2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-30-2003

Miller v. Rite Aid Corp

Precedential or Non-Precedential: Precedential

Docket No. 02-2464

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"Miller v. Rite Aid Corp" (2003). 2003 Decisions. Paper 392.

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PRECEDENTIAL

Filed June 30, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-2464

ANTHONY MILLER,

Appellant

v.

RITE AID CORPORATION

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 00-cv-4938)

District Judge: Hon. William H. Yohn, Jr.

Argued: April 3, 2003

Before: MCKEE, SMITH, Circuit Judges, and

HOCHBERG, District Judge.*

(Filed June 30, 2003)

Gerald S. Berkowitz, Esq. (argued)

625 B Swedesford Road

Swedesford Corporate Center

Malvern, PA 19355-1530

* Honorable Faith Hochberg, United States District Court for the District

of New Jersey, sitting by designation. 
Robert A. Klein, Esq.

Conrad, O’Brien, Gellman & Rohn

1515 Market Street, 16th Fl.

Philadelphia, PA 19102-9620

Attorneys for Appellant

A. James Johnston, Esq.

Jonathan B. Spraque, Esq. (argued)

Post & Schell, P.C.

1800 J.F.K. Blvd., 19th Fl.

Philadelphia, PA 19103

Attorneys for Appellee

OPINION OF THE COURT

SMITH, Circuit Judge.

Anthony Miller, formerly an executive for the Rite Aid

Corporation (“Rite Aid”), appeals the District Court’s

decision, after a non-jury trial, that Miller lacked standing

to bring a claim against Rite Aid pursuant to the Employee

Retirement Income Security Act of 1974 (“ERISA”), 29

U.S.C. § 1001 et seq. Because Miller was never laid off, the

District Court found that Miller: (1) is not, and never was,

eligible to receive the severance benefits he sought through

his civil suit; and (2) is no longer employed by Rite Aid and

therefore has no prospect of becoming eligible to receive

those severance benefits. Accordingly, the District Court

concluded that Miller was not a “participant” authorized to

bring a civil action pursuant to § 502(a)(1) of ERISA. We

agree, in substance, with the District Court, but will

remand the matter to the District Court to enter an order

consistent with Miller’s lack of standing.

I.

In September of 1999, the Rite Aid Corporation began

experiencing financial difficulties. As a result, Rite Aid

began to lay off employees at its corporate headquarters. In

the reshuffling of personnel which accompanied these lay

offs, Miller, then a senior executive at Rite Aid, became the

2
Corporate Director of Store Planning and began reporting

directly to Mark White, Rite Aid’s Vice-President of Store

Development. Later that fall, a new management team

decided to further restructure Rite Aid’s operations. Thus,

in March of 2000, White, then Miller’s boss and friend,

submitted to Rite Aid’s senior management a proposal to

restructure his department. As part of the restructuring,

the plan included a list of additional employees that White

proposed to lay off. The plan provided that laid off

employees would receive a severance package. That initial

plan did not include Miller. 

Later that March, Miller discussed with White the

possibility of being added to the list of employees whose

severances White would be proposing to management.

Miller had begun negotiations to join a company in Arizona

called U.S. GlobalNet, an internet start-up which was

developing certain software products. Pursuant to Miller’s

request, White added Miller to the list of employees

proposed to be severed. Senior Rite Aid management gave

final approval to White’s restructuring plan in late May of

2000. As part of that plan, White had complete discretion

“as to the timing and order of the lay off of each individual

whose severance was approved by senior Rite Aid

management.” 

On June 1, 2000, Miller and GlobalNet orally agreed to

employment terms, later entering into a written agreement

at the end of that month. On June 6, White told Miller that

management had agreed to include Miller in the

restructuring plan and informed coworkers that Miller

would be leaving. White did not, however, provide Miller

with any official severance date. White did begin to

otherwise implement the restructuring plan, and some, but

not all, of the employees listed in the plan were, in fact, laid

off that first week in June. 

The next day, June 7, 2000, Larry Haller, the Director of

Retail Facilities, who reported directly to Miller, tendered

his written resignation effective June 23, 2000. Although

White and Miller expected this resignation eventually, it

occurred earlier than both anticipated. Thus, in response to

the short-staffing that Haller’s resignation caused White in

Miller’s area, White had to suspend plans to sever Miller.

3
When White explained to Miller what had happened, Miller

“volunteered” to stay on at Rite Aid to manage Rite Aid’s

facilities department during the restructuring period. White

did not provide Miller with any affirmative date or estimate

as to when he might be severed. Nonetheless, Miller

contacted his new prospective employer, GlobalNet, and

arranged to start with that company on July 31, 2000. 

From June 9, 2000 through July 2, 2000, Miller and

White exchanged e-mails regarding Miller’s departure and

his entitlement to severance. On June 14, 2000, in

response to an e-mail from Miller, White told Miller that he

would receive his severance package when he was laid off.

However, because of staffing shortages, White explained

that he could neither afford to lay Miller off at that time nor

commit to an affirmative date as to when he could let Miller

go. White wrote, “As soon as I can let you go, I will. And

you will get a handsome package to take with you

(assuming you stay around long enough to get it of

course)!” 

On June 26, 2000, Miller asserted to White in an e-mail

that his “final date is July 28th and my 9 months of

severance needs to start from there.” On July 2, White

responded to Miller that he could not guarantee Miller a

specific severance date, nor would he agree to a severance

date just because Miller had unilaterally accepted another

job. White wrote:

The idea that being laid off and getting a severance

package is somehow a “right” that you have is

preposterous. I have been telling you all along that

your employment is still active and that I don’t know

when that situation will change. If you choose to take

your family somewhere other than Harrisburg, it is

your choice. If you leave on July 28, it will be because

you resigned not because you were being laid off. You

will leave without a severance package.

On August 7, 2000, Miller, still working for Rite Aid, sent

White an e-mail asking, “Will I get a package if I stay until

the end of August — whether there is a replacement or

not?” White responded that Rite Aid only gives severance

packages when an employee is laid off. In Miller’s case,

4
White stated that it was not only unnecessary to lay him

off, it was “virtually impossible” given the staffing shortages

in the department. 

Finally, on August 18, 2000, Miller resigned from Rite

Aid, effective immediately. The District Court found that

“[a]t the time Miller resigned, he was aware that his

severance benefits would not vest until his employment at

Rite Aid was severed.” The District Court found that “Rite

Aid never severed Miller’s employment,” further noting that

“[t]here are employees listed on the severance list approved

in May 2000 that continue to be employed by Rite Aid.” 

On September 29, 2000, Miller filed a two-count

complaint against Rite Aid in the United States District

Court for the Eastern District of Pennsylvania. Miller

asserted claims to the severance benefits he contends Rite

Aid promised him based on state law breach of contract

and wrongful denial of benefits pursuant to ERISA

§ 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B). In seeking

summary judgment, Rite Aid admitted that its severance

plan was a welfare benefit plan subject to the provisions of

ERISA. Therefore, Rite Aid contended that ERISA would

preempt Miller’s contract claim. Nonetheless, Rite Aid also

argued that because Miller was not an ERISA “participant,”

he had no standing to bring an ERISA claim. In opposition

to summary judgment, Miller contended that he was an

ERISA “participant,” and therefore had standing to bring

that claim; however, Miller agreed that his state law claim

was preempted. On that basis, the District Court granted

summary judgment to Rite Aid on the state law contract

claim, but held the ERISA claim over for trial. 

After a non-jury trial on the “merits” of the ERISA claim,

the District Court concluded that Miller was not a

“participant,” as defined by 29 U.S.C. § 1002(7); therefore,

“Miller lacks standing to bring an ERISA action for unpaid

benefits under the severance plan.” The District Court

issued an Order of Judgment in favor of Rite Aid. Miller

subsequently filed a notice of appeal with respect to “the

final order entered in favor of the Defendant on May 21,

2002,” but, notwithstanding the District Court’s judgment

against him on the ERISA claim, did not appeal the earlier

grant of summary judgment on his state law contract claim.

5
The District Court asserted jurisdiction over this case

pursuant to 28 U.S.C. §§ 1331, 1332(a)(1), and 1367. This

Court has jurisdiction over the present appeal pursuant to

28 U.S.C. § 1291. When a district court conducts a nonjury trial, we “review the District Court’s findings of facts

for clear error. Application of legal precepts to historical

facts receive plenary review.” In re Unisys Sav. Plan Litig.,

173 F.3d 145, 149 (3d Cir. 1999). However, “[i]t is not for

us to pass upon the numerous factual and legal issues as

though we were trying the cases [d]e novo. ‘It is not enough

to reverse the District Court that we might have appraised

the facts somewhat differently. If there is warrant for the

action of the District Court, our task on review is at an

end.’ ” Matter of Penn Cent. Transp. Co., 596 F.2d 1127,

1140 (3d Cir. 1979) (quoting Group of Inst’l Inv. v. Chicago,

M., St. P. & P. R. Co., 318 U.S. 523, 564 (1943)). We have

plenary review over questions of standing. AT&T

Communications of New Jersey, Inc. v. Verizon New Jersey,

Inc., 270 F.3d 162, 168 (3d Cir. 2001). 

II.

In granting judgment for Rite Aid, the District Court

concluded that Miller lacked “standing” to bring an ERISA

claim because he did not meet the definition of an ERISA

“participant,” as defined by 29 U.S.C. § 1002(7). At oral

argument, the parties conceded that this case presents no

issue of traditional Article III standing, U.S. Const. art. III,

§ 2 (“Cases” and “Controversies”), a contention with which

we agree. However, the “question of standing ‘involves both

constitutional limitations on federal-court jurisdiction and

prudential limitations on its exercise.’ ” Bennett v. Spear,

520 U.S. 154, 162 (1997) (quoting Warth v. Seldin, 422 U.S.

490, 498 (1975)). These “judicially self-imposed limits on

the exercise of federal jurisdiction are founded in concern

about the proper — and properly limited — role of the

courts in democratic society; but unlike their constitutional

counterparts, they can be modified or abrogated by

Congress.” Id. at 162 (quotations and citations omitted).1

1. Prudential considerations of standing— i.e., whether “a plaintiff ’s

grievance . . . arguably fall[s] within the zone of interests protected or

6
“The first inquiry, then, is whether Congress expressly

negated [the] prudential standing doctrine in passing the

[statute at issue]. In determining whether Congress

intended to abrogate the background presumption that

prudential standing doctrine applies, we consider the

statutory text, its structure, and its legislative history.”

Conte Bros. Auto., Inc. v. Quaker State-Slick 50, Inc., 165

F.3d 221, 227 (3d Cir. 1998); see also Proctor & Gamble Co.

v. Amway Corp., 242 F.3d 539, 560 (5th Cir. 2001) (citing

Bennet, 520 U.S. at 163). 

Far from abrogating the prudential standing doctrine, in

past decisions, we have stated that “ERISA § 502(a)(1), 29

U.S.C. § 1132(a)(1), restricts civil actions against a plan

administrator to actions brought by a ‘participant or

beneficiary.’ The requirement that the plaintiff be a plan

participant is both a standing and subject matter

jurisdictional requirement.” Saporito v. Combustion

Engineering Inc., 843 F.2d 666, 670-71 (3d Cir. 1988)

(emphasis added), vacated by Combustion Engineering, Inc.

v. Saporito, 489 U.S. 1049 (1989) (“. . . remanded . . . for

further consideration in light of Firestone Tire and Rubber

Company v. Bruch, 489 U.S. 101 . . . (1989).”); see also

Becker v. Mack Trucks, Inc., 281 F.3d 372, 377-79 (3d Cir.

2002) (addressing standing before “turn[ing] to the merits of

their claims”); Shawley v. Bethlehem Steel Corp., 989 F.2d

652, 655 n.5 (3d Cir. 1993) (“Because we hold that

plaintiffs have no standing to sue under ERISA, we do not

address the merits of plaintiffs’ discrimination claim under

regulated by the statutory provision or constitutional guarantee invoked

in the suit,” Bennett, 520 U.S. at 162 — were first applied “to suits

under the APA, but later cases have applied it also in suits not involving

review of federal administrative action.” Id. at 163. “[T]he breadth of the

zone of interests varies according to the provisions of law at issue, so

that what comes within the zone of interests of a statute for purposes of

obtaining judicial review of administrative action under the ‘generous

review provisions’ of the APA may not do so for other purposes.” Id.

(quoting Clarke v. Sec. Indus. Assoc., 479 U.S. 388, 400 n.16 (1987)

(internal quotation omitted)). Rather, “Congress legislates against the

background of our prudential standing doctrine, which applies unless it

is expressly negated.” Id.

7
§ 510.”).2

 Thus, we have construed the language of

§ 502(a)(1) to provide standing for a civil action only to “a

participant or beneficiary.” 29 U.S.C. § 1132(a)(1). In that

sense, the “zone of interest” inquiry in the prudential

standing analysis for § 502(a)(1) claims is inextricably tied

to the question of whether a plaintiff can meet the

definitions of either a “participant” or “beneficiary.” 29

U.S.C. § 1002; see also Christopher v. Mobil Oil Corp., 950

F.2d 1209, 1222 (5th Cir. 1992) (“. . . the standing question

and the merits of an employee’s claim are unavoidably

intertwined to some degree”); Vartanian v. Monsanto Co., 14

F.3d 697, 701 (1st Cir. 1994) (“In determining who is a

‘participant,’ for purposes of standing, the definition found

in 29 U.S.C. § 1002(7) must be read in the context of

traditional concepts of standing . . . . The ultimate question

is whether the plaintiff is within the zone of interests ERISA

was intended to protect.”) (emphasis original) (original

bracketing deleted). 

A.

Miller does not dispute this premise. However, Miller

contends that because he was a “participant,” he

necessarily is a “participant” and, therefore, has standing to

pursue his claim. The statutory language of ERISA does not

support Miller’s argument. 

“The term ‘participant’ means any employee or former

employee of an employer . . . who is or may become eligible

to receive a benefit of any type from an employee benefit

plan . . .” 29 U.S.C. § 1002(7). Miller argues that he was a

2. Most other Circuits have also held that, as with Article III standing,

the question of whether a plaintiff has standing to sue under § 502 is a

jurisdictional question that must be addressed prior to the merits. See,

e.g., Hobbs v. Blue Cross Blue Shield of Alabama, 276 F.3d 1236, 1240-

41 (11th Cir. 2001); Ward v. Alternative Health Delivery Systems, Inc.,

261 F.3d 624, 626 (6th Cir. 2001); Coyne & Delany Co. v. Selman, 98

F.3d 1457, 1464 (4th Cir. 1996); Harris v. Provident Life & Accident Ins.

Co., 26 F.3d 930, 933 (9th Cir. 1994); Coleman v. Champion Intern.

Corp./Champion Forest Products, 992 F.2d 530, 533 (5th Cir. 1993);

Alexander v. Anheuser-Busch Companies, Inc., 990 F.2d 536, 538 (10th

Cir. 1993). 

8
participant in the Rite Aid severance plan because: (1) he

was on the list of employees to be laid off; (2) his severance

benefit had been approved by those with authority to

design the plan; (3) the plan administrator (White) had been

instructed to implement the plan; (4) White began to

implement the plan; and (5) Miller’s lay off was announced.

However, Miller’s argument entirely misses a critical point:

the District Court found that Miller had to be laid off to

become “eligible” for severance under Rite Aid’s plan. Miller

was never laid off. 

Miller may be correct that for a fleeting period of time he

met ERISA’s definition of participant; however, the District

Court found that he did not meet that definition after he

voluntarily left Rite Aid before the vesting of his benefits.3

Once Miller’s severance was approved by management, but

before he quit, Miller technically might have been an

“employee . . . of an employer . . . who . . . may become

eligible to receive a benefit,” specifically severance. 29

U.S.C. § 1002(7) (emphasis added).4 However, Miller never

actually became eligible; the District Court found that the

plan required him to be “severed” by the company to be

eligible. Instead, Miller resigned. Once Miller resigned, he

then became — and remains to this day — a “former

employee of an employer . . . who” neither “is or may

become eligible to receive a benefit.” See 29 U.S.C. § 1002(7)

(emphasis added). Miller is not presently “eligible for

benefits.” The District Court found that “Rite Aid only

provides severance benefits to those who are laid off.” Miller

also has no prospect of becoming eligible; he no longer

works for Rite Aid, and does not allege that Rite Aid may

3. The District Court found that “Steven Chesney, Rite Aid’s [D]irector of

Corporate Human Relations, is responsible for administering lay offs at

Rite Aid. Chesney Test. Only when Chesney was told of an employee’s

release date, did Chesney prepare a severance and release agreement for

the employee. Id. Because Miller was never given a date certain for his

release, Chesney did not prepare a severance package for Miller.” App.

011. “At the time Miller resigned, he was aware that his severance

benefits would not vest until his employment at Rite Aid was severed.”

App. 010. 

4. The District Court made no specific findings on this point, nor did it

need to. 

9
hire him back. What Miller is now is a “former employee of

an employer . . . who” might have “become eligible to receive

a benefit.” Cf. 29 U.S.C. § 1002(7). But § 1002(7) does not

define a former employee who “might have” become eligible

for benefits as a participant under ERISA. See id.

This reading of the definition of “participant” is consistent

with both the leading Supreme Court decision and our own

precedent in this area. 

In our view, the term “participant” is naturally read to

mean either “employees in, or reasonably expected to

be in, currently covered employment,” . . . or former

employees who “have . . . a reasonable expectation of

returning to covered employment” or have “a colorable

claim” to vested benefits. . . . A former employee who

has neither a reasonable expectation of returning to

covered employment nor a colorable claim to vested

benefits, however, simply does not fit within the

[phrase] “may become eligible.” 

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117-18

(1989) (emphasis added) (citations omitted). Thus, in

Shawley v. Bethlehem Steel Corp., 989 F.2d 652 (3d Cir.

1993), we stated that whether former employees are

“participants” depends on whether “they have either a

colorable claim to vested benefits in the Plan or a

reasonable expectation of returning to employment at” the

company. Id. at 656 (emphasis added). Where the benefits

of those former employees had not vested prior to their

leaving the company, and the employees had no recall

rights to be rehired, we held that those plaintiffs were not

“participants” and affirmed the district court’s dismissal of

the ERISA claim for lack of standing. Id. at 657. Similarly,

the District Court found that Miller’s severance benefits

never vested. 

Reading Firestone Tire & Rubber, Shawley and other

cases interpreting the definition of “participant” to require

only a “colorable” claim to vested benefits, Miller asserts

that his claim was “colorable,” i.e., non-frivolous; thus, he

was a participant with standing to bring his claim. Miller

misapprehends both Firestone Tire & Rubber and the

doctrine of standing. We grant to Miller that his claim was

10
not frivolous. In fact, his claim was obviously substantial

enough to require the District Judge to conduct a non-jury

trial so as to resolve certain issues. Yet, therein lies the flaw

in Miller’s argument. 

The question of whether a plaintiff is a “participant,” and

thereby has standing to bring a §502(a)(1) claim, is most

often addressed after the filing of motions to dismiss or for

summary judgment. See, e.g., Firestone Tire & Rubber, 489

U.S. at 107; Becker, 281 F.3d at 375; Shawley, 989 F.2d at

655; Saporito, 843 F.2d at 667; Sallee v. Rexnord Corp., 985

F.2d 927 (7th Cir. 1993); Molnar v. Wibbelt, 789 F.2d 244

(3d Cir. 1986). However, the written terms of the Rite Aid

severance policy at issue left ambiguous the requirements

for an employee to vest in and become eligible for

severance. Conflicting parol evidence at summary judgment

evidently required a trial to settle that question.

Nonetheless, just because a plaintiff is permitted to proceed

to trial on an ERISA claim does not compel the conclusion

that he has standing. Standing is “not [a] mere pleading

requirement[,] but rather an indispensable part of the

plaintiff ’s case, each element [of which] must be supported

in the same way as any other matter on which the plaintiff

bears the burden of proof, i.e., with the manner and degree

of evidence required at the successive stages of the

litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

(1992). “The party invoking federal jurisdiction bears the

burden of establishing these elements . . . [a]nd at the final

stage, those facts (if controverted) must be ‘supported

adequately by the evidence adduced at trial.’ ” Id. (quoting

Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 115

n.31 (1979)). 

Once Miller’s purported claim was brought to trial, it was

no longer simply a question of whether Miller could make

out a non-frivolous or “colorable claim to vested benefits.”

Firestone Tire & Rubber, 489 U.S. at 118 (emphasis added);

Shawley, 989 F.2d at 656. Miller had to prove “by the

evidence adduced at trial” that he actually met the

definition of participant. See Lujan, 504 U.S. at 561. The

“colorable” language in the decisions Miller cites is not part

of a generic legal test for meeting the definition of

“participant,” but is reflective of the minimal evidentiary

11
production demanded of a plaintiff to avoid summary

judgment.5 See Christopher, 950 F.2d at 1221 (“Firestone

[cannot] be read to reduce the standing question to a

straightforward formula applicable in all cases.”). While we

have noted that the “zone of interest” inquiry for § 502(a)(1)

claims is tied to whether a plaintiff meets the definition of

a “participant or beneficiary,” at trial, these two inquiries

are nearly coextensive.6 As in Shawley, without having

vested in the benefits at issue, “plaintiffs could show no

likelihood of success in a suit for benefits.” 989 F.2d at

657; see also Becker, 281 F.3d at 379 (“a legally

unenforceable claim to contingent benefits cannot establish

a colorable claim to vested benefits under Firestone.”)

(emphasis in original). Thus, Miller’s status as a

“participant,” and thereby his standing to properly assert

his purported ERISA claim, depends upon whether the

District Court properly found that Miller did not become

eligible for severance benefits. 

B.

While Miller has claimed to be solely concerned “with the

District Court’s Conclusions of Law concerning Miller’s

‘participant’ status,” Miller has implicitly disagreed with the

District Court’s factual finding that Rite Aid’s severance

plan required Miller to actually be laid off before Miller

would be “eligible to receive [that] benefit.” See 29 U.S.C.

§ 1002(7). If Miller is correct, and Miller was vested in his

severance benefits when, as he contends, White announced

Rite Aid’s plans to sever him, Miller would meet the

definition of “participant” in § 1002(7) and be entitled to

pursue a § 502(a)(1) claim. However, after a non-jury trial,

we “review the District Court’s findings of facts for clear

5. Requiring a plaintiff to establish a colorable claim to vested benefits at

the motion to dismiss or summary judgment stage is a standard

commensurate with “the burden of proof, i.e., with the manner and

degree of evidence required, at [those] successive stages of the litigation.”

See Lujan, 504 U.S. at 561. 

6. The required elements for traditional Article III standing are obviously

separate from prudential standing requirements. Compare Bennett v.

Spear, 520 U.S. 154, 162 (1997), with Lujan, 504 U.S. at 560-61. 

12
error.” In re Unisys Sav. Plan Litig., 173 F.3d 145, 149 (3d

Cir. 1999). 

Based on testimony and exhibits at trial, the District

Court found that “Rite Aid employees who resign before Rite

Aid severs their employment do not receive any severance

benefits. . . . Miller voluntarily resigned,” and “Rite Aid

never severed Miller’s employment.” Thus, the District

Court found that Miller was not “an employee entitled to

benefits nor is he able to establish that he may become

eligible under the severance plan.” Applying these factual

findings, the District Court read 29 U.S.C. § 1002(7) to

draw an appropriate legal conclusion: “Miller is not a

qualified ERISA participant.” 

Miller premises many of his arguments on factual

findings that were never made by the District Court and

which the record does not support. Specifically, Miller’s

brief claims he “was included in the Rite Aid severance plan

and had a future right to benefits.” Miller also asserts, “It

was never contemplated in the context of the unwritten Rite

Aid severance plan, that Miller had to be laid off to attain

participant status.” Despite these assertions, the record

indicates otherwise. 

The District Court never found that Miller “had a future

right to benefits.” To the contrary, the District Court

explicitly found that Miller was not “entitled to benefits,”

and never was, because “Rite Aid only provides severance

benefits to those who are laid off.” Certainly, the possibility

of future benefits existed, but Miller never obtained a vested

“right” to those benefits.7 Furthermore, Miller’s assertion

that “[i]t was never contemplated . . . that Miller had to be

laid off to attain participant status” is a legal conclusion

premised on factual issues resolved against him: whether

he was, in fact, “eligible to receive a benefit.” See 29 U.S.C.

§ 1002(7). In his brief, Miller essentially admits that he was

never “eligible” to receive severance benefits. See, e.g.,

Appellant’s Br. at 14 (“Miller’s resignation prior to his lay

7. ERISA defines “vested liabilities” as those owed to “participants and

their beneficiaries which are nonforfeitable.” 29 U.S.C. § 1002(25). “The

term ‘nonforfeitable’ ” means the benefit “is unconditional, and which is

legally enforceable against the plan.” Id. § 1002(19) (emphasis added). 

13
off may be important to the question of whether he was

eligible for benefits under the plan . . .” ) (emphasis added);

id. at 15-16 (“When Miller’s lay off and severance was

approved . . . he would have met the eligibility

requirements of the severance plan in the future, i.e., upon

his layoff. . .”) (emphasis added); Reply Br. at 3 (“Miller had

to be laid off to qualify for his severance benefit . . .”)

(emphasis added). Thus, his claim that he was a

“participant” is without foundation. 

Miller has failed to point to any evidence in the record

that indicates that the District Court’s findings regarding

the terms of the severance plan are “clear error.” In re

Unisys Sav. Plan Litig., 173 F.3d at 149. In fact, Miller’s

brief essentially acknowledges that the District Court’s

most critical factual findings were correct. Applying those

facts to the definition of “participant” in § 1002(7), we

conclude that Miller does not meet that definition. 

III.

Miller did not stay at Rite Aid long enough to be laid off

and thereby become eligible for severance benefits. Because

he voluntarily resigned, there is no possibility of his

becoming eligible for severance in the future. ERISA does

not define a “former employee of an employer . . . who”

might have “become eligible to receive a benefit” as a

“participant” entitled to sue. Therefore, having failed to

establish that he meets the definition of an ERISA

“participant” in 29 U.S.C. § 1002(7), Miller had no standing

to bring a claim against Rite Aid pursuant to ERISA, and

the District Court was without jurisdiction to rule on

Miller’s purported claim.8 Nonetheless, rather than dismiss

Miller’s claim for want of jurisdiction, the District Court

entered judgment in favor of Rite Aid on that claim. We

therefore vacate that Order and remand this case to the

8. For this reason, we do not reach the issue of whether Miller’s

supervisor, White, was properly acting as an “employer,” and not a

“fiduciary,” when he declined to fire Miller. 

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District Court with instructions to dismiss Miller’s ERISA

claim.9

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

9. On remand, the District Court is free to consider the implications, if

any, of this decision on any issues that may remain related to the state

law claim. 

15