14-0020

IN THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT ____________________________________________________

NEW YORK STATE PSYCHIATRIC ASSOCIATION, INC., 

in a Representational Capacity on Behalf of Its Members And Their Patients, 

MICHAEL A. KAMINS, on His Own Behalf And Behalf of His Beneficiary 

Son, And on Behalf of All Other Similarly Situated Health Insurance Subscribers, 

JONATHAN DENBO, on His Own Behalf And on Behalf of All Other 

Similarly Situated Health Insurance Subscribers, M.D. SHELLY 

MENOLASCINO, on Their Own Behalf And in a Representational 

Capacity on Behalf of Their Beneficiary Patients And on Behalf of 

All Other Similarly Situated Providers And Their Patients, 

Plaintiffs - Appellants,

(For Continuation of Caption See Inside Cover) ____________________________________________________

On Appeal from the United States District Court

for the Southern District of New York (Docket No.: 13-cv-1599)

_______________________________

BRIEF OF THE SECRETARY, UNITED STATES DEPARTMENT OF LABOR, 

AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLANTS AND 

REQUESTING REVERSAL _____________________________________________________

M. PATRICIA SMITH 

 Solicitor of Labor 

G. WILLIAM SCOTT

 Acting Associate Solicitor for Plan Benefits

 Security 

ELIZABETH HOPKINS 

 Counsel for Appellate and Special Litigation 

NICHOLAS D. BEADLE

 Attorney, U.S. Department of Labor 

 200 Constitution Ave., N.W., Rm. N-2700 

 Washington, D.C. 20210

 (202) 693-5521
JORDAN OLIN, on His Own Behalf And on Behalf Of His Beneficiary

Son, And on Behalf of All Other Similarly Situated Health Insurance 

Subscribers, BRAD SMITH, on His Own Behalf And on Behalf 

of His Beneficiary Son, And on Behalf of All Other Similarly Situated 

Health Insurance Subscribers, ED.D. JULIE ANN ALLENDER,

Plaintiffs,

v.

UNITEDHEALTH GROUP, UHC INSURANCE COMPANY, UNITED 

HEALTH-CARE INSURANCE COMPANY OF NEW YORK, UNITED 

BEHAVIORAL HEALTH, 

Defendants - Appellees.
i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................................................................... ii

STATEMENT OF THE ISSUES............................................................................... 1 

STATEMENT OF IDENTITY, INTEREST

AND AUTHORITY TO FILE................................................................................... 1 

STATEMENT OF THE CASE.................................................................................. 2 

SUMMARY OF THE ARGUMENT ........................................................................ 8 

ARGUMENT............................................................................................................. 9 

I. The District Court Erred In Dismissing The Benefit Claims

Against United Because Nothing In ERISA Forbids Suing

The Entity With Exclusive Authority To Decide Claims

For Benefits, Nor Does This Court’s Precedent Require

Such A Result......................................................................................10

 

II. The District Court Erred In Dismissing The Plaintiffs’

Claims For Injunctive Relief Under Section 502(a)(3)

Because ERISA Plaintiffs Are Entitled To Plead

Injunctive Relief Claims Simultaneously With

Benefit Claims.....................................................................................20

CONCLUSION........................................................................................................25

CERTIFICATE OF COMPLIANCE ............................................................. 26

CERTIFICATE OF SERVICE AND ECF COMPLIANCE.............................. 27
ii

TABLE OF AUTHORITIES

Federal Cases: Page

Ashcroft v. Iqbal, 

556 U.S. 662 (2009)............................................................................22

Cent. Laborer′s Pension Fund v. Heinz, 

541 U.S. (2004).................................................................................... 4

Chapman v. ChoiceCare Long Island Term Disability Plan, 

288 F.3d 506 (2d Cir. 2002)................................................................17

CIGNA Corp. v. Amara, 

131 S. Ct. 1866 (2011) ........................................................................22

Clark v. World Cable Commc′ns, Inc., 

1998 WL 907904 (2d Cir. Dec. 23, 1998) ..........................................17

Crocco v. Xerox Corp., 

137 F.3d 105 (2d Cir. 1998)..........................................................17, 18

Curcio v. John Hancock Mut. Life Ins. Co., 

33 F.3d 226 (3d Cir. 1994)..................................................................15

Cyr v. Reliance Standard Life Ins. Co., 

642 F.3d 1202 (9th Cir. 2011).......................................................15, 16

Daniel v. Eaton Corp., 

839 F.2d 263 (6th Cir. 1988)...............................................................15

Devlin v. Empire Blue Cross & Blue Shield, 

274 F.3d 76 (2d Cir. 2001)..................................................................23

Firestone Tire & Rubber Co. v. Bruch, 

489 U.S. 101 (1989)........................................................................2, 14

Frommert v. Conkright, 

433 F.3d 254 (2d Cir. 2006)................................................................23
iii

Federal Cases--Continued: Page

Garren v. John Hancock Mut. Life Ins. Co., 

114 F.3d 186 (11th Cir. 1997).............................................................15

Gelardi v. Pertec Computer Corp., 

761 F.2d 1323 (9th Cir. 1985).............................................................16

Hall v. LHACO, Inc., 

140 F.3d 1190 (8th Cir. 1998).............................................................23

Harris Trust & Sav. Bank v. Salomon Smith Barney, Inc., 

530 U.S. 238 (2000)............................................................................10

Hill v. Blue Cross Blue Shield of Mich., 

409 F.3d 710 (6th Cir. 2005)...............................................................24

Larson v. United Healthcare Ins. Co., 

723 F.3d 905 (7th Cir. 2013)...............................................................15

Layes v. Mead Corp., 

132 F.3d 1246 (8th Cir. 1998).............................................................15

Lee v. Burkhart, 

991 F.2d 1004 (2d Cir. 1993)........................................................18, 19

Leonelli v. Pennwalt Corp., 

887 F.2d 1195 (2d Cir. 1989)........................................................16, 17

LifeCare Mgmt. Servs. LLC v. Ins. Mgmt. Adm′rs Inc., 

703 F.3d 682 (5th Cir. 2013)...............................................................15

Mass Mut. Life Ins. Co. v. Russell, 

473 U.S. 134 (1985)............................................................................24

Meins v. Carus Corp., 

241 F.3d 581 (7th Cir. 2001)...............................................................15

Mertens v. Hewitt Assocs., 

508 U.S. (1993)...................................................................................11
iv

Federal Cases--Continued: Page

Musmeci v. Schwegmann Giant Super Mkts, Inc., 

332 F.3d (5th Cir. 2003)......................................................................15

Paneccasio v. Unisource Worldwide, Inc., 

532 F.3d 101 (2d Cir. 2008)..........................................................17, 18

Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan

v. Morgan Stanley Inv. Mgmt. Inc., 

712 F.3d 705 (2d Cir. 2013)................................................................22

Sec’y of Labor v. Fitzsimmons, 

805 F.2d 682 (7th Cir. 1986).................................................................1

UNUM Life Ins. Co. of Am. v. Ward, 

526 U.S. (1999)...................................................................................14

Varity v. Howe, 

516 U.S. 489 (1996)............................................................. 7 & passim

Federal Statutes:

Employee Retirement Income Security Act of 1974 (Title I),

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

Section 3(16), 29 U.S.C. § 1002(16).............................................11, 12

Section 3(16)(A), 29 U.S.C. § 1002(16)(A)........................................11

Section 3(21), 29 U.S.C. § 1002(21)...................................................12

Section 3(21)(A), 29 U.S.C. § 1002(21)(A)....................................4, 11

Section 101, 29 U.S.C. § 1021 ............................................................11

Section 104, 29 U.S.C. § 1024 ............................................................11

Section 402(a), 29 U.S.C. § 1102(a)...................................................12
v

Federal Statutes--Continued: Page

Section 404(a)(1)(A), 29 U.S.C. § 1104(a)(1)(A).................................4

Section 502, 29 U.S.C. § 1132 ............................................................21

Section 502(a), 29 U.S.C. § 1132(a).....................................................4

Section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B)................ 1 & passim

Section 502(a)(3), 29 U.S.C. § 1132(a)(3)........................... 2 & passim

Section 502(a)(3)(A), 29 U.S.C. § 1132(a)(3)(A)................ 1 & passim

Section 502(a)(3)(B), 29 U.S.C. § 1132(a)(3)(B)...............................19

Section 502(c), 29 U.S.C. § 1132(c)...................................................12

Section 502(d)(2), 29 U.S.C. § 1132(d)(2) .........................................16

Section 503, 29 U.S.C. § 1133 ............................................................12

Section 606, 29 U.S.C. § 1166 ............................................................11

Employee Retirement Income Security Act, as amended by the

Mental Health Parity and Addiction Equity Act of 2008,

Pub. L. No. 110-343, 122 Stat. 3765

(codified at 29 U.S.C. 1185a)............................................................2–3

Health Care and Education Reconciliation Act of 2010,

Pub. L. No. 111-152, § 1251, 124 Stat. 1029, 1081–82 (2010) 

(codified at 42 U.S.C. 18011) ...............................................................3

Patient Protection and Affordable Care Act of 2010,

Pub. L. No. 111-148, 124 Stat. 119 (2010)...........................................3

§ 715(a)(1), 116 Stat. 270 

(codified at 29 U.S.C. § 1185d)..............................................3, 6
vi

Federal Statutes--Continued: Page

§ 1251, 116 Stat. 161–62 

(codified at 42 U.S.C. 18011).....................................................3

§ 2719, 116 Stat. 137–38 

(codified at 42 U.S.C. 300gg-19)................................................3

§ 9815(a)(1), 116 Stat. 270

(codified at 26 U.S.C. 9815(a)(1))..............................................3

Federal Regulations:

29 C.F.R. § 2509.75-8 ...................................................................................12

29 C.F.R. § 2560.503-1 .............................................................................3, 12

29 C.F.R. § 2590..............................................................................................6

29 C.F.R. § 2590.715-1251 .............................................................................3

Miscellaneous:

75 Fed. Reg. 43330 (July 23, 2010) ...............................................................4

Fed. R. App. P. 29(a) ......................................................................................1

Fed. R. Civ. P. 8(a)(3) ..................................................................................22

Fed. R. Civ. P. 8(d)(2) ..................................................................................22

Fed. R. Civ. P. 12(b)(6) ................................................................................22

Fed. R. Civ. P. 19...........................................................................................11
1

STATEMENT OF THE ISSUES

The Secretary of Labor's brief addresses the following issues:

1. Whether section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), of the 

Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §

1001 et seq., permits a plan participant claiming entitlement to benefits to sue a 

claims administrator as the fiduciary with sole and final authority to decide claims.

2. Whether a plan participant may bring a claim under section 502(a)(3)(A), 

29 U.S.C. § 1132(a)(3)(A), for injunctive relief requiring that a plan be operated in 

compliance with ERISA simultaneously with a claim for benefits under section 

502(a)(1)(B).

STATEMENT OF IDENTITY, INTEREST, AND AUTHORITY TO FILE

The Secretary of Labor has primary enforcement and regulatory authority 

for Title I of ERISA. See, e.g., Sec'y of Labor v. Fitzsimmons, 805 F.2d 682, 692–

93 (7th Cir. 1986) (en banc). The Secretary has a strong interest in ensuring that 

plan participants and beneficiaries may sue fiduciaries who control the claims

process for plan benefits, as well as for injunctive relief to correct an alleged 

systemic failure to abide by the requirements of the governing claims regulation 

and the mental health parity provisions of ERISA. The Secretary files this brief as 

amicus curiae as of right under Federal Rule of Appellate Procedure 29(a).
2

STATEMENT OF THE CASE

1. ERISA is designed to promote and protect the interests of plan 

participants and their beneficiaries and to secure contractually defined benefits. 

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113 (1989). To this end, 

ERISA section 502(a)(1)(B) gives participants and beneficiaries a private right of 

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). In addition, section 502(a)(3) 

gives plan participants, beneficiaries, and fiduciaries the right to sue "to enjoin any 

act or practice which violates any provision of [ERISA] or the terms of the plan" or 

"to obtain other appropriate equitable relief (i) to redress such violations or (ii) to 

enforce any provisions of [ERISA] or the terms of the plan." Id. § 1132(a)(3). 

ERISA, as amended by the Mental Health Parity and Addiction Equity Act

("Parity Act"), requires "group health plan[s]" and "insurance coverage offered in 

connection with such . . . plan[s]" that offer "both medical and surgical benefits 

and mental health or substance use disorder benefits" to ensure that 

the treatment limitations applicable to such mental health or substance 

use disorder benefits are no more restrictive than the predominant 

treatment limitations applied to substantially all medical and surgical 

benefits covered by the plan (or coverage) and there are no separate 

treatment limitations that are applicable only with respect to mental 

health or substance use disorder benefits.
3

29 U.S.C. § 1185a(a)(3)(A)(ii).

The Patient Protection and Affordable Care Act, Pub L. No. 111-148, 124 

Stat. 119 (2010), and the Health Care and Education Reconciliation Act, Pub. L.

No. 111-152, 124 Stat. 1029 (2010) (collectively known as the ACA) made certain 

provisions of the Public Health Service Act, as amended by the ACA, applicable to 

"group health plans, and health insurance issuers providing health insurance 

coverage in connection with group health plans." 29 U.S.C. § 1185d.1

 Pursuant to 

this provision, section 2719 of the Public Health Service Act requires that nongrandfathered2 group health plans and health insurance issuers must provide an 

internal claims and appeals process that initially incorporates the internal claims 

and appeals procedure set forth in the applicable claims procedure regulation, 29 

C.F.R. § 2560.503-1,

3 and update such processes in accordance with standards 

established by the Secretary of Labor. The Secretary of Labor – along with the 

Secretaries of Health and Human Services and the Treasury – issued interim final 

 1 The ACA adds section 715(a)(1) to ERISA and section 9815(a)(1) to the Internal 

Revenue Code to incorporate the provisions of part A of title XXVII of the Public 

Health Service Act into ERISA and the Code.

2 The requirements for internal claims and appeals and external review processes 

for group health plans and health insurance coverage do not apply to grandfathered 

health plans under section 1251 of the Affordable Care Act. See also 29 C.F.R. § 

2590.715-1251 regarding grandfathered health plan coverage.

3 Unlike the ACA provisions, some of which do not apply to grandfathered plans, 

the Department of Labor's claims procedure regulation applies to all ERISA plans, 

regardless of grandfather status. See also 29 C.F.R. § 2590.715-1251.
4

regulations relating to internal claims and appeals and external review processes

which, among other things, grant plan participants and beneficiaries certain 

internal claim and appeal rights and the right to continued coverage during a 

pending appeal. See 75 Fed. Reg. 43,330 (July 23, 2010). 

Both the Parity Act and the relevant provision of the ACA are enforced, like 

other ERISA duties, through ERISA section 502(a), and their requirements should 

be treated as terms of ERISA-covered plans. Cf. Cent. Laborers' Pension Fund v. 

Heinz, 541 U.S. 739, 750 (2004) (anti-cutback provision of ERISA "adds a 

mandatory term" to all ERISA-covered pension plans). ERISA defines a fiduciary 

as encompassing any person who, among other things, has or exercises "any 

discretionary authority or discretionary control" or "responsibility" with respect to 

plan management or administration. 29 U.S.C. § 1002(21)(A). Moreover, ERISA 

directs plan fiduciaries to act "solely in the interest of the participants and 

beneficiaries," "for the exclusive purpose" of paying benefits and defraying 

reasonable administrative expenses under the plan, and in accordance with a 

prudent man standard of care. Id. § 1104(a)(1)(A). 

2. This case was brought by four individual plan participants or 

beneficiaries, two doctors, and the New York State Psychiatric Association 

(NYSPA). They assert both individual claims for benefits and a putative class 

action against UnitedHealth Group and three subsidiaries (collectively "United") 
5

for alleged violations of ERISA based on United's handling of mental and 

behavioral health claims under their plans and others like them.4

 

According to the complaint, United acts as claims administrator for the selffunded plans described in the complaint, which give United sole discretion to 

decide whether to grant or deny mental health and substance abuse claims. E.g., 

Joint Appendix ("JA") 38. Plaintiffs charge that United has instituted policies and 

procedures that not only violate plan terms, but also violate ERISA's Mental Health 

Parity Act provision, and some of the ACA claims processing provision 

incorporated into ERISA. E.g., JA 31, 39.

More specifically, plaintiffs argue that United unlawfully denied mental and 

behavioral health benefits by subverting the claims process and instituting more 

onerous procedures and standards of proof for mental health claims than for 

medical and surgical treatment at equivalent care levels in violation of ERISA's 

Mental Health Parity Act provision. E.g., JA 59–60. For instance, Plaintiff 

 4

 The New York State Psychiatric Association (NYSPA) brought this claim in a 

representational capacity on behalf of its members and their patients. Two doctors 

with assigned claims sued on their own behalf, and on behalf of their patients, and 

similarly situated providers. The seven named plaintiffs filed claims for benefits in 

individual or representative capacities, and they also asserted injunctive claims for 

similarly situated participants and beneficiaries of ERISA plans whose benefits 

claims are likewise administered by United. Since the district court issued its 

decision, United has settled with three of the individual plaintiffs – Mr. Olin, Mr. 

Smith and Dr. Allender, and only three individual plaintiffs – Mr. Denbo, Mr. 

Kamins and Dr. Menolascino – as well as the NYSPA, remain as plaintiffs in this 

appeal. 
6

Jonathan Denbo, an employee of CBS Sports Network and participant in its selffunded plan, alleges that, after prolonged treatment of his depression and anxiety, 

United determined as a prospective matter that Denbo would no longer be entitled 

to any psychotherapy, even though the plan provides that mental health benefits are 

only subject to retrospective review for benefits that have been provided. JA 38–

39. Denbo (and the other plaintiffs) also accused United of violating certain 

procedural requirements (such as providing two levels of review in some cases and 

independent review at each level) of the interim final claims regulations enacted 

under the ACA and applicable to group health plans, see 29 U.S.C. § 1185d; 29 

C.F.R. § 2590. See JA 142. 

Perhaps most significantly, Denbo and the other plaintiffs allege that United

systematically violated the Parity Act provisions of ERISA by using more 

restrictive criteria in determining what mental and behavioral health benefits were 

necessary than those it applies to medical and surgical benefits. See JA 66. Thus, 

according to the complaint, United imposes more restrictive limitations on mental 

health claims than on medical and surgical claims, including by: applying more 

restrictive guidelines for determining medical necessity for such claims; imposing 

higher evidentiary burdens on these claims; imposing more stringent utilization 

review; refusing to pay for treatment pending review; applying less favorable 

reimbursement standards; and imposing the kind of "fail-first" policy forbidden by 
7

the regulations to deny needed residential treatment. JA 39, 59–60. Alleging that

these violations led United to wrongfully deny their claims or the claims of their 

patients for mental health coverage, the plaintiffs seek either the benefits they 

believe they were unlawfully denied, or alternatively, an injunction requiring 

United to re-determine their claims applying proper procedures and standards; and

they additionally seek an injunction requiring United to apply proper procedures 

and standards in deciding future claims for mental health benefits. JA 155–62. 

2. The district court granted United's motion to dismiss for failure to 

state a claim. JA 208. Pointing to Second Circuit precedent on section 

502(a)(1)(B) claims, the court held that because United was a claims administrator, 

and not the plan, formal plan administrator, or trustee, it could not be sued for 

benefits. JA 219.

Relying on the Supreme Court's decision in Varity v. Howe, 516 U.S. 489 

(1996), the court also concluded that the plaintiffs could not simultaneously sue 

United for benefits under section 502(a)(1)(B) and for injunctive relief under 

section 502(a)(3). JA 221–22. Although plaintiffs asked the court to enjoin United 

from continuing to utilize its offending policies and procedures under section 

502(a)(3), the court read the complaint to request nothing more than the provision 

of the denied benefit – a remedy already available under section 502(a)(1)(B), 

albeit not from United, in the court's view, but from the formal administrators of 
8

their plans. See JA 223 ("[W]here the gravamen of a plaintiff's claim is the 

wrongful denial of benefits, that harm can be adequately remedied through 

monetary compensation"). It also reasoned that "[t]here is no need to obtain direct 

equitable relief against United, because any injunction against the Plan or the Plan 

Administrator will necessarily bind United, which acts as the agent for the Plans in 

its alleged capacity as a claims administrator." JA 225.

5

SUMMARY OF THE ARGUMENT

1. Despite the fact that the terms of section 502(a)(1)(B) place no limits 

on the list of possible defendants in a claim for benefits, United argues, and the 

district court held, that no suit for benefits may be brought against United as the 

entity with the sole discretion to decide claims for benefits because United is not 

the formal plan administrator or a trustee of the plan. This limiting gloss on 

section 502(a)(1)(B) cannot be squared with the language of the statute, decisions 

of the Supreme Court, or case law from other circuits. Nor is this result mandated 

by the precedent from the Second Circuit. The district court thus erred in 

dismissing on this basis the claims for benefits asserted against United. 

 5 The district court dismissed the claims of the fourth individual plaintiff based on 

the court's conclusion that his plan was not covered by ERISA, the claims of the 

two doctors for the same reasons described above as well as for being inadequately 

pled, and the claims asserted by the NYSPA for lack of standing. JA 231–48. The 

Secretary does not address these issues in this brief.
9

2. Similarly, nothing in ERISA forecloses a participant or beneficiary 

from simultaneously suing a fiduciary for benefits and seeking to enjoin violations 

of plan terms. The district court's dismissal of the section 502(a)(3) claims turns 

on a misreading of the Supreme Court's ruling in Varity, which addressed

"appropriate equitable relief" under section 502(a)(3)(B), and said nothing about 

injunctive relief under section 502(a)(3)(A). Moreover, as this Court has held, 

Varity said nothing about the ability to alternatively plead a claim for benefits and 

a claim for injunctive relief, but instead focused on the relief available once 

plaintiffs have proven an ERISA violation. Because the plaintiffs' claims here seek 

significantly different relief – a payout of wrongfully denied benefits due under 

their plans and an a prospective injunction requiring United to comply with the 

procedural and substantive requirements of ERISA – the district court erred in 

dismissing the section 502(a)(3) claims. 

ARGUMENT

I. THE DISTRICT COURT ERRED IN DISMISSING THE BENEFIT 

CLAIMS AGAINST UNITED BECAUSE NOTHING IN ERISA 

FORBIDS SUING THE ENTITY WITH EXCLUSIVE AUTHORITY TO 

DECIDE CLAIMS FOR BENEFITS, NOR DOES THIS COURT'S 

PRECEDENT REQUIRE SUCH A RESULT

By its plain terms, section 502(a)(1)(B) gives participants and beneficiaries a 

private right of action "to recover benefits due to [them] under the terms of [their] 

plan, to enforce [their] rights under the terms of the plan, or to clarify [their] rights 
10

to future benefits under the terms of the plan." 29 U.S.C. § 1132(a)(1)(B). In 

Harris Trust & Savings Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 253 

(2000), the Supreme Court considered whether another one of ERISA's remedial 

provisions, section 502(a)(3), allows a suit against nonfiduciaries who have 

participated in a fiduciary breach. Noting that Congress demonstrated "care in 

delineating the universe of plaintiffs who may bring certain civil actions" under 

section 502(a)(3), but made "no mention at all of which parties may be proper 

defendants" under that section, the Court concluded that section 502(a)(3) "admits 

of no limit . . . on the universe of possible defendants." Id. at 246–47. Like section 

502(a)(3), section 502(a)(1)(B) specifies the proper plaintiffs – participants and 

beneficiaries – in a suit for plan benefits, but is silent concerning the proper 

defendants in such a suit, and the same result should pertain. As with section 

502(a)(3), in construing section 502(a)(1)(B), courts should "assume that Congress'

failure to specify proper defendants . . . was intentional." Harris Trust, 530 U.S. at 

247.

Thus, under the reasoning of Harris Trust, there is no reason to limit the 

proper defendants in a claim for benefits to the plan or its formal trustee or 

administrator. Although the plan, as the entity with ultimate responsibility under 

ERISA for the promised benefit, is considered by some courts to be a necessary 

party defendant for purposes of affording complete relief in a claim for benefits 
11

under ERISA section 502(a)(1)(B), see Fed. R. Civ. P. 19, there is no reason to 

preclude suit, as the district court's decision does, against the entity that decides the 

benefit claims simply because that entity is not the formal plan administrator or a 

formal trustee. Indeed, under ERISA, which sets forth a functional and not merely 

formal definition of fiduciary, plan fiduciaries need not be charged with formal 

trusteeship. See Mertens v. Hewitt Assocs., 508 U.S. 248, 262 (1993) (citing 29 

U.S.C. § 1002(21)(A)). Indeed, in a welfare plan of the sort at issue here, because 

there is no requirement for a funded trust, there often are no trustees associated 

with such plans. 

Nor does the definition of plan administrator in section 3(16) of ERISA, 29 

U.S.C. 1002(16), shed any light on whom a plan participant may sue for benefits 

under ERISA section 502(a)(1)(B). The term "administrator" is defined in ERISA 

section 3(16)(A) to mean the person specifically so designated by the terms of the 

instrument under which the plan is operated or, in the case where an administrator 

is not designated, the plan sponsor. The definition's primary function is to work 

with specific statutory provisions that assign specific duties (regarding the 

operation of a plan and reporting and disclosure obligations) to the section 3(16) 

administrator. See 29 U.S.C. § 1021 (imposing on plan administrator specified 

duties of reporting and disclosure, such as summary plan descriptions and annual 

reports); id. § 1024 (placing related filing duties on plan administrator); id. § 1166 
12

(notice requirements with regard to events such as death and divorce affecting 

coverage); id. § 1132(c) (imposing on plan administrators penalties for refusal to 

supply certain requested information or to file complete annual report); see also 29 

C.F.R. § 2509.75-8, Q&A D-3 (plan administrator is a fiduciary). 

While the section 3(16) plan administrator also is assigned some specific 

disclosure and communication obligations under the Department's regulation 

applicable to benefit claims, 29 C.F.R. § 2560.503-1, neither section 3(16) nor any 

other statutory or regulatory provision requires that the plan administrator review 

or decide benefit claims or in any way limits administration of a plan to the single 

person designated as the plan administrator under section 3(16). Indeed, ERISA 

section 402(a) makes clear that more than one person can be assigned fiduciary 

responsibilities in connection with the administration and operation of the plan. 29 

U.S.C. § 1102(a). Section 3(21) specifies that anybody who has or exercises 

discretionary authority respecting plan administration is a fiduciary. 29 U.S.C. § 

1002(21). Because the plan documents grant United, not the section 3(16) plan 

administrator, the sole and final authority decide benefit claims, United's 

discretionary authority in this regard makes it a fiduciary under section 3(21). And 

section 503 requires a fiduciary to be responsible for adjudicating benefits without 

limiting the class of such fiduciaries to the section 3(16) plan administrator. In 

none of these statutory provisions is there any indication that the section 3(16) plan 
13

administrator is the only plan fiduciary subject to suit in a section 502(a)(1)(B) 

claim for benefits.

Thus, ERISA clearly allows a plan to assign an insurer or other provider of 

claims processing services the role of payor and fiduciary claims administrator and 

to be named as the defendant in a suit for benefits when the plaintiff believes they 

have improperly processed a claim. 

It makes little or no sense to preclude plan participants from suing a person 

properly assigned responsibility to decide claims under the terms of the plan. If 

this Court were to affirm the district court's decision, it would lead to the odd result 

that the participant could not sue the one party that can most directly afford the 

relief requested: a proper determination of entitlement to benefits under the plan. 

That would not necessarily mean that the participant has no avenue for relief, but it 

means that there would be significant and unjustified obstacles to ultimately 

obtaining that relief.6

Precluding a benefit suit against an entity such as United that is charged with 

interpreting the plan and making benefit determinations and paying benefits is 

anomalous for another reason. In deciding benefits cases, particularly cases 

concerning the standard of review applicable to benefit denials, Supreme Court 

 6

 Thus, we believe that the district court was wrong to assume that it would be a 

simple matter to sue the plan for benefits and thereby bind United to the proper 

interpretation and administration of the plan as determined in such a suit. JA 236. 
14

decisions have long assumed that claims under section 502(a)(1)(B) may be 

brought against the plan fiduciary that makes the benefit determination, and not 

just formal plan administrators. For instance, in its decision in Firestone Tire & 

Rubber Co. v. Bruch, 489 U.S. 101 (1989), the Supreme Court held that "a denial 

of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo 

standard unless the benefit plan gives the administrator or fiduciary discretionary 

authority to determine eligibility for benefits or to construe the terms of the plan." 

489 U.S. at 115 (emphasis added). Thus, the Supreme Court in cases like 

Firestone and UNUM Life Insurance Company of America v. Ward, 526 U.S. 358 

(1999), and lower courts in countless other cases across the country, have simply 

and correctly assumed that a plan participant or beneficiary claiming benefits under 

an ERISA plan could sue the insurer that was making the benefit determination, 

without ever questioning whether the insurer was the plan administrator. Indeed, 

under Firestone, courts in the Second Circuit and others deferentially review the 

decisions of insurers that are granted discretion to interpret plan terms and decide 

benefit claims, a practice that would make scant sense if such insurers are not 

proper parties in a suit for benefits merely because they are not the section 3(16) 

plan administrator. 

For these reasons, most courts that have expressly considered the issue have 

held that benefit claimants may sue any fiduciary charged with determining the 
15

claim. See, e.g., Curcio v. John Hancock Mut. Life Ins. Co., 33 F.3d 226, 233 (3d 

Cir. 1994); LifeCare Mgmt. Servs. LLC v. Ins. Mgmt. Adm'rs Inc., 703 F.3d 835, 

844–46 (5th Cir. 2013) (a third-party claims administrator may be held liable if it 

exercises "actual control" over the claims process); Musmeci v. Schwegmann 

Giant Super Mkts., Inc., 332 F.3d 339, 350 (5th Cir. 2003) ("[I]t was indisputably 

SGSM's decision to deny further vouchers or their cash equivalent to the Plaintiffs. 

Under these facts, the district court correctly held that SGSM was properly named 

as a defendant."); Daniel v. Eaton Corp., 839 F.2d 263, 266 (6th Cir. 1988); Mein 

v. Carus Corp., 241 F.3d 581, 585 (7th Cir. 2001); Layes v. Mead Corp., 132 F.3d 

1246, 1249–50 (8th Cir. 1998) (administrator who made claims decisions was a 

proper defendant); Cyr v. Reliance Standard Life Ins. Co., 642 F.3d 1202, 1207 

(9th Cir. 2011) (party with control over benefits was a "logical defendant"); Garren 

v. John Hancock Mut. Life Ins. Co., 114 F.3d 186, 187 (11th Cir. 1997) ("The 

proper party defendant in an action concerning ERISA benefits is the party that 

controls administration of the plan."); see also Larson v. United Healthcare Ins. 

Co., 723 F.3d 905, 913 (7th Cir. 2013) (citing Cyr and recognizing that "the 

insurance company [that] decides contractual eligibility and benefits questions and 

pays claims" may be sued in a claim for benefits under section 502(a)(1)(B)).

Although this Court has never directly considered whether a claims 

administrator (like United) with sole discretion to decide claims is a proper 
16

defendant under section 502(a)(1)(B), the district court relied on Second Circuit 

decisions stating that in a benefits suit, only the plan, plan administrator or trustee 

are proper defendants. In the earliest such case, Leonelli v. Pennwalt Corp., 887 

F.2d 1195 (2d Cir. 1989), a former employee brought state law negligence and 

breach of contract claims against his employer and two managers at the company,

alleging that they failed to inform him about early retirement options and 

improperly denied him benefits under a salary continuation plan. The Second 

Circuit refused to allow Leonelli to amend his complaint to allege fiduciary 

breaches and a claim for benefits under ERISA, noting that he did not name the 

pension committee that decided benefits claims and did not exhaust the claims 

procedure as provided by the plan. Id. at 1199. Citing the provision in ERISA that 

permits a plan to sue or be sued, 29 U.S.C. § 1132(d)(2), and the Ninth Circuit's 

decision in Gelardi v. Pertec Computer Corp., 761 F.2d 1323, 1324–25 (9th 

Cir.1985) (per curiam), which now has been overruled by Cyr, the court reasoned 

that “[i]n a recovery of benefits claim, only the plan and the administrators and 

trustees of the plan in their capacity as such may be held liable.” Leonelli, 887 

F.2d at 1199. This conclusion, however, was not necessary: Leonelli could not 

have brought suit under section 502(a)(1)(B) because he did not exhaust the claims 

procedure as provided by the plan. Id. at 1199. 
17

Since Leonelli, this Circuit has repeated that only plans, plan administrators 

and trustees can be sued for benefits under section 502(a)(1)(B), but has done so 

mostly in cases where plaintiffs did not establish defendants' discretion over claims 

or even involvement in the plan's operation. See, e.g., Clark v. World Cable 

Commc'ns, Inc., No. 98-7088, 1998 WL 907904, at *2 (2d Cir. Dec. 23, 1998) 

(unpublished) (affirming summary judgment dismissing claim for benefits against 

former employer because there were no allegations that employer was either 

"administrator or trustee of the ERISA qualified plan"); Crocco v. Xerox Corp., 

137 F.3d 105, 107 (2d Cir. 1998) (denying that employer acts as plan's de facto 

administrator); Chapman v. ChoiceCare Long Island Term Disability Plan, 288 

F.3d 506, 509–10 (2d Cir. 2002) (refusing to dismiss suit for benefits against plan, 

noting that a plan, along with administrators and trustees of the plan, are proper 

defendants in a suit for benefits under ERISA); Paneccasio v. Unisource 

Worldwide, Inc., 532 F.3d 101, 108 n.2 (2d Cir. 2008) (holding that summary 

judgment for defendants was proper because parent company of former employer 

and related corporate entities did not have control over benefits and thus were not 

proper defendants in a suit for benefits under ERISA). None of these cases 

addressed whether a third-party administrator that has sole authority to decide 

benefits claims may be a proper defendant in a suit for benefits, as in this case.

E.g., JA 215 (imbuing United with final "authority to interpret Plan provisions as 
18

well as facts and other information related to claims and appeals" for one plan). 

Instead, most of these cases concerned whether to allow parties, such as plan 

sponsors, that are not ERISA fiduciaries, to be sued. See, e.g., Paneccasio, 532 

F.3d at 108 n.2 (disallowing claim against a later owner of former employer and its 

present corporate permutation when other entities exerted all control over plan); 

Crocco, 137 F.3d at 107 (rejecting that employer acts as de facto administrator of a 

plan and thus a proper section 502(a)(1)(B) defendant).

The district court also cited Lee v. Burkhart, 991 F.2d 1004 (2d Cir. 1993), a 

ruling which did involve a suit against an insurer, Connecticut General, acting as a 

claims administrator with discretion to decide benefit claims under a self-funded 

health plan. The plaintiffs, two participants in the plan, sued Connecticut General 

for benefits under section 502(a)(1)(B) (as well as for fiduciary breach under 

section 502(a)(3)), but they did not claim that Connecticut General improperly 

determined their benefit claims. Instead, after Connecticut General informed them 

that their benefits would not be paid due to the bankruptcy of the plan sponsor 

responsible for the payment of benefits, 991 F.2d at 1006–07, they sued 

Connecticut General for the benefits under an estoppel theory. 991 F.2d at 1009. 

Although this Court, citing the Ninth Circuit's now-overrruled Gelardi decision, 

noted that the fact that Connecticut General was not the "Plan" was a "potential 

impediment" to the plaintiffs' recovery, the Court's actual holding was that the facts 
19

alleged by the plaintiffs were "insufficient to support a claim for equitable 

estoppel." Id. at 1010. Thus, Lee has little or no relevance to the issue in this case. 

Because none of the prior decisions from this Court have held that plan 

participants challenging benefit denials under their plans may not sue the entity 

that denied these claims, we urge this court to hold, as common sense would 

dictate, that they may sue such decisionmakers under ERISA's broadly worded 

claim-for-benefits provision. Thus, we believe that the prior decisions should be 

limited to their facts. They are best understood as using the terms "trustees" and 

"administrators" in a non-technical sense to refer to ERISA fiduciaries more 

broadly, and they are intended to preclude only benefit suits against entities that 

lacked discretionary control and authority over plan administration. This case 

offers the Court the opportunity to clarify that not only plan administrators and

trustees, but other fiduciary decisionmakers, such as United in this case, may be 

sued in an ERISA suit for benefits. 

II. THE DISTRICT COURT ERRED IN DISMISSING THE PLAINTIFFS' 

CLAIMS FOR INJUNCTIVE RELIEF UNDER SECTION 502(a)(3) 

BECAUSE ERISA PLAINTIFFS ARE ENTITLED TO PLEAD 

INJUNCTIVE RELIEF CLAIMS SIMULTANEOUSLY WITH BENEFIT 

CLAIMS

Section 502(a)(3) empowers participants, beneficiaries and fiduciaries to sue 

"(A) to enjoin any act or practice which violates any provision of this title or the 

terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress 
20

such violations or (ii) to enforce any provisions of this title or the terms of the 

plan." 29 U.S.C. § 1132(a)(3). Plaintiffs in this case alleged that United 

administered the plans in a way that violated both specific plan provisions, as well 

as ERISA's substantive and procedural requirements, and they sought

a permanent injunction ordering United to cease imposing 

preauthorization and concurrent review requirements for outpatient 

mental health treatment, to cease relying on the medical necessity 

definitions for mental health services as incorporated into the Empire 

Plan or plans with similar definitions, to pay benefits during the 

appeal process after denial or reduction of benefits for an ongoing 

course of mental health treatment, to pay mental health providers for 

providing mental health services under the E/M codes, based on the 

amount of time spent providing such services, and to cease offsetting 

payable claims to apply toward purported overpayments. 

JA 168. Although they cited section 502(a)(3) generally, presumably they seek 

this injunctive relief to enforce plan terms and federal law under subsection (A) of 

section 502(a)(3). 

In ruling that United is not only an improper defendant in a suit for benefits 

but is also immune from a suit for injunctive relief for its allegedly improper 

claims processing practices, the district court's decision allows no recourse against 

United even if, as alleged, it systematically administers the plans at issue in a 

manner contrary to the requirements of ERISA. Nothing, however, in ERISA bars 

plaintiffs from simultaneously suing to obtain benefits under section 502(a)(1)(B) 

and to enjoin violations of ERISA and plan terms under section 502(a)(3)(A). 
21

This district court dismissed the injunctive-relief claims based on a 

misreading of Varity. In Varity, a group of former beneficiaries sought equitable 

relief restoring them to a plan after misrepresentations led them to withdraw from 

it. 516 U.S. at 491–92. The Supreme Court held that the misrepresentations 

constituted fiduciary breaches and that section 502(a)(3) allowed claims for 

individual (as opposed to plan) relief. 516 U.S. at 501, 506. Noting that 

subsection (a)(3)(B) only authorizes "appropriate" equitable relief, the Court 

reasoned "that where Congress elsewhere provided adequate relief for a 

beneficiary's injury, there will likely be no need for further equitable relief, in 

which case such relief normally would not be 'appropriate.'" 516 U.S. at 515 

(citation omitted). Because no other part of section 502 could remedy the 

misrepresentations alleged by the Varity plaintiffs, the Court allowed plaintiffs to 

proceed with their claim seeking equitable relief placing them in the plan they 

would have been in but for the fiduciary breach. 516 U.S. at 515.

Contrary to the district court's conclusion, Varity is not an obstacle to the 

claim for injunctive relief asserted here. First, it is not apparent how the Varity

Court's concern that relief would not be "appropriate" under section 502(a)(3)(B)

where a plaintiff has another avenue for relief has any relevance in this case. 

Plaintiffs here are not seeking "appropriate" equitable relief under subsection (B) 

of section 502(a)(3) for an otherwise un-redressable injury – they are seeking 
22

injunctive relief to enforce plan terms and ERISA, a remedy explicitly provided in 

subsection (A). 

Second, whether plaintiffs have stated a claim for purposes of Rule 12(b)(6) 

of the Federal Rules of Civil Procedure hinges on whether their complaint sets 

forth adequate and plausible allegations that, if true, entitle them to relief. E.g., 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Pension Ben. Guar. Corp. ex rel. St. 

Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 

F.3d 705, 718 (2d Cir. 2013). Because the individual plaintiffs, who are plan 

participants, cite numerous examples of United, as a plan fiduciary, administering 

the plans in ways that conflicted with explicit terms of their plans and the 

requirements of ERISA, they have stated a claim. See generally JA 25–169. The 

language in Varity relied on by the district court focused on what relief is 

appropriate after ERISA violations are proven. See 516 U.S. at 506–08 (finding 

that defendant's actions violated fiduciary duties and examining whether the relief

sought was appropriate). Nothing in ERISA, however, modifies ordinary 

principles of civil procedure that permit the joinder of alternative – and even 

inconsistent – claims in a single action. See Fed. R. Civ. P. 8(a)(3), 8(d)(2). Cf.

CIGNA Corp. v. Amara, 131 S. Ct. 1866, 1882 (2011) (remanding to allow 

plaintiffs to proceed with their section 502(a)(3) claim after holding that section 

502(a)(1)(B) did not provide the relief they sought). 
23

Varity, therefore, does not establish a special rule for ERISA that prevents 

plaintiffs from pleading and litigating separate claims based on different theories of 

breach or appropriate remedy. Rather, as this Court has correctly recognized,

"Varity Corp. did not eliminate a private cause of action for breach of fiduciary 

duty when another potential remedy is available; instead, the district court's 

remedy is limited to such equitable relief as is considered appropriate." Devlin v. 

Empire Blue Cross & Blue Shield, 274 F.3d 76, 89–90 (2d Cir. 2001); see

Frommert v. Conkright, 433 F.3d 254, 272 (2d Cir. 2006) (holding that district 

court's determination of "appropriate equitable relief" under section 502(a)(3) must 

be based on ERISA policy, the special nature and purpose of employee benefit 

plans, and consideration of what relief, if any, was afforded under section 

502(a)(1)(B)). Therefore, the proper question here – as articulated by this Court in 

Devlin – is whether individual plaintiffs sought different relief in their sections 

502(a)(1)(B) and 502(a)(3) claims. See Hall v. LHACO, Inc., 140 F.3d 1190, 1197 

(8th Cir. 1998) (allowing section 502(a)(3) claim because it sought significantly 

different relief – an injunction and an accounting – than that sought in plaintiff's 

claim for benefits). 

Their pleadings make plain that plaintiffs sought to remedy both the 

wrongfully denied benefits (their section 502(a)(1)(B) claims) and United's 

ongoing policies and procedures that they claim violate relevant plan terms and 
24

ERISA's mental health and claims processing requirements (their section 

502(a)(3)(A) claims for injunctive relief). Even if this Court reverses on the first 

issue and plaintiffs can and ultimately do obtain benefits under section 

502(a)(1)(B), disallowing a section 502(a)(3)(A) claim against United would 

eliminate plaintiffs' ability to most effectively enforce the requirements of ERISA 

and the terms of their plans against the entity that administers benefits under those 

plans. Hill v. Blue Cross Blue Shield of Mich., 409 F.3d 710, 718 (6th Cir. 2005) 

(noting that only injunctive relief under section 502(a)(3) will provide complete 

relief to a plaintiff seeking to alter how an entity administers an ERISA-covered 

plan). 

Payouts of denied benefits would not address and correct the allegedly 

unlawful and discriminatory policies and procedures – for example, United's 

application of "fail-first" policies to only behavioral benefits claims – that led to 

those wrongful denials. Cf. Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 147 

(1985) (a "plan administrator's refusal to pay contractually authorized benefits" if 

"willful and part of a larger systematic breach of fiduciary obligations" could 

entitle ERISA plaintiffs to seek removal of the administrator). Accordingly, 

because ERISA does not foreclose the simultaneous claims for relief under section 

502(a)(1)(B) and section 502(a)(3)(A) to treat different injuries that were 
25

adequately alleged in the complaint, the district court erred in ruling that plaintiffs 

could not concurrently sue for benefits and injunctive relief. 

CONCLUSION

For these reasons, the Secretary requests that the district court's decision be 

reversed. 

Respectfully submitted,

M. PATRICIA SMITH

Solicitor of Labor

G. WILLIAM SCOTT

Acting Associate Solicitor

ELIZABETH HOPKINS

Counsel for Appellate and 

Special Litigation

/s/ Nicholas D. Beadle 

NICHOLAS D. BEADLE

Attorney

United States Department of Labor

Office of the Solicitor

200 Constitution Ave., N.W., N-2700

Washington, D.C. 20210
26

CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rules of Appellate Procedure 29(c)(5) and (d), and 

32(a)(7)(C), I certify the following with respect to the foregoing amicus brief of 

the Secretary of Labor: I hereby certify that this brief complies with the 

requirements of Fed. R. App. P. 32(a)(5) and (6) because it has been prepared in 

14-point Times New Roman, a proportionally spaced font. 

I further certify that this brief complies with the type-volume limitation set 

forth in Fed. R. App. P. 29(d) and 32(a)(7)(B) because it contains 5,966 words, 

excluding exempt material, according to the count of Microsoft Word. 

The brief was prepared using Microsoft Word 2010.

DATE: April 22, 2014 /s/ Nicholas D. Beadle

NICHOLAS D. BEADLE

Attorney

United States Department of Labor

Office of the Solicitor

200 Constitution Ave., N.W., N-2700

Washington, D.C. 20210
27

CERTIFICATE OF SERVICE AND ECF COMPLIANCE

I hereby certify that, on this 22nd day of April 2014, the Brief of the 

Secretary of Labor, United States Department of Labor, as Amicus Curiae in 

Support of Plaintiffs-Appellants and Requesting Reversal, was filed electronically 

with the Clerk of the Court for the United States Court of Appeals for the Second 

Circuit by using the Court’s appellate CM/ECF system. Counsel of record are 

registered CM/ECF users and service to them was accomplished by the Court’s 

appellate CM/ECF system.

In addition, I further certify that six copies of the foregoing Brief of the 

Secretary of Labor, United States Department of Labor, as Amicus Curiae in 

Support of Plaintiffs-Appellants and Requesting Reversal, which are exact copies 

of the CM/ECF filing, were sent by prepaid, overnight delivery to the Clerk of the 

Court for the United States Court of Appeals for the Second Circuit pursuant to 

Local Rule 31.1.

/s/ Nicholas D. Beadle

NICHOLAS D. BEADLE

Attorney