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

_______________



### D AISY 

### E STELLE 

### C OBB 

### , WIDOW OF O LIVER RAY G IBBS ,



### Plaintiff-Appellant,

VERSUS


### C ENTRAL 

### S TATES 

### , S OUTHWEST AND 

### S OUTHEAST 

### A REAS 

### P ENSION 

### F UND 

### , Defendant-Appellee.

_________________________ Appeal from the United States District Court fo r the Eastern District of Louisiana 

### m 2:04-CV-1421

_________________________

Before S MITH , G ARZA , and P RADO , Circuit Judges.

J ERRY E. S MITH , Circuit Judge: Daisy Cobb appeals an adverse benefit determinat io n by Central States, Southwest and Southeast Areas Pension Pl an ( “Central States”). We vacate the judgment and remand wit h inst ruction to dismiss fo r want of subject mat ter j uri sdiction. I. In about August 1979, Oliver Gibbs submit ted an “Application fo r a Reti re ment Pensio n Benefit ” to Central States stating that he
was reti ring on October 26, 1979. Central States is a mult iemplo yer pension plan. At the time he submit ted his application, Gibbs was married to, but separated f or thi rteen years from, Cobb. In his pension application, Gibbs represented under oath th at his spouse was “deceased.” Gibbs died in 1985. In 20022

Cobb submit ted a claim for the Joint and Survivo r Pension Benefit.
When he reti

red, Gibbs was eligible to receive an unreduced lifet ime pension of $675.00 per mo nt h, wit h no pension benefit s aft er his death (the “Lifet ime Benefit”). Central States’ Pe n sio n Pl an also allo wed a participant to receive or reject the Joint and Survivor Pension Benefit (“JSO”) if he met the th ree eligibilit y criteria fo r this plan. Generally, this benefit provides a reduced pension to the participant, and 50% of the reduced lifet ime pen sio n as a lifet ime mo nt hly inco me to his/her spouse aft er the participant’s death.
Gibbs would have received a reduc e d lifetime pension of $588.60 per mo nt h, but only by
meeting several conditions, including th at h e had to be married at the time of his reti rement. The plan provided that [i ]n order to be el

igible fo r thi s pension benefit , yo u MUST meet each of the fo llo wing requirements AT THE TIME OF YOUR RETIREMENT:


### SS yo u MUST be married; and 

### SS yo u MUST be at least age 55; and 

### SS yo u MUST be eligible to receive a Twenty -Year Service P ension Benefit, an Early Reti rement Pension Benefit or a Vested Pensio n Benefit from this Plan.

Because Gibbs represented th at his spouse
w as deceased, he did not meet the criteria, so he was never sent an election fo rm fo r the JSO. He started receiving unreduced lifet ime benefit s in Novem ber 1979. In February 1981 (before Gibbs’s death), Cobb contacted Central States and advised it th at she was Gibbs’s spouse. Cobb stated that she and Gibbs had been separated fo r “about 15 years” but that they were legally married. Cobb also stated that Gibbs
w as receiving a pension benefit and th at she wanted to receive som

e of it . Central States info rm ed Cobb th at she was not el igible t o receive any part of Gibbs’s pension because the Pension Pl an provided th at “[a]ll Pension Benefits provided by this Pl an shall be paid directl y to the Pensioner, and not to any creditor
or other person not eligible fo r such benefit s.”

In 2002, Cobb requested benefit s from Central States by subm

it ting an Application for Death Benefit. In September, Central States advi sed Cobb that she was not eligible to
rec e ive any benefit s because Gibbs did not elect the “Joint and 50% Surviving Spouse Option” when he reti

red in 1979. Cobb appealed this adve rse benefit determination to Central States’ Benefits Claim Appeals Com

mit tee.
In April 2003, Central St ates advi sed her th at her appeal was rejected because Gibbs had not elected to h ave his benefit paid in the JSO fo rm when he retired. Cobb exhausted t he administ rative appeals process wh en her appeal was considered by the trus tees, who determ ined th at “t he com

munications, acts and
om issio ns by the lat e Oliver Ray Gibbs, at and around the time of his 1978 [sic] reti rement, induced the Pension Fund to rely, and the Pension Fund did in fact actually and reasonably rely, upon his int ention to reject the JSO.” Cobb appealed this decision in court, but her claim was rejected, so she appeals.

II. Cobb ass e rts district court jurisdiction under section 502(a) of ERI S A, 29 U.S.C. 1132(a). That provision, however, limits those who can maint ain suit und er the statute to “participants,” “beneficiar ies,” or “fiduciaries.” Coleman v. Champion Int'l Corp. , 9 9 2 F.2d3

53 0, 533 (5th Ci

r. 1993). Because “[w]here Congress has defined the parties who may bring
a civil action fo unded on ERISA, we are lo athe [ sic ] to ignore the legis lat ure’s specificity,” standing to bring an action fo unded on ERISA is a “jurisdictional” matter. 1 Accordingly, the issue of whether a particular plaint iff f

alls within one of the three enumerated classes of lit igants (participants, beneficiaries or fiduciaries) is a jurisd i ctional 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 mat ter jurisdiction, we raised it sua sponte and directed the parties to submit brief i ng on the issue. Alt hough the basi s fo r inclusion in
one of the th

ree jurisdictional classes of ERISA lit igants is uncertain from Cobb’s complaint, she claims in her appellate brief and supplement al briefing that she is a “beneficiary” to whom the plan trustees owed a fiduciary duty

. 2 ERISA defines “be nef iciary” as “a person designated by a participant, or by the terms of any employee benefit plan, who is or may becom e 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 th at invo lved the definit io n of “participant,” Firestone Tire & Ru bber Co. v. Bruch , 489 U.S. 101, 117-18 (1989), which held that “t o establish th at he or she ‘may become eligible’ for benefits , a claimant must have a colorable claim th at (1) he or she will prevail in a suit fo r benefit s, or th at (2) eligibilit y requirements will b e fulfilled in the future.” I d. (emphasis added). The parties explain that given that the definit io n of beneficiary, like the definit io n of participant, invo lves the term “is or may becom e entitled to a benefit ,” Cobb has standing because she has a “colorable cl a im” th at she may be ent it led to benefits. We disagree.
This case invo lves the definit io n of “beneficiary,” not “participant. ” Al th ough both require “colorable” entitlement to benefit s, the definit io n of beneficiary additionally requires
som ething th at the definit io n of participant does not: t hat the “beneficiary” be “designated” as such by the participant or by the terms 1 Hermann Hosp. v. MEBA Med. & Benefits Plan , 845 F.2d 1286, 1288-89 (5th Cir. 1988) (analyzin g ERISA standing as a question of subject
ma tter juris diction); a ccord 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 purport ed 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
e mployee organization, who is or ma y bec ome eligible to receive a benefit of any type from an employee benefit pl a n 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 pers o n who (i) exercises any discretionary authority or discretionary contro l respecting management of such plan or exercises any authority or control re specting ma nagement or disposition of its assets, (ii) renders investment advice for a fee or other compensation, direct or indirect, with re spec t to any moneys or other property of such plan, or has any authority or re sponsibility to do so, or (iii) has any discretionary a uthority or discretionary responsibility in the administration of such plan.4

of the plan. 3 Post- Firestone , this court has
c o nt inued to adhere to a “lit eral construction” of the th ree classes of plaint iffs with standing, and we have refused to read the “designation” requirement out of the statutory defin it io n: A beneficiary must prove both a “colorable claim” under Firestone and a “designation” by the parti cipant or the terms of the plan: A beneficiary is “a person designated by a participant,
or by the terms of an employee ben efit plan, who is or may becom

e enti tled to a benefit thereu n der.” 29 U.S.C. § 1002(8) (em phasis added).

In Coleman we held th at 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 wit h standing to sue under ERISA because (1) the participant
never designated the son to receive benefit s under the plan, and (2) the terms of the plan, which directed the Trustees to designate a beneficiary from the group of the decedent’s spouse, descendants, heirs at law, and representativ e s of the estate, if there were any benefit s “payable ,” could not designate a beneficiary, because there were no benefit s payable (The participant received benefit s un der the “Lifetime Only” o ption, as here.):
Charlie Coleman elected to remain under the normal Lifetime Only Income payment option. While t his Plan option provides the greatest amo unt of mo nt hly inco me, the Pl an states clearly th at, under this option, at the time of the participant's death, all pensio n benefit s cease. Because no pension benefits were payable at the time of Charlie Coleman’s death, the Reti rement Committee was not, and is not now, authorized to name a beneficiary from the list in Section 4.2. As such, the terms of Pl an Section 4.2 do not afford Coleman beneficiary status as contem p lat ed in § 1132. Coupled with the fact that Charlie Coleman did not name his son as his beneficiary, this conclusion fo recloses any statutory basis fo r Coleman’s assertion of standing.
Coleman , 992 F.2d at 533-34.
Under this precedent, Cobb is not a beneficiary. Gibbs never personally “designated [Cobb] or anyo ne el se as beneficiary of his Pl an assets.” Id. at 533. “[T]herefore, [Cobb’s] assertion of beneficiary status rests upon the language and terms contained in the Pl an.” Id.

In it s let ter brief, Central States admit s th at the plan does not define the term “beneficiary.” In her let ter br ief, Cobb also acknowledges th at the p lan does not specifically define the surviving spo use as the beneficiary. She argues, however, th at because the plan allo ws fo r benefit s to b e paid to surviving spouses of individu als 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 th at Cobb is o r may become entitled to a benefit does not necessarily prove the separate requirement th at she be “d e sig3 S e ction 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 b ecome entitled to a benefit thereunder” (emphasis added). “Therefore, based on the statut ory language, a “beneficiary” is not anyon e who claims to be one
. . . . [but] is one who has a re asonable or colorable claim to ben efits.” C rawford v. Roane , 53 F.3d 750, 754 (6th Cir. 1995).5

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

Assuming, arguendo , th at entitlement to benefit s under the JSO would count as a “designation,” Cobb’s claim fails fo r the same reason th at the son’s claim failed in Cole man —the pl an plainly provides that if the decedent received the lifet ime-only benefit , the spouse i s not entitled to a JSO benefi t af te r his death. The plan section on “ Pre-Reti rement and PostReti rement 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 Reti rement (com

mencing upon his 55th birthday), or th e surviving spouse of a Participant upon his death on or aft er his 55th birthday but before h is Reti rement, if the Participant was th en eligible fo r immediat e payment of a pension benefit in accordance with Article IV, §2, 3
or 4. Upon death of a Pensioner receiving this pension benefit , 50% thereo f becomes payable to his surviving spouse . . . .
That is, if t he plan participant dies after age 55 but before retirement, the spouse is eligible fo r a “p re-reti

rement” benefit if the pensioner was eligible to receive a pension at the time o f death. If the plan participant dies after retirement , the spouse is eligible fo r a “pos t -retirement ” benefit only if the Pensioner was receiving “t his” pe n sio n benefit , th at is, the reduced jo int and survivor benefit , not the Lifet ime Benefit

. Gibbs did not die before retirement, so only the post-reti

rement provision could apply here. But Cobb is not “entitled” to any benefit under it , because she does not sati sfy one of the eligibilit y criteria for it: Gibbs was not receiving “t his” benefit ( i.e. the jo int and survivor benefit ); he was receiving the lifet ime-only benefit

. 4
Therefore, as was the case with the son in C oleman , the terms of the plan do not aff ord Cobb beneficiary status. Under the plan, no pension benefit s are to be paid to surviving spouses of those who received benefit s under the unreduced Lifetime Benefit option. 5

Alt hough it may not be advi sable to interpret the terms of the plan at this jurisdictional stage , we are bound to do so by C oleman , which int erpreted the term “payable” under the plan to determ

ine whether the descendant and heir of the plan participant qualified as a beneficiary. Further, the definition of “beneficiary” directs the courts to lo ok to the terms of the plan at the jurisdictional stage to decide whether the term s “designate” a plaintiff as a beneficiary or whether they provide plaint iff wit h a colorable claim for benefits. 6

4 See also section 17 (“If you die while receiving a Joint and Survivor Pension Benefit, your spouse will receive one-half of your pension for the
re st 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 ma de his election to receive pension benefits as a “single life annuity.” The court held that it lacked jurisdictio n beca use 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
ma rried participant must consent to any beneficiary d esignation which does not name the spouse as a (continued...)6

We are aware th at in Sladek v. Bell System Management Pension Pla n , 880 F.2d 972, 976–78 (7th Cir. 1989), which was decided befo re Coleman , the court gave the term “beneficiary” a broader reading th an the “li teral construction” we provided in Coleman

. See id. at 976 (noting th at “it is not proper fo r us to give an unduly cramped reading to th ose provisions granting standing to certain classes o f persons under the Act, i. e., participants, beneficiaries, and fiduciaries.

. . . [T]his Court has consi stentl y given the definit io n of “fiduciary” found in § 1002(9) a ‘broad reading’”). S ladek relied inter alia on the “zone of int erest” analysis th at we rejected in Coleman

. Furthermore, Sladek is distinguishable because there the benefit plan it self designated plaint iff, the deceased participant’s spouse, as survivor annuitant, unless the participant elected to receive an unreduced lifetime-only benefit

. Alt hough in Sladek the participant elected to receive the lifet ime-only benefit , the surviving spouse argued th at the election was voidable because the participant was inco mpetent to make a decision because of Alzheimer’s Disease. In contrast, here, Gi bbs’s de facto election of the Lifet ime Benefit 7 is no t v oi dable even if he misrepres ented that hi s wife was deceased. 8 Because Gibbs retired in 1978, he
was entit led to select the Lifetime Benefit wit hout the consent of his spouse. 9 Therefore, his harmless misrepresentation does not render his election voidable. Cobb also argues in her letter brief th at al

ternatively, she has standing under the “but fo r” analysis in Christopher v. Mobil Oil Corp. , 950 F.2d 1209 (5th Cir. 1 9 92). We rejected th at argument in the analogous sit ua6 (...continued) sole beneficiary of the partic ipant’s death benefit”
as not providing a colorable claim to beneficiary status (and standing) to participant’s children, where t he spouse did not consent to a beneficiar y other than her to be named as a beneficiary).

7 The Plan documents explain that when an application for retirement benefits is ma de, an election form will be ma iled to those eligible for the JSO. Bec ause Gibbs declared under oath that his wife
was deceased, he was not elig ible for the JSO, which requires that the participant be ma rried—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 inappl icable; it applies only if an employee is entitled to the JSO. Therefore, by declaring that his wife was 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
ma de 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 JS O election. B oggs v. Boggs , 520 U.S. 833, 843 (1997). “It was not until August 23, 1984, to be effective January 1, 1985, that congress am

ended 29 U.S.C. § 1055 to require pension plans to of f er joint and survivor
annu ities 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 doe s not apply to Cobb, “because it did not take effect until January 1, 1985.” Id

.7

tion we faced in Coleman , where we explained th at Christopher clearly poses a different scenario th an [ sic ] the one we face today

. In Christopher , t his court restored ERISA standing to individuals who had standing but
were divested of th at standin g th rough the ERISA vio lat io ns of th eir employer. The employees alle ged that they had been wrongfully induced to reti re, and but fo r the ERISA vio lat io n, would h a ve continued their employment and plan participation, thereby retaining status to sue under ERISA. In the present case, C

oleman never had standing to sue under ERISA since he was nei ther a Plan participant nor a beneficiary. Thus, even if the Coleman’s allegations of ERISA improprieties were true, th ose vio lations could not be said to have divested him of his stat us to sue. As such, C hristopher does not help the appellant.
Coleman , 992 F.2d at 535.
The inst ant case is similar to Coleman in th at Cobb was never a plan participant or a beneficiary, because Gibbs never received the JSO post-reti rement, b ut only a Lifet ime Benefit , which did not entitle Cobb to benefits aft er G ibbs’ death. Because Gibbs could select the Lifetime Benefit without the consent of his wife, there is no pre-existing standing th at Cobb had and of which Gibbs’ misre p resentation divested her.

Nor was there a duty fo r 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 th at Gibbs was not entitled to receive, not th at the Central States “will” o r “must” recover such benefits. Also , as explained, Gibbs was entitled to receive the Lifet ime Benefit wit hout th e consent of his spouse, so Central States had no right to r e
cover the excess Lifet ime Benefit payments from him t o keep them in trust for his wife.
Last, there was no duty owed by Central States to Cobb as a “beneficiary” to insure th at Gibbs submit ted adequate docum ent ation of his marit al status. Before 1985 Gibbs had the right to elect the Lifetime Benefit without the consent of his spouse. Therefore, any documentati on burden Central States would have impo sed, in addition to the application signed under oath by Gibbs, would not have protected Cobb against the harm of which she com
plains—th at Gi

bbs did not intend her to rece ive a survivor benefit. Although Congress enacted legislat io n in 1984 to protect spouses like Cobb of this harm, unfortunately for her,
as we have explained, th at legislat io n does not apply retroactively to this case.

In summary, the district court lacked subject mat ter jurisdicti on. The j udgment, accordingly, is VACATED, and this mat ter is REMANDED wit h inst ruction to dismiss the com plaint fo r want of jurisdiction.