain Co. Revised Ret. Plan, 947 F.2d 246, 254-55 (7th Cir.
1991) (holding that an ERISA pension plan amendment was
invalid because it did not comply with the plan’s procedures for
amendment).
In the face of this otherwise unanimous array, appellants
ask us to follow what they call “the leading case on the proper
standard for determining whether an ERISA plan amendment
should be invalidated.” Appellants’ Br. 19. The case appellants
cite is Loskill v. Barnett Banks, Inc. Severance Pay Plan, 289
F.3d 734 (11th Cir. 2002). Concededly, that case appears to
have reasoned that bad faith was necessary for an invalidation
of an amendment adopted in disregard of the procedures
required by the plan. We cannot, however, see what makes it
“the leading case” when no other court has ever followed it.
Nor will we. Indeed, even the Eleventh Circuit seems to have
ignored the holding of Loskill. See Shaw v. Conn. Gen. Life Ins.
Co., 353 F.3d 1276, 1283 (11th Cir. 2003) (invalidating a
purported amendment to an ERISA-covered disability plan
because of lack of compliance with plan amendment procedures
without any discussion of bad faith, active concealment, or
detrimental reliance). The Supreme Court’s guidance on the
necessity of amendment procedures drives us toward a
conclusion that those procedures should not be ignored.
Likewise, the near unanimous conclusions of our fellow circuits

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weighs heavily against the novel construction sought by
appellants. Appellants give us no reason why we should treat
the written procedures of the plan so lightly, nor can we think of
any. An amendment procedure is there to be followed. It is
there to give fair notice to the beneficiary under the plan. We
have already upheld the district court’s finding that it was not
followed in this case. In short, we adopt the near unanimous
view of the other circuits that a failure to follow the amendment
procedures of a plan invalidates an amendment without regard
to a showing of bad faith. We therefore uphold the conclusion
of the district court that the effect of the failure in this case
renders the amendment invalid.
3. Appellants’ Other Arguments
Appellants offer three other arguments, none of which
warrant reversal. Appellants first argue that “[l]ack of an
actuarial cost review was not a central theory of the Overbys’
case.” Appellants’ Br. 18. They assert that “the plaintiffs did
not rely heavily on the theory that a lack of actuarial cost review
made the amendment invalid.” Id. (emphasis added). They
argue in a single paragraph that the Overbys’ “main theory” was
that no vote on the amendment took place at all. While this is at
least arguably true, it is without legal effect. While it is no
doubt true that the complaint and the evidence of a plaintiff must
be sufficient to put defendants on notice of any theory of
recovery upon which the plaintiff is relying, this does not
preclude the possibility of plaintiffs arguing alternative theories,
nor the possibility of the court’s relying upon a “lesser”
alternative in its decision. Appellants offer no authority for a
contrary position, nor have we independently found any. The
complaint, the discovery, the evidence at trial, and the complete
record established in the district court taken together — indeed
taken separately — provided defendants with ample notice that
plaintiffs sought to have the amendment invalidated because of

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the trustees’ failure to follow the plan’s amendment procedure
in the adoption of the disputed amendment.
More specifically, the Overbys asked for discovery on the
actuarial review. Appellants’ counsel admitted on appeal that
these requests for admissions were in the record and that the
actuarial review came up in testimony as well. See Trial Tr. at
130. It is abundantly clear that appellants were on notice that
this argument was before the district court and could have
presented evidence at trial that NALC complied with the
amendment procedures if any such evidence existed. We have
no precedent for requiring any more.
Appellants further offer two brief arguments. They first
contend that the amendment to the plan was necessary to comply
with a change in the law required by an amendment to the
governing statute effected in the Retirement Equity Act of 1984.
That amendment required plans qualifying under ERISA to
include a “married at commencement” eligibility requirement.
Again, this is inarguably true. See Retirement Equity Act of
1984, Pub. L. No. 98-397, 98 Stat. 1426. This amendment did
not, however, require the deletion of pre-existing “one year at
death” language, nor free the trustees from complying with the
amendment procedures required by the plan. Whether the
resulting invalidity of the amendment means that the two
methods of qualification must coexist or that the amended
statute mandates further amendment to the plan is not before us.
Appellants are no doubt correct that such coexistence will
increase the financial burden on the plan. That well illustrates
a problem that could have been addressed by the submission of
the proposed amendment for review by the actuaries as required
by the amendment procedures of the plan.
Last, appellants argue that the district court should have
narrowly tailored the relief ordered in the judgment. That is,

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they contend that the court should have limited the effect of its
findings and holdings to the claims of the Overbys, leaving the
questions of the validity of the amendment to other annuitants
for later cases. We cannot conclude that the court erred in
granting the relief it provided. The district court performed its
Article III function. The judge decided the case before her. The
precise breadth and strength of the preclusive effect of that
judgment on later litigants can await cases in which that
preclusive effect is at issue.
CONCLUSION
We conclude that the district court’s factual finding that the
proposed amendment was not submitted to the actuaries for a
cost review is not clearly erroneous. Because an ERISA plan is
held to whatever level of specificity it has adopted, the failure of
NALC ATF to follow its own amendment procedures means that
the amendment was not adopted. For the reasons set forth
above, the judgment of the district court is therefore affirmed.
So ordered.

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