_______________________________________ 

_______________________________________ 

________________________________________ 

________________________________________ 

 

 

 

 

No. 16-2607 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT 

IN RE LORNA CLAUSE, 

Petitioner, 

On Petition for a Writ of Mandamus to the United States District Court 

for the Eastern District of Missouri in No. 4.16-cv-ooo71-RLW, 

 Hon. Ronnie L. White 

The Secretary of Labor's Amicus Curiae 

Brief in Support of Petitioner 

M. PATRICIA SMITH ELIZABETH HOPKINS 

Solicitor of Labor THOMAS TSO 

Counsels for Appellate and Special 

G. WILLIAM SCOTT Litigation 

Associate Solicitor, Plan Benefits 

 Security Division SARAH HUGHES

 Trial Attorney 

U.S. Department of Labor, Plan Benefits 

Security Division 

200 Constitution Ave., N.W., N-4611 

Washington, DC 20210 

(202) 693-5594 
TABLE OF CONTENTS
 

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

QUESTION PRESENTED ........................................................................................1 

THE SECRETARY'S INTEREST .............................................................................1 

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

DISCUSSION ............................................................................................................3 

The Forum-Selection Clause Is Unenforceable Because It Contradicts ERISA and 

Is Contrary to the Policy Concerns Underlying the Statute .......................................3 

1.	 Public Policy is Sufficient to Invalidate a Forum-Selection Clause .....3 

2.	 The Congressional Intent and Policy Behind ERISA Support the 

Protection of the ERISA Participants' Right to Choose Venue ............6 

3.	 Arguments For Enforcing the Forum-Selection Clause Are 

Unsupported .......................................................................................13 

CERTIFICATE OF SERVICE 

CERTIFICATE OF IDENTICAL COMPLIANCE 

OF BRIEFS AND VIRUS CHECK
 

CONCLUSION .......................................................................................................15 
TABLE OF AUTHORITIES 

Federal Cases: 

Aetna Health Inc. v. Davila, 

 542 U.S. 200 (2004) ............................................................................................. 11 

Arnulfo P. Sulit, Inc. v. Dean Witter Reynolds, Inc., 

 847 F.2d 475 (8th Cir. 1988) ........................................................................ 14, 15 

Atl Marine Constr. Co. v. U.S. Dist. Ct. , 

 134 S. Ct. 568 (2013) ............................................................................................. 8 

Barnum v. Mosca, 

 No. 108-CV-567(LEK/RFT), 2009 WL 982579 (N.D.N.Y. Apr. 13, 2009) ........ 9 

Bisso v. Inland Waterways Corp., 

 349 U.S. 85(1955) .................................................................................................. 6 

Bond v. Twin Cities Carpenters Pension Fund,

 307 F.3d 704 (8th Cir. 2002) ............................................................................... 11 

Boyd v. Grand Trunk W. R. Co., 

 338 U.S. 263 (1949)(per curiam).................................................................. 4, 5, 6 

Buce v. Allianz Life Ins. Co., 

 247 F.3d 1133 (11th Cir. 2001) .................................................................... 14 n.1 

Clause v. Sedgwick Claims Mgmt. Servs., Inc., 

 No. CIV. 15-388-TUC-CKJ, 2016 WL 213008 (D. Ariz. Jan. 19, 2016) ............. 3 

Coleman v. Supervalu, Inc. Short Term Disability Program, 

 920 F. Supp. 2d 901 (N.D. Ill. 2013) .................................................. 9, 13, 14, 15 

Curtiss-Wright Corp. v. Schoonejongen, 

 514 U.S. 73 (1995) ............................................................................................... 13 

Egelhoff v. Egelhoff, 

 532 U.S. 141 (2001) ............................................................................................. 14 

Esden v. Bank of Boston,

 229 F.3d 154 (2d Cir. 2000) .................................................................................. 5 

ii 
Federal Cases-(continued): 

Firestone Tire & Rubber Co. v. Bruch, 

 489 U.S. 101 (1989) ............................................................................................... 9 

Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 

 463 U.S. 1 (1983) ................................................................................................. 10 

Franke v. Poly-Am. Med. & Dental Benefits Plan, 

 555 F.3d 656 (8th Cir. 2009) ............................................................................... 15 

French v. Dade Behring Life Ins. Plan, 

 Civ. No. 09-394-C, 2010 WL 2360457 (M.D. La. Mar. 23, 2010) ..................... 12 

Fulk v. Bagley, 

 88 F.R.D. 153 (M.D.N.C. 1980) ............................................................................ 8 

Gobeille v. Liberty Mut. Ins. Co., 

 136 S. Ct. 936 (2016) ........................................................................................... 14 

Gulf Life Ins. Co. v. Arnold, 

 809 F.2d 1520 (11th Cir. 1987) .................................................................. 8, 9, 12 

M/S Bremen v. Zapata Off-Shore Co., 

 407 U.S. 1 (1972) ................................................................................................... 4 

Maune v. Int'l Bhd. of Elec. Workers, Local No. 1, Health & Welfare Fund,

 83 F.3d 959 (8th Cir. 1996) ................................................................................... 8 

Metro. Life Ins. Co. v. Glenn, 

 554 U.S. 105 (2008) ...................................................................................... 11, 13 

Nicolas v. MCI Health & Welfare Plan No. 501, 

 453 F. Supp. 2d 972 (E.D. Tex. 2006) ................................................................... 8 

Rush Prudential HMO, Inc. v. Moran, 

 536 U.S. 355 (2002) ............................................................................................. 15 

iii 
Federal Cases-(continued): 

Sec'y of Labor v. Fitzsimmons, 

 805 F.2d 682 (7th Cir. 1986) ............................................................................... 10 

Smith v. Aegon Cos. Pension Plan, 

 769 F.3d 922 (6th Cir. 2014)(Clay, J. dissenting) .................................. 12, 13, 14 

S. Buffalo Ry., Co. v. Ahern, 

 344 U.S. 367 (1953) ............................................................................................... 6 

Union Elec. Co. v. Energy Ins. Mut. Ltd., 

 689 F.3d 968 (8th Cir. 2012) ................................................................................. 3 

Varsic v. U.S. Dist. Court for Cent. Dist. of Cal., 

 607 F.2d 245 (9th Cir. 1979) ................................................................................. 9 

Viti v. Guardian Life Ins. Co. of Am., 

 817 F. Supp. 2d 214 (S.D.N.Y. 2011) ................................................................. 13 

Volkswagen Interamericana, S. A. v. Rohlsen, 

 360 F.2d 437 (1st Cir. 1966) ................................................................................ 10 

Werdehausen v. Benicorp Ins. Co., 

 487 F.3d 660 (8th Cir. 2007) ............................................................................... 11 

State Cases: 

Kubis & Perszyk Assocs, Inc. v. Sun Microsystems, Inc., 

 680 A.2d 618 (N.J. 1996) ............................................................................. 12, 13 

Tandy Comput. Leasing, a Div. of Tandy Elecs., Inc. v. Terina's Pizza, Inc., 

 784 P.2d 7 (Nev. 1989) ................................................................................... 12 

Federal Statutes: 

Federal Arbitration Act of 1925 (Title 9), 

 9 U.S.C. § 1 et seq.: 

9 U.S.C. § 2 .............................................................................................................. 14 

9 U.S.C. § 3 .............................................................................................................. 14 

iv 
 

Federal Statutes-(continued): 

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

as amended, 29 U.S.C. 1001 et seq.: 

Section 2(a), 29 U.S.C. § 1001(a) ......................................................................7 

Section 2(b), 29 U.S.C. § 1001(b)..................................................................4, 7 

Section 404(a)(1)(D), 29 U.S.C. § 1104(a)(1)(D) ................................ 1, 4, 5, 7
 

Section 502, 29 U.S.C. § 1132 ...........................................................................1 

Section 502(a), 29 U.S.C. § 1132(a) ................................................................15 

Section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B) ....................................... 2, 11 

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

Section 502(e), 29 U.S.C. § 1132(e)......................................................... 1, 4, 8 

Section 502(e)(3), 29 U.S.C. § 1132(e)(2) .............................................. 1, 9, 10 

Section 503(2), 29 U.S.C. § 1133(2)................................................................11 

Section 505, 29 U.S.C. § 1135 ...........................................................................1 

Section 514(a) 29 U.S.C. § 1144(a) .................................................................14 

Federal Employers' Liability Act of 1908 (Title 45), 

45 U.S.C. 51 et seq.: 

Section 5, 45 U.S.C. § 55 ...............................................................................4, 5 

Section 6, 45 U.S.C. § 56 ...............................................................................4, 5
 

v 
Miscellaneous: 

29 C.F.R. § 2560.503–1(c)(4) .................................................................................. 15 

H.R. Rep. No. 93-553 (1973), reprinted in 

1974 U.S.C.C.A.N. 4639, 4655 ....................................................................... 10 

S. Rep. No. 93-383 (1973), reprinted in, 

1974 U.S.C.C.A.N. 4989 ................................................................................... 7 

S. Rep. No. 92-1150, 92d Cong., 2d Sess. 5 (1972) ............................................... 10 

Tax Proposals Affecting Private Pension Plans: Hearings Before the H. Comm. on 

Ways & Means, 92d Cong. 784 (1972) (statement of Emp. Trs. Comm. of the 

Corp. Fiduciaries Ass'n of Ill.). .......................................................................... 8 

Langbein, Trust Law as Regulatory Law, 

 101 Nw. U. L. Rev. 1315 (2007) .................................................................... 13 

Brief of the United States as Amicus Curiae, Smith v. Aegon Cos. Pension Plan, 

134 S. Ct. 2459 (Nov. 2015) (No. 14-1168), available at 

http://1.usa.gov/24P2gbV. .................................................................................. 1 

vi
 
QUESTION PRESENTED 

Whether the Employee Retirement Income Security Act ("ERISA") 

invalidates a welfare plan's forum-selection clause that deprives the petitionerparticipant of the venue choices afforded by ERISA's venue provision, and instead 

requires her to bring suit at a considerable distance from her home. 

THE SECRETARY'S INTEREST 

At the invitation of the Supreme Court, the United States recently articulated 

its position on the question presented that forum-selection clauses which restrict a 

participant's choice of venue conferred by ERISA, 29 U.S.C. § 1132(e), are not 

"consistent" with ERISA, 29 U.S.C. § 1104(a)(1)(D), and, hence, are 

unenforceable. Brief of the United States as Amicus Curiae, Smith v. Aegon 

Companies Pension Plan, 134 S. Ct. 2459 (Nov. 2015) (No. 14-1168), 

http://1.usa.gov/24P2gbV. The Secretary of Labor has primary authority to 

interpret and enforce the provisions of Title I of ERISA to ensure fair and impartial 

plan administration and compliance with ERISA's requirements. See 29 U.S.C. 

§§ 1132, 1135. The Secretary has a substantial interest in ensuring that ERISA's 

jurisdictional provision in section 502(e)(2), 29 U.S.C. § 1132(e)(2), rather than a 

more restrictive forum-selection clause in the plan documents, governs ERISA 

benefits suits. Under the forum-selection clause at issue here, a plan participant's 

suit for disability benefits was transferred to the U.S. District Court for the Eastern 
District of Missouri, a distant forum to which plaintiff has no connection. Giving 

effect to a plan provision such as this allows employers to unilaterally erect 

obstacles that impede plan participants from enforcing their important statutory 

rights, an effect antithetical to ERISA's purposes. 

STATEMENT OF THE CASE 

Plaintiff Lorna Sue Clause was a Patient Care Technician at Carondelet St. 

Joseph's Hospital in Tucson, Arizona. Dkt. 12-1 ¶¶ 7-8. Clause is a participant in 

the Ascension Plan, which is administered by her employer and plan sponsor, 

Ascension Health Alliance, and Sedgwick Claims Management Services, the 

claims administrator. Id. ¶¶ 1, 3. In 2012, Clause claimed and was granted longterm disability benefits under the Plan. Id. ¶ 10. In 2013, Sedgwick notified 

Clause that it was terminating her benefits; Clause successfully appealed, and her 

benefits were reinstated. Id. ¶¶ 13-15. In January 2015, Sedgwick again 

terminated her benefits, claiming that she was not disabled. Id. ¶ 43-44. Clause 

alleges that defendants relied on incorrect information and therefore improperly 

denied her benefits. Id. ¶ 48. 

On August 28, 2015, Clause filed a complaint in the U.S. District Court for 

the District of Arizona. The complaint seeks declaratory relief and asserts a claim 

for benefits under ERISA section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), and for 

equitable relief under section 502(a)(3), 29 U.S.C. § 1132(a)(3). On October 15, 

2 
2015, defendants filed a Motion to Dismiss, or in the Alternative, to Transfer 

Venue, based on a forum-selection clause in the Plan's documents. Clause v. 

Sedgwick Claims Mgmt. Servs., Inc., No. CIV 15-388-TUC-CKJ, 2016 WL 

213008, at *1 (D. Ariz. Jan. 19, 2016). The Plan provides: 

9.20 Forum Selection Clause. Except as the laws of the United 

States may otherwise require, any action by any Plan Participant 

relating to or arising under this Plan shall be brought and resolved 

only in the U.S. District Court for the Eastern District of 

Missouri . . . . 

Defendants' Memorandum [Dkt. 16], at *3, Clause v. Sedgwick Claims Mgmt. 

Servs., Inc., No. 4:15-cv-00388 (D. Ariz. filed Oct. 15, 2015). The District Court 

of Arizona entered an order transferring the case to the Eastern District of 

Missouri. Clause, 2016 WL 213008, at *5. Clause then moved to retransfer the 

case back to the District Court of Arizona, which the District Court for the Eastern 

District of Missouri denied (Dkt. 51) ("Op."). Clause has lived and worked in 

Arizona for over a decade, Dkt. 12-1, and has no connection to Missouri. 

DISCUSSION 

The Forum-Selection Clause Is Unenforceable Because It Contradicts 

ERISA and Is Contrary to the Policy Concerns Underlying the Statute 

1. Public Policy is Sufficient to Invalidate a Forum-Selection Clause 

While forum-selection clauses are "'prima facie valid[,]' . . .public policy 

against enforcement" may be "sufficient to invalidate the forum selection clause." 

Union Elec. Co. v. Energy Ins. Mut. Ltd., 689 F.3d 968, 973, 975 (8th Cir. 2012) 

3 
(citation omitted). In M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972), 

the Supreme Court recognized that forum-selection clauses "should be held 

unenforceable if enforcement would contravene strong public policy of the forum 

in which suit is brought, whether declared by statute or by judicial decision." Id. 

(citing Boyd v. Grand Trunk W. R. Co., 338 U.S. 263, 265 (1949) (per curiam)). 

ERISA's plain text confers on plaintiff-participants a choice of venues in 

section 502(e), 29 U.S.C. § 1132(e), to file an ERISA claim. Congress stated in 

ERISA's text that a "policy" of ERISA is to "protect . . . the interests of participants 

. . . by providing . . . ready access to the Federal courts." 29 U.S.C. § 1001(b). 

Here, the forum-selection clause contravenes this text by eliminating the plaintiff's 

choice of venue. The clause is not "consistent" with ERISA, 29 U.S.C. § 

1104(a)(1)(D), and thus is unenforceable. 

As an example of how the Bremen standard applies, the Supreme Court in 

Bremen, 407 U.S. at 15, cited to its prior decision in Boyd. Boyd involved a 

forum-selection agreement in an action brought under the Federal Employers 

Liability Act ("FELA"), which has its own venue provision. 338 U.S. at 265. The 

venue provision in section 6 of FELA states, "[u]nder this Act an action may be 

brought in a district court of the United States, in the district of the residence of the 

defendant, or in which the cause of action arose, or in which the defendant shall be 

doing business at the time of commencing such action." 45 U.S.C. § 56. Section 

4 
5 of FELA, 45 U.S.C. § 55, states, "Any 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 to this chapter, shall to that extent be 

void . . . ." Reading these provisions together, the Supreme Court found that the 

"petitioner's right to bring the suit in any eligible forum [under section 6 of FELA] 

is a right of sufficient substantiality" to be protected by section 5 of FELA, which 

voids any contract or agreement that serves to purposefully or intentionally exempt 

the employer from any liability. Boyd, 338 U.S. at 265. The Court therefore held 

that "contracts limiting the choice of venue are void as conflicting with [FELA]" 

because they "would thwart" FELA's "express purpose" by "sanction[ing] defeat of 

that right [to select the forum]." 338 U.S. at 265-66. 

ERISA is analogous to FELA in many respects. Like the broad venue 

provision in section 6 of FELA, the venue provision in ERISA section 502(e) 

provides several choices where the plaintiff "may" bring suit. 29 U.S.C. § 1132(e). 

Like section 5 of FELA, ERISA also contains protections against contractual terms 

that depart from the Act's minimum requirements. ERISA section 404(a)(1)(D) 

provides that plan fiduciaries are required to follow plan documents only "insofar 

as such documents and instruments are consistent with the provisions of [title I] 

and title IV [of ERISA]." 29 U.S.C. § 1104(a)(1)(D). "The Plan cannot contract 

around the statute." Esden v. Bank of Bos., 229 F.3d 154, 173 (2d Cir. 2000). By 

5 
eliminating the plaintiff's choice of venue, a forum-selection clause in an ERISA 

plan is inconsistent with ERISA's text, and thus unenforceable. 

In addition to the similarities between FELA and ERISA's plain text, the 

Supreme Court identified several other characteristics of FELA that animated the 

Court's finding a "substantial right" to venue in Boyd that warranted protection. In 

South Buffalo Ry. Co. v. Ahern, the Court noted, in citing Boyd, that the Court, 

"mindful of the benevolent aims of the Act, [has] jealously scrutinized private 

arrangements for the bartering away of federal rights." 344 U.S. 367, 372-73 

(1953). In Bisso v. Inland Waterways Corp., 349 U.S. 85, 91 (1955), the Court, 

citing Boyd, articulated a general rule that courts may "prevent enforcement of 

[obligations under] contracts in many relationships such as . . . employers and 

employees, [in order] . . . to discourage [wrongdoing] by making wrongdoers pay 

damages, and . . . to protect those in need of goods or services from being 

overreached by others who have power to drive hard bargains." Id. at 90-91 

(applying the rule to releases of negligence claims). The Court thus scrutinizes 

private contracts in situations with special relationships, like employers and 

employees, where there is unequal bargaining power and the contractual 

arrangement impedes the pursuit of statutory claims to deter wrongdoing. 

2. The Congressional Intent and Policy Behind ERISA Support the 

Protection of the ERISA Participants' Right to Choose Venue 

The analysis of FELA that supported the Court's decision to recognize 

6 
plaintiff's right to choose venue in Boyd leads to the same conclusion in ERISA 

because: (1) the text and purpose of ERISA is to protect participants' and 

beneficiaries' rights, which includes a participant's right to choose venue; (2) 

ERISA creates a special fiduciary relationship within an employment context, 

obligating fiduciaries to protect and not impede participants' rights; (3) participants' 

legal actions are necessary to deter and police fiduciary misconduct, and 

participants should be granted ready access to court; and (4) individual participants 

typically do not have bargaining power with respect to plan design, including the 

forum selected in a plan's forum-selection clause. For these reasons, this Court 

should conclude that the participant's right to choose venue in ERISA section 

502(e) is protected under ERISA section 404(a)(1)(D), which requires that plan 

terms that are inconsistent with ERISA be disregarded. 

First and foremost, ERISA provides: "It is hereby declared to be the policy 

of this chapter to protect . . . the interests of participants in employee benefit plans 

and their beneficiaries" by, among other things, "providing . . . ready access to the 

Federal courts." 29 U.S.C. § 1001(b) (emphasis added). To "safeguar[d] . . . the 

establishment, operation, and administration" of employee benefit plans, ERISA 

sets "minimum standards . . . assuring the equitable character of such plans and 

their financial soundness . . . ." 29 U.S.C. § 1001(a) (emphasis added). As 

Congress recognized, ERISA provides "[l]iberal venue and service provisions," S. 

7 
Rep. No. 383, 93d Cong., 1st Sess. 106 (1973), which were enacted despite 

objections that they 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 H. Comm. on Ways & 

Means, 92d Cong. 784 (1972) (statement of Emp. Trusts Comm. of the Corp. 

Fiduciaries Ass'n of Ill.). ERISA's plain text and legislative history demonstrate 

the clear congressional intent "to open the federal forum to ERISA claims to the 

fullest extent possible." Fulk v. Bagley, 88 F.R.D. 153, 167 (M.D.N.C. 1980); see 

Nicolas v. MCI Health & Welfare Plan No. 501, 453 F. Supp. 2d 972, 974 (E.D. 

Tex. 2006). ERISA's venue provision is distinct from typical venue provisions 

because ERISA protects the plaintiff's choice to venue, not the defendants' choice. 

Atl. Marine Constr. Co. v. U.S. Dist. Ct., 134 S. Ct. 568, 582 n.7 (2013). ERISA, 

including its venue provisions, must be construed to protect participants' rights. 

E.g., Maune v. Int'l Bhd. of Elec. Workers, Local No. 1, Health & Welfare Fund, 

83 F.3d 959, 964 (8th Cir. 1996). 

Specifically, ERISA's venue provision provides that venue is proper "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). Section 502(e)(2) governs "an action 

under this subchapter," which is entitled "Subchapter I – Protection of Employee 

Benefit Rights." 29 U.S.C. § 1132(e)(2); see also Gulf Life Ins. Co. v. Arnold, 809 

8 
F.2d 1520, 1525 n.9 (11th Cir. 1987). Courts readily interpret the ERISA venue 

provision broadly to ensure the protection of beneficiaries' and participants' rights. 

See, e.g., Varsic v. U.S. Dist. Ct. for Cent. Dist. of Cal., 607 F.2d 245, 252 (9th 

Cir. 1979). As an example, courts have repeatedly interpreted the phrase, "where 

the breach took place," to allow participants to bring benefit claims where they 

reside. See, e.g., Barnum v. Mosca, No. 108-CV-567(LEK/RFT), 2009 WL 

982579, at *4 (N.D.N.Y. Apr. 13, 2009). Thus, section 502(e)(2) "is not a neutral 

provision merely describing the venues in which ERISA actions can be heard, but 

is rather intended to grant an affirmative right to ERISA participants and 

beneficiaries." Coleman v. Supervalu, Inc. Short Term Disability Program, 920 F. 

Supp. 2d 901, 906 (N.D. Ill. 2013). ERISA, including section 502(e)(2), protects 

participants' rights to seek their benefits in the venue they select. 

Second, ERISA places the defendant-fiduciary in a special relationship to 

the plaintiff-participant or -beneficiary. This fiduciary relationship further 

counsels protection of the participant's access to court over a defendant-fiduciary's 

choice of venue. "ERISA abounds with the language and terminology of trust 

law." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110 (1989). In Gulf 

Life Insurance Co., 809 F.2d at 1524-25, the U.S. Court of Appeals for the 

Eleventh Circuit concluded that if it allowed a plan fiduciary to use ERISA section 

502(e)(2) to file a declaratory judgment action where it was headquartered, even if 

9 
that were hundreds or thousands of miles from the participant, "the sword that 

Congress intended participants/beneficiaries to wield in asserting their rights could 

instead be turned against those whom it was designed to aid." Section 502(e)(2) 

protects plaintiffs' choice of venue, not that of defendants. See id. at 1525 n.7. 

Third, the right of plan participants and beneficiaries to select the venue in 

which to file suit is vital to protecting their promised benefits and also to ensure the 

fiduciary's proper plan and claim administration. Cf. Sec'y of Labor v. 

Fitzsimmons, 805 F.2d 682, 689 (7th Cir. 1986) (recognizing that the monitoring 

of fiduciaries has traditionally relied on the "initiative of the individual employee 

to police the management of his plan" (quoting S. Rep. No. 1150, 92d Cong., 2d 

Sess. 5 (1972))). Accordingly, ERISA was intended to eliminate "jurisdictional 

and procedural obstacles which in the past appear to have hampered effective 

enforcement of fiduciary duties." H.R. Rep. No. 93-553 (1973), reprinted in 1974 

U.S.C.C.A.N. 4639, 4655. "The express grant of federal jurisdiction in ERISA is 

limited to suits brought by certain parties [such as individual participants] as to 

whom Congress presumably determined the right to enter federal court was 

necessary to further the statute's purposes." Franchise Tax Bd. v. Constr. Laborers 

Vacation Trust, 463 U.S. 1, 21 (1983) (emphasis added). 

The U.S. Court of Appeals for the First Circuit in Volkswagen 

Interamericana, S. A. v. Rohlsen, 360 F.2d 437, 439 (1st Cir. 1966), discussed a 

10 
similarly "broad" venue provision in the Automobile Dealers' Day in Court Act, 

which was "designed to assure the dealer as accessible a forum as is reasonably 

possible" because 

[t]he very purpose of the act is to give the dealer certain rights against 

a manufacturer independent of the terms of the agreement itself. . . . 

This protection would be of little value if a manufacturer could 

contractually limit jurisdiction to a forum practically inaccessible to 

the dealer. The act cannot so easily be thwarted. 

Id. Similarly, a participant's right to sue under ERISA section 502(a)(1)(B) is 

independent of plan terms. A participant's section 502(a)(1)(B) claim for benefits, 

in part, enforces the statutory requirement that those administering benefits plans 

provide "a full and fair review" of benefits claims that are denied, 29 U.S.C. 

§ 1133(2); see Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 115 (2008), including 

procedural requirements governed by regulation and fiduciary obligations that 

override contrary plan terms. See Bond v. Twin Cities Carpenters Pension Fund, 

307 F.3d 704, 707 (8th Cir. 2002); Werdehausen v. Benicorp Ins. Co., 487 F.3d 

660, 666-67 (8th Cir. 2007). An ERISA statutory claim is thus separate and apart 

from a claim under the plan; it invokes judicial review of plan administration in 

light of statutory, regulatory, and fiduciary obligations. See, e.g., Aetna Health 

Inc. v. Davila, 542 U.S. 200, 219 (2004). This statutory claim should be governed 

by the statutory venue provision, not the plan's own forum-selection clause. 

If participants and beneficiaries are prevented from choosing a local forum 

11 
permitted under ERISA, they may be prevented from protecting their ERISA 

benefits and rights and from ensuring proper plan and claims administration. 

"[M]any of those individuals whose rights ERISA seeks to protect," including 

"retirees on a limited budget, sick or disabled workers, widows and other 

dependents[,] . . . are often the most vulnerable individuals in our society, and are 

the least likely to have the financial or other wherewithal to litigate in a distant 

venue." Smith v. Aegon Cos. Pension Plan, 769 F.3d 922, 935 (6th Cir. 2014) 

(Clay, J., dissenting) (citation omitted); see also French v. Dade Behring Life Ins. 

Plan, Civil Action No. 09-394-C, 2010 WL 2360457, at *3 n.12 (M.D. La. Mar. 

23, 2010); Gulf Life Ins., 809 F.2d at 1525 n.7; cf. Kubis & Perszyk Assocs., Inc. 

v. Sun Microsystems, Inc., 680 A.2d 618, 628 (N.J. 1996); Tandy Comput. Leasing 

v. Terina's Pizza, Inc., 784 P.2d 7, 8 (Nev. 1989). Here, Clause is disabled with a 

"maximum earning potential before disability [that] was limited to $14.41/hour," 

Dkt. 12-1 ¶ 73.5, and is now forced to litigate over a thousand miles from her home 

in order to assert her right to disability benefits. Clause's original attorney could 

not represent her, because he was not licensed in Missouri, id. ¶ 73.4, and the law 

firm now representing her was "retained exclusively for the specific purpose of 

litigating the public-interest venue issue on appeal." Plaintiff's Petition, at *29 n.9. 

ERISA’s venue provision is necessary to ensure participants have ready access to 

the courts so they can ensure proper claims review. 

12 
Finally, employers that sponsor plans and their employees, the plan 

participants, have unequal bargaining power. This unequal bargaining power also 

counsels against enforcement of venue provisions in plan documents that cede 

important participant rights. "[E]mployees are rarely involved in plan 

negotiations." Glenn, 554 U.S. at 114 (citing Langbein, Trust Law as Regulatory 

Law, 101 Nw. U. L. Rev. 1315, 1323-24 (2007)); see also Coleman, 920 F. Supp. 

2d at 908; Viti v. Guardian Life Ins. Co. of Am., 817 F. Supp. 2d 214, 228 

(S.D.N.Y. 2011); cf. Kubis & Perszyk Assocs., 680 A.2d at 627 (identifying 

unequal bargaining power as a basis for restricting forum-selection clause). 

Generally, plans cannot be considered bilateral arms-length contracts but are 

designed by the employer/plan sponsor. Curtiss-Wright Corp. v. Schoonejongen, 

514 U.S. 73, 78 (1995) (employers generally can modify plans at any time). 

ERISA's protective purpose extends to the creation of a broad venue 

provision that protects a participant's right to police plan administration. The 

venue provision ensures the participant has the ability to perform this important 

role. These statutory policies cannot be thwarted by plan terms that are a product 

of unequal bargaining and favor the fiduciary-defendant or employer. 29 U.S.C. § 

1104(a)(1)(D); Smith, 769 F.3d at 934 (Clay, J., dissenting). 

3. Arguments for Enforcing Forum-Selection Clauses Are Unsupported 

The district court enforced the forum-selection clause because, in its view, 

13 
                                                            

such clauses promote ERISA's goal of uniformity. Op. at *4; see also Smith, 769 

F.3d at 931. The district court misunderstood this particular goal, which might 

support a choice-of-law provision, but does not support applying a forum-selection 

clause.1

 Coleman, 920 F. Supp. 2d at 909. Congress was concerned about 

uniformity because it did not want plans to be subject to different legal 

requirements under the laws of "different States." Egelhoff v. Egelhoff, 532 U.S. 

141, 148 (2001); Gobeille v. Liberty Mut. Ins. Co., 136 S. Ct. 936, 945 (2016). 

Congress included a preemption provision, section 514(a), 29 U.S.C. § 1144(a), to 

ensure that the federal courts would have jurisdiction over ERISA claims, not that 

one federal court would have jurisdiction over all claims for one ERISA plan. 

Some courts have also concluded that such clauses are analogous to 

arbitration agreements, which can be enforceable in some ERISA contexts. See 

Smith, 769 F.3d at 932 (citing cases). This argument is misguided. Courts enforce 

arbitration agreements not on the basis of a general judicial policy favoring 

arbitration, but because that is what federal law – in this case the Federal 

Arbitration Act ("FAA"), 9 U.S.C. §§ 2, 3 – requires. In Arnulfo P. Sulit, Inc. v. 

Dean Witter Reynolds, Inc., 847 F.2d 475, 479 (8th Cir. 1988), this Court relied on 

1

 For example, the Eleventh Circuit stated that a choice-of-law provision can 

choose a state's substantive law the parties wish to use for gaps not covered by 

ERISA. Buce v. Allianz Life Ins. Co., 247 F.3d 1133, 1148 (11th Cir. 2001). The 

chosen law must, however, still be consistent "with the language of ERISA or the 

policies that inform that statute and animate the common law of the statute." Id. 

14 
decisions interpreting the FAA to conclude that there was "no congressional intent 

to single out ERISA claims for exemption from the general federal policy favoring 

rigorous enforcement of agreements to arbitrate." Sulit, 847 F.2d at 479. There is 

no such similar requirement regarding forum-selection clauses under any federal 

statute. Moreover, the FAA serves a different purpose than ERISA section 

502(e)(2). See Coleman, 920 F. Supp. 2d at 909. Rather than addressing where 

the action should be brought – which could result in "a substantial increase in 

expense and inconvenience" – the FAA addresses whether arbitration is required – 

which focuses on the dispute resolution procedure "without necessarily creating 

such hardships for the individual." Id. Finally, arbitration of ERISA benefit 

claims is non-binding. Franke v. Poly-Am. Med. & Dental Benefits Plan, 555 F.3d 

656, 658 (8th Cir. 2009); 29 C.F.R. § 2560.503–1(c)(4). Thus, while an arbitration 

agreement may narrow the district court's review, an arbitration agreement does 

not void or interfere with a participant's right to choose the venue for his section 

502(a) suit. See Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 385-86 

(2002); 29 C.F.R. § 2560.503-1(c)(4). The congressional policy favoring 

arbitration is simply not implicated here, either directly or by analogy. 

CONCLUSION 

For the reasons set forth above, the forum-selection clause under which this 

case was transferred is inconsistent with ERISA and unenforceable. 

15 
Respectfully submitted, 

M. PATRICIA SMITH 

Solicitor of Labor 

G. WILLIAM SCOTT 

Associate Solicitor 

Plan Benefits Security Division 

ELIZABETH HOPKINS 

THOMAS TSO 

Counsels for Appellate and Special 

Litigation 

/s/_Thomas Tso______ 

Attorney 

U.S. Department of Labor 

Room N-4611 

200 Constitution Ave., N.W., 

Washington, DC 20210 

(202) 693-5632 

16 
CERTIFICATE OF COMPLIANCE WITH RULE 32(a) 

Certificate of Compliance with Type-Volume Limitation, 

Typeface Requirements and Type Style Requirements 

FOR CASE NO. 16-2607 

1. This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because: 

This brief contains 15 pages, excluding parts of the brief exempted by Fed. 

R. App. P. 32(a)(7)(B)(iii), half of the 30 pages allotted to a petition for 

mandamus, Fed. R. App. P. 21(d). 

2. This brief complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because: 

This brief has been prepared in a proportionally spaced typeface using 

Microsoft Word 2010, Times New Roman, 14 point font. 

/s/ Thomas Tso 

Attorney for the U.S. Department of Labor, Plan Benefits Security Division 

Dated: June 16, 2016 

CERTIFICATE OF VIRUS CHECK 

I hereby certify that a virus check, using McAfee Security VirusScan Enterprise 

8.0, was performed on the PDF file and paper version of this brief, and no viruses 

were found. 

/s/ Thomas Tso 

Attorney for the U.S. Department of Labor, Plan Benefits Security Division 

Dated: June 16, 2016 
 

CERTIFICATE OF SERVICE 

I hereby certify that on June 16, 2016, I electronically filed the foregoing 

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

Circuit by using the appellate CM/ECF system. 

/s/ Thomas Tso 

Thomas Tso 

Plan Benefits Security Division 

U.S. Department of Labor 

Room N-4611 

200 Constitution Avenue, N.W. 

Washington DC, 20210 

(202) 693-5532 – Phone 

(202) 693-5610 – Fax 

tso.thomas@dol.gov 

2