FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONNIE J. SIMON, 

Plaintiff-Appellant, No. 06-56368

v. D.C. No.

HARTFORD LIFE, INC., HARTFORD  CV-06-3340-GHK

LIFE AND ACCIDENT INSURANCE OPINION COMPANY,

Defendants-Appellees. 

Appeal from the United States District Court

for the Central District of California

George H. King, District Judge, Presiding

Argued and Submitted

July 18, 2008—Pasadena, California

Filed September 30, 2008

Before: Cynthia Holcomb Hall and Pamela Ann Rymer,

Circuit Judges, and Stephen M. McNamee,1 District Judge.

Opinion by Judge McNamee

1The Honorable Stephen M. McNamee, United States District Judge for

the District of Arizona, sitting by designation. 

13895
COUNSEL

Derrick F. Coleman, Daniel L. Alexander, Coleman Frost

LLP, Santa Monica, California, for the appellant. 

Michael B. Bernacchi, Keiko J. Kojima, Burke Williams &

Sorenson LLP, Los Angeles, California, for the appellee. 

Dan Marmalefsky, Benjamin J. Fox, Morrison & Foerster

LLP, Los Angeles, California, for the appellee. 

OPINION

MCNAMEE, District Judge: 

Acting pro se, Ronnie J. Simon (“Simon”) brought a claim

under the Employee Retirement Income Security Act of 1974,

29 U.S.C. § 1001 et seq. (“ERISA”) against Hartford Life Inc.

and Hartford Life and Accident (hereinafter referred to collectively as “Hartford”) alleging a single cause of action for

breach of fiduciary duty under 29 U.S.C. § 1109(a). The district court dismissed the complaint without prejudice. In its

dismissal, the court found that a pro se plaintiff, under 29

U.S.C. §1109(a)2, as authorized by §1132(a)(2)3, may not pur2

29 U.S.C. § 1109 provides: 

(a) Any person who is a fiduciary with respect to a plan who

breaches any of the responsibilities, obligations, or duties

imposed upon fiduciaries by this subchapter shall be personally

13898 SIMON v. HARTFORD LIFE, INC.
sue claims in a representative capacity on behalf of an ERISA

plan. The court concluded that these sections of ERISA, as

well as relevant binding authority, mandate that the party

seeking to bring forth claims under section § 1109(a) must be

represented by counsel and may not proceed with such claims

as a pro se litigant. The court declined to grant Simon leave

to amend his complaint on the grounds that no set of facts

exist which would enable Plaintiff to proceed with his claim

in his pro se capacity. We agree that, while Simon may assert

a cause of action for breach of fiduciary duty, he may not

prosecute his claims on behalf of the plan pro se. Accordingly, we affirm. 

I. FACTS AND PROCEEDINGS4

liable to make good to such plan any losses to the plan resulting

from each such breach, and to restore to such plan any profits

of such fiduciary which have been made through use of assets of

the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate,

including removal of such fiduciary. A fiduciary may also be

removed for a violation of section 1111 of this title. 

(Emphasis added). 

3

29 U.S.C. § 1132(a)(2) provides: 

(a) Persons empowered to bring a civil action 

A civil action may be brought— *** 

(2) by the Secretary, or by a participant, beneficiary or

fiduciary for appropriate relief under section 1109 of this

title; *** 

4Simon filed a previous ERISA lawsuit wherein he asserted claims on

his own behalf under 29 U.S.C. §§§ 1024(b)(4), 1132(a)(1)(B), and

1132(c). Simon sought individual recovery of plan benefits. A critical distinction between the previous lawsuit and the current lawsuit is that none

of the claims asserted in the previous lawsuit were alleged under 29

U.S.C. §§ 1109(a) and 1132(a)(2). With the assistance of a magistrate

judge, the parties were able to reach a settlement in the previous lawsuit,

and a dismissal with prejudice. 

SIMON v. HARTFORD LIFE, INC. 13899
Effective January 1, 2003, Hartford issued Group Policy

Numbers to NPTest, LLC.5 (NPTest), as well as the Plan

Sponsor and Plan Administer of the Group Long Term Disability Plan for Employees and the Group Life and Supplemental Life Plan for Employees of NPTest. Simon was

employed by NPTest as an information system senior manager and was a participant in the plans, both funded through

the group insurance policies issued by Hartford. 

Simon filed this complaint on May 31, 2006. In it, he

alleges that Hartford uses claims management policies, procedures and practices, including failure to maintain proper

reserves and improper fund transfers between its general and

ERISA special accounts that put its own interests ahead of the

plans’ interests. He seeks equitable relief ordering Hartford to

stop using those practices, or to stop serving as claims fiduciaries for ERISA plans that are funded by insurance policies

that it issued; and ordering Hartford to make good to the

ERISA plan any losses resulting from its breach of fiduciary

duty. 

Subsequently, Hartford filed a Motion to Dismiss Simon’s

Complaint under Fed. R. Civ. P. 12(b)(6) on the ground that

Simon had to be represented by licensed counsel to proceed

with a claim under § 1109(a). The district court agreed with

Hartford that a plaintiff acting pro se may not proceed with

a claim under 29 U.S.C. §§ 1109(a) and 1132(a)(2), and dismissed the action without prejudice to refiling should Simon

obtain counsel. 

Simon filed a motion for additional fact findings under

Fed.R.Civ.P. 52(b) and reconsideration under Fed.R.Civ.P.

59(e) and 60(b) on the theory that he is the plan’s only beneficiary. The district court denied the motion on August 31,

2007, concluding that, even assuming Simon is the plan’s

5NPTest, LLC was Simon’s employer at all times relevant to this lawsuit. 

13900 SIMON v. HARTFORD LIFE, INC.
only beneficiary, the plan remains an entity apart from the

person of the plaintiff. Therefore, acting pro se, Simon is not

entitled to bring a suit on the plan’s behalf. Simon timely

appealed. 

Thus, the issue before us is whether a pro se litigant may

proceed with a cause of action for breach of fiduciary duty

brought under 29 U.S.C. § 1109(a).

II. STANDARD OF REVIEW

This court conducts a de novo review of dismissals for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Hearns v.

Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). All allegations

of material fact shall be taken as true and construed in the

light most favorable to the nonmoving party. Cervantes v.

United States, 330 F.3d 1186, 1187 (9th Cir. 2003). 

III. DISCUSSION

The causes of action on which civil litigants may proceed

without counsel are limited by statute. More specifically, 28

U.S.C. § 1654 provides that in federal court, “parties may

plead and conduct their own cases personally or by counsel

as, by the rules of such courts, respectively, are permitted to

manage and conduct causes therein.” Significant is the language contained in the statute that limits the authorization of

civil litigants to “plead and conduct their own cases personally.” Id. (Emphasis added). 

Section 1132(a)(2) authorizes an ERISA plan participant

(as well as the Secretary of Labor, a beneficiary, or a fiduciary) to bring a civil action for violations of § 1109(a). This

case requires us to decide whether an ERISA plan participant,

proceeding pro se, may bring an action for breach of fiduciary

duty under § 1109(a). 

The general rule establishing the right of an individual to

represent oneself in all federal courts of the United States is

SIMON v. HARTFORD LIFE, INC. 13901
contained in 28 U.S.C. § 1654. Section 1654 is intended to

provide individuals with equal access to the courts by permitting individuals to represent themselves. 

[1] It is well established that the privilege to represent oneself pro se provided by § 1654 is personal to the litigant and

does not extend to other parties or entities. See McShane v.

United States, 366 F.2d 286, 288 (9th Cir. 1966)(citation

omitted). Consequently, in an action brought by a pro se litigant, the real party in interest must be the person who “by

substantive law has the right to be enforced.” C.E. Pope

Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir.

1987). It is clear under Mass. Mut. Life Ins. Co. v. Russell that

Simon is not the real party in interest as he brought claims

under 29 U.S.C. § 1109(a) on behalf of the Plan itself. 473

U.S. 134, 140 (1985). Simon concedes that the party whose

interests he is alleged to be representing is his employer benefit plan. As such, Simon is representing a person or entity

other than himself, which he may not do. Because Simon is

not the actual beneficial owner of the claims being asserted,

he cannot be viewed as a “party” conducting his “own case

personally” within the meaning of Section 1654. Pope, 818

F.2d at 697-698. 

[2] As the district court accurately pointed out, courts have

routinely adhered to the general rule prohibiting pro se plaintiffs from pursuing claims on behalf of others in a representative capacity.6

Id. (Trustee attempting to represent a trust pro

se was not, pursuant to 28 U.S.C. §1654, a “party” conducting

his “own case personally” as he was not the beneficial owner

of the claims being asserted); Stoner et al v. Santa Clara

County Office of Education, et al, 502 F.3d 1116, 1126-27

(9th Cir. 2007)(qui tam action brought “for the person and for

the United States government” cannot be pursued pro se);

6The caveat to this general rule, when statutory authorization exists permitting plaintiff to prosecute an action on behalf of others than himself,

is not implicated here. 

13902 SIMON v. HARTFORD LIFE, INC.
Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir.

1997) (a guardian or parent may not bring suit in federal court

on behalf of a minor without first retaining an attorney); In re

America West Airlines, 40 F.3d 1058, 1059 (9th Cir. 1994)

(per curiam) (holding that a non-attorney may not appear on

behalf of a partnership); United States v. High Country

Broadcasting Co., 3 F.3d 1244, 1245 (9th Cir. 1993) (per

curiam) (pro se litigant shareholder may not represent the corporation and was properly precluded from intervening and

representing himself where his “interests [were] identical to

the corporation’s”); United States of America ex rel. Mergent

Servs. v. Flaherty, __ F.3d__, 2008 WL 3840769 at *1 (2nd

Cir. Aug. 19, 2008) (holding that pro se litigants may not

prosecute False Claims qui tam actions without retaining

licensed counsel); Iannaccone v. Law, 142 F.3d 553, 559 (2nd

Cir. 1998) (administrator of estate may not appear pro se on

behalf of estate); Pridgen v. Andresen, 113 F.3d 391, 393

(2nd Cir. 1997) (executrix may not appear pro se on behalf of

estate); Phillips v. Tobin, 548 F.2d 408, 415 (2nd Cir. 1976)

(pro se litigant may not prosecute a shareholder’s derivative

action); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir.

1975) (pro se prisoner may not bring a class action on behalf

of fellow prisoners); Jones v. Corr. Med. Servs., 401 F.3d

950, 951-52 (8th Cir. 2005) (non-attorney administrator of

decedent’s estate may not proceed pro se on behalf of estate);

United States v. Onan, 190 F.2d 1, 6 (8th Cir. 1951) (pro se

litigant may not represent the United States in a qui tam

action despite the specific wording of the False Claims Act

permitting a suit to “be brought and carried on by any person”). 

Simon argues that the district court’s comparison of the

current case to other representative cases is flawed because he

has not filed a putative class action, does not seek to enforce

rights belonging to a corporation, did not sue on behalf of a

trust, and is not a qui tam relator. He also points out that the

plan itself cannot be a party. However, the Supreme Court

concluded in Russell that a plaintiff filing a claim under

SIMON v. HARTFORD LIFE, INC. 13903
§ 1109(a)(2) is doing so in a representative capacity and not

in an individual capacity. 473 U.S. at 140.

[3] In Russell, the Court found that recovery for a violation

of §1109(a) “inures to the benefit of the [ERISA] plan as a

whole.” Id. at 140. In reaching its conclusion, the Russell

Court explained, inter alia, that the inclusion in § 1132(a)(2)

of the Secretary of Labor among the four classes of plaintiffs

who may bring claims under § 1109(a) demonstrates “Congress intent that actions for breach of fiduciary duty be

brought in a representative capacity on behalf of the plan as

a whole.” Id. at 142. Accordingly, we agree with the district

court that, because Simon brought an ERISA claim pursuant

to 29 U.S.C. § 1109(a), he was acting in a representative

capacity by requesting relief on behalf of a legal entity other

than himself. 

[4] Simon’s next contention is that § 1132(a)(2) expressly

authorizes plan participants to bring claims for breach of fiduciary duty. Although correct in his assertion that § 1132(a)(2)

authorizes him to bring a § 1109(a) claim for breach of fiduciary duty, it does not expressly authorize Simon to do so in

a pro se capacity. 29 U.S.C. § 1132(a)(2). Consequently, 28

U.S.C. § 1654 applies, requiring the claim Simon brought for

violations of § 1109(a) to be prosecuted by a plaintiff represented by licensed counsel. 28 U.S.C. § 1654. 

Simon argues that the Supreme Court’s recent opinion in

Winkelman v. Parma City School District, ___U.S.___, 127

S.Ct. 1994, 2004 (2007), rendered after the district court’s

decision in this case, opened the door to pro se representation

of others by holding that parents who enjoy rights under the

Individuals with Disabilities Education Act (IDEA) are entitled to prosecute IDEA claims on their own behalf. Id. While

the Court’s holding is clear, Simon’s reliance on Winkelman

is misplaced. 

[5] Based on the statutory scheme, Winkelman held that

parents have their own, enforceable right under the IDEA to

13904 SIMON v. HARTFORD LIFE, INC.
the substantive adequacy of their child’s education; therefore,

parents may prosecute IDEA claims on their own behalf. See

Stoner v. Santa Clara County Office of Educ., 502 F.3d 1116,

1127 (9th Cir. 2007) (so noting in qui tam case). The Supreme

Court elaborated that parents enjoy enforceable rights at the

administrative stage, and it would be inconsistent with the

IDEA statutory scheme to prohibit them from continuing to

assert these rights in federal court. Id. at 2005. The Court also

explained, inter alia, that pursuant to the statutory structure of

IDEA, the rights of parents and their children are inextricably

intertwined. The same cannot be said of ERISA, where recovery for a violation of § 1109(a)(2) — unlike other sections —

“inures to the benefit of the [ERISA] plan as a whole” Russell, 473 U.S. at 140; United States ex rel. Mergent Servs. v.

Flaherty, __ F.3d__, 2008 WL 3840769, *5, n.2. (distinguishing qui tam situation from Winkelman as the parents in an

IDEA suit have rights distinct from those afforded their children). 

[6] Simon also contends that he has enforceable rights independent of his suit for the benefit of the plan, but fails to

explain what they may be. However, he cites Comer v. Micor,

Inc., 436 F.3d 1098 (9th Cir. 2006) and Landwehr v. DuPree,

72 F.3d 726 (9th Cir. 1995). In Comer, the participant in

employee pension and profit-sharing plans sued the investment manager, alleging breach of fiduciary duty under

ERISA. The question before us was “whether an ERISA-plan

participant can be compelled to arbitrate an ERISA claim

brought on behalf of the plan where the plan—but not the participant—had signed an arbitration agreement.” Comer, 436

F.3d 1098. Citing Landwehr,

7

 the Comer court explained “an

7

In Landwehr, we considered whether the statute of limitations for an

ERISA claim ran from when the individual plaintiff, rather than the plan,

became aware of the claim. Citing, inter alia, the “unfairness” that would

inevitably result from a rule that extinguished a plaintiff’s claim where the

plan became aware of the claim yet did nothing long before the individual

plaintiff had notice of it, we held that the statute of limitations ran from

the time when the individual plaintiff had actual knowledge of the claim.

Comer, 463 F.3d at 1103 (citing Landwehr, 72 F.3d at 732).

SIMON v. HARTFORD LIFE, INC. 13905
ERISA claimant also sues in a non-derivative capacity,” such

that the cause of action belongs to the individual plaintiff.

Comer, 463 F.3d at 1103 (emphasis in original) (citing Landwehr, 72 F.3d at 732.) However, this simply means that rights

which turn on the plaintiff’s knowledge or relationship to a

plan depend on the plaintiff, not the plan. There was no issue

in those cases about whether Comer or Landwehr could prosecute the action pro se. Nor is there any issue here that Simon

is the plaintiff whose own knowledge and status would determine matters relating to those issues. For example, in the

underlying case, when considering the statute of limitations,

the time at which Simon became aware of the alleged violations of fiduciary duty would dictate when the statute of limitations commenced and expired. However, that does not

foreclose the conclusion, nor overturn current authority holding, that an ERISA action brought pursuant to §§ 1109(a) and

1132(a)(2) is brought in a representative capacity and thus

requires plaintiff to be represented by counsel. Russell, 473

U.S. at 140. 

We recently addressed an issue similar to that in the case

sub judice in Stoner. 502 F.3d at 1127. Faced with the question of whether a pro se relator may prosecute a qui tam

action on behalf of the government in federal court, we held

that the relator’s capacity as a plaintiff was representative in

nature. Id. Consequently, we concluded that the plaintiff had

to secure legal counsel in order to proceed with the claims. Id.

“[B]ecause qui tam relators are not prosecuting their ‘own

case’ but also representing the United States and binding it to

any adverse judgment the relators obtain,” the Stoner court

refused to interpret 28 U.S.C. § 1654 as authorizing qui tam

relators to proceed pro se. Id. Because the general pro se provision, 28 U.S.C. § 1654, did not authorize Stoner to proceed

pro se on behalf of the government, Stoner was obligated to

identify an alternate source of authority granting him such a

privilege. Id. The court found that, while the False Claims

Act, 31 U.S.C.A. §§ 3729(a), 3730(b)(1), provides a relator

the right to bring the action, the statute did not authorize him

13906 SIMON v. HARTFORD LIFE, INC.
to pursue that violation in a pro se capacity. Stoner was

unable to point to any language in the statute that would

enable a relator to proceed with the action without a licensed

attorney. Likewise, in the matter before us, § 1132(a)(2)

authorizes a plan participant, such as Simon, to bring a cause

of action for a violation of § 1109(a). However, just as in

Stoner, there is no statutory language enabling Simon to file

a cause of action for a violation of § 1109(a) without the representation of licensed counsel. Therefore, just as we found in

Stoner, absent statutory authority stating otherwise, the general rule against permitting pro se litigants from representing

others is applicable in the current case. 

[7] Although we reach this conclusion as a matter of statutory construction, there also are significant policy considerations that would be implicated in the event a pro se litigant

were permitted to represent the interests of the plan. Other

participants would inevitably be affected by the judgment in

this case, thus by their representation by a pro se litigant.

Accountability is accordingly a serious concern. Any judgment attained by Simon could have a significant impact on the

ERISA plan itself, in addition to the binding effect it would

have on other participants and beneficiaries of the plan. See

Flaherty, 2008 WL 3840769 at *4. This underscores our

reluctance to approve the prosecution of an action of this sort

pro se absent specific Congressional authorization. As Stoner

explained: “Given the fact that Congress did not expressly

authorize a qui tam relator to proceed pro se when acting on

behalf of the United States, it ‘must have had in mind that

such a suit would be carried on in accordance with the established procedure which requires that only one licensed to

practice law may conduct proceedings in court for anyone

other than himself.’ ” 502 F.3d at 1127 (quoting United States

v. Onan, 190 F.2d 1, 6 (8th Cir. 1951)). 

In reviewing the ERISA legislation, it is clear that the statute authorizes a suit for individual redress; however, it does

not authorize representative appearance by a pro se plaintiff

SIMON v. HARTFORD LIFE, INC. 13907
for claims brought under § 1109(a). This follows from Russell

and Stoner. 

We therefore agree with the district court’s conclusion that

Simon is not entitled to proceed with his § 1109(a) claim in

a pro se capacity. 

AFFIRMED.

13908 SIMON v. HARTFORD LIFE, INC.