No. 14-1168

In the Supreme Court of the United States

ROGER L. SMITH, PETITIONER

v.

AEGON COMPANIES PENSION PLAN

ON PETITION FOR A WRIT OF CERTIORARI 

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

M. PATRICIA SMITH

Solicitor of Labor

G. WILLIAM SCOTT

Associate Solicitor

ELIZABETH HOPKINS

Counsel for Appellate and 

Special Litigation

STACEY E. ELIAS

Attorney

Department of Labor

Washington, D.C. 20210

DONALD B. VERRILLI, JR.

Solicitor General

Counsel of Record

EDWIN S. KNEEDLER

Deputy Solicitor General

SCOTT A.C. MEISLER

Assistant to the Solicitor 

General

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217
(I)

QUESTION PRESENTED

Whether petitioner’s civil action for pension benefits under the Employee Retirement Income Security 

Act of 1974 (ERISA), 29 U.S.C. 1132(a)(1)(B), was 

properly dismissed based on a venue-selection clause 

in the ERISA plan.
(III) 

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statement ...................................................................................... 1

Discussion...................................................................................... 7

Conclusion ................................................................................... 23

TABLE OF AUTHORITIES

Cases:

Aaacon Auto Transp., Inc. v. State Farm Mut. Auto. 

Ins. Co., 537 F.2d 648 (2d Cir. 1976), cert. denied, 

429 U.S. 1042 (1977)............................................................ 18

Aluminum Prods. Distribs., Inc. v. Aaacon Auto 

Transp., Inc., 549 F.2d 1381 (10th Cir. 1977) .................. 18

Atlantic Marine Constr. Co. v. United States Dist. 

Court, 134 S. Ct. 568 (2013) ............................... 3, 13, 21, 22

Baltimore & Ohio R.R. v. Kepner, 314 U.S. 44 

(1941).................................................................................... 10

Boyd v. Grand Trunk W. R.R., 338 U.S. 263 

(1949).................................................................. 12, 13, 15, 16

Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 

(1991)................................................................................ 5, 12

Claudio-De León v. Sistema Universitario Ana G. 

Méndez, 775 F.3d 41 (1st Cir. 2014).................................. 21

CompuCredit Corp. v. Greenwood, 132 S. Ct. 665 

(2012).................................................................................... 14

Conkright v. Frommert, 559 U.S. 506 (2010)...................... 15

Cortez Byrd Chips, Inc. v. Bill Harbert Constr. Co., 

529 U.S. 193 (2000).............................................................. 18

Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73 

(1995).................................................................................... 12

Duncan v. Thompson, 315 U.S. 1 (1942)............................. 16

Egelhoff v. Egelhoff, 532 U.S. 141 (2001)............................. 14
IV

Cases—Continued: Page

Fort Transfer Co. v. Central States, Se. & Sw. Areas 

Pension Fund, No. 05-1236, 2006 WL 1582451 

(C.D. Ill. June 6, 2006)........................................................ 22

Gulf Life Ins. Co. v. Arnold, 809 F.2d 1520 

(11th Cir. 1987).................................................................... 19

Heimeshoff v. Hartford Life & Accident Ins. Co., 

134 S. Ct. 604 (2013) ............................................................. 9

Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105 

(2008).................................................................................. 1, 2

Mozingo v. Trend Personal Servs., 504 Fed. Appx. 

753 (10th Cir. 2012)............................................................. 21

Scaglione v. Pepsi-Cola Metro. Botteling Co., 

884 F. Supp. 2d 642 (N.D Ohio 2012)................................ 22

Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974) ............... 6

Shearson/American Express Inc. v. McMahon, 

482 U.S. 220 (1987).............................................................. 14

Simon v. Pfizer, Inc., 398 F.3d 765 (6th Cir. 2005)............ 13

Smallwood v. Allied Van Lines, Inc., 660 F.3d 1115

(9th Cir. 2011)................................................................ 18, 19

The Bremen v. Zapata Off-Shore Co., 407 U.S. 1

(1972).................................................................... 7, 12, 13, 15

Transamerica Occidental Life Ins. Co. v. 

DiGregorio, 811 F.2d 1249 (9th Cir. 1987)....................... 19

United States v. National City Lines, Inc.:

334 U.S. 573 (1948)........................................ 10, 15, 16, 17

337 U.S. 78 (1949)............................................................ 17

U.S. Airways, Inc. v. McCutchen, 133 S. Ct. 1537 

(2013)...................................................................................... 8

Varity Corp. v. Howe, 516 U.S. 489 (1996)............................ 2

Varsic v. United States Dist. Court, 607 F.2d 245 

(9th Cir. 1979)...................................................................... 22
V

Cases—Continued: Page

Vimar Seguros y Reaseguros, S.A. v. M/V Sky 

Reefer, 515 U.S. 528 (1995) ................................................ 19

Volkswagen Interamericana, S.A. v. Rohlsen, 

360 F.2d 437 (1st Cir.), cert. denied, 385 U.S. 919 

(1966).............................................................................. 17, 18

Statutes, regulations and rules:

Automobile Dealers’ Day in Court Act, 15 U.S.C. 

1221 et seq............................................................................ 17

Carmack Amendment to the Hepburn Act, ch. 3591, 

§ 7, 34 Stat. 595 ................................................................... 18

Clayton Act, 15 U.S.C. 12 et seq........................................... 16

15 U.S.C. 22...................................................................... 16

Employee Retirement Income Security Act of 1974, 

29 U.S.C. 1001 et seq............................................................. 1

29 U.S.C. 1001(b)..................................................... 1, 8, 11

29 U.S.C. 1024(b)(1)(B)................................................... 12

29 U.S.C. 1104(a)(1)(D)................................... 8, 11, 13, 16

29 U.S.C. 1132(a)(1)(B) ....................................... 2, 3, 9, 13

29 U.S.C. 1132(e)(1)....................................................... 2, 9

29 U.S.C. 1132(e)(2)................................................ passim

29 U.S.C. 1133(2) ........................................................... 2, 9

29 U.S.C. 1144(a) ............................................................. 14

Federal Arbitration Act, 9 U.S.C. 1 et seq. ........................... 7

Federal Employers’ Liability Act, 45 U.S.C. 51 

et seq..................................................................................... 10

45 U.S.C. 55...................................................................... 16

Sherman Act, 15 U.S.C. 1 et seq........................................... 10

28 U.S.C. 1292(b) ................................................................... 22

28 U.S.C. 1404(a) ............................................................. 17, 21
VI

Regulations and rules—Continued: Page

29 C.F.R.:

Section 2560.503-1(c)(3) .................................................. 13

Section 2560.503-1(c)(4) .................................................. 13

Fed. R. Civ. P. 12(b)(6).......................................................... 21

Sup. Ct. R. 10(a)..................................................................... 17

Miscellaneous:

Black’s Law Dictionary (10th ed. 2014) ............................... 3

65 Fed. Reg. (Nov. 21, 2000):

p. 70,246............................................................................ 13

pp. 70,253-70,254.............................................................. 13

H.R. Rep. No. 533, 93d Cong. 1st Sess. (1973)..................... 8

S. Rep. No. 383, 93d Cong., 1st Sess. (1973)......................... 9

Tax Proposals Affecting Private Pension Plans: 

Hearings Before the House Comm. on Ways and 

Means, 92d Cong., 2d Sess. (1972)...................................... 9

14D Charles Alan Wright et al., Federal Practice 

and Procedure (4th ed. 2013) ............................................ 11
(1) 

In the Supreme Court of the United States

No. 14-1168

ROGER L. SMITH, PETITIONER

v.

AEGON COMPANIES PENSION PLAN

ON PETITION FOR A WRIT OF CERTIORARI 

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This brief is submitted in response to the order of 

this Court inviting the Solicitor General to express the 

views of the United States. In the view of the United 

States, the petition for a writ of certiorari should be 

denied.

STATEMENT

1. The Employee Retirement Income Security Act 

of 1974 (ERISA or Act), 29 U.S.C. 1001 et seq., is 

designed “to protect * * * the interests of participants in employee benefit plans and their beneficiaries 

* * * by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, 

sanctions, and ready access to the Federal courts.” 

29 U.S.C. 1001(b). ERISA’s statutory scheme reflects “Congress’ desire to offer employees enhanced 

protection for their benefits.” Metropolitan Life Ins. 
2

Co. v. Glenn, 554 U.S. 105, 114 (2008) (quoting Varity 

Corp. v. Howe, 516 U.S. 489, 497 (1996)). The statute 

requires those administering benefits plans to provide 

“a full and fair review” of benefits claims that are 

denied, 29 U.S.C. 1133(2); see Glenn, 554 U.S. at 115, 

and also provides for judicial review of claims denials. 

ERISA permits a participant or beneficiary to 

bring a civil action “to recover benefits due to him 

under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to 

future benefits under the terms of the plan.” 29 

U.S.C. 1132(a)(1)(B). Suits under that provision may 

be brought in either state court or federal district 

court. 29 U.S.C. 1132(e)(1). When the suit is brought 

in federal court, “it may be brought in the district 

where the plan is administered, where the breach took 

place, or where a defendant resides or may be found.” 

29 U.S.C. 1132(e)(2). 

2. Petitioner was an employee of Commonwealth 

General Corporation (CGC) in Louisville, Kentucky, 

and a participant in an ERISA-covered pension plan 

that CGC sponsored. Compl. ¶¶ 5-8; see Pet. App. 29-

30. Following CGC’s merger with AEGON USA, Inc., 

an insurance company that operates across the United 

States, petitioner became a participant in a successor 

ERISA plan, the AEGON Companies Pension Plan 

(the Plan, or respondent). Pet. App. 30. CGC offered 

some employees, including petitioner, enhanced retirement benefits if they remained with the company 

during the merger. Id. at 3. Petitioner agreed and, 

upon retiring, began receiving $2189.51 in monthly 

retirement benefits under the Plan. Id. at 3-4. 

In 2007, seven years after petitioner retired and 

started receiving benefits, respondent amended the 
3 

Plan to include a clause stating: “Restriction on Venue. A [P]articipant or Beneficiary shall only bring an 

action in connection with the Plan in Federal District 

Court in Cedar Rapids, Iowa.” Pet. App. 4. Four 

years after the Plan amendment, respondent informed 

petitioner that it determined in a recent audit that it 

had been overpaying him by $1122.97 per month for 

the previous 11 years. Ibid. Respondent notified 

petitioner that he needed to repay more than $150,000 

in overpayments and that, if he failed to do so, his 

monthly benefit would be eliminated until the amount 

of the alleged overpayment was recouped. Id. at 4-5.

3. a. Petitioner initially filed state-law claims in a 

Kentucky court against CGC, which removed the case 

to federal court based on preemption under ERISA 

and moved to dismiss. Pet. App. 5, 30. The district 

court granted the motion, and the court of appeals 

affirmed. Id. at 5-6; see 589 Fed. Appx. 738. 

b. While his appeal from the dismissal of that suit 

was pending, petitioner sued respondent in the United 

States District Court for the Western District of Kentucky, seeking (as relevant here) to recover plan benefits under ERISA, 29 U.S.C. 1132(a)(1)(B). Pet. 30; 

Compl. ¶¶ 42-45. Respondent moved to dismiss under 

Federal Rule of Civil Procedure 12(b)(6), arguing that 

the Plan’s venue-selection clause required petitioner 

to bring suit in Cedar Rapids, Iowa. Pet. App. 2, 31.1

 

 

1

 By requiring that suit be filed in federal district court in Cedar 

Rapids, Iowa, the clause specifies both forum (i.e., the “court or 

other judicial body” that would hear the suit) and venue (i.e., the 

geographic location or “territory” where “a lawsuit [is] to proceed”). Black’s Law Dictionary 769, 1790 (10th ed. 2014). This 

Court has described similar provisions as “forum-selection” clauses, e.g., Atlantic Marine Constr. Co. v. United States Dist. Court, 
4

Respondent also argued for the first time in its reply 

memorandum that the Western District of Kentucky 

was not a proper venue under ERISA’s venue provision, 29 U.S.C. 1132(e)(2), because no breach had 

taken place in that district and the Plan was administered and could be found only in Iowa. D. Ct. Doc. 13, 

at 3-5 (Dec. 12, 2012). 

c. The district court granted respondent’s motion 

to dismiss, ruling that the venue-selection clause in 

the Plan was “enforceable and reasonable.” Pet. App. 

32, 35. The court reasoned that, although the clause 

had been added after petitioner began receiving benefits, respondent was free under ERISA and the Plan 

terms to modify the Plan at any time so long as the 

amendment did not reduce the amount of benefits to 

which petitioner was entitled. Id. at 33-34. The court 

also concluded that the clause was consistent with 

ERISA’s venue provision because it specified a location—Cedar Rapids, Iowa—where the Plan is administered and resides. Id. at 34. The court did not address respondent’s suggestion that venue was not 

proper in the Western District of Kentucky. 

4. Petitioner appealed. The Secretary of Labor 

(Secretary) filed an amicus brief in support of petitioner, arguing that (i) venue was proper in the Western District of Kentucky, where the allegedly wrongful denial of plan benefits occurred; and (ii) the venueselection clause in the Plan is inconsistent with 

ERISA and thus was unenforceable. Sec’y of Labor 

 

134 S. Ct. 568, 575 (2013), and the Secretary of Labor used that 

term in his amicus brief below, e.g., Sec’y of Labor C.A. Amicus 

Br. 15. But because the court of appeals (Pet. App. 16, 19) and 

petitioner (Pet. 4; Reply Br. 4) use the term “venue-selection 

clause,” this brief uses that term for the sake of consistency. 
5 

C.A. Amicus Br. 9-27. A divided panel of the court of 

appeals held that “the venue selection clause is enforceable and applies to [petitioner’s] claims.” Pet. 

App. 13; see id. at 22-23. The court therefore affirmed 

the dismissal of petitioner’s suit without deciding 

“whether [Section] 1132(e)(2) permits venue in the 

* * * Western District of Kentucky.” Id. at 13. 

a. The court of appeals first held that the venueselection clause was enforceable despite having been 

unilaterally added to the Plan “seven years after [petitioner’s] benefits commenced.” Pet. App. 14. The 

court reasoned that ERISA plans may be amended at 

any time, that the venue-selection clause fell within 

the “large leeway” afforded employers in adopting 

amendments, and that such clauses are presumed 

valid under this Court’s precedents “even when [they 

are] not the product of an arms-length transaction.” 

Ibid. (citing Carnival Cruise Lines, Inc. v. Shute, 499 

U.S. 585, 595 (1991)). The court noted petitioner’s 

concern that enforcing such clauses “could lead to an 

excessive burden on” plan participants and beneficiaries forced to litigate in distant forums, but explained 

that litigants “may always challenge the reasonableness” of a clause in individual cases. Id. at 15. 

The court of appeals then addressed “whether 

ERISA precludes venue selection clauses.” Pet. 

App. 16. Noting that a majority of district courts had 

enforced them, the court of appeals rejected arguments by petitioner and the Secretary that venueselection clauses conflict with ERISA’s statutory 

framework and goals. 2

 Id. at 16-17 & n.8. The court 

 

2 The court of appeals rejected, as a threshold matter, petitioner’s request that the court defer to the Secretary’s interpretation 

of ERISA. Pet. App. 6-12; see id. at 6 n.3 (noting that petitioner, 
6

reasoned that the clause in the Plan did not “inhibit[]”

access to the federal courts because “it provides for 

venue in a federal court” and that, more generally, 

such clauses advance ERISA’s goal of uniformity by 

“limiting claims to one federal district.” Id. at 18 (citation omitted). The court also saw no conflict between the clause in the Plan and “ERISA’s venue 

provision,” 29 U.S.C. 1132(e)(2), because that provision speaks in permissive terms (“may be brought”) 

and the Plan designates one of the places listed 

in ERISA’s venue provision—“where the plan is 

administered”—as the place to bring suit. Pet. App. 

19 (citation omitted). But the court suggested that the 

Plan’s venue-selection clause would “control” even if it 

“laid venue outside of the three options provided by 

[Section] 1132.” Id. at 19-20. That result followed, the 

court reasoned, from decisions enforcing “arbitration 

clauses in ERISA plans,” which “are, ‘in effect, a specialized kind of forum-selection clause.’” Id. at 20 

(quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, 

519 (1974)). The court believed it “illogical to say that, 

under ERISA, a plan may preclude venue in federal 

court entirely, but a plan may not channel venue to 

one particular federal court.” Ibid. 

b. Judge Clay dissented, concluding that the 

venue-selection clause “is inconsistent with the pur-

 

not the Secretary, urged deference). In so doing, the court stated 

that the Secretary had taken a position on the enforceability of 

venue-selection clauses in only one prior case. Id. at 6. That is 

incorrect: the Secretary had done so in both of the prior appeals 

presenting the issue. See Sec’y of Labor Amicus Br. at 7-19, 

Mozingo v. Trend Pers. Servs., 504 Fed. Appx. 753 (10th Cir. 2012) 

(No. 11-3284); Sec’y of Labor Amicus Br. at 4-14, Nicolas v. MCI 

Health & Welfare Benefit Plan No. 501, No. 09-40326 (5th Cir.

filed Sept. 1, 2009). 
7

pose, policy, and text of ERISA, and contravenes the 

‘strong public policy’ declared by ERISA.” Pet. App. 

24 (quoting The Bremen v. Zapata Off-Shore Co., 407 

U.S. 1, 15 (1972)). Judge Clay would have held that 

the clause conflicts with ERISA’s “broad venue provision,” which he understood as “intended to grant an 

affirmative right to ERISA participants and beneficiaries.” Id. at 25 (citation and internal quotation 

marks omitted). He believed that right to be “indispensable for many of those individuals whose rights 

ERISA seeks to protect,” who “are often the most 

vulnerable individuals in our society” and the least 

likely to enforce their rights in distant venues. Ibid. 

In Judge Clay’s view, ERISA’s venue provision and 

policy of providing ready access to courts “supersede 

the general judicial policy of enforcing” contractual 

venue-selection provisions. Id. at 26. He also distinguished the Plan’s venue-selection clause here from 

arbitration provisions in ERISA plans previously 

enforced by the courts, because those provisions are 

enforced “not based on some general policy favoring 

forum selection clauses,” but on the specific mandates of the Federal Arbitration Act (FAA), 9 U.S.C. 1 

et seq. Pet. App. 27.

DISCUSSION

The court of appeals erred in affirming the dismissal of petitioner’s benefits suit under ERISA based on 

the Plan’s venue-selection clause. Although the enforceability of such clauses in ERISA plans is a question of substantial practical importance, the Court’s 

review is not warranted at this time. The Sixth Circuit in this case is the first appellate court to resolve 

the question presented, and its decision does not 

squarely conflict with any decision of this Court or 
8

another court of appeals. Nor does petitioner’s concern that the enforceability issue often arises in an 

interlocutory posture justify this Court’s review before any other court of appeals has addressed that

issue. The petition should therefore be denied.

1. The court of appeals erred in affirming the dismissal of petitioner’s suit for benefits under ERISA 

based on the venue-selection clause in the Plan. 

a. The Plan’s venue-selection clause contravenes a 

central objective reflected in the text, structure, and 

legislative history of ERISA: protecting benefits to 

which plan participants and beneficiaries are entitled. 

U.S. Airways, Inc. v. McCutchen, 133 S. Ct. 1537, 

1548 (2013). Congress enacted ERISA in part to eliminate “jurisdictional and procedural obstacles” that 

had “hampered effective enforcement of fiduciary 

responsibilities” with regard to employee benefit 

plans. H.R. Rep. No. 533, 93d Cong., 1st Sess. 17 

(1973). Congress emphasized that objective in the 

first section of the Act itself, declaring ERISA’s policy 

to “protect * * * the interests of participants in 

employee benefit plans and their beneficiaries[] by,”

inter alia, “providing for appropriate remedies, sanctions, and ready access to the Federal courts.” 29 

U.S.C. 1001(b). Accordingly, while placing the plan at 

the center of the statutory scheme, see McCutchen, 

133 S. Ct. at 1548, Congress sought to ensure both 

that fiduciaries would be bound by the Act’s terms in 

circumstances where the plan is not “consistent” with 

those terms, 29 U.S.C. 1104(a)(1)(D), and that beneficiaries would have opportunities to assert their rights 

under ERISA plans. 

To achieve the latter objective, Congress prescribed a two-tiered process for challenging the denial 
9

of a benefits claim: “a full and fair review” by 

a plan fiduciary, 29 U.S.C. 1133(2), followed by judicial review of the fiduciary’s decision, 29 U.S.C. 

1132(a)(1)(B). See Heimeshoff v. Hartford Life & 

Accident Ins. Co., 134 S. Ct. 604, 613 (2013). Congress 

granted participants seeking benefits under an 

ERISA plan the option of suing in federal or state 

court. 29 U.S.C. 1132(e)(1) (providing for concurrent 

state and federal jurisdiction in benefits cases, but 

exclusive federal jurisdiction in other ERISA actions). 

Congress further afforded a choice of venue to claimants who opt to bring “an action under * * * subchapter” I of ERISA, 29 U.S.C. 1132(e)(2)—the subchapter entitled “Protection of Employee Benefit

Rights”—in federal court. ERISA provides that, 

when such an action 

is brought in a district court of the United States, it 

may be brought in the district where the plan is 

administered, where the breach took place, or 

where a defendant resides or may be found, and 

process may be served in any other district where a 

defendant resides or may be found. 

Ibid. 

Congress was aware that these were “[l]iberal venue and service provisions,” S. Rep. No. 383, 93d Cong., 

1st Sess. 106 (1973), that could result in plan fiduciaries “having to defend actions in court far removed 

from their principal places of business.” Tax Proposals Affecting Private Pension Plans: Hearings 

Before the House Comm. on Ways and Means, 92d 

Cong., 2d Sess. 784 (1972) (statement of Employee 

Trusts Committee of the Corporate Fiduciaries Association of Illinois). But Congress enacted the provision despite that objection, thereby avoiding the prob-
10

lems that had hindered enforcement of earlier statutes that forced individuals “who were injured where 

they resided * * * to seek out the wrongdoing company in a distant forum to secure venue and service of 

process.” United States v. National City Lines, Inc., 

334 U.S. 573, 582 n.17 (1948) (describing problems 

under an earlier venue provision in the Sherman Act, 

15 U.S.C. 1 et seq.); see Baltimore & Ohio R.R. v. 

Kepner, 314 U.S. 44, 49-50, 53-54 (1941) (explaining 

similar impetus for venue provision in Federal Employers’ Liability Act (FELA), 45 U.S.C. 51 et seq.). 

b. In light of ERISA’s text and design, the court of 

appeals erred in enforcing the venue-selection clause 

in the Plan. That clause—which respondent added to 

the Plan seven years after petitioner’s retirement—

precludes suit anywhere other than in the federal 

district court in Cedar Rapids, Iowa, a distant venue 

with which petitioner has no connection. Pet. App. 25 

(Clay, J., dissenting). In so doing, the clause deprives 

petitioner of the choice afforded by ERISA’s venue 

provision, which would otherwise permit him to sue in 

any one of several venues, including (as here) where 

the breach occurred, 29 U.S.C. 1132(e)(2).3

 The clause 

 

3 Respondent errs in suggesting (Br. in Opp. i-ii, 5 & n.7) that, as 

the case reaches this Court, it presents an antecedent question 

about whether venue is proper in the Western District of Kentucky 

under Section 1132(e)(2). Respondent raised that issue for the 

first time in a reply brief supporting its motion to dismiss, p. 4, 

supra, which had been based solely on the venue-selection clause, 

D. Ct. Doc. 7-1, at 4-15 (Nov. 5, 2012). The district court did not 

reach the issue, and—at respondent’s urging (C.A. Br. 50-55)—

neither did the court of appeals. Pet. App. 13 (declining to decide 

“whether [Section] 1132(e)(2) permits venue in the” Western 

District of Kentucky). In any event, respondent’s argument that 

venue is improper lacks merit. See Sec’y of Labor C.A. Amicus Br. 
11

therefore conflicts with the liberal venue choice that 

Congress conferred, and runs contrary to Congress’s 

overarching objective of protecting plan benefits by 

ensuring “ready access to the Federal courts.” 29 

U.S.C. 1001(b). And because the venue-selection 

clause is not “consistent” with ERISA’s protections, 

29 U.S.C. 1104(a)(1)(D), it is unenforceable.

The court of appeals believed the clause to be consistent with ERISA’s terms and policies because “it 

provides for venue in a federal court” that happens to 

be among ERISA’s three venue choices. Pet. App. 18-

19. But a plan term is not consistent with ERISA 

when it eliminates two of the three places where the 

Act authorizes claimants to sue. Moreover, contrary 

to the court of appeals’ view (id. at 18), the clause 

“inhibits ready access” to the federal courts precisely 

because it specifies a forum that may be geographically distant from a claimant’s residence and where the 

claimant may have difficulty obtaining counsel and 

participating in judicial proceedings. Those difficulties can be particularly acute in ERISA suits for benefits, which may be brought by “retirees on a limited 

budget, sick or disabled workers, widows and other 

dependents—[who] are often the most vulnerable 

individuals in our society, and are the least likely to 

have the * * * wherewithal to litigate in a distant 

venue.” Id. at 25 (Clay, J., dissenting)

The court of appeals also deemed it unproblematic 

that respondent unilaterally added the venue-selection

clause to the Plan, reasoning that this “Court has rec-

 

11-15; 14D Charles Alan Wright et al., Federal Practice and 

Procedure § 3825, at 476 (4th ed. 2013) (“The better view, supported by an analogy to contract law, is that the breach took place 

where the payment was to be received.”). 
12

ognized the validity of forum selection clauses even 

when those clauses were not the product of an armslength transaction.” Pet. App. 14 (citing Carnival 

Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595 (1991)). 

Carnival Cruise Lines, however, did not involve a suit 

under a federal statute containing its own venue provision. And the Court there relied in part on notice 

principles that are largely inapplicable in the ERISA 

context. 499 U.S. at 595 (explaining that the cruise 

passengers “were given notice of the forum provision 

and, therefore, presumably retained the option of 

rejecting the contract with impunity”); see 29 U.S.C. 

1024(b)(1)(B) (providing only for post-modification 

notice); Curtiss-Wright Corp. v. Schoonejongen, 514 

U.S. 73, 78 (1995) (employers generally can modify 

plans at any time). 

In any event, the venue-selection clause is invalid 

under the analytical framework that this Court articulated in The Bremen v. Zapata Off-Shore Co., 407 U.S. 

1, 12-13 (1972). In retreating from the “historical 

judicial resistance to” forum-selection clauses, id. at 

12, the Court in Bremen made clear that such clauses 

should nonetheless “be held unenforceable if enforcement would contravene a strong public policy of the 

forum in which suit is brought, whether declared by 

statute or by judicial decision,” id. at 15. The Court 

cited as an example its decision in Boyd v. Grand 

Trunk W. R.R., 338 U.S. 263 (1949) (per curiam), 

which involved an employee’s suit under FELA. See 

Bremen, 407 U.S. at 15. In connection with post-injury payments by the employer, the employee in Boyd

had agreed to bring any suit against its employer in 

Michigan, but ultimately sued in Illinois state court, 

an eligible forum under FELA’s venue provision. 338 
13

U.S. at 263-264. The Court held that enforcing the 

agreement “would thwart” FELA’s “express purpose” 

and that the right conferred by the venue provision 

was of “sufficient substantiality” to fall within a separate provision voiding all agreements the purpose of 

which was to enable the employer to exempt itself 

from liability under FELA. Id. at 265-266.

ERISA is analogous in relevant respects. Its venue 

provision is designed to ease claimants’ access to 

court. Cf. Atlantic Marine Constr. Co. v. United 

States Dist. Court, 134 S. Ct. 568, 582 n.7 (2013) (noting that most venue provisions aim to protect defendants, not plaintiffs). And ERISA contains protections 

against contractual terms that depart from the Act’s 

minimum requirements. See 29 U.S.C. 1104(a)(1)(D). 

ERISA therefore embodies the kind of “strong” 

statutorily-declared “public policy” that renders a 

venue-selection clause unenforceable. Pet. App. 26 

(Clay, J., dissenting) (quoting Bremen, 407 U.S. at 15). 

c. Respondent’s other arguments in support of the 

decision below lack merit. Respondent relies on decisions enforcing arbitration agreements in ERISA 

cases. Br. in Opp. 13-14 (citing decisions from 

the Second, Third, Fifth, Sixth, and Eighth Circuits).4 Respondent reasons, as did the court of ap-

 

4 Only one of the cited cases—Simon v. Pfizer, Inc., 398 F.3d 

765, 773 n.13 (6th Cir. 2005)—involved a benefits claim under 29 

U.S.C. 1132(a)(1)(B). In the context of health and disability benefits, which were not at issue in Simon, the Secretary’s claims 

regulations have provided since 2001 that any mandatory arbitration provision cannot limit a claimant’s ability to challenge the 

benefits determination in court, and that any binding arbitration 

must be voluntary and agreed to after the dispute arises. 

29 C.F.R. 2560.503-1(c)(3) and (4); see 65 Fed. Reg. 70,246, 70,253-

70,254 (Nov. 21, 2000). 
14

peals, that because arbitration clauses “preclude venue in federal court entirely,” it would be “illogical” to 

hold that “a plan may not channel venue to one particular federal court.” Pet. App. 20. 

That conclusion does not follow. Federal courts 

have “enforce[d] arbitration agreements with regard 

to” ERISA and other “federal statutory claims not 

based on some general policy favoring forum selection 

clauses, but because that is what the [FAA], 9 U.S.C. 

§§ 2, 3, requires.” Pet. App. 27 (Clay, J., dissenting) 

(citing Shearson/American Express Inc. v. McMahon, 

482 U.S. 220, 226, 238 (1987), which involved federal 

securities and RICO claims); see, e.g., CompuCredit 

Corp. v. Greenwood, 132 S. Ct. 665, 669 (2012) (noting 

the FAA’s liberal federal policy favoring arbitration 

agreements). Thus, to the extent arbitration provisions in ERISA plans are enforceable, it would be 

because the FAA constitutes a specific statute that 

overrides a plaintiff’s choice of venue under another 

statutory provision such as Section 1132(e)(2). But 

that reasoning does not support enforcement of a 

venue-selection clause that, as here, is not an arbitration agreement. See Reply Br. 8-9. 

Respondent contends (Br. in Opp. 18, 20-21, 25) 

that the venue-selection clause should be enforced 

because, by channeling all disputes under a plan to 

one district court, it furthers ERISA’s goal of uniformity. Congress’s primary uniformity concern, 

however, was that ERISA plans not be subject to 

different (possibly conflicting) legal requirements

under the laws of “different States.” Egelhoff v. 

Egelhoff, 532 U.S. 141, 148 (2001). It addressed that 

concern through ERISA’s preemption provision, 29 

U.S.C. 1144(a), not by providing that one federal court 
15

would decide all issues involving any particular plan. 

And, while this Court has recognized that uniformity 

concerns can also arise from differing judicial interpretations of a plan, the Court has presumed that 

conflicting interpretations are possible precisely because ERISA’s venue provision affords employees 

some control over “where they bring a legal action.” 

Conkright v. Frommert, 559 U.S. 506, 520 (2010). 

Finally, the court of appeals suggested that courts 

can mitigate “an[y] excessive burden” to ERISA litigants through case-specific “reasonableness” challenges to venue-selection clauses. Pet. App. 15. But 

the test that requires a litigant to show that a particular forum is so inconvenient as to be unjust, ibid., was 

designed to place “a heavy burden of proof” on the 

party challenging a forum-selection clause, Bremen, 

407 U.S. at 17, a burden antithetical to ERISA’s goal 

of removing jurisdictional and procedural barriers to 

suit. See p. 8, supra. If any party must show that it is 

inconvenienced by litigating in a distant forum, that 

burden should not fall on ERISA plan participants. 

2. Although the court of appeals erred in enforcing 

the Plan’s venue-selection clause, this Court’s review 

is not warranted at this time. The court of appeals’

decision is the first appellate decision to address the 

enforceability of a venue-selection clause in an ERISA 

plan; that decision does not squarely conflict with the 

decisions of this Court or other courts of appeals; and, 

on balance, neither the practical importance of the 

issue nor petitioner’s suggestion that it could evade 

review warrants certiorari at this time.

a. Petitioner argues (Pet. 10-12) that the court of 

appeals’ decision is contrary to this Court’s decisions 

in Boyd and National City Lines, supra. Although 
16

the United States agrees that those decisions support 

petitioner’s position that venue-selection clauses in 

ERISA plans are unenforceable, see pp. 10-13, supra, 

the decision below does not squarely conflict with 

either. 

The Court in Boyd held unenforceable an agreement limiting an injured employee’s right to bring suit 

in one of the districts listed in FELA’s venue provision. 338 U.S. at 265-266. That result turned in part 

on a neighboring statutory provision prohibiting 

“[a]ny contract, rule, regulation, or device whatsoever, 

the purpose or intent of which shall be to enable any 

common carrier to exempt itself from any liability 

created by” FELA. Id. at 265 (quoting 45 U.S.C. 55). 

Although ERISA bars a fiduciary from following any 

“documents [or] instruments governing the plan” that 

are not “consistent” with ERISA’s terms, 29 U.S.C. 

1104(a)(1)(D), that provision does not feature the 

“comprehensive phraseology” of the FELA section 

that the Boyd Court cited in voiding the venuerestricting agreement, 338 U.S. at 265 (quoting Duncan v. Thompson, 315 U.S. 1, 6 (1942)). 

There is also no square conflict between the decision below and National City Lines. The Court there 

addressed whether an antitrust plaintiff’s choice of 

venue under the Clayton Act, 15 U.S.C. 12 et seq.; see 

15 U.S.C. 22, could be overridden by applying the 

doctrine of forum non conveniens. 334 U.S. at 581, 

596-597. The Court concluded from an extensive review of the venue provision’s “history” that Congress 

had left no “room * * * for judicial discretion” to 

apply that doctrine to deprive a plaintiff of the venue 

choice conferred by statute. Id. at 588. But the Court 

did not, as petitioner suggests, adopt a general rule 
17

that “a plaintiff’s choice of venue is ‘conclusive’ ” 

whenever “Congress grants plaintiffs a choice of venue options for claims brought under a statute.” 

Pet. 12 (quoting National City Lines, 334 U.S. at 

580); see Br. in Opp. 12-13 (explaining that, in United 

States v. National City Lines, Inc., 337 U.S. 78 (1949), 

the Court held at a later stage of the same case that 

the forum non conveniens doctrine was applicable to 

antitrust suits following the intervening enactment of 

28 U.S.C. 1404(a)). 

b. Petitioner contends (Pet. 14-20) that the decision below conflicts with the decisions of other courts 

of appeals. But there can be no square conflict, because the decision below is the first appellate decision

specifically addressing the enforceability of a venueselection clause in an ERISA plan. 5

 

Nor do decisions addressing “special venue provision[s]” (Pet. 14) in other statutes establish a conflict 

warranting review. Petitioner cites (Pet. 15-16) Volkswagen Interamericana, S.A. v. Rohlsen, 360 F.2d 437, 

cert. denied, 385 U.S. 919 (1966), where the First 

Circuit declined to enforce a contractual clause requiring a car dealer in the U.S. Virgin Islands to sue its 

Mexico-based distributor in “the courts of Mexico.” 

Id. at 439. The court grounded its ruling in the Automobile Dealers’ Day in Court Act, 15 U.S.C. 1221 et 

seq., which has “its own venue provisions,” the “very 

purpose” of which was “to give the dealer certain 

rights against a manufacturer independent of the 

terms of the [franchise] agreement.” 360 F.2d at 439. 

Given that purpose, the court held unenforceable a 

 

5 Petitioner cites (Pet. 20-22) disagreement among district 

courts, but this Court does not ordinarily grant review to resolve 

conflicts among district courts. See Sup. Ct. R. 10(a). 
18

clause “limit[ing] jurisdiction to a forum” that was not 

among the statute’s venue options and that was “practically inaccessible to the dealer.” Ibid. That statutespecific result does not conflict with the decision in 

this ERISA case, which, moreover, involves a clause 

specifying a forum that is among those the Act allows. 

See Cortez Byrd Chips, Inc. v. Bill Harbert Constr. 

Co., 529 U.S. 193, 204 (2000) (cautioning that “analysis 

of special venue provisions must be specific to the 

statute”). 

Likewise, petitioner’s cited decisions (Pet. 16-17) 

involving the Carmack Amendment to the Hepburn 

Act, ch. 3591, § 7, 34 Stat. 595, do not conflict with the 

decision below. Petitioner relies on Smallwood v. 

Allied Van Lines, Inc., 660 F.3d 1115 (2011), where 

the Ninth Circuit declined to enforce a foreign arbitration clause in an agreement between a motor carrier and a shipper. Id. at 1118. But the court in Smallwood rested its decision on features of the Carmack 

Amendment in addition to its venue clause—

specifically, a provision barring certain carriers from 

contracting around the statute’s requirements (including the venue clause), and “Carmack’s own arbitration 

provision,” under which a “shipper cannot be required 

to appear in an inconvenient forum even if he chooses 

arbitration.” Id. at 1122; see id. at 1121-1123. The 

cited Second and Tenth Circuit decisions (Pet. 16-19) 

were based on a similar Carmack-specific rationale. 

See Aaacon Auto Transp., Inc. v. State Farm Mut. 

Auto. Ins. Co., 537 F.2d 648, 653-655 (2d Cir. 1976) 

(reasoning that the Carmack Amendment venue provision then in effect was intended to codify a shipper’s 

preexisting right to sue in a convenient forum), cert. 

denied, 429 U.S. 1042 (1977); Aluminum Prods. Dis-
19

tribs., Inc. v. Aaacon Auto Transp., Inc., 549 F.2d 

1381, 1384-1385 (10th Cir. 1977) (adopting the Second 

Circuit’s reasoning).6 

Finally, the two ERISA decisions cited by petitioner (Pet. 17) do not establish a conflict because neither 

resolved the enforceability of a venue-selection clause. 

Rather, both involved attempts by a plan fiduciary to 

sue for declaratory relief regarding its liability under 

an ERISA plan. Transamerica Occidental Life Ins. 

Co. v. DiGregorio, 811 F.2d 1249, 1250 (9th Cir. 1987); 

Gulf Life Ins. Co. v. Arnold, 809 F.2d 1520, 1522 (11th 

Cir. 1987). Petitioner correctly points out (Pet. 17) 

that, in Gulf Life, the Eleventh Circuit observed that 

allowing the company’s suit to proceed could force 

beneficiaries to litigate in distant forums, a result that 

the court believed contrary to ERISA’s purpose. 809 

F.2d at 1525 & n.7.; cf. Sec’y of Labor C.A. Amicus Br. 

24 (relying on this aspect of Gulf Life). But that observation does not establish a square conflict because 

the court made it after independently concluding, 

based on “ERISA’s language,” that the fiduciary’s suit 

was not the kind of “ action” that permitted the company to “avail itself of [S]ection 1132(e)(2)’s venue 

provision[].” Gulf Life, 809 F.2d at 1524. 

c. Petitioner asserts (Pet. 28-33) that review is 

warranted because the question presented is of signif-

 

6 The Second and Tenth Circuits also reasoned that the arbitration clause contravened the Carmack Amendment’s prohibition on 

contractual clauses limiting a carrier’s liability. Aacon Auto 

Transp., 537 F.2d at 656-666; Aluminum Prods. Distribs., 549 

F.2d at 1385. As the Ninth Circuit has recognized, that rationale is 

in tension with this Court’s subsequent decision in Vimar Seguros 

y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528 (1995). See 

Smallwood, 660 F.3d at 1123 n.8. 
20

icant practical importance and could evade this 

Court’s review given the procedural posture in which 

it arises. As reflected by the Secretary’s participation 

as amicus curiae in this case and two others, see 

note 2, supra, the United States agrees that the enforceability of venue-selection clauses in ERISA plans 

is an important issue: such clauses may hinder claimants’ access to courts, and their use appears to have 

proliferated in recent years. See Pet. 29.

Nevertheless, on balance, we do not believe that 

the significance of the issue counsels departure from 

the Court’s usual practice of allowing percolation 

among the courts of appeals. Further percolation 

would furnish this Court with the perspective of other 

appellate courts on the legal issue, and also shed light 

on the practical consequences of the rule adopted by 

the Sixth Circuit. For example, petitioner emphasizes 

(Pet. 25) that, while the venue-selection clause in this 

case fixes venue in the place where the Plan is administered, the court of appeals’ decision appears to permit clauses fixing venue in locations other than those 

provided in 29 U.S.C. 1132(e)(2) and with which the 

plan administrator has no connection. Pet. App. 19-20 

(stating that a venue-selection clause would control 

“even if [it] laid venue outside of the three options 

provided by [Section] 1132”). Further litigation in the 

lower courts may reveal whether ERISA plans in fact

include (or add) clauses of that nature, and whether 

courts enforce them if they do. 

Petitioner suggests (Pet. 31-33) that additional appellate decisions are unlikely because venue-selection 

clauses are often enforced through interlocutory orders granting a motion to transfer, which are not 

appealable as of right and which might not be ap-
21

pealed and ultimately reach this Court following a 

final judgment. Petitioner’s practical concerns are not 

without force, but in the government’s view, they do 

not require immediate review. Indeed, all three appeals in which the Secretary has participated since 

2009 arose in a posture that can reach this Court. In 

the first case (which settled on the eve of argument), a 

plan administrator appealed rulings refusing to enforce a venue-selection clause and eventually awarding benefits under the plan. See Nicolas v. MCI 

Health & Welfare Benefit Plan No. 501, No. 09-40326 

(5th Cir.). In the second case, the Tenth Circuit did 

not resolve the enforceability of a venue-selection 

clause, which had been raised as an alternative basis 

for affirmance. See Mozingo v. Trend Pers. Servs., 

504 Fed. Appx. 753, 755-758 & n.2 (10th Cir. 2012); see 

also Appellees’ Br. at 7-17, Mozingo, supra (No. 11-

3284). And this case reaches the Court following a 

decision affirming a Rule 12(b)(6) dismissal based on a 

venue-selection clause. Pet. App. 22-23. 

It is true that most district courts have enforced 

venue-selection clauses in ERISA plans through 

transfer orders, which are typically not subject to 

immediate appeal. See Pet. 31-32. Courts may continue that practice following this Court’s recent decision in Atlantic Marine, supra, which confirmed that 

forum-selection clauses may be enforced through a 

motion to transfer under 28 U.S.C. 1404(a). 134 S. Ct. 

at 575, 579-580. The Court in Atlantic Marine, however, reserved the question whether such clauses can 

also be enforced through Rule 12(b)(6) motions to 

dismiss. Id. at 580. Some courts of appeals, including 

the court in this case, have approved of such motions 

since Atlantic Marine. Pet. App. 22-23; see Claudio-
22

De León v. Sistema Universitario Ana G. Méndez, 

775 F.3d 41, 46 n.3 (1st Cir. 2014). District courts may 

therefore continue to enforce venue-selection clauses 

by entering (appealable) dismissal orders, as some did 

before Atlantic Marine. See, e.g., Scaglione v. PepsiCola Metro. Botteling Co., 884 F. Supp. 2d 642 (N.D. 

Ohio 2012); Fort Transfer Co. v. Central States, Se. & 

Sw. Areas Pension Fund, No. 05-1236, 2006 WL 

1582451 (C.D. Ill. June 6, 2006). Litigants may also 

obtain review by seeking certification of a transfer 

order under 28 U.S.C. 1292(b),7 or by petitioning for a 

writ of mandamus, which is how Atlantic Marine

reached this Court. See 134 S. Ct. at 576-577; cf. 

Varsic v. United States Dist. Court, 607 F.2d 245, 251-

252 (9th Cir. 1979) (granting mandamus relief from 

transfer order in ERISA case).

 

7

 Petitioner represents (Pet. 32) that no court has certified the 

question presented “for appeal under [Section] 1292(b).” The government’s review of the dockets in the eight transferred cases 

cited by petitioner (ibid.) reveals that none of the claimants in 

those cases sought Section 1292(b) certification.
23

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted. 

M. PATRICIA SMITH

Solicitor of Labor

G. WILLIAM SCOTT

Associate Solicitor

ELIZABETH HOPKINS

Counsel for Appellate and 

Special Litigation

STACEY E. ELIAS

Attorney

Department of Labor

DONALD B. VERRILLI, JR. Solicitor General

EDWIN S. KNEEDLER

Deputy Solicitor General

SCOTT A.C. MEISLER

Assistant to the Solicitor 

General

NOVEMBER 2015