United States Court of Appeals

Fifth Circuit

FILED

August 22, 2006

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

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, 

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

DaisyCobb appeals anadverse benefit determination by Central States, Southwest and

Southeast Areas Pension Plan (“Central

States”). We vacate the judgment and remand

with instruction to dismiss for want of subject

matter jurisdiction.

I.

In about August 1979, Oliver Gibbs submitted an “Application for a Retirement Pension Benefit” to Central States stating that he

was retiring on October 26, 1979. Central

Statesis a multiemployer pension plan. At the

time he submitted his application, Gibbs was

married to, but separated for thirteen years

from, Cobb. In his pension application, Gibbs

represented under oath that his spouse was

“deceased.” Gibbs died in 1985. In 2002
2

Cobb submitted a claim for the Joint and Survivor Pension Benefit.

When he retired, Gibbs was eligible to receive an unreduced lifetime pension of $675.00

per month, with no pension benefits after his

death (the “Lifetime Benefit”). Central States’

Pension Plan also allowed a participant to receive or reject the Joint and Survivor Pension

Benefit (“JSO”) if he met the three eligibility

criteria for this plan. Generally, this benefit

provides a reduced pension to the participant,

and 50% of the reduced lifetime pension as a

lifetime monthly income to his/her spouse after

the participant’s death. 

Gibbs would have received a reduced lifetime pension of $588.60 per month, but only by

meeting several conditions, including that he

had to be married at the time of his retirement.

The plan provided that

[i]n order to be eligible for this pension

benefit, you MUST meet each of the following requirements AT THE TIME OFYOUR

RETIREMENT:

SSyou MUST be married; and

SSyou MUST be at least age 55; and

SSyou MUST be eligible to receive a Twenty-Year Service Pension Benefit, an Early

Retirement PensionBenefit or aVested Pension Benefit from this Plan.

Because Gibbs represented that his spouse

was deceased, he did not meet the criteria, so

he was never sent an election form for the JSO.

He started receiving unreduced lifetime benefits

in November 1979. In February 1981 (before

Gibbs’s death), Cobb contacted Central States

and advised it that she was Gibbs’s spouse.

Cobb stated that she and Gibbs had been separated for “about 15 years” but that they were

legally married. Cobb also stated that Gibbs

was receiving a pension benefit and that she

wanted to receive some of it. Central States

informed Cobb that she was not eligible to

receive any part of Gibbs’s pension because

the Pension Plan provided that “[a]ll Pension

Benefits provided by this Plan shall be paid directly to the Pensioner, and not to any creditor

or other person not eligible for such benefits.”

In 2002,Cobbrequested benefitsfromCentral States by submitting an Application for

Death Benefit. In September, Central States

advised Cobb that she was not eligible to

receive any benefits because Gibbs did not

elect the “Joint and 50% Surviving Spouse

Option” when he retired in 1979. Cobb appealed this adverse benefit determination to

Central States’ Benefits Claim Appeals Committee. 

In April 2003, Central States advised her

that her appealwasrejected because Gibbs had

not elected to have his benefit paid in the JSO

form when he retired. Cobb exhausted the

administrative appeals process when her appeal was considered by the trustees, who

determined that “the communications, acts and

omissions by the late Oliver Ray Gibbs, at and

around the time of his 1978 [sic] retirement,

induced the Pension Fund to rely, and the

Pension Fund did in fact actually and reasonably rely, upon hisintention to reject the JSO.”

Cobb appealed this decision in court, but her

claim was rejected, so she appeals.

II.

Cobb asserts district court jurisdiction under section 502(a) of ERISA, 29 U.S.C.

1132(a). That provision, however, limits those

who can maintain suit under the statute to

“participants,” “beneficiaries,” or “fiduciaries.”

Coleman v. Champion Int'l Corp., 992 F.2d
3

530, 533 (5th Cir. 1993). Because “[w]here

Congress has defined the parties who maybring

a civil action founded on ERISA, we are loathe

[sic] to ignore the legislature’s specificity,”

standing to bring an action founded on ERISA

is a “jurisdictional” matter.1

Accordingly, the issue of whether a particular plaintiff falls within one of the three enumerated classes of litigants (participants, beneficiaries or fiduciaries) is a jurisdictional one.

Herman, 845 F.2d at 1289. This court has

“hewed to a literal construction of § 1132(a)”

on this issue. Id. (emphasis added).

Because the issue of standing is one of subject matter jurisdiction, we raised it sua sponte

and directed the parties to submit briefing on

the issue. Although the basis for inclusion in

one of the three jurisdictional classes of ERISA

litigants is uncertain from Cobb’s complaint,

she claims in her appellate brief and supplemental briefing that she is a “beneficiary” to

whom the plan trustees owed a fiduciary duty.

2

ERISA defines “beneficiary” as “a person

designated by a participant, or by the terms of

any employee benefit plan, who is or may become entitled to a benefit thereunder.” ERISA

§ 3(8), 29 U.S.C. § 1002(8) (emphasis added).

In favor of jurisdiction, the parties cite a case

that involved the definition of “participant,”

Firestone Tire & Rubber Co. v. Bruch, 489

U.S. 101, 117-18 (1989), which held that “to

establish that he or she ‘may become eligible’

for benefits, a claimant must have a colorable

claim that (1) he or she will prevail in a suit for

benefits, or that (2) eligibilityrequirementswill

be fulfilled in the future.” Id. (emphasis

added). The parties explain that given that the

definition of beneficiary, like the definition of

participant, involves the term “is or may become entitled to a benefit,” Cobb has standing

because she has a “colorable claim” that she

may be entitled to benefits. We disagree.

This case involvesthe definition of “beneficiary,” not “participant.” Although both require “colorable” entitlement to benefits, the

definition of beneficiary additionally requires

something that the definition of participant

does not: that the “beneficiary” be “designated” as such by the participant or by the terms1 Hermann Hosp. v. MEBA Med. & Benefits

Plan, 845 F.2d 1286, 1288-89 (5th Cir. 1988) (analyzing ERISA standing as a question of subject

matter jurisdiction); accord Ward v. Alternative

Health Delivery Sys., Inc., 261 F.3d 624, 627 (6th

Cir. 2001) (finding that lack of standing warrants

dismissal for lack of subject matter jurisdiction).

2 Cobb has never purported to be, a “participant,” or “fiduciary” as defined by ERISA; nor can

she qualify within those two categories. Section

3(7) of ERISA, 29 U.S.C. § 1002(7), defines “participant” as any employee or former employee of an

employer, or any member or former member of an

employee organization, who is or may become

eligible to receive a benefit of any type from an

employee benefit plan which covers employees of

such employer or members of such organization, or

(continued...)

2

(...continued)

whose beneficiaries may be eligible to receive any

such benefit. Section 3(21) of ERISA, 29 U.S.C.

1002(21), defines “fiduciary” as a person who

(i) exercises any discretionary authority or discretionary control respecting management of such

plan or exercises any authority or control respecting management or disposition of its assets,

(ii) renders investment advice for a fee or other

compensation, direct or indirect, with respect to

any moneys or other property of such plan, or has

any authority or responsibility to do so, or (iii) has

any discretionary authority or discretionary responsibility in the administration of such plan.
4

of the plan.3 Post-Firestone, this court has

continued to adhere to a “literal construction”

of the three classes of plaintiffs with standing,

and we have refused to read the “designation”

requirement out of the statutory definition: A

beneficiarymust prove both a “colorable claim”

under Firestone and a “designation” by the

participant or the terms of the plan: A beneficiary is “a person designated by a participant,

or by the terms of an employee benefit plan,

who is or may become entitled to a benefit

thereunder.” 29 U.S.C. § 1002(8) (emphasis

added). 

In Coleman we held that a pension plan participant’s son, who was his descendant, heir at

law, and the representative of his estate, was

not a “beneficiary” of the plan with standing to

sue under ERISA because (1) the participant

never designated the son to receive benefits under the plan, and (2) the terms of the plan,

which directed the Trusteesto designate a beneficiary from the group of the decedent’s

spouse, descendants, heirs at law, and representatives of the estate, if there were any benefits

“payable,” could not designate a beneficiary,

because there were no benefits payable (The

participant received benefits under the “Lifetime Only” option, as here.):

CharlieColeman elected to remain under the

normal Lifetime Only Income payment

option. While this Plan option provides the

greatest amount of monthly income, the

Plan states clearlythat, under this option, at

the time of the participant's death, all pension benefits cease.

Because no pension benefits were payable

at the time of Charlie Coleman’s death, the

Retirement Committee was not, and is not

now, authorized to name a beneficiary from

the list in Section 4.2. As such, the terms

of Plan Section 4.2 do not afford Coleman

beneficiary status as contemplated in §

1132. Coupled with the fact that Charlie

Coleman did not name hisson as his beneficiary, this conclusion forecloses any statutory basisfor Coleman’s assertion ofstanding.

Coleman, 992 F.2d at 533-34. 

Under this precedent, Cobb is not a beneficiary. Gibbs never personally “designated

[Cobb] or anyone else as beneficiary of his

Plan assets.” Id. at 533. “[T]herefore,

[Cobb’s] assertion of beneficiary status rests

upon the language and terms contained in the

Plan.” Id. 

In its letter brief, Central States admits that

the plan does not define the term“beneficiary.”

In her letter brief, Cobb also acknowledges

that the plan does not specifically define the

surviving spouse as the beneficiary. She

argues, however, that because the plan allows

for benefits to be paid to surviving spouses of

individuals receiving benefits under the JSO

plan,she is or may become entitled to a benefit

under the plan, which makes her a beneficiary.

Again, the fact that Cobb is or may become

entitled to a benefit does not necessarily prove

the separate requirement that she be “desig3 Section 1002(7) defines “participant” as any

“employee or former employee . . . who is or may

become eligible to receive . . . employee benefit[s]”

(emphasis added). Section 1002(8) defines “beneficiary” as “a person designated by a participant, or

by the terms of an employee benefit plan, who is or

may become entitled to a benefit thereunder”

(emphasis added). “Therefore, based on the statutory language, a “beneficiary” is not anyone who

claims to be one . . . . [but] is one who has a reasonable or colorable claim to benefits.” Crawford v.

Roane, 53 F.3d 750, 754 (6th Cir. 1995).
5

nated” as a beneficiary by the terms of the plan.

Assuming, arguendo, that entitlement to

benefits under the JSO would count as a “designation,” Cobb’s claim fails for the same reason

that the son’s claim failed in Coleman—the

plan plainly provides that if the decedent received the lifetime-only benefit, the spouse is

not entitled to a JSO benefit after his death.

The plan section on “Pre-Retirement and PostRetirement Benefit to Spouse” explains that

[a] Joint and Survivor Pension Benefit (subject to the election and rejection provisions

in “Appendix A” of this Plan) shall be payable to a Pensioner upon Retirement (commencing upon his 55th birthday), or the

surviving spouse of a Participant upon his

death on or after his 55th birthday but before

his Retirement, if the Participant was then

eligible for immediate payment of a pension

benefit in accordance with Article IV, §2, 3

or 4. Upon death of a Pensioner receiving

this pension benefit, 50% thereof becomes

payable to his surviving spouse . . . .

That is, if the plan participant dies after age

55 but before retirement, the spouse is eligible

for a “pre-retirement” benefit if the pensioner

was eligible to receive a pension at the time of

death. If the plan participant dies after retirement, the spouse is eligible for a “post-retirement” benefit only if the Pensioner was receiving “this” pension benefit, that is, the reduced

joint and survivor benefit, not the Lifetime Benefit. 

Gibbs did not die before retirement, so only

the post-retirement provision could apply here.

But Cobb is not “entitled” to any benefit under

it, because she does not satisfy one of the eligibility criteria for it: Gibbs was not receiving

“this” benefit (i.e. the joint and survivor benefit); he wasreceiving the lifetime-only benefit.

4

Therefore, as was the case with the son in

Coleman, the terms of the plan do not afford

Cobb beneficiary status. Under the plan, no

pension benefits are to be paid to surviving

spouses of those who received benefits under

the unreduced Lifetime Benefit option.5

Although it may not be advisable to interpret the terms of the plan at this jurisdictional

stage, we are bound to do so by Coleman,

which interpreted the term“payable” under the

plan to determine whether the descendant and

heir of the plan participant qualified as a beneficiary. Further, the definition of “beneficiary”

directs the courts to look to the terms of the

plan at the jurisdictional stage to decide

whether the terms “designate” a plaintiff as a

beneficiary or whether they provide plaintiff

with a colorable claim for benefits.6

4

See also section 17 (“If you die while receiving a Joint and Survivor Pension Benefit, your

spousewill receive one-half of your pension for the

rest of his or her life. . . .”) (emphasis added).

5 This case is also similar to Lerra v. Monsanto

Co., 521 F. Supp. 1257 (D. Mass. 1981), in which

the widow of a former plan participant alleged that

the defendant had failed to disclose sufficient benefit information to the decedent at the time he made

his election to receive pension benefits as a “single

life annuity.” The court held that it lacked jurisdiction because plaintiff, never having been designated

as a joint annuitant, was not a “beneficiary” and

thus lacked standing to sue under ERISA.

6

See, e.g., Crawford, 53 F.3d at 755 (interpreting a plan provision providing that “a spouse of a

married participant must consent to any beneficiary

designation which does not name the spouse as a

(continued...)
6

We are aware that in Sladek v. Bell System

Management Pension Plan, 880 F.2d 972,

976–78 (7th Cir. 1989), which was decided before Coleman, the court gave the term “beneficiary” a broader reading than the “literal construction” we provided in Coleman. See id. at

976 (noting that “it is not proper for us to give

an unduly cramped reading to those provisions

granting standing to certain classes of persons

under the Act, i.e., participants, beneficiaries,

and fiduciaries. . . . [T]his Court has consistently given the definition of “fiduciary” found

in § 1002(9) a ‘broad reading’”). Sladek relied

inter alia on the “zone of interest” analysisthat

we rejected in Coleman. 

Furthermore, Sladek is distinguishable because there the benefit plan itself designated

plaintiff, the deceased participant’s spouse, as

survivor annuitant, unless the participant elected to receive an unreduced lifetime-only benefit. Although in Sladek the participant elected

to receive the lifetime-only benefit, the surviving spouse argued that the election was voidable because the participant wasincompetent to

make a decision because of Alzheimer’s Disease. In contrast, here, Gibbs’s de facto election of the Lifetime Benefit7

is not voidable

even if he misrepresented that his wife was

deceased.8 Because Gibbs retired in 1978, he

was entitled to select the Lifetime Benefit

without the consent of hisspouse.9 Therefore,

his harmlessmisrepresentation does not render

his election voidable.

Cobb also argues in her letter brief that alternatively, she has standing under the “but

for” analysis in Christopher v. Mobil Oil

Corp., 950 F.2d 1209 (5th Cir. 1992). We

rejected that argument in the analogous situa6

(...continued)

sole beneficiary of the participant’s death benefit”

as not providing a colorable claim to beneficiary

status(and standing)to participant’s children, where

the spouse did not consent to a beneficiary other

than her to be named as a beneficiary).

7 The Plan documents explain that when an application for retirement benefits is made, an election

form will be mailed to those eligible for the JSO.

Because Gibbs declared under oath that his wife

was deceased, he was not eligible for the JSO,

which requires that the participant bemarried—that

is, that the spouse be alive—at the time the JSO

(continued...)

7

(...continued)

eligibility is determined. 

It would have been pointless for the Plan to

send Gibbs an election form as Cobb suggests:

what was there to elect? Accordingly, the default

provision, that in the absence of an election of the

“Lifetime Benefit,” the pension will be paid as a

“Joint and Survivor Benefit,” is inapplicable; it

applies only if an employee is entitled to the JSO.

Therefore, by declaring that his wifewas deceased,

Gibbs rendered himself eligible for only the Lifetime Benefit. 

8

It is uncertain whether Gibbs did make a

misrepresentation. Cobb has not proved that Gibbs

made a knowing misrepresentation, namely that he

knew that his estranged wife was still alive.

9 Before 1984, the spouse of a participant was

not required to join in an JSO election. Boggs v.

Boggs, 520 U.S. 833, 843 (1997). “It was not until August 23, 1984, to be effective January 1,

1985, that congress amended 29 U.S.C. § 1055 to

require pension plans to offer joint and survivor

annuities unless otherwise elected by the participant and his spouse.” Williams v. Wright, 783 F.

Supp. 1392, 1400-01 (S.D. Ga. 1992) (citing Retirement Equity Act of 1984, P.L. 98-397, Title I,

Section 103(a), 98 Stat. 1429). The amended act

does not apply to Cobb, “because it did not take

effect until January 1, 1985.” Id.
7

tion we faced in Coleman, where we explained

that

Christopher clearly poses a different scenario than [sic] the one we face today. In

Christopher, this court restored ERISA

standing to individuals who had standing but

were divested of that standing through the

ERISA violations of their employer. The

employees alleged that they had been

wrongfully induced to retire, and but for the

ERISA violation, would have continued

their employment and plan participation,

therebyretaining statusto sue underERISA.

In the present case, Coleman never had

standing to sue under ERISA since he was

neither a Plan participant nor a beneficiary.

Thus, even if the Coleman’s allegations of

ERISA improprieties were true, those violations could not be said to have divested him

of his status to sue. As such, Christopher

does not help the appellant.

Coleman, 992 F.2d at 535. 

The instant case issimilar to Coleman in that

Cobb was never a plan participant or a beneficiary, because Gibbs never received the JSO

post-retirement, but only a Lifetime Benefit,

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 misrepresentation, Central States “may” recover

any benefit payments that Gibbs was not entitled to receive, not that the Central States

“will” or “must” recover such benefits. Also,

as explained, Gibbs was entitled to receive the

Lifetime Benefit without the consent of his

spouse, so Central States had no right to recover the excess Lifetime Benefit payments

from him to keep them in trust for his wife. 

Last, there was no duty owed by Central

Statesto Cobb as a “beneficiary” to insure that

Gibbs submitted adequate documentation of

his marital status. Before 1985 Gibbs had the

right to elect the Lifetime Benefit without the

consent of his spouse. Therefore, any documentation burden Central States would have

imposed, in addition to the application signed

under oath by Gibbs, would not have protected Cobb against the harm of which she complains—that Gibbs did not intend her to receive a survivor benefit. Although Congress

enacted legislation in 1984 to protect spouses

like Cobb of this harm, unfortunately for her,

as we have explained, that legislation does not

apply retroactively to this case.

In summary, the district court lacked subject matter jurisdiction. The judgment, accordingly, is VACATED, and this matter is

REMANDED with instruction to dismiss the

complaint for want of jurisdiction.