Hughes Salaried Retirees Action Committee Peter Formo Richard E. Miller Norman C. Rigby v. Administrator of the Hughes Non-Bargaining Retirement Plan
72 F.3d 686
9th Cir.
1995
Check Treatment

*1 ORDER Ms. failed to exhaust her sex-dis- Shannon crimination claim. Anthony Appellants Maniscalco and Mi- Lea, brought chael members of a class action

IV. employees Impe- Jack Cohen and other Savings against rial Association the Resolu- above, affirm For the reasons discussed we Corporation, tion Trust filed a motion to summary granting order the District Court’s appeals, including pending dismiss their judgment for Ford. petitions rehearing suggestion and a stipula- rehearing en banc. Pursuant to the parties, appellants’ tion of the motion is 42(b). granted. Fed.RApp.P. Shanahan, 1514, v. F.3d Under Blair (9th Cir.1994), opinion, we vacate our (9th Cir.1995), F.3d 725 and remand to the proceedings district court for consistent with COHEN, himself and Jack on behalf of Blair. similarly situated, all others Plaintiff-Appellee, APPEAL DISMISSED AND OPINION REMANDED TO VACATED. CASE DIS- and TRICT COURT. Maniscalco, Anthony II, Plaintiff-Appellant,

v. CORPORATION,

RESOLUTION TRUST Imperial capacity

in its as receiver for

Savings Association, deposi an insured

tory institution, Imperial a.k.a. Federal

Savings Association, Defendant-Appel SALARIED HUGHES RETIREES AC- lee. COMMITTEE; Formo; Peter TION Miller; Rigby, Richard E. Norman C. COHEN, Jack on behalf of himself Plaintiffs-Appellants, similarly situated; all others Mark Rozells, Plaintiffs-Appellees, v. OF the ADMINISTRATOR HUGHES NON-BARGAINING RETIREMENT Lea, Plaintiff-Appellant,

Michael PLAN, Defendant-Appellee. No. 93-55384. CORPORATION, RESOLUTION TRUST Appeals, United States Court of capacity Imperial in its as receiver for Ninth Circuit. Savings Association, deposi an insured tory institution, Imperial a.k.a. Federal 4, Argued and Submitted Nov. 1993. Association, Savings Defendant-Appel Opinion Filed Nov. 1994. lee. Granting Rehearing En Order Nos. 94-55218. July Banc 1995. Appeals,

United States Court of Argued and Submitted 1995. Ninth Circuit. Decided Dec. 1995. Filed Jan. WALLACE, Judge,

Before: Chief RYMER, Judges,

KOZINSKI Circuit

688

furnish individual with the partici- names and addresses of other pants. We hold that it does because this “providing information is not related bene- *3 participants fits to and their beneficiaries [or] defraying expenses of administer- ing plan,” the exclusive for may discharge which the administrator duties, its id. Tauber, Dorn, Sipser, Jerome Richard I

Weinstoek, Dorn, Harper City, & New York plaintiffs-appellants. Background for Walker, Paul, (the Hastings, Robert F. Janof- Plaintiffs are three retirees “Retir- ees") Walker, Monica, sky California, & pension Santa for who receive defined defendant-appellee. Hughes from the Non-Bargaining Retire- (the “Plan”). They

ment Plan are members of self-appointed committee called the Hughes Committee, Salaried Retirees Action organization plaintiff. that is also a named 60,000 The Plan has participants, some of WALLACE, HUG, Judge, Before: Chief 10,000 whom some are retirees. FLETCHER, PREGERSON, CANBY, NORRIS, REINHARDT, WIGGINS, brought The Retirees this action under BRUNETTI, O’SCANNLAIN, RYMER, compel ERISA to Plan administrator Judges. Circuit (the “Administrator”) to furnish them with a list of the names and addresses of all retired by Judge

Dissent PREGERSON. participants of the Plan so the Retirees can “communicate with them about matters of NORRIS, WILLIAM A. Judge: Circuit concern to all regarding retired appeal presents ¶ This questions: two pensions-” Am.Compl. par- 1. In ticular, say they the Retirees want to com- (1) whether Employee municate with Hughes’s other retirees about Security Retirement Income Act of as allegedly “unlawful use of excess Plan assets (“ERISA”), amended 29 U.S.C. for meeting the sole Hughes’ administrator to furnish indi- funding obligations” gain support and “to participants upon vidual request with the their efforts to obtain increased benefits names and plan partici- addresses of other through negotiation required, or if litigation, pants. We hold that it does not such ¶ as well as to monitor the Plan.”1 Id. at 10. a list is not an ] under which “instrumente id,.; operated,” is established or The district court dismissed the com whether a administrator plaint has a under Federal Rule of Civil Procedure under ERISA for failure to state a claim. A three- 404(a)(1)(A), 29 U.S.C. judge panel of our court Hughes reversed. appeal, Hughes 1. In a related Jacobson v. argues appeal Administrator Aircraft Co., No. five other retirees who re- untimely appeal because the notice was filed sought ceive benefits from the Plan a termination days more than 30 entry from the district court's of the Plan and a distribution of the assets to January of the Civil Minutes on 1993. How- Hughes’s Plan improper allegedly because of ever, appeal timely period because the complaint use of Plan assets. The filing appeal judg- notice of is tolled until the that case was dismissed failure to state a claim. the district court for separate ment is set forth in a document. See Order Dismissal of 4(a)(1); Heckler, Fed.R.App.P. Vernonv. Action, appeal filed Feb. 1993. That is cur- (9th Cir.1987). rently pending before this court. guidance” and uniform Adminis- “detailed Action Comm. Retirees Salaried to what information be furnished Non-Bargaining Re- must Hughes trator of (9th Cir.1994). Plan, plan participants. 39 F.3d 1002 tirement judges of the court majority of the active A Dismissal, filed Order banc, 53 F.3d the case en to rehear voted (9th Cir.1995), vacate the we now court that the agree with the district judgment of opinion affirm panel’s interpretation Retirees’ complaint dismissing the the district meaning” the section. The “strain the relief upon a claim to state for failure court reasoned: district granted. Statutory construction of ERISA “‘must *4 language employed by begin Con with

II assumption ordinary that the gress and the accurately meaning language ex 104(b)(4) ERISA ” legislative purpose.’ Metro presses the Massachusetts, politan Ins. v. 471 Co. the Retirees’ claim first consider We Life 2380, 2389, furnish them 740 85 [105 must U.S. the Administrator S.Ct. (1985) (quoting Fly, Plan Park ‘N of retired L.Ed.2d 728] the names and addresses Inc., is an Fly, because this v. Dollar Park & 469 U.S. Inc. plan 658, 661, is estab under which ] S.Ct. 83 L.Ed.2d [105 “instrumentf meaning of (1985)). operated” or Following approach, lished within 582] ¶¶ 104(b)(4). Am.Compl. 18-20. possibly cannot list 104(b)(4) provides: Section “under which the considered an instrument operated.” The plan is established or shall, upon written re- The administrator limits the plain language of the statute beneficiary, any participant or quest of falling of documents within universe updated sum- copy of furnish a the latest in nature to phrase to documents similar description, description, plan mary plan identified, which describe specifically those any terminal report, and the latest annual plan, the terms and conditions agreement, trust bargaining report, and financial sta well as its administration contract, instruments or other agreement, not this Court need define tus. While or plan is established under which the falling under precisely those documents may make operated.' The administrator plan that a list of provision, (cid:127)that it is clear of fur- charge cover cost Obtaining participants does not. such complete copies. nishing such absolutely participants with provides list added). 1024(b)(4) (emphasis 29 U.S.C. plan, whatsoever about the no information Retirees, list According to the requires nor and therefore ERISA neither falls within the stat- of names and addresses contemplates its disclosure. operate with- Plan ute because the could it. out court, rejecting the Retir- The district in reasoning of the agree with the interpretation, explained:

ees’ court. It is well established district given grouped in a should be ‘“words interpretation so strains an Such ” See, meaning.’ e.g., Massachusetts related language that it meaning [§ ]’s Morash, 109 S.Ct. 490 U.S. v. any documents impossible to conceive of 1668, 1673, (quoting 104 L.Ed.2d 98 employee to an tangentially even related Northern, Inc., 472 Burlington v. Schreiber not fall within its plan which would benefit 1, 8, 86 L.Ed.2d 105 S.Ct. limits, U.S. Moreover, if are there scope. there (1985)) in (interpreting benefits” “vacation reading of way Retirees’] that [the is no 3(1) plans light benefit of other plan administra- the statute would allow section). Supreme Court in same a result listed what are. Such tor to know the documents recently characterized has subvert the intent 104(b)(4)’s (manual subject require containing charts essential “governing plan ments as documents.” calculation of benefits Cur instrument under — plan tiss-Wright Corp. Schoonejongen, operated). is established or U.S. -, -, 131 L.Ed.2d court, reversing original the district our (1995). The relevant documents are those reasoned that dis- partici documents individual of all closure documents that are “critical to pants with information about the operation plan.” Hughes, legislative history benefits. As the bears test, however, at 1007. This admits of no out, contemplated documents limiting principle. example, For under this are those that allow “the individ interpretation, an administrator of a medical participant exactly ual [to] know[ ] where he required would be to disclose medical respect stands with bene —what histories of and the to, fits he be entitled what circum pension administrator of a profit-sharing may preclude obtaining stances him from required would be wage to disclose rec- benefits, procedures what he must follow to participants, ords of medical his- obtain persons who are the wage tories and records are crucial to the *5 management whom the and investment of his operation respective plans. It is fanci- plan funds have been S.Rep. entrusted.” No. 104(b)(4) § ful to think that was enacted to (1974), Cong., 93d 2d reprinted Sess. in give plan participants right an absolute to 1974U.S.C.C.A.N. 4863.3 obtain such information plan par- about other ticipants. specifically

Unlike the documents listed in § 104(b)(4) -plan descriptions, annual and — Indeed, original panel’s under interpre- reports, terminal bargaining and and trust 104(b)(4), tation plan administrator agreements participants’ names and ad — required virtually would be to every- disclose provide no dresses information about thing in plan its upon request. files plan or benefits. As the district court said so panel language reasoned that the “other in- aptly, it meaning would strain the of “other struments” is not limited to documents simi- plan operat instruments under which the lar to the specifically documents in listed interpret ed” to it to participant include 104(b)(4) statutory because the language names and addresses. Morgan Werner v. limitation, Cf. “contains no such and we have Co., Equip. Employee Benefits Cas. authority found no other limiting (BNA) (N.D.Cal. 2295, 2301, 1992WL 453355 statutory language way.” Id. at 1008. 1992) (stock report valuation is an instrument words, In other according panel, to the plan under which a operated or 104(b)(4) established generalized creates a plan when the measures benefits the val obligation subject only to articulated limits. stock); Dayton ue of Lee v. Light (“The Power & See also id. at language 1008 n. 8 Co., (S.D.Ohio 1985) F.Supp. the statute does not contain the limitation the 3. The Committee on Labor and Public persons Welfare and manage- who are the to whom the explained in fuller detail: plan ment and investment of his funds have [Experience has shown that the limited data been entrusted. At the same time the safe- predecessor] available under [ERISA's is insuf- guarding fiduciary responsibility effect of the Changes required ficient. are therefore to in- operate efficiently only section will if fiducia- required crease the information and data in dealings ries are aware that the details of their reports scope Experi- both in and detail. open inspection, will be to and that individual ence has also demonstrated a need for a more participants and beneficiaries will be armed particularized reporting form of so that the enough with information to enforce their own participant individual exactly knows where he rights obligations as well as the owed respect plan stands with he benefits —what fiduciary plan to, general. in may be entitled what circumstances preclude benefits, S.Rep. Cong., No. obtaining him 93d 2d from Sess. what procedures he reprinted must follow to obtain in 1974 U.S.C.C.A.N. (em- (ii) defraying and reasonable adopt-”) urges us to Administrator reject reasoning original). expenses....”5 in phasis interpretation of panel. Under its original complaint, In their the Retirees “impossible to con- it would requesting asserted three tangentially re- even any documents ceive of participants: and addresses of names plan which employee benefit lated to an communicating with other retirees about scope.” ]’s within [§ not fall assets; gaining support Hughes’s use of Plan Dismissal, filed Order of negotiation litigation to requirement, howev- for their or efforts a broad disclosure Such language benefits; er, by either the supported monitoring is not and obtain increased history. legislative ¶ Thus or its the statute dismissing Compl. 10. the Plan. interpret § we decline 404(a)(1)(A) claim, Retirees’ the district disclosure, subject only specified already contains a court noted contrary, re- exceptions. theOn comprehensive scheme only documents quires the disclosure (§ 104(b)(4)), that, and held “whatever the in- particularity and “other described precise duties of a under in nature. struments” similar 404(a)(1)(A)], those duties relate [§ obligations are limited to the ben- sum, agree with the district we beneficiaries, efits to under which instruments “other defray expenses administering in operated” is limited is established requisite care act with the in nature to that are similar to documents conducting employ- the affairs of and skill specifically listed documents Dismissal, plans.” Order of filed ee benefit 104(b)(4). and ad A list of the names *6 9, 1991, at 5. The district held not such a dresses duty that Administrator had no to dis- document.4 partici- names and addresses of close the pants that information not relat- was Ill purposes. of these Id. ed to 404(a)(1)(A) § The Retirees filed a motion for reconsider- Enters., 950 ation on Acosta v. based Pacific in alternative that Retirees claim the (9th Cir.1991), which was decided F.2d 611 require the Ad §if even the Retir- after the district court dismissed ad disclose the names and ministrator Acosta, plan beneficiary a complaint. ees’ dresses, fiduciary duty pro ERISA’s names, addresses, and requested a list of the 404(a)(1)(A), § vision does. See ERISA plan participant number of shares each 1104(a)(1)(A). 404(a) a § Section U.S.C. employer corporation, id. at in the owned provision of care that re general standard transparent purpose of form- for the “(1) fiduciary to ... quires an ERISA ing corporate coalition to elect a shareholder solely in discharge his the interest duties pension (A) tending to favor liberal directors participants and' beneficiaries and of the 404(a)(1)(A) (i) § did not providing benefits. We held purpose of for the exclusive plan solely charge respect a duties with refus- his we hold that the Administrator's 4. Because participants addresses does not al to disclose the names and and benefi- in the interest of the we also affirm the district violate and— ciaries 404(a)(1)(D) court's of the Retirees' dismissal (A) purpose of: for exclusive claim, predicated on a viola- which is (i) providing benefits to tion. beneficiaries; and their (ii) defraying expenses of admin- part: provides § 404 in relevant 5. ERISA istering plan_ (a) standard of care Prudent man 1104(a)(1)(A). U.S.C. 1103(c) (d), (1) Subject to sections title, fiduciary shall dis- 1344 of this a give requested rise to a to disclose the ed that did not disclo- sure of provides the list because the list itself right information because the to vote was not no information or access to information relat- and, thus, plaintiff a benefit had not provision defray- ed of benefits or the shown that “the expenses. ment of Id. sufficiently provision [was] related to the expenses.” benefits or the appeal, argue On the Retirees misapplied district court at the Acosta test. 619. They contend that the issue is not whether The district court mo- denied the Retirees’ provision the information itself relates to the tion granted for reconsideration but them as the district court had rea- complaint. leave to amend their soned, Tr. of Pro- but rather whether the Retirees’ as- purpose eeed’gs, requesting serted Dec. the information provision relates to the of benefits. The complaint, alleged amended the Retirees Retirees maintain purpose that their relates 404(a)(1)(A)encompasses duty provision of benefits because seek participant sought pur- list when “for the list in order to communicate with other poses communicating with the joining together retirees about in an effort to and beneficiaries of the Plan about matters greater obtain benefits. concerning provision of benefits and the three-judge panel Our reversed the district ¶ plan.” administration of Am.Compl. Hughes, court. According F.3d at 1007. They alleged further dispute at is- panel, incorrectly the district court sue—whether ERISA the Plan to “focused on provides the list part distribute all or allegedly “sur- purpose rather than the Retirees’ seeking plus” assets to the beneficiaries in the form it.... [o]nly [Under the Retirees’ Acosta\ pension of increased benefits —“is matter list, wanting not the list concerning of benefits and ad- itself, must relate to the of bene- ministration of the Plan which entitles the (emphasis fits.” Id. at original). 1006-07 plaintiffs copy partici- of the list of Plan panel agreed Thus the with the Retirees ¶ pants.” Id. at 16. inquiry the focus of the should not be the nature the information but the Retirees’ again The district court dismissed. Order *7 purpose. panel asserted concluded: Dismissal, 9, 1993, of filed Feb. at 8-9. The Access to the list help could the Retirees quoted Dismissal, its 1991 Order of they perceive secure what to be their noting that the test it had used then —wheth- rights under the Plan. This connection request er the for information related to requested between the “provi- list and the “ ‘providing] benefits to sion of benefits” satisfies our in test Acos- ”— defraying] ... or expenses,’ Therefore, ta. the Administrator had a “subsequently was the test adopted in Acos- fiduciary duty to disclose the list. (quoting Dismissal, ta.” Id. at 3 Order of added). (emphasis Id. at 1006 1991). filed say The court went on to using subjective In a test —the Retir that inconsequential “[Retirees’] amendments purpose ees’ requesting asserted for the in bring likewise fail to their first amended objective formation —rather than an test— complaint -withinthe test set forth in Acosta.” the requested nature of the information it Id. at 5. The court reasoned that the Retir- misapplied self—the misread and Acos seeking ees were not “information about the Acosta, inquiry ía. In the was “whether the provision Plan,” of benefits from the id. at 6- requested disclosure sufficiently is relat 7, but rather “access to others to solicit provision ed to the defray of benefits or the support financial for their related in case Acosta, expenses.” ment of 950 F.2d at 619 they hope which to obtain surplus the Plan’s added). (emphasis In using objective test, assets.” at Id. 6. The district court conclud- firmly grounded Acosta is in the lan- (1989). 1468, 1480, 103 L.Ed.2d 774 404(a)(1)(A), provides that S.Ct. §of guage Instead, “must turn on nature the “for discharge his duties fiduciary shall the at requested document....” of the (i) providing bene- of: purpose the exclusive logic of this at 1481. The rule (ii) ex- defraying reasonable fits (1) two reasons: There is no compelling for 1104(a)(1)(A). We penses. ...” U.S.C. requestor’s way restrict a use of practical any holding in Acosta follow in asserted information 404(a)(1)(A) imposes on fiducia- duty practical way request; and there is no of information to the disclosure is limited ries assuring that the information disclosed will of benefits or that relates to sum, In fall into hands of others. we not the exclu- expenses, which are defrayment of test; objective accept panel’s our we Acosta for which an ERISA purposes sive subjective reject Hughes panel’s our test. may discharge its duties. distinguishing fail to see basis for requestor’s asserted focusing on the Acosta reasoned that this case from Acosta. subjective test panel fashioned purpose, the participant’s refers to “a or benefi- “benefit” practical There is no unworkable. from the ciary’s right to receive monies information, way limiting the use of Acosta, 950 F.2d administrator or trustee.” disclosed, purpose asserted once it is right If the to solicit votes to elect at 619. Indeed, way there is no by requestor. pension might greater who vote directors for used the information will not be assuring that purposes is not a “benefit” for or, for purposes, by requestor for other right neither is the then matter, parties third will not be used litigation might support for result solicit information once it manage to obtain the who pension In both Acosta greater benefits. plan participant. to a has been disclosed case, requests under the Freedom the context of not relate to about fellow does Act, Supreme Court has of Information or the of benefits “cannot question of disclosure said that the Accordingly, hold that expenses. we request which the turn on admin- States is made.” United for information to furnish individual istrator Reporters par- Comm. the names and addresses other Dep’t Justice ' Press, upon request.6 ticipants 489 U.S. Freedom of argument were entitled to the names and ficiaries of a trust unpersuaded Retirees' We are only of co-beneficiaries imposes addresses that the common law of trusts consent in obtain the co-beneficiaries’ needed to on the Plan Administrator these circumstances corpus. control of the trust an action to assume partic- of other the names and addresses disclose (cid:127) Baydrop is thus relevant Id. 180 A. ipants Plan. Retirees beneficiaries *8 plan fiduciary because no Acosta, of an ERISA the duties merely the rely but Acosta assumed on plan partici- available to ERISA such action is duty without a at common law existence of such Acosta, pants. citing any authority on the issue. See Inc., 99, Broadview, Ill.App. 338 Morris v. In at 619. Broadview, (1949) (citing 863 Morris 86 N.E.2d Retirees also other cases relied on The 605, 267, Inc., Ill.App. 607 328 65 N.E.2d support proposition a has that trustee fail to (1946)), in a held that beneficiaries the court duty general to disclose the a common law ad voting entitled to the names and trust were beneficiaries: and addresses of trust names to to enable them dresses of their co-beneficiaries Enters., First, Management Aguayo Co. v. Corum Id. 86 votes. solicit their co-beneficiaries' c., (Tex.Ct.App. Thus, 900 755 S.W.2d authority Morris no N.E.2d at 866. In offers law, 1988), statutory, case. a not a common imposition on the of a disclosure for the plaintiffs bringing required Hughes an action The statute because the retire Administrator Plan beneficiaries, notify partici against voting to a trustee trust and Plan trust is not a ment beneficiary pants disclosure of votes to be solicited. mandated have no Bess, permitting them to 373 N.Y.S.2d plaintiffs Sobel v. 49 A.D.2d for the In defendant, (1975),. as requirement. court ordered the statutory 513 fulfill this Bank, property from a dissolved of certain Conn. receiver Baydrop v. Second Nat’l 120 property and to in trust partnership, to hold that bene- the court held 180 A. 469 404(a)(1)(A) identify § itself failed to a In deciding mean- ingful nexus between the information re- require disclosure of the names and address- quested by the provision Retirees and the they es because are not provi- related to the defrayment expenses. benefits or It held sion of question we avoid a of statu- merely the Acosta test was satisfied discussed, tory decided, construction but not help” partici- because the disclosure “could § general Acosta: Whether a pants purpose. achieve some benefits-related provision, may interpreted ERISA be to re- Hughes, Surely analy- 39 F.3d at 1006. quire the disclosure of documents that relate sis stretches the Acosta test too far. As a provision defrayment of benefits or the matter, practical always could expenses but required are not documents requested assert that a disclosure “could § to be disclosed under ERISA’s help” them achieve some benefits-related specific provision. words, In other purpose by asserting Retirees do here— —as general interpreted in a that the help” information “could way expands requirements of the participants monitor the administration of specific provision? panel spec- The Acosta plan by self-appointed watch-dog com- fiduciary’s ulated that duties under mittee. 404(a)(1)(A) § “may in some circumstances extend to additional beyond disclosures” case, any participant since a list will not specified Acosta, those § in ERISA 104.7 the Retirees with at F.2d 618. -The argues Administrator Plan, list, about the we fail to see how the or 404(a)(1)(A) interpret § that to requiring access other that it would the disclosure of required documents not facilitate, will aid in monitoring the Plan’s 104(b)(4) by § be disclosed effectively management. argument The Retirees’ “supplant existing ERISA’s reporting and “[u]nless retirees can communicate with one provisions.” Reh’g Pet. for organize protect another and rights them We need not question address this under ERISA and they under the will relationship between support be able to raise the needed to 404(a)(1)(A), however, because disclosure rights enforce their against a well-funded of the names and plan partici- addresses of pension plan,” Appellants’ Br. at is una- pants required by is not either vailing. argument clear, As this makes 404(a)(1)(A). question would arise Retirees want to use the list to solicit finan- only if the documents were not support cial disclosable litigation. for future Congress under provided arguably but were recovery has disclos- costs and attor- able neys’ under fees under 502(g), were U.S.C. § 1132(g), and we related to the nothing find of benefits or the suggesting intended costs. help Because we need not litigation question amass decide this statutory war chest interpreta- by soliciting tion, donations from par- other we need not consider the concerns ticipants and beneficiaries. raised the Administrator and the amici plaintiff,

furnish a list of trust beneficiaries to and addresses of ciaries, beneficiaries all other benefi- beneficiary as a partner. special former at least in the absence of circum- However, voting rights stances such as or the order was reversed need to on other Bess, obtain other gation. grounds. beneficiaries' consent to initiate liti- Sobel v. 43 N.Y.2d *9 595, 595-96, 775, N.Y.S.2d (1978). 375 N.E.2d 775-76 holding 7. The of Acosta was that there was no Finally, George the Retirees cite Gleason Bo duty 404(a)(1)(A) § to disclose under because the gert, The Law § Trusts and Trustees 961 of documents did not relate to the of (Rev.2d 1983). ed. nothing, That treatise adds defrayment Acosta, expenses. benefits or the of however, solely Baydrop because it relies on and 950 F.2d at unnecessary It was therefore Morris. for the question Acosta to reach the wheth- sum, the Retirees cite no substantial author- 404(a)(1)(A) § "may er the duties under in some ity proposition for the disclosures,” common law circumstances extend to additional imposes duty i.e., a on a trustee to disclose names to documents that are not docu- 404(a)(1)(A) AF- is would attend costs9 that privacy8 and about ERISA of FIRMED. and addresses of names concerns Balancing such participants. plan PREGERSON, Judge, joined by policy interests Circuit one hand with

on the is, FLETCHER, REINHARDT, HUG, of and on the other served Judges, dissenting: course, Congress particularly Circuit left best — and interests conflicting concerns when the Hughes Non-Bargain- The Retirees of the Congress has law in an area of the arise ing Retirement Plan seek a list of the names painstaking detail. regulate with chosen to plan participants and addresses of for two Corp. v. Pension See Nachman Benefit (1) purposes: to communicate with other 359, 361, 100 S.Ct. Guaranty Corp., 446 U.S. increasing plan participants about (ERISA (1980) 64 L.Ed.2d funds, surplus plan’s from the billion of $1 statute”). reticulated “comprehensive and a (2) watchdog and to create a committee sum, hold properly we that the Administrator man- ensure 404(a)(1)(A) plan adminis- ages plan. independent I dissent on two and addresses to disclose the names I that the Administrator has a trators bases: believe other duty a of to furnish such list under ERISA 404(a)(1)(A) (the upon request general fiduciary duty §§ because the disclosure 104(b)(4) (as to the information that is related a provision) and instru- ment). defrayment of or the provision of benefits

expenses. 404(a)(1)(A)

A. ERISA CONCLUSION 404(a)(1)(A) provides that Administrator, fiduciary original panel, 39 F.3d opinion of the VACATED, discharge must his duties of administra- judgment and “solely tion in the interest of the dismissing the action for failure district (A) for the exclusive ERISA and beneficiaries a claim under either to state and — ments, addresses are not rou [because] number home nonetheless relate to the but Moreover, available.”). privacy expenses. tinely interests benefits or significant ... when names and "become[ ] more infor express privacy addresses are combined mation,” financial concern about inter 8. The amici persons are such as the fact that the Western Confer ests. See Br. of Amicus Curiae (disclosure Teamsters, annuity receiving monthly checks pensioners would ex ence of at 4-5 harassment, employer. National Ass'n Re pose plan participants emotional from the same Horner, abuse, Employees practices); Fed. 879 F.2d sharp Br. of tired solicitation information, (D.C.Cir.1989). with this Hughes "Armed Aircraft Retirees Ass'n and Curiae Amici businesses, charities, Ass'n, (mailing individuals Hughes Employees interested could, at 13-14 would, subject undoubtedly the listed subject exploi commercial would become the tation, barrage mailings [pensioners] telemarketing 'to an unwanted leading and other calls " (citation avoid). personal omit solicitations.' amici and ted). of solicitation that seek forms recognized Supreme Free Court has Act context that individuals dom of Information regarding express ad- privacy amici also concerns heightened in their home 9. The have a interest if could incur Dep’t ministrative costs that v. Fed addresses. United States of Defense - U.S. -, Auth., interpreted fidu- to create a were Relations eral Labor -, 1006, 1015-16, addresses of ciary the names and to disclose 127 L.Ed.2d 325 ("when Curiae parties, participants. Br. of Amicus See we consider that other Teamsters, solicitors, (print- at 6-7 Western Conference of advertisers and such as commercial costs, significant ing mailing employee list involves must have the same access case, substantially is a sought when the list it is clear that rise address lists list, e.g., and addresses of pro a list of names privacy that would be tailored participants the individual interest under a insignifi who have received benefits tected nondisclosure is far from cant”) (citation omitted); plan provision); Painting particular Br. of Amici Curiae see also Indus. USAF, Hughes Em- Hughes Ass'n and Recovery Aircraft Retirees Fund v. Haw. Market Ass'n, (when pur- Cir.1994) (Norris, J., request (9th ployees is made concurring) at 14 ("The duties privacy dis suant that results from invasion of *10 provision to be allows costs no far more sub of one’s home address is closure than, passed requestor). phone say, on the disclosure of one's stantial

696 (i) purpose partici- providing every Hughes of: benefits to a matter of course in ease.” v. (ii) beneficiaries; (9th pants defray- Administrator, and their 39 F.3d Cir. ing expenses administering 1995). of the plan... majority opinion The notes that in the Enterprises, In Acosta Pacific requests context of disclosure under the (9th Cir.1991), we held that a Act, Supreme Freedom of Information administrator did not have a disclose Dep’t Court United States Justice v. of participants’ shareholdings a list of because Committee, 749, 771, Reporters 489 U.S. “there is not a sufficient nexus between S.Ct. 103 L.Ed.2d 774 purpose soliciting the list ... for the of votes stated that disclosure “cannot turn on the provision and the of benefits or request for which the for informa expenses.” explained of that the term Committee, Reporters tion But in is made.” participant’s right “benefit” refers to a say on Court went that whether disclo administrator, receive monies from the sure was warranted “must turn on the nature right corpo- not the in an to vote election for requested document and its relation rate officers. Id. ship purpose to the basic of the Freedom of purpose The for which the Retirees seek open agency Information Act to action to the mailing directly list is related to their light public scrutiny.” of Id. at right to receive monies from Admin- Dep’t S.Ct. See also United States istrator. The list will enable Retirees to v. Federal Labor Relations Au of Defense plan participants communicate with other — U.S. -, -, thority, increasing plan’s about benefits from the sur- (disclosure 127 L.Ed.2d 325 of plus billion, funds of more than and to $1 employees’ home appre addresses would not watchdog create a committee to ensure that ciably right further “the citizens’ to be in properly manages Administrator government formed about what up plan. to”).1 majority opinion misreads Acosta as case, In the instant the disclosure of the

requiring a nexus between the disclosure list of directly ad- provision and the of benefits. very purposes vance the Acosta, Congress had we made clear that the mind when it enacted ERISA’s disclosure required the list could have if pur- been provisions. requires Section pose for which the list would be used was fiduciary to furnish all information sufficiently provision related to the of bene- (‘TTJhere request extent “relate[s] fits. to” the is not a sufficient nexus provision between ... [the] re- quires soliciting “plan proxy votes in a furnish all instru- contest and the benefits_”). above, Following ments.” As discussed Acos- in- ta, original panel narrowly provisions help limited its tended these disclosure holding by emphasizing that beneficiaries secure administrators benefits to which entitled, do fiduciary duty not have a to disclose a list and to enable them to better plan participant police names and addresses “as plan.2 administration of their event, Reporters 1. general scope fiduciary's] Committee and other [a define guidance FOIA cases are of limited FOIA, authority responsibility.” language disclosure, agency full 404(a) congressional of section reflects this exemption limited required clause: disclosure is not principles intent that common law trust ani- clearly if it would constitute “a unwar- fiduciary responsibility provisions mate the personal privacy.” ranted invasion of 5 U.S.C. of ERISA. 552(b)(6). ERISA contains no such limitation Acosta, (citations omitted). 950 F.2d at 618 fiduciary's duty on the to disclose instru- Thus, I refer to the law of trusts to ments or documents that relate to the conclude that the ERISA administrator has a of benefits. duly to malee available the names and addresses of beneficiaries to all other beneficiaries. See In Acosta we noted that: George Bogert, Gleason The Law Trusts and legislative history ERISA's demonstrates that (Rev.2d 1983). Trustees 961 ed. "Congress invoked the common law of trusts *11 Hughes, “plan instrument.” tion of the term is on majority opinion based Finally, the Indeed, both text and the falling into “the unfounded of the fear an history indicate legislative that majority opinion states hands.” The wrong contemplated “plan instrument” to include way practical to restrict is no that there list that the Retirees seek. the kind of to the use of information requestor’s way asserted, practical no there is and that 104(b)(4)requires the disclosure of Section exploiting parties from third preventing plan is under which the “other instruments improper or other for commercial the list operated.” mailing The list is established or purposes. the necessarily an instrument under which it, an ad- plan operated because without ways protect to at three There are least or possibly pay could not benefits ministrator First, pre- can the Administrator the list. plan informed of ad- keep plan participants misusing by the list from vent the Retirees purpose for which the Re- ministration. The appropriate to issue requesting the court list, police the to the administra- tirees seek Second, the Administrator protective order. plan, precisely of the rea- tion of the one falling the into prevent the list from can 104(b)(4). The why Congress enacted sons at doing mailing for and by the wrong hands Wel- on Labor and Public Senate Committee Third, Ad- the the Retirees. expense the require- that the explained fare the improper use of prohibit can ministrator improve quality intended to the ments were the and then the terms of list as one of the information receive about powers to enforce use the Administrator’s plan, and thus enable them operation of their (fi- 502(a)(3) prohibition under the plan: police the to better enjoin any practice duciary may act impartís] employees ... to suf- Disclosure plan). violates terms of them and data to enable ficient information issue privacy need not be an Invasion of financially plan know whether the [i]s to unwilling- here, Administrator’s but for the as intended being administered sound and The cooperate with the Retirees. ness to disclosed would .... information [T]he the the Administrator that Retirees informed police plans_ their employees to enable them, to turned over list need not be particularized for more a need [There is] the pay any expenses that they would that individual reporting so form of necessary mail the Administrator incurred exactly where he stands participant knows This participants. plan information he respect with —what rejected. the Administrator offer fiduciary .... [T]he be entitled to operate will efficient- responsibility section B. ERISA ly only fiduciaries are aware if open inspection that a list majority opinion dealings concludes will be The their be armed beneficia- will names and addresses and the beneficiaries of the qualify “plan enough as a instrument” ries enforce 104(b)(4). owed majority obligations rights The as well as own under general. the disclosure duties opinion reasons that only to docu- extend those the Administrator Cong., 2d Sess. S.Rep. No. 93d §in specifically enumerated ments in, 1974 U.S.C.C.A.N. reprinted that are similar documents and other added). (emphasis listed that section. those test majority argues opinion The original panel found, articulated original panel neither But as the —whether operation of critical to the history document is legislative statutory text nor limiting principle.” of no support such a narrow construc- —“admits only under distinguishes law opinion quickly common majority majority "special I believe undergird circumstances.” the common of the cases some special question: Does such the critical avoids principle must benefi- that trustees law beneficiaries exist when ERISA necessary police circumstance ciaries with the information unequivocal police Given the the trust? Following survey com- seek its brief trust. issue, it does. trusts, history I legislative on this believe majority concludes mon law of *12 majority opinion incorrectly hypothesizes jectives in the circumstances of this case. that documents as Accordingly, such medical histories and I dissent.

wage subject records would be to disclosure necessary

because those documents are operation However, plan. of an ERISA

medical wage histories and records would not

qualify as a instrument because do any way

not in serve the for which 104(b)(4):

Congress enacted to enable ben- eficiaries rights police to enforce their ALASKA, Plaintiff-Appellant, STATE OF Thus, plan. administration of the con- trary majority opinion’s assertion, v. original test established is nar- BABBITT, Secretary Bruce rowly circumscribed the additional criteri- Interior, al., et Defendants- on of whether the document is crucial to the Appellees. enforcement of benefits. majority opinion The JOHN, al., also relies on Plaintiffs-Appellees, Cur Katie et — tiss-Wright Corp. v. Schoonejongen, U.S. -, -, 1223, 1231, 131 L.Ed.2d America, UNITED STATES of et 104(b)(4) proposition al., Defendants-Appellants. only requires the “governing disclosure of plan documents,” mailing and that a Nos. 94-35481. clearly category. does not fall in this Cur- United Appeals, States Court of tiss-Wright adequacy involved the of a com Ninth Circuit. pany’s procedure amending employee its plan. benefit Supreme Court did not Argued and Submitted Feb. 1995. any way rule in question presented on the Opinion April Filed 1995. appeal, the instant which involves the disclo requirements sure fiduciary. of an ERISA Opinion Withdrawn Dec. 1995. To the extent the Court discussed Decided Dec. only it point did so to make its that because

disclosure of new amendments to the

plan, it separate obviated the need for a requirement. Moreover,

notice although the

Court characterized the documents to be dis-

closed under “governing plan

documents,” it did not define what constitut- documents,

ed such only but decided that a

new amendment to governing awas

plan document.

CONCLUSION holding original panel is narrow particular

and tailored to its facts. §§

intended for both ERISA equip beneficiaries with the nec-

essary rights, information to enforce their

particularly securing benefits to which

they may be plan partic- entitled. The list of

ipants unquestionably effectuates these ob-