*3 and Explanation Benefits,” and an at- SILER, BATCHELDER, Before: *4 tached letter Smith that you informed “[i]f CLAY, Circuit Judges. elect to participate in the Voluntary Em- ployee Retention & Program Retirement OPINION n (“VERRP’), you will be entitled to receive BATCHELDER, ALICE M. Circuit additional benefits from the Common- Judge. wealth General Corporation Retirement Appellant Plan Roger under that appeals Smith the dis- program.” VERRP At- trict court’s tachment A dismissal his stated claims without that was entitled $154,976.12 to a prejudice improper because of venue. The benefit under the CGC Change district court in held the Control that Plan. Attachment B stated, clause in the “As a Employee participant [VERRP], Retirement In- in the you come Security Act are (“ERISA”)-governed entitled to a supplemental receive AEGON Pension Plan benefit either requiring lump that suit as a sum or in the brought annuity be in federal same your court in form Rap- regular Cedar that re- ids, Iowa, tirement was benefit will applied paid.” enforceable and Smith’s claims. Accordingly, the court dis- 1, 2000, February On Smith received a missed his complaint for failure state a booklet from the AEGON Insurance claim under Federal Rule of Civil Proce- Group with information on the CGC Re- 12(b)(6). dure We AFFIRM. VERRP, tirement Plan and the as well as that, notice January effective the
(cid:127)I. CGC Plan and the AEGON Companies 2000, Prior to his (“Plan”) in retirement Smith Pension Plan integrated had been employee was an of Commonwealth Gener- pursuant to merger. the The Plan defines (“CGC”). Corporation al When CGC “CGC VERRP Participant” as “a CGC agreed to merge USA, with AEGON Inc. Participant Grandfathered ... who was (“AEGON”), CGC offered employ- some participant also a ... [VERRP] ees, Smith, including compensa- enhanced which an early was program retirement if they tion would remain with CGC until effect in 8, the September CGC Plan from merger its with AEGON was completed. 31, 1997 until December 1999 and in effect The offer’s terms were reflected in the this Plan January from 2000 until Voluntary Employee Retention and February Re- as merg- a result the (“VERRP”), Program tirement which the er of the CGC Plan with Plan....” this 1. Neither the VERRP booklet nor the AEGON qualified difference non-quali- between Companies explains Pension booklet Plan fied benefits. District for the Western and the trict on March retired 12(b)(6) motion Rule Kentucky, and filed a lump sum benefit him both paid
Plan
AE
In
to dismiss.
$2,189.51
month.
per
amended
Directors
Board
GON
motion
granted CGC’s
court
The district
provision.”2
a “venue
add
Plan to
under
complaint
Smith’s
and dismissed
on Venue.
“Restriction
provision states:
12(b)(6)
a claim.
failure
state
Rule
Beneficiary shall
or
participant
A
was
VERRP
court found
Plan
in connection
an action
bring
ERISA,
was
and that Smith
regulated
Rapids,
Court Cedar
District
in Federal
benefits
suing to recover
told Smith
the Plan
In August
Iowa.”
court concluded
plan. The
him
overpaying
been
they had
controlled
Committee
the Pension
month,
the amount
$1,122.97
per
Plan, only the Pen-
and administered
un
“non-qualified”
categorized
benefit
proper
CGC—was
sion Committee—not
eleven
VERRP,
previous
for the
der
affirmed.
See.
We
defendant.
party
reduced,
then elimi
years. The Plan
Corp.,
General
Commonwealth
Smith v.
pay
nated,
monthly benefit
entire
Smith’s
—
-,
12-6284,
Fed.Appx.
No.
to do
continue
ments,
that it would
stating
2014) (Smith
Cir. Oct.
WL
overpayment
recouped
so until
had
I).
dismissed
district court
After the
$153,283.25.
to the
remitted
Plan
or Smith
*5
against
suit
complaint,
I
Smith filed
rem-
the administrative
Smith exhausted
Plan in
Companies Pension
the AEGON
appealing .to
by
the Plan
provided
edies
the Western
District Court for
the U.S.
In that
Pension Committee.
the AEGON
court
Kentucky. The district
of
District
the Plan had
complained that
appeal Smith
preju-
without
complaint
Smith’s
dismissed
documents
all relevant
produce
refused “to
12(b)(6)
of the
Rule
dice under
in accordance
and information
clause, and Smith
selection
Plan’s venue
and
laws
applicable
Plan terms and
appealed.
number of
cited
regulations,” and
Further, he
regulations.”
claims
“ERISA
II.
specifically
argued that
VERRP
“[t]he
benefits
provided enhanced
A.
or in
Plan,
lump
as a
sum
either
payable
to deter
at the
required
are
outset
We
annuity
monthly
increased
this case
an
to be afforded
mine the
of deference
level
also
$1,079.48
The VERRP
per month.
of
(“Secretary”) po
Secretary
Labor’s
could
on which Mr. Smith
entered
date
brief,
sition,
in an amicus
expressed
(in-
benefits
receiving his Plan
commence
incompatible
clauses are
enhancement).” The
cluding the VERRP
interpreta
Secretary’s
The
with ERISA.3
appeal,
denied Smith’s
Pension Committee
Secretary’s
appears
tion of
in Jeffer-
against CGC
and Smith
suit
filed
case,
prior
in one
in this
amicus brief
Court, asserting claims
County
son
Circuit
Secretary of
See Brief
amicus brief.
contract,
hour state
wage and
for breach
Ap
Supporting
as Amicus Curiae
Labor
violations, estoppel, and breach
statutory
Personnel Ser
Mozingo v. Trend
dealing. pellant,
fair
duty
good
faith and
Cir.2012)
(10th
vices,
753
Fed.Appx.
Dis-
the U.S.
the action to
CGC removed
deference,
request
Secretary does not
3. The
refer to
Litigants
the district
2.
court
we
Secre-
asks that
defer
but Smith
clause.”
provision as “forum selection
of ERISA.
tary's construction
(No. 11-3284),
The
Court has
to address
2003) (“An interpretation contained in a
appropriate
level of
give
deference to
brief—like interpretations
contained in
the construction of a
statute articulated
letters,
opinion
policy statements,
agency only
agency
amicus briefs. See
manuals,
Hubbard,
Bradley
Comment,
George
guidelines—
enforcement
Def-
Agency Statutory
erence to
lacks the
Interpreta-
force- of law and is therefore not
deference.”).
Litigation?
tions First Advanced in
entitled to Chevron
Two-Step
Chevron
and the Skidmore
Secretary’s
Whether the
in
amicus
(2013).
Shuffle, 80 U. Chi. L.Rev.
terpretations
1001(b),
§§
of 29 U.S.C.
Although our
has provided
no an-
1132(e)(2),
1104(a)(1)(D)
are entitled to
either,
swer
some of our sister circuits
Skidmore deference is a more difficult
have concluded that agency positions ex-
question. Despite their factual dissimilari
pressed in amicus
deserve
briefs
Skidmore
ty
case,
to our
cases from both the Su
deference.4 We decline to afford either
preme Court and our Court have featured
Chevron or Skidmore deference to the
deference to amicus briefs. Skidmore v.
Secretary’s “regulation by amicus”5 in this
Co.,
&
U.S.
case.
Swift
(1944),
L.Ed. 124
required the Supreme
interpretation
Secretary’s
Court to determine whether the time spent
Chevron,
not entitled to deference under
within a certain proximity of the Swift
U.S.A., Inc. v. Natural Resources Defense plant by fire-response employees was com
Council, Inc.,
S.Ct.
pensable overtime under the Fair Labor
(1984).
The Court
*6
(“FLSA”).
Standards Act
The Depart
218,
United States v.
Corp.,
Mead
533 U.S.
(“DOL”)
ment of Labor
had outlined fac
221,
2164,
121 S.Ct.
tors to
compensable
determine
work time
(2001), made it clear that Chevron’s two-
through
rulings
informal
and an interpre
step procedure for determining when con
tive
138-39,
bulletin.
Id. at
thoroughness
”).
contrary]....
reasoning, its
ation,
validity of its
pro-
and later
consistency with earlier
rele-
are also
Circuit cases
Two Sixth
nouncements,
those factors which
and all
States,
OfficeMax,
In
Inc. v. United
vant.
lacking
if
persuade,
to
power
give
(6th Cir.2005),
gov-
428 F.3d
to control.
power
to its
to defer
asked this Court
ernment
service,”
telephone
of “toll
interpretation
161.
Skidmore,
at
65 S.Ct.
U.S.
to a federal ex-
Congress subjected
which
228, 121
Mead,
S.Ct.
533 U.S.
government’s inter-
tax. One of the
cise
for courts
factors
contextual
added other
by any
yet
was “not
embraced
pretations
conducting- the Skidmore
to consider
expressed
and was
ruling”
administrative
of deference
“The fair
inquiry:
measure
merits brief.
solely
government’s
statute
administering its own
agency
an
held that “Skidmore
id. at 596. We
See
vary
circum
understood
has been
to a line of rea-
apply
does not
deference
looked to the
stances,
have
and courts
have,
has
agency
could
but
soning that
care, its consisten
agency’s
degree of the
adopted.” Id. at 598.
yet,
expertness,
formality, and relative
cy,
agency’s posi
Rosales-Garcia,
n.
F.3d at 403
persuasiveness
to the
In
omitted).
(citations
Immigra-
that the
passing
tion.”
noted in
we
interpre-
tion and Naturalization Service’s
In
v. Saint-Gobain
Kasten
Performance
brief,”
Illegal
tation,
in a
“contained
—
-,
Corp.,
Plastics
Immigrant Re-
Immigration Reform and
(2011), the
L.Ed.2d
Act of
was “entitled
sponsibility
degree
weight
“a
gave
[the
also
But be-
to” Skidmore.
respect. pursuant
meaning of’ the
views about
DOL’s]
position has been
government’s
cause “the
“filed,”
complaints
oral
and whether
word
only dur-
inconsistent” and was advocated
by
anti-retalia
covered
the FLSA’s
were
that the inter-
ing
litigation,
we held
Id. at 1335. The Court
protections.
tion
instead
“unpersuasive,” and
pretation was
governed
held
Skidmore
reading of the statute.
adopted our own
had been held consis
interpretation
DOL’s
Thus,
out-
informed the
See id.
Skidmore
years,
tently
fifty
close to
evidenced
of neither case.
come
enforcement, actions,
briefs, agency
amicus
Opportu
Equal Employment
practice,
fac
analysis
An
of the contextual
id. The
nity
guidelines.
Commission
See
proge
and its
tors discussed
Skidmore
*7
agencies’
the
views “add
Secretary’s posi
held that
us
the
ny convinces
under Skidmore
force to our conclusion”
entitled to Skidmore
tion in this case is not
agencies
First,
length
agencies
of time the
“[t]he
defer
deference.
we
they reflect
them
of their relative
suggests
have held
under Skidmore because
” Id.;
Mead,
at
see also
533 U.S.
expertise.
careful consideration....
See
con
Corp.,
Beecham
directs
we
Christopher v. SmithKline
S.Ct. 2164. Skidmore
—
(9th Cir.2011),
thoroughness
[the
evident
aff'd,
sider “the
635 F.3d
Skidmore, 323
U.S.-,
agency’s]
consideration.”
132 S.Ct.
(2012) (“[W]e
161. But the Secre
minimal
at
65 S.Ct.
cannot accord even
is in
expert than this Court
tary is no more
position
to the
ex
Skidmore deference
proscribes
determining
a statute
The
whether
brief....
pressed
amicus
Secretary
the
Even were
expressed only in ad venue selection.
regulation,
about-face
Secretary’s bare textual
expert, the
enough
not
to over more
filings,
hoc amicus
more,
ERISA,
not
does
analysis of
and the
without
decades of DOL nonfeasance
come
“constitute a body
experience
and in-
forcement action brought
related to a
judgment
formed
to which courts” should
clause,
and only one other
Id,.;
defer.
see
also Shikles
amicus brief exists that has articulated
Sprint/United
Co.,
Mgmt.
426 F.3d
the Secretary’s
position.
current
(10th Cir.2005) (“In
1315-16
case,
this
the Secretary has promulgated no regulation
simply
EEOC
position
its
asserts
in an
interpretive
guidance related to venue
amicus brief.... The EEOC’s
pro-
brief
selection clauses.
noted,
As we have
vides no indication of whether the agency “Skidmore deference does not
apply
has been thorough in its
consideration
line of reasoning that an agency could
issue,
the
and it appears that
agency’s
the
have, but
yet,
has not
adopted.” Office
position
subjected
has not been
any
sort Max, Inc.,
viously, in one other circuit-court amicus Secretary’s interpretation does not deter-
brief. The Secretary had taken no posi- mine the outcome of
because,
this case
tion,
one,
even an
against
informal
the
even were
give
we to
the Secretary’s inter-
enforceability of venue or forum selection pretation
heightened
deference under
clauses under ERISA for
thirty-nine
the
Skidmore, ERISA
our precedent
do
years prior to these two amicus positions.
support
not
adopting the Secretary’s posi-
The Secretary’s
interpretation
new
is not
Rosales-Garcia,
tion. See
F.3d
consistent
prior
acquiescence, see n. 22 (concluding that “although
gov-
Mead,
2164;
U.S. at
121 S.Ct.
ernment’s position is entitled to respect
“about-face,”
an
see SmithKline Beecham pursuant
Skidmore,”
government’s
Corp.,
400;
635 F.3d at
longevi-
lacks
interpretation
unpersuasive).
was
Be-
ty, suggesting the interpretation does not
cause,
below,
explain
we
we conclude
“reflect
consideration,”
Kasten,
careful
see
that the venue selection clause is enforce-
Third, opine unlike 1132(e)(2) Skidmore whether 29 U.S.C. Kasten, permits indication here that venue in the U.S. District Court agency adopted has particular inter Western Kentucky. District of pretation of ERISA is the amicus briefs
themselves.
Skidmore amicus brief
III.
pointed the Court to
interpretive
bulle
We review de
novo
enforceabili
tin, see
138-39,
323 U.S. at
ty of a forum selection clause. Wong v.
and the amicus brief at issue in Kasten
Ltd.,
PartyGaming
589 F.3d
years
cited fifty
of enforcement proceed
Cir.2009). Smith, as
party
opposing
ings
agency practice,
see 131 S.Ct. at
enforcement
clause,
forum selection
1335. But the amicus brief in this case
“bears the burden of showing that
*8
only
can
as,
be characterized
to borrow a
clause should not be enforced.” Id. at 828.
phrase
Frankfurter,
from Justice
an ex
pression
aof mood. See Universal Cam
ERISA’s “statutory
...
scheme
NLRB,
era Corp.
474,
v.
487,
340 U.S.
71 is built around
on
reliance
the face of
456,
(1951).
S.Ct.
930 clause the forum to enforce omitted); have been see
(internal marks quotation clearly 1102(a)(1) Zapata could em- unless (“Every specifically 29 U.S.C. also unreason be be established enforcement would shall show that plan benefit ployee in- clause was to a written that the unjust, or pursuant maintained able em- strument.”)- fraud or over Plan administrators reasons as for such invalid ERISA, free generally Indus. Lum ployers “are Rich v. reaching.”); F.D. Co. time, modi- adopt, any to at any 116, 125, reason 40 Co., 94 S.Ct. 417 U.S. ber rule This plans. welfare fy, (1974) or terminate Miller (holding that a L.Ed.2d 703 plans.” benefit pension to applies equally brought in that suits be requirement Act Inc., 370 F.3d Hosp., v. Bethesda Coomer “merely a venue was courts specific federal Cir.2004) (internal quotation 508 waived). that could be requirement” omitted). ‘large “The and citation marks design in holding the employers to our could leeway’ granted believes Smith to their equally applies pension plans on ERISA an excessive burden lead to those amendment of only modification or in Hawai’i to lie were venue litigants amend- The Plan was at 508. plans.” Id. case. And That is not this or Alaska. selection the venue in 2007 to include ed challenge the reason may always party at issue.7 clause clause. In a forum selection ableness of provided a we Wong, 589 F.3d that the amendment argues evaluating the to use test three-part arms-length of an product not the was selection clause: enforceability of forum venue selection the transaction “(1) obtained by the was whether clause his years seven after clause was added duress, unconscionable fraud, or other Supreme But commenced. benefits (2) means; forum designated whether validity of forum recognized has unfairly handle the ineffectively or would clauses those even when selection clauses (3) designated fo suit; whether arms-length of an product not the were seriously inconvenient so rum be would v. Cruise Lines Carnival transaction. See to plaintiff bring requiring the such that 585, 595, Shute, 111 S.Ct. 499 U.S. unjust.” But as the suit there would (1991) a forum (enforcing 113 L.Ed.2d noted, has not ar “Plaintiff court district of a on the back clause contained selection fraud, induced clause gued was ticket). en logic supporting cruise court Rapids federal would that the Cedar equally applies clauses of such forcement case, unfairly handle the or ineffectively or And clause here. the venue unjust Plaintiff is ad plan inconvenience to available given the discretion ministrators, why this see no reason unreasonable.” we AE- is invalid. selection clause argues alternative clause Pension Plan’s GON under which Plan document he and enforceable. valid presumptively case because his should control his Co., retired Zapata v. See Bremen M/S Off-Shore 2000, and thus claims accrued pension L.Ed.2d 407 U.S. adopted amendment (1972) (“The the venue selection would approach correct fiduciary] do not include definition employer [in does not by an plan 7. A amendment employer may decide design, plan I that an in Smith disturb our conclusion plan without be- employee administration the Plan controls benefit amend (internal Corp. Spink, fiduciary VERRP. See Lockheed review.” ing subject L.Ed.2d S.Ct. omitted)). quotation marks (1996) (“[B]ecause functions defined [the]
931 2007 inapplicable. alleges Smith prevent private parties from waiving although claims accrue when benefits are ERISA’s provision, venue Congress could denied, claims also accrue when they are have specifically prohibited such action. paid payment because each inherently See, re- e.g., Bernikow v. Xerox Corp. Long- pudiates a claim to additional benefits. Plan, Term Disability Income No. CV 06- Circuit, however, The Sixth follows the RGKSHX, 2612 2006 WL at *2 rule,” repudiation “clear under which a (C.D.Cal. 2006). Aug. cause action accrues fiduciary “when a Smith argues that “Aegon required gives a claimant clear unequivocal re- abide ERISA where the terms of the pudiation of benefits.” Morrison v. Marsh Plan Conflict with ERISA.” The Secre- Cos., & McLennan 439 F.3d 302 tary and point to a number of statu- Cir.2006).- Thus, Smith’s claims did not tory provisions they think conflict with accrue until 2011—after the venue selec- venue selection clauses. None of them tion clause was added —when the AEGON does. Pension Plan informed him that it was First, reducing payments. his policy Smith cites ERISA’s is to provide “ready Fallin v. Industries, Commonwealth access to the Inc. Federal courts.” 29 Plan, 1001(b). Cash Balance 521 U.S.C. F.Supp.2d 592, Smith and the Secre- (W.D.Ky.2007), tary 597 in support argue argu- of his “Congressional policy ment that a cause action behind also ERISA cannot ignored.” accrues But when paid. benefits are neither problem Smith nor the Secretary explains for Smith is that he dispute does not how a level venue provision ready inhibits ac- of benefits he received from cess 2000-2011. to federal courts provides when it might theoretically have cause of venue in a federal court. See Smith v. action that accrued as early Aegon LLC, but 770 F.Supp.2d 812 USA the claims he is raising (W.D.Va.2011) here relate to (holding that a contractual Thus, action taken in 2011. the venue provision venue “certainly does conflict selection clause applies to Smith’s claims. with ERISA’s provision ‘ready access ” (citation to the federal omitted)). courts.’ IV. And other policies ERISA are furthered
We turn next
question
instance,
selection clauses. For
whether
precludes
venue selection “limiting
claims
one federal district en-
clauses. A majority of courts that
courages
have
uniformity in the decisions inter-
question
considered this
have upheld the
preting
plan,
which furthers ERISA’s
validity of venue selection clauses in goal of enabling employers to establish a
ERISA-governed plans.8 These courts
uniform administrative scheme so that
reason that
if Congress had wanted to plans are not subject
to different
legal
8. See Bernikow
Corp. Long-Term
v. Xerox
(D.Minn.2006);
USA, LLC,
Dis
Aegon
Smith v.
Plan,
ability
RGKSHX,
Income
CV
(W.D.Va.2011);
06-2612
F.Supp.2d
770
809
Sneed v.
(C.D.Cal.
2006 WL
2006);
Aug.
2536590
Iowa,
Wellmark Blue Cross & Blue Shield of
Co.,
Gipson v.
Fargo
Wells
F.Supp.2d
1:07-CV-292,
&
563
No.
obligations 2013) (“The 15, may of (E.D.Mich. Apr. Disability Long Term PepsiCo v. guez 1132(e)(2) cannot. Con- not mean § does (N.D.Cal. 855, 861 Plan, F.Supp.2d may be an action provided gress Corp., 519 Xerox 2010); Klotz v. see also did Congress venues. brought several (“The (S.D.N.Y.2007) 430, 436 F.Supp.2d cannot parties private provide in Xerox’s contained clause selection forum ven- to one of these options narrow the Plan Disability Income] [Long Term LTD Corp., No. ues.”); v. CIGNA Williams the to oversee court one federal allows 5147257, *4 at 5:10-CV-00155, 2010 WL gain LTD Plan of the administration 2010) (concluding that (W.D.Ky. Dec. Doc LTD Plan familiarity the special usurp not “intend to did Congress goal of furthering ument, thereby ERISA’s predetermine parties right private of administrative uniform a establishing under anticipated litigation of the situs scheme.”). of one employees The cost selection ERISA’s venue ERISA” because varying pro subject to the being plan’s is permissive). provision courts district of federal nouncements clause if the venue selection But even also undermine country would around options of the three laid venue outside ad a low-cost goal providing of ERISA’s selection venue provided plans. employee benefit ministration previ have would still control. We clause Metro. Bottel Pepsi-Cola v. Scaglione See mandatory ar validity of ously upheld the Inc., F.Supp.2d ing Co. see Si plans, in ERISA bitration clauses 2012) (“Forum clauses (N.D.Ohio Inc., 765, 773 v. F.3d mon Pfizer goal of ERISA’s promote ERISA plans effect, are, special “in Cir.2005), which and reduce uniformity administration clause,” forum-selection ized kind ”). costs.... Co., 417 U.S. v. Alberto-Culver Scherk Second, Secretary point and the (1974). pro- provision, which venue to ERISA’s ERISA, that, say illogical to It is vides: court venue in federal may preclude plan subchapter under this action Where an venue may not channel entirely, plan abut court brought in a district is federal court. particular to one States, may brought be United arguing distinguish Simon tries to administered, plan is district where forum, not venue. arbitration affects or where a place, breach took where the may prescribe clause But arbitration found, and or bemay resides defendant proceedings location of the geographic any other dis- may served in be process See Well as the forum. Sneed well may resides trict where a defendant Iowa, & Blue Shield mark Blue Cross be found. *2 1:07-CV-292, 2008 WL No. 2008) (“A provi- (E.D.Tenn. selec venue forum Apr. § 1132. ERISA’s 29 U.S.C. “may brought” parties merely requires suit be permissive: tion clause sion judge ven- AEGON’s to a different dispute districts. their in one of submit several a sub is to who use that suit will provides clause a different courthouse ue selection to reach a deci statutorily stantially process des- of these similar brought in one prevent clause where An will namely, district sion. arbitration places, ignated dispute to a submitting the Rapids, litigant from administered-Cedar plan If at all. proceeding court judge or formal provision does not Iowa. ERISA’s are enforceable See arbitration clauses chosen venue. AEGON’s conflict with forum Plan, reason conclude Court sees no No. Hourly v. PBG Pension Price *11 enforceable.”). selection clauses are fiduciary not and benefits claims. The venue Thus, ERISA’s venue does not provision provision applies to all actions invalidate AEGON’s venue selection brought by a participant or beneficiary, clause. just not claims for benefits. Third, Smith argu raises two V. regarding fiduciary
ments
duties under
argues
Smith
that the
ERISA.
venue se
Finally, Smith contends that
1110(a),
§
lection clause violates 29 U.S.C.
district court impermissibly dismissed his
states, “any
which
provision
agree
an
claims rather than transferring them un
or
purports
ment
instrument which
to re
1404(a).
§
der 28 U.S.C.
We review for fiduciary
responsibility
lieve a
from
or lia
abuse of discretion. See First Michigan
bility for any responsibility, obligation, or
Bramlet,
Corp.
(6th
v.
141 F.3d
262
duty
part
under
this
shall be void as Cir.1998) (“The decision of whether to dis
against public policy.” But Smith did not miss or transfer
within
is
the district
argument
this
raise
until his Federal Rule
discretion,
court’s sound
accordingly,
alter,
of Civil Procedure 59 motion to
va we review such a decision for an abuse of
cate, or amend the
court’s judg
district
discretion.”). Smith never sought transfer
ment, and he has waived it.9 See Am.
court,
before the district
though the Secre
Family Prepaid Legal Corp. v. Columbus
tary argued in an amicus brief at the mo
Ass’n,
(6th
Bar
498 F.3d
335
Cir.
tion to
stage
dismiss
appropriate
“the
2007); Am. Meat Inst. v. Pridgeon, 724
dismissal,
remedy is not
but transfer.” In
(6th Cir.1984).
F.2d
47
an additional citation filed with this Court
briefing,
after
points
Smith
to the Su
distinguish
tries to
his benefits
preme Court’s recent decision in Atlantic
claims from his
fiduciary duty
breach of
Marine Construction Co. v. U.S. District
claims, arguing that venue cannot be limit-
Texas,
Western District
latter,
regard
ed with
to the
if
even
it can
— U.S.-,
134 S.Ct.
187 L.Ed.2d
be for benefit claims.
did not
raise
(2013),
support
argument
his
on
argument
motion,
this
until
Rule
his
appeal that transfer
proper
is the
remedy.
thus has waived it
Regard-
as well.
The Atlantic Marine Court stated:
less, none of
statutory provisions
provides
Smith cites
apply
a reason not to
question
in this case concerns the
venue selection provision
to both his
procedure that
is available ...
to en-
waiver,
argument
9. Even absent
rights.
this
would
substantive
See Mitsubishi Motors
1110(a)
§
responsi
fail. 29 U.S.C.
refers to
Inc.,
Corp.
Chrysler-Plymouth,
Soler
bilities, obligations,
duties "under this
part,” which is Part 4
ERISA.
AEGON's
(1985) ("We
Congress
must assume that if
appears
clause
in Part
protection
intended the substantive
afforded
1132(e)(2). Furthermore,
§
Part 4. See
a fo
given
protection
statute to include
rum or venue selection clause does not at
against
forum,
right
judicial
waiver of the
to a
tempt
fiduciary
to free a
from its substantive
that intention will
deducible
from text or
obligations under ERISA. See
P. Sul
Arnulfo
Goren,
legislative history.”); Roney & Co. v.
it,
Inc.,
Inc. v. Dean Witter Reynolds,
847 F.2d
(6th Cir.1989) ("We
875 F.2d
are
(“Section
Cir.1988)
1132(e),
agreement
unable to discern
limiting
how an
part
unlike sections
statute,
of subtitle B
[particular
a customer to one
arbitration enti
impose any
does not
substantive
ty]
any
would constitute waiver of
substan
fiduciaries.”).
or
duties
liabilities on ERISA
rights
tive
Exchange
[Securities]
under'the
Supreme
Both the
Court and our Court have
Act.”).
held
forum selection clauses do not waive
502(e)(2) pro-
§
statutory rights, ERISA
re-
clause. We
forum-selection
force a
for benefit claims:
jurisdiction
a vides broad
such
argument
ject petitioner’s
by motion
may be enforced
subchapter
clause
an action under
Where
1406(a)
28 U.S.C.
dismiss
court of
in a
brought
district
12(b)(3)
Rules
of the Federal
States,
brought
Rule
bemay
United
Instead, a forum-selec-
administered,
Procedure.
Civil
plan
where
district
by a motion
may be enforced
tion clause
or where
place,
took
the breach
*12
where
1404(a).
§
found,
to transfer
may
resides
the defendant
any
in
other
may be served
process
and
had
Noting that the defendant
Id. at 575.
resides or
a
where
defendant
district
under Rule
to dismiss
not filed motion
may be found.
noting
specific
the
12(b)(6),
further
12(b)(6) and
Rule
between
differences
1132(e)(2).
preclusive
The
§
29 U.S.C.
apply its
1404(a),
to
§
the Court declined
the AEGON
clause
12(b)(6)
See
Rule
dismissals.
holding to
Plan”)
(“the
uni-
Pension
Companies
Plan
case,
complaint
In
Smith’s
our
id. at 580.
inconsistent with
in 2007 is
laterally added
12(b)(6),
to Rule
pursuant
dismissed
ERISA,
was
text of
policy, and
purpose,
the
12(b)(3).
did
The district court
Rule
not
policy”
“strong public
and contravenes
dismissing the
in
its
not abuse
discretion
therefore,
ERISA;
the clause
declared
transferring it.
of
case instead
unenforceable.
be deemed
should
M/S
Co., 407 U.S.
Zapata
Bremen v.
Off-Shore
VI.
(1972).
32 L.Ed.2d
reasons, we AFFIRM
foregoing
For
District Court
the United States
Because
court.
district
judgment of the
Kentucky
of
District
for the Western
pen-
Plaintiffs ERISA
venue for
proper
J.,
BATCHELDER,
delivered
502(e),
§
pursuant
claims
to
sion benefits
SILER, J.,
court, in which
opinion of
1132(e),
§
ven-
U.S.C.
934-36),
CLAY,
delivered a
(pp.
joined.
J.
be deemed un-
clause should
ue selection
dissenting opinion.
separate
enforceable,
dissent.
respectfully
I
CLAY,
Judge, dissenting.
Circuit
that the Plan
venue
clause
Plaintiff from
seeks to enforce forbids
Income Secu-
Retirement
Employee
anywhere other
(“ERISA”),
bringing a suit for benefits
U.S.C.
of 1974
rity Act
venue that is
Rapids,
than
Iowa—a
provide
Cedar
designed
was
seq.,
§ 1001 et
away
than
miles
from
located more
courts” so as
the Federal
“ready access to
work, and
of
place
home and
Plaintiffs
participants
interests of
...
protect
“to
Plaintiff
no connection.
which
has
with
plans and their benefi-
employee
in
benefit
ERISA,
conflicts
1001(b).
a restrictive clause
enacting
Such
§
In
ciaries.”
set forth
provision
broad
sought
eliminate
Congress expressly
502(e)
ERISA,
undermines
also
but
obstacles
procedural
“jurisdictional and
and contra
very purpose
ERISA
hampered
appear to have
past
which
evinced
strong public policy
venes the
fiduciary respon-
effective enforcement
502(e),
pro
which
93-553,
statute. Section
at 17 the
REP. NO.
H.R.
sibilities.”
claims,
for benefit
jurisdiction
vides broad
(1973),
U.S.C.C.A.N.
in 1974
reprinted
right”
affirmative
grant
is “intended
congres-
with the
Consistent
4655.
and beneficiaries.
participants
to ERISA
removing jurisdictional barri-
goal of
sional
Inc. Short Term
Supervalu,
participants Coleman
plan
prevent
that would
ers
F.Supp.2d
Program,
Disability
asserting their
from
beneficiaries
and their
(N.D.Ill.2013) (holding
that a forum the
recognized
district court
Coleman,
selection clause in an
plan
was
employer’s
“an
unilateral
restriction of
as contrary
public policy
unreasonable
that access would undermine Congress’
unenforceable).
right
This
is indis
Coleman,
stated desire.”
920 F.Supp.2d
pensable
many
of those individuals
at 908.
especially
where,
This is
true
rights
whose
protect,
ERISA seeks to
here, the restrictive venue selection clause
since claimants in
plan
suits for
benefits— was unilaterally
to the
added
Plan seven
budget,
retirees on a limited
sick or dis years after
agreed
Plaintiff
to its terms.
workers,
abled
depen
and other
widows
These circumstances compel the conclusion
dents —are often the most vulnerable indi
the venue selection clause is unrea-
viduals in our society, and are the least
sonable, inasmuch as it contravenes the
likely to have the financial or other where
strong
clearly
public policies
stated
withal to
litigate
distant
venue. See ERISA.
Plan,
French
Behring
v. Dade
Ins.
Life
*13
majority
upon
relies
a decision from
09-394-C-M2,
No.
2010 WL
at *3
this Court enforcing an arbitration agree
(M.D.La.
23, 2010).
Mar.
A venue selec
ment in the context
anof
ERISA benefit
tion
purports
clause that
to eliminate prop
claim, and reasons
is “illogical” to
statutory
er
venues conflicts with ERISA’s
plan
conclude that a
may mandate arbitra
venue provision as
strong
well as the
stat
tion,
may
but
not restrict venue to a
utory
spe
public policy against imposing obsta
cific geographic
Majority Op.
location.
at
cles to
pursuit
beneficiaries in
of benefit
932. In so
majority
concluding,
claims.
over
looks
important
distinctions between
policies
ERISA’s
provisions super-
and
the arbitration agreement at issue in Si
general judicial
sede the
policy of enforc-
Inc.,
mon v.
expense and Because courts. to federal
his access policy purpose
express to a forum access unobstructed
provide can and beneficiaries participants
which benefits, the unilat- their claims
pursue issue clause at
erally added *14 unenforcea- should deemed this case
ble, motion to dismiss Plan’s denied.
improper venue should be dissent. respectfully
I therefore Club
Eric O’KEEFE Wisconsin Plaintiffs-Appellees,
Growth, Inc., CHISHOLM, al., et T.
John
Defendants-Appellants. Defendant- Schmitz,
Francis
Appellant/Cross-
Appellee. for Freedom
Reporters Committee al., Press, Intervenors- et
Appellants.