United States Court of Appeals
Fifth Circuit
F I L E D
In the August 22, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 05-30906
Summary Calendar
_______________
DAISY ESTELLE COBB,
WIDOW OF OLIVER RAY GIBBS,
Plaintiff-Appellant,
VERSUS
CENTRAL STATES, SOUTHWEST AND SOUTHEAST AREAS PENSION FUND,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
m 2:04-CV-1421
_________________________
Before SMITH, GARZA, and PRADO, I.
Circuit Judges. In about August 1979, Oliver Gibbs sub-
mitted an “Application for a Retirement Pen-
JERRY E. SMITH, Circuit Judge: sion Benefit” to Central States stating that he
was retiring on October 26, 1979. Central
DaisyCobb appeals an adverse benefit deter- States is a multiemployer pension plan. At the
mination by Central States, Southwest and time he submitted his application, Gibbs was
Southeast Areas Pension Plan (“Central married to, but separated for thirteen years
States”). We vacate the judgment and remand from, Cobb. In his pension application, Gibbs
with instruction to dismiss for want of subject represented under oath that his spouse was
matter jurisdiction. “deceased.” Gibbs died in 1985. In 2002
Cobb submitted a claim for the Joint and Sur- legally married. Cobb also stated that Gibbs
vivor Pension Benefit. was receiving a pension benefit and that she
wanted to receive some of it. Central States
When he retired, Gibbs was eligible to re- informed Cobb that she was not eligible to
ceive an unreduced lifetime pension of $675.00 receive any part of Gibbs’s pension because
per month, with no pension benefits after his the Pension Plan provided that “[a]ll Pension
death (the “Lifetime Benefit”). Central States’ Benefits provided by this Plan shall be paid di-
Pension Plan also allowed a participant to re- rectly to the Pensioner, and not to any creditor
ceive or reject the Joint and Survivor Pension or other person not eligible for such benefits.”
Benefit (“JSO”) if he met the three eligibility
criteria for this plan. Generally, this benefit In 2002, Cobb requested benefits from Cen-
provides a reduced pension to the participant, tral States by submitting an Application for
and 50% of the reduced lifetime pension as a Death Benefit. In September, Central States
lifetime monthly income to his/her spouse after advised Cobb that she was not eligible to
the participant’s death. receive any benefits because Gibbs did not
elect the “Joint and 50% Surviving Spouse
Gibbs would have received a reduced life- Option” when he retired in 1979. Cobb ap-
time pension of $588.60 per month, but only by pealed this adverse benefit determination to
meeting several conditions, including that he Central States’ Benefits Claim Appeals Com-
had to be married at the time of his retirement. mittee.
The plan provided that
In April 2003, Central States advised her
[i]n order to be eligible for this pension that her appeal was rejected because Gibbs had
benefit, you MUST meet each of the follow- not elected to have his benefit paid in the JSO
ing requirements AT THE TIME OF YOUR form when he retired. Cobb exhausted the
RETIREMENT: administrative appeals process when her ap-
peal was considered by the trustees, who
SSyou MUST be married; and determined that “the communications, acts and
SSyou MUST be at least age 55; and omissions by the late Oliver Ray Gibbs, at and
SSyou MUST be eligible to receive a Twen- around the time of his 1978 [sic] retirement,
ty-Year Service Pension Benefit, an Early induced the Pension Fund to rely, and the
Retirement Pension Benefit or a Vested Pen- Pension Fund did in fact actually and reason-
sion Benefit from this Plan. ably rely, upon his intention to reject the JSO.”
Cobb appealed this decision in court, but her
Because Gibbs represented that his spouse claim was rejected, so she appeals.
was deceased, he did not meet the criteria, so
he was never sent an election form for the JSO. II.
He started receiving unreduced lifetime benefits Cobb asserts district court jurisdiction un-
in November 1979. In February 1981 (before der section 502(a) of ERISA, 29 U.S.C.
Gibbs’s death), Cobb contacted Central States 1132(a). That provision, however, limits those
and advised it that she was Gibbs’s spouse. who can maintain suit under the statute to
Cobb stated that she and Gibbs had been sepa- “participants,” “beneficiaries,” or “fiduciaries.”
rated for “about 15 years” but that they were Coleman v. Champion Int'l Corp., 992 F.2d
2
530, 533 (5th Cir. 1993). Because “[w]here ERISA defines “beneficiary” as “a person
Congress has defined the parties who may bring designated by a participant, or by the terms of
a civil action founded on ERISA, we are loathe any employee benefit plan, who is or may be-
[sic] to ignore the legislature’s specificity,” come entitled to a benefit thereunder.” ERISA
standing to bring an action founded on ERISA § 3(8), 29 U.S.C. § 1002(8) (emphasis added).
is a “jurisdictional” matter.1 In favor of jurisdiction, the parties cite a case
that involved the definition of “participant,”
Accordingly, the issue of whether a particu- Firestone Tire & Rubber Co. v. Bruch, 489
lar plaintiff falls within one of the three enu- U.S. 101, 117-18 (1989), which held that “to
merated classes of litigants (participants, bene- establish that he or she ‘may become eligible’
ficiaries or fiduciaries) is a jurisdictional one. for benefits, a claimant must have a colorable
Herman, 845 F.2d at 1289. This court has claim that (1) he or she will prevail in a suit for
“hewed to a literal construction of § 1132(a)” benefits, or that (2) eligibility requirements will
on this issue. Id. (emphasis added). be fulfilled in the future.” Id. (emphasis
added). The parties explain that given that the
Because the issue of standing is one of sub- definition of beneficiary, like the definition of
ject matter jurisdiction, we raised it sua sponte participant, involves the term “is or may be-
and directed the parties to submit briefing on come entitled to a benefit,” Cobb has standing
the issue. Although the basis for inclusion in because she has a “colorable claim” that she
one of the three jurisdictional classes of ERISA may be entitled to benefits. We disagree.
litigants is uncertain from Cobb’s complaint,
she claims in her appellate brief and supple- This case involves the definition of “benefi-
mental briefing that she is a “beneficiary” to ciary,” not “participant.” Although both re-
whom the plan trustees owed a fiduciary duty.2 quire “colorable” entitlement to benefits, the
definition of beneficiary additionally requires
something that the definition of participant
1
Hermann Hosp. v. MEBA Med. & Benefits does not: that the “beneficiary” be “designat-
Plan, 845 F.2d 1286, 1288-89 (5th Cir. 1988) (an- ed” as such by the participant or by the terms
alyzing ERISA standing as a question of subject
matter jurisdiction); accord Ward v. Alternative
Health Delivery Sys., Inc., 261 F.3d 624, 627 (6th
2
Cir. 2001) (finding that lack of standing warrants (...continued)
dismissal for lack of subject matter jurisdiction). whose beneficiaries may be eligible to receive any
such benefit. Section 3(21) of ERISA, 29 U.S.C.
2
Cobb has never purported to be, a “partici- 1002(21), defines “fiduciary” as a person who
pant,” or “fiduciary” as defined by ERISA; nor can (i) exercises any discretionary authority or discre-
she qualify within those two categories. Section tionary control respecting management of such
3(7) of ERISA, 29 U.S.C. § 1002(7), defines “par- plan or exercises any authority or control respect-
ticipant” as any employee or former employee of an ing management or disposition of its assets,
employer, or any member or former member of an (ii) renders investment advice for a fee or other
employee organization, who is or may become compensation, direct or indirect, with respect to
eligible to receive a benefit of any type from an any moneys or other property of such plan, or has
employee benefit plan which covers employees of any authority or responsibility to do so, or (iii) has
such employer or members of such organization, or any discretionary authority or discretionary respon-
(continued...) sibility in the administration of such plan.
3
of the plan.3 Post-Firestone, this court has normal Lifetime Only Income payment
continued to adhere to a “literal construction” option. While this Plan option provides the
of the three classes of plaintiffs with standing, greatest amount of monthly income, the
and we have refused to read the “designation” Plan states clearly that, under this option, at
requirement out of the statutory definition: A the time of the participant's death, all pen-
beneficiary must prove both a “colorable claim” sion benefits cease.
under Firestone and a “designation” by the
participant or the terms of the plan: A bene- Because no pension benefits were payable
ficiary is “a person designated by a participant, at the time of Charlie Coleman’s death, the
or by the terms of an employee benefit plan, Retirement Committee was not, and is not
who is or may become entitled to a benefit now, authorized to name a beneficiary from
thereunder.” 29 U.S.C. § 1002(8) (emphasis the list in Section 4.2. As such, the terms
added). of Plan Section 4.2 do not afford Coleman
beneficiary status as contemplated in §
In Coleman we held that a pension plan par- 1132. Coupled with the fact that Charlie
ticipant’s son, who was his descendant, heir at Coleman did not name his son as his benefi-
law, and the representative of his estate, was ciary, this conclusion forecloses any statu-
not a “beneficiary” of the plan with standing to tory basis for Coleman’s assertion of stand-
sue under ERISA because (1) the participant ing.
never designated the son to receive benefits un-
der the plan, and (2) the terms of the plan, Coleman, 992 F.2d at 533-34.
which directed the Trustees to designate a ben-
eficiary from the group of the decedent’s Under this precedent, Cobb is not a benefi-
spouse, descendants, heirs at law, and represen- ciary. Gibbs never personally “designated
tatives of the estate, if there were any benefits [Cobb] or anyone else as beneficiary of his
“payable,” could not designate a beneficiary, Plan assets.” Id. at 533. “[T]herefore,
because there were no benefits payable (The [Cobb’s] assertion of beneficiary status rests
participant received benefits under the “Life- upon the language and terms contained in the
time Only” option, as here.): Plan.” Id.
Charlie Coleman elected to remain under the In its letter brief, Central States admits that
the plan does not define the term “beneficiary.”
In her letter brief, Cobb also acknowledges
3
Section 1002(7) defines “participant” as any that the plan does not specifically define the
“employee or former employee . . . who is or may surviving spouse as the beneficiary. She
become eligible to receive . . . employee benefit[s]” argues, however, that because the plan allows
(emphasis added). Section 1002(8) defines “benefi-
for benefits to be paid to surviving spouses of
ciary” as “a person designated by a participant, or
by the terms of an employee benefit plan, who is or
individuals receiving benefits under the JSO
may become entitled to a benefit thereunder” plan, she is or may become entitled to a benefit
(emphasis added). “Therefore, based on the statu- under the plan, which makes her a beneficiary.
tory language, a “beneficiary” is not anyone who Again, the fact that Cobb is or may become
claims to be one . . . . [but] is one who has a reason- entitled to a benefit does not necessarily prove
able or colorable claim to benefits.” Crawford v. the separate requirement that she be “desig-
Roane, 53 F.3d 750, 754 (6th Cir. 1995).
4
nated” as a beneficiary by the terms of the plan. “this” benefit (i.e. the joint and survivor bene-
fit); he was receiving the lifetime-only benefit.4
Assuming, arguendo, that entitlement to Therefore, as was the case with the son in
benefits under the JSO would count as a “desig- Coleman, the terms of the plan do not afford
nation,” Cobb’s claim fails for the same reason Cobb beneficiary status. Under the plan, no
that the son’s claim failed in Coleman—the pension benefits are to be paid to surviving
plan plainly provides that if the decedent re- spouses of those who received benefits under
ceived the lifetime-only benefit, the spouse is the unreduced Lifetime Benefit option.5
not entitled to a JSO benefit after his death.
The plan section on “Pre-Retirement and Post- Although it may not be advisable to inter-
Retirement Benefit to Spouse” explains that pret the terms of the plan at this jurisdictional
stage, we are bound to do so by Coleman,
[a] Joint and Survivor Pension Benefit (sub- which interpreted the term “payable” under the
ject to the election and rejection provisions plan to determine whether the descendant and
in “Appendix A” of this Plan) shall be pay- heir of the plan participant qualified as a bene-
able to a Pensioner upon Retirement (com- ficiary. Further, the definition of “beneficiary”
mencing upon his 55th birthday), or the directs the courts to look to the terms of the
surviving spouse of a Participant upon his plan at the jurisdictional stage to decide
death on or after his 55th birthday but before whether the terms “designate” a plaintiff as a
his Retirement, if the Participant was then beneficiary or whether they provide plaintiff
eligible for immediate payment of a pension with a colorable claim for benefits.6
benefit in accordance with Article IV, §2, 3
or 4. Upon death of a Pensioner receiving
this pension benefit, 50% thereof becomes 4
See also section 17 (“If you die while receiv-
payable to his surviving spouse . . . .
ing a Joint and Survivor Pension Benefit, your
spouse will receive one-half of your pension for the
That is, if the plan participant dies after age rest of his or her life. . . .”) (emphasis added).
55 but before retirement, the spouse is eligible
for a “pre-retirement” benefit if the pensioner 5
This case is also similar to Lerra v. Monsanto
was eligible to receive a pension at the time of Co., 521 F. Supp. 1257 (D. Mass. 1981), in which
death. If the plan participant dies after retire- the widow of a former plan participant alleged that
ment, the spouse is eligible for a “post-retire- the defendant had failed to disclose sufficient ben-
ment” benefit only if the Pensioner was receiv- efit information to the decedent at the time he made
ing “this” pension benefit, that is, the reduced his election to receive pension benefits as a “single
joint and survivor benefit, not the Lifetime Ben- life annuity.” The court held that it lacked jurisdic-
efit. tion because plaintiff, never having been designated
as a joint annuitant, was not a “beneficiary” and
thus lacked standing to sue under ERISA.
Gibbs did not die before retirement, so only
the post-retirement provision could apply here. 6
See, e.g., Crawford, 53 F.3d at 755 (interpret-
But Cobb is not “entitled” to any benefit under ing a plan provision providing that “a spouse of a
it, because she does not satisfy one of the eli- married participant must consent to any beneficiary
gibility criteria for it: Gibbs was not receiving designation which does not name the spouse as a
(continued...)
5
We are aware that in Sladek v. Bell System even if he misrepresented that his wife was
Management Pension Plan, 880 F.2d 972, deceased.8 Because Gibbs retired in 1978, he
976–78 (7th Cir. 1989), which was decided be- was entitled to select the Lifetime Benefit
fore Coleman, the court gave the term “benefi- without the consent of his spouse.9 Therefore,
ciary” a broader reading than the “literal con- his harmless misrepresentation does not render
struction” we provided in Coleman. See id. at his election voidable.
976 (noting that “it is not proper for us to give
an unduly cramped reading to those provisions Cobb also argues in her letter brief that al-
granting standing to certain classes of persons ternatively, she has standing under the “but
under the Act, i.e., participants, beneficiaries, for” analysis in Christopher v. Mobil Oil
and fiduciaries. . . . [T]his Court has consis- Corp., 950 F.2d 1209 (5th Cir. 1992). We
tently given the definition of “fiduciary” found rejected that argument in the analogous situa-
in § 1002(9) a ‘broad reading’”). Sladek relied
inter alia on the “zone of interest” analysis that
we rejected in Coleman. 7
(...continued)
eligibility is determined.
Furthermore, Sladek is distinguishable be-
cause there the benefit plan itself designated It would have been pointless for the Plan to
plaintiff, the deceased participant’s spouse, as send Gibbs an election form as Cobb suggests:
survivor annuitant, unless the participant elect- what was there to elect? Accordingly, the default
ed to receive an unreduced lifetime-only bene- provision, that in the absence of an election of the
fit. Although in Sladek the participant elected “Lifetime Benefit,” the pension will be paid as a
to receive the lifetime-only benefit, the surviv- “Joint and Survivor Benefit,” is inapplicable; it
ing spouse argued that the election was void- applies only if an employee is entitled to the JSO.
Therefore, by declaring that his wife was deceased,
able because the participant was incompetent to
Gibbs rendered himself eligible for only the Life-
make a decision because of Alzheimer’s Dis-
time Benefit.
ease. In contrast, here, Gibbs’s de facto elec-
tion of the Lifetime Benefit7 is not voidable 8
It is uncertain whether Gibbs did make a
misrepresentation. Cobb has not proved that Gibbs
made a knowing misrepresentation, namely that he
6
(...continued) knew that his estranged wife was still alive.
sole beneficiary of the participant’s death benefit”
9
as not providing a colorable claim to beneficiary Before 1984, the spouse of a participant was
status (and standing) to participant’s children, where not required to join in an JSO election. Boggs v.
the spouse did not consent to a beneficiary other Boggs, 520 U.S. 833, 843 (1997). “It was not un-
than her to be named as a beneficiary). til August 23, 1984, to be effective January 1,
1985, that congress amended 29 U.S.C. § 1055 to
7
The Plan documents explain that when an ap- require pension plans to offer joint and survivor
plication for retirement benefits is made, an election annuities unless otherwise elected by the partici-
form will be mailed to those eligible for the JSO. pant and his spouse.” Williams v. Wright, 783 F.
Because Gibbs declared under oath that his wife Supp. 1392, 1400-01 (S.D. Ga. 1992) (citing Re-
was deceased, he was not eligible for the JSO, tirement Equity Act of 1984, P.L. 98-397, Title I,
which requires that the participant be married—that Section 103(a), 98 Stat. 1429). The amended act
is, that the spouse be alive—at the time the JSO does not apply to Cobb, “because it did not take
(continued...) effect until January 1, 1985.” Id.
6
tion we faced in Coleman, where we explained tled to receive, not that the Central States
that “will” or “must” recover such benefits. Also,
as explained, Gibbs was entitled to receive the
Christopher clearly poses a different sce- Lifetime Benefit without the consent of his
nario than [sic] the one we face today. In spouse, so Central States had no right to re-
Christopher, this court restored ERISA cover the excess Lifetime Benefit payments
standing to individuals who had standing but from him to keep them in trust for his wife.
were divested of that standing through the
ERISA violations of their employer. The Last, there was no duty owed by Central
employees alleged that they had been States to Cobb as a “beneficiary” to insure that
wrongfully induced to retire, and but for the Gibbs submitted adequate documentation of
ERISA violation, would have continued his marital status. Before 1985 Gibbs had the
their employment and plan participation, right to elect the Lifetime Benefit without the
thereby retaining status to sue under ERISA. consent of his spouse. Therefore, any docu-
mentation burden Central States would have
In the present case, Coleman never had imposed, in addition to the application signed
standing to sue under ERISA since he was under oath by Gibbs, would not have protect-
neither a Plan participant nor a beneficiary. ed Cobb against the harm of which she com-
Thus, even if the Coleman’s allegations of plains—that Gibbs did not intend her to re-
ERISA improprieties were true, those viola- ceive a survivor benefit. Although Congress
tions could not be said to have divested him enacted legislation in 1984 to protect spouses
of his status to sue. As such, Christopher like Cobb of this harm, unfortunately for her,
does not help the appellant. as we have explained, that legislation does not
apply retroactively to this case.
Coleman, 992 F.2d at 535.
In summary, the district court lacked sub-
The instant case is similar to Coleman in that ject matter jurisdiction. The judgment, ac-
Cobb was never a plan participant or a benefi- cordingly, is VACATED, and this matter is
ciary, because Gibbs never received the JSO REMANDED with instruction to dismiss the
post-retirement, but only a Lifetime Benefit, complaint for want of jurisdiction.
which did not entitle Cobb to benefits after
Gibbs’ death. Because Gibbs could select the
Lifetime Benefit without the consent of his
wife, there is no pre-existing standing that Cobb
had and of which Gibbs’ misrepresentation
divested her.
Nor was there a duty for Central States to
correct Gibbs’s misrepresentation about his
wife’s death once it learned about it in 1981.
The plan’s terms provide that in case of a mis-
representation, Central States “may” recover
any benefit payments that Gibbs was not enti-
7