R. Alexander Acosta v. Scott Brain
910 F.3d 502
9th Cir.2018Background
- Scott Brain was a trustee and union business manager for Cement Masons Trust Funds; Melissa Cook was the Trust Funds’ counsel. The Trust Funds’ Audit & Collections (A&C) Department was run by director Cheryle Robbins.
- Robbins repeatedly raised concerns that Brain had interfered with collections and helped contractors avoid contributions. Those concerns prompted internal complaints and later involvement by the DOL in a criminal investigation of Brain.
- After Robbins cooperated with a DOL investigator and received a subpoena, Cook and Brain convened a special Joint Board meeting; the trustees voted to place Robbins on paid administrative leave and later outsource A&C functions to Zenith, which hired A&C staff but not Robbins.
- The Secretary of Labor sued under ERISA § 510 (retaliation) and § 404 (breach of fiduciary duty), obtained a bench judgment finding violations of both sections, disgorgement from Cook, and a permanent injunction removing Brain as trustee and barring the Cooks from serving the Funds.
- The Ninth Circuit affirmed the § 510 retaliation finding (Robbins’s cooperation with the DOL was protected activity and but‑for cause existed, including under a cat’s‑paw theory) but reversed the § 404 fiduciary‑breach finding and vacated the permanent injunction because the Secretary failed to show Brain was acting as a fiduciary when he placed Robbins on leave.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Robbins engaged in protected activity under ERISA § 510 | Robbins’ cooperation with the DOL and pursuit of OPCMIA letter were protected whistleblowing | Activities were internal/outside complaints not covered by § 510 | Affirmed: Robbins’s cooperation with the DOL was prototypical protected activity (§ 510) |
| Causation standard and proof | Secretary: retaliation must be shown as causal link (but supports but‑for showing) | Brain: district court misapplied causation and he’s immune because he was not ultimate decisionmaker | Affirmed: assumed but‑for standard; but court properly found but‑for causation and cat’s‑paw liability because Brain set vote in motion |
| Whether placing Robbins on leave breached ERISA § 404 fiduciary duties | Secretary: removing/disciplining plan staff who administer plan functions is a fiduciary act harming participants/beneficiaries | Defendants: action was a corporate/employer personnel decision, not a fiduciary act (two‑hat inquiry) | Reversed: Secretary failed to show Brain was acting as an ERISA fiduciary when placing Robbins on leave; § 404 claim vacated |
| Whether injunctive relief (removal and broad bans) is authorized | Secretary: injunction justified under § 409 (and alternatively § 502(a)(5)) | Defendants: § 409 requires breach of fiduciary duty; § 502(a)(5) does not authorize removal for pure § 510 violations | Reversed/Vacated: permanent injunction vacated because no § 404 breach proved; § 502(a)(5) does not supply an independent basis to remove a trustee for § 510 violation alone |
Key Cases Cited
- Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (statutory use of "because" requires but‑for causation)
- Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009) (but‑for causation for discrimination claims)
- Staub v. Proctor Hosp., 562 U.S. 411 (2011) (cat’s‑paw liability where biased subordinate influences decisionmaker)
- Poland v. Chertoff, 494 F.3d 1174 (9th Cir. 2007) (cat’s‑paw analysis in retaliation context)
- Teutscher v. Woodson, 835 F.3d 936 (9th Cir. 2016) (elements of ERISA § 510 retaliation claim)
- Hashimoto v. Bank of Hawaii, 999 F.2d 408 (9th Cir. 1993) (unsolicited outside complaints can be protected activity)
- Pegram v. Herdrich, 530 U.S. 211 (2000) (ERISA’s "two‑hat" inquiry: fiduciary status depends on whether actor was performing fiduciary function)
- Santomenno v. Transamerica Life Ins. Co., 883 F.3d 833 (9th Cir. 2018) (distinguishing discretionary fiduciary acts from ordinary business acts)
- Mertens v. Hewitt Assocs., 508 U.S. 248 (1993) (limits on remedies and discussion of fiduciary/service provider roles)
- Gabriel v. Alaska Elec. Pension Fund, 773 F.3d 945 (9th Cir. 2014) (equitable relief under ERISA § 502(a) must redress/enforce an ERISA violation)