Estate of Bruce Barton v. Adt Security Services Pension

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTATE OF BRUCE H. BARTON,* No. 13-56379

Plaintiff-Appellant,

D.C. No.

v. 2:12-cv-06971-

BRO-CW

ADT SECURITY SERVICES PENSION

PLAN, a pension plan; TYCO

INTERNATIONAL MANAGEMENT OPINION

COMPANY, as plan sponsor; TYCO

INTERNATIONAL MANAGEMENT

COMPANY, LLC, Administrative

Committee,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Beverly Reid O’Connell, District Judge, Presiding

Argued and Submitted

October 23, 2015—Pasadena, California

Filed April 21, 2016

Before: Alex Kozinski, Sandra S. Ikuta, and John B.

Owens, Circuit Judges.

*

The Estate of Bruce H. Barton is substituted as Plaintiff-Appellant

pursuant to Fed. R. App. P. 43(a).

2 ESTATE OF BARTON V. ADT

Opinion by Judge Owens;

Dissent by Judge Ikuta

SUMMARY**

Employee Retirement Income Security Act

The panel reversed the district court’s judgment after a

bench trial in favor of the defendants in an action under the

Employee Retirement Income Security Act, challenging a

denial of pension benefits on the basis that the plaintiff did

not have sufficient years of service with an employer or its

affiliates.

The panel held that the burden of proving entitlement to

benefits was not properly placed on the plaintiff because the

defendants were in a better position to ascertain whether an

entity was a participating employer in the ERISA plan. The

panel held that when a claimant has made a prima facie case

that he is entitled to a pension benefit but lacks access to the

key information about corporate structures or hours worked

needed to substantiate his claim, and the defendant controls

such information, the burden shifts to the defendant to

produce this information. The panel remanded the case to the

district court to apply the correct burden of proof.

Dissenting, Judge Ikuta wrote that the majority’s burden-

shifting rule was contrary to the abuse of discretion review

applicable to the plaintiff’s claim.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ESTATE OF BARTON V. ADT 3

COUNSEL

Morris S. Getzels (argued), Morris S. Getzels Law Office,

Tarzana, California, for Plaintiff-Appellant.

Stuart D. Tochner (argued), Ogletree, Deakins, Nash, Smoak

& Stewart, P.C., Los Angeles, California, for Defendants-

Appellees.

OPINION

OWENS, Circuit Judge:

Bruce Barton appeals from the district court’s judgment

concluding that the ADT Security Services Pension Plan

Administrator did not abuse its discretion in denying Barton’s

request for pension benefits. Because the district court did

not have the benefit of our analysis regarding the burden of

proof in a case such as this, we reverse and remand for

proceedings consistent with this opinion.

I. BACKGROUND

A. Barton’s Employment History

The parties dispute Bruce Barton’s employment history

with the American District Telegraph Company (ADT)

and/or its affiliates (ADT-related entities). Barton asserts that

he worked for ADT from November 1967 until he resigned

in September 1986. The parties agree that he also worked for

4 ESTATE OF BARTON V. ADT

a moving company for a short period in 1968 and served in

the Marine Reserves from 1965–1971.1

The three named defendants in this case—ADT Security

Services Pension Plan (pension plan), Tyco International

Management Company (plan sponsor), and Tyco

International Management Company, LLC Administrative

Committee (plan administrator)—maintain that they have

access to the pension records passed on by ADT, Inc., which

Tyco acquired in 1997.

B. Relevant Pension Plans

Because Barton’s employment spanned eighteen years,

two different plans govern his eligibility for a pension

benefit: the plan in effect January 1, 1968 (1968 Plan) and the

plan in effect January 1, 1985 (1985 Plan). Under the terms

of the 1985 Plan, the 1968 Plan governs Barton’s service

through December 31, 1975, and the 1985 Plan governs his

service as of January 1, 1976. Barton maintains that his right

to a pension vested because, although he stopped working

before normal retirement age, he completed at least ten years

of “continuous service” with the company.

The 1985 Plan defines “Company” as “American District

Telegraph Company and such of its Affiliated Companies as

1

Contrary to the dissent’s characterization of Barton’s “sporadic” work

history, Barton’s FICA records indicate that he received consistent wages

from an ADT-related entity from the fourth quarter of 1967 through his

resignation in 1986. See Dissent at 24. Through 1971, he received

additional wages from his service in the Marine Reserves. Also while

employed at an ADT-related entity, in the fourth quarter of 1968 he

worked briefly for a moving company to earn $162.72 in extra “Christmas

money.”

ESTATE OF BARTON V. ADT 5

have adopted the Plan and have been admitted to participation

therein by the Board or any one or more of them, and any

corporation succeeding to the rights and assuming the

obligations of any such company.” An “Affiliated Company”

is “a company which is a member of a controlled group of

corporations of which the American District Telegraph

Company is also a member.” The 1968 Plan defines

“Company” as the “American District Telegraph Company

and those controlled companies authorized by the Board of

Directors to participate in the Plan.”

The 1985 Plan defines “Continuous Service” as follows.

For employment through December 31, 1975, “Continuous

Service shall be that service determined under the terms of

the Plan as it was constituted on December 31, 1975.” After

January 1, 1976, “[o]ne year of Continuous Service shall be

recorded for any Plan Year during which an Employee has

1,000 or more Hours of Service.” A plan year in which an

employee works 500 hours or less is considered a “break in

service.” Additionally, to the extent required by ERISA or

determined by the Board of Directors, if an employee

transfers to a participating company from an affiliated

company after January 1, 1976, he will receive credit for his

continuous service to that affiliate prior to 1976, even if the

affiliate had not adopted the Plan.

The 1968 Plan does not define “continuous employment,”

save for the following provision regarding absence without

pay:

Any absence from the service without pay . . .

shall be considered as a break in the

continuity of service, and persons re-

employed after such a break shall be

6 ESTATE OF BARTON V. ADT

considered as new employees and the term of

employment reckoned from the date of such

re-employment; except that any such person

reemployed for at least ten continuous years

after such a break shall have his term of

employment reckoned from the date of his

initial employment less the entire period of

such break.

C. Barton’s Request for Pension Benefits

In 2010, Barton reached age sixty-five and contacted the

pension record keeper about benefits. A December 13, 2010

letter from a pension benefit administrator in response stated

that the administrator “could not find any information on

[Barton’s] employment with ADT Security Services, Inc.,”

and enclosed instructions for navigating the pension claim

procedure. Barton then provided documentation regarding

his employment with ADT-related entities. In a June 24,

2011 letter, the pension record keeper said the documents

Barton had sent failed to establish that he had a vested

pension, and that if Barton had additional documentation—

for example, a letter of vested benefits—he could file a claim

with the Employee Benefits Committee. In response to a

telephone inquiry, Barton was again informed that he was

ineligible for a pension benefit.

Barton filed a claim with the Committee on October 3,

2011. He stated that two former colleagues from the ADT

office in Portland, Maine had provided similar documentation

and received ADT pensions. He included copies of

correspondence from the pension record keeper and the

following documents:

ESTATE OF BARTON V. ADT 7

• November 11, 1977 letter from R.B. Carey, Jr.,

President of ADT, on ADT letterhead listing an

address of One World Trade Center, Suite 9200, NY,

NY, addressed to “Mr. B. N. Barton, American

District Telegraph Company” at the same World

Trade Center address and suite. The letter

congratulates Barton on his completion, on November

13, 1977, of ten years of service as a “member of the

ADT organization.”

• Copies of key cards and identification/business cards

issued by “ADT.”

• W-2 statements from 1980–1983 and 1986, listing

employer as “American District Telegraph Co.” at

1 World Trade Center, NY, NY and showing an X

marking the “Pension Plan” box.

• Pay stubs from 1981 and 1985 listing “American

District Telegraph” at the bottom.

• Personnel Data Maintenance forms from 1984, 1985,

and 1986 listing Barton’s current annual salary, raise,

and new annual salary.

• Social Security Administration documentation

summarizing Federal Insurance Contributions Act

(FICA) withholding from 1968–1980.2

2

Barton provided more detailed FICA records during his administrative

appeal.

8 ESTATE OF BARTON V. ADT

D. Committee’s Denial of Barton’s Claim

The Committee denied Barton’s claim on January 10,

2012. It reported that it had reviewed the documents listed

above as well as the following documents that Barton had

provided earlier:

• Barton’s September 11, 1986 resignation letter on

ADT letterhead.

• September 12, 1986 Memorandum on ADT letterhead

confirming receipt of a credit card, tools, and

company truck.

• Barton’s September 12, 1986 Exit Interview

Questionnaire that listed a November 10, 1967 date of

employment.

• Handwritten telephone conversation record describing

Barton’s July 6, 2011 call to the pension record

keeper.

The Committee detailed the relevant plan provisions and

wrote:

[T]here are no Plan records indicating your

eligibility for participation in the Plan, your

actual participation in the Plan, or your

eligibility for benefits under the Plan. In

addition, it was unclear from the information

you provided whether you had a continuous

term of employment or earned the required

service to earn at least 10 Years of Continuous

Service so as to be vested in a Plan benefit.

ESTATE OF BARTON V. ADT 9

The Committee further explained that it was “not clear based

on the information” that Barton provided that he met the

terms of continuous employment. In particular, the

Committee noted that the FICA records and W-2s did not

cover each year of claimed employment, and that some

documents lacked identifying information. Such information

“did not override or contradict the Plan records.” The letter

detailed the appeals procedure and suggested Barton could

“supply copies of any further evidence . . . that would indicate

that [he is] entitled to a Plan benefit, such as certified Social

Security records for the entire period of time from 1967

through 1986 or a pension benefit statement or written

evidence that [he was] eligible to receive a Plan benefit.”

On January 19, 2012, Barton responded and requested

copies of “all plan documents, records and other information

affecting the claim per your document concerning Applying

for Benefits and Claim and Appeal Procedures.” He

specifically requested a Tyco International Summary Plan

Description booklet, the Committee’s copy of the Social

Security records, an example of a pension benefit statement

and written evidence statement, and “application forms that

should have been provided by the service center.” The

Committee responded by letter and enclosed a memorandum

prepared by outside counsel summarizing key provisions of

the 1968 and 1985 Plans, and the full text of the Plans.

Nothing in the record indicates that the Committee included

the full 1983 Summary Plan Description (SPD) (referenced

in the memorandum drafted by outside counsel) or exemplars

of a pension benefit statement or “written evidence

statement” as Barton requested.

10 ESTATE OF BARTON V. ADT

E. Barton’s Appeal of the Committee’s Denial

Barton appealed the Committee’s denial on April 29,

2012. He presented additional FICA records, broken down

quarterly from 1967–1977 when he was an hourly employee

and annually from 1978–1986 when he was a salaried

employee.

The Committee denied Barton’s appeal on June 29, 2012.

The Committee again noted there was no official record of

Barton’s participation in the Plan and that the documentation

he submitted “was insufficient to override the Plan records.”

As with the initial denial, the appeal notice stated that “[i]t is

not clear based on the information you provided that you

were continuously employed with American District

Telegraph Company.” The Committee also noted that the

FICA records revealed that Barton had worked for companies

in addition to ADT, which “could indicate that [he] did not

have a continuous term of employment.” (emphasis added).

In other words, because Barton could not document that he

worked 1000 hours or more for each of the nearly twenty

years he was employed by ADT and its affiliates, or that his

employers participated in the Plans, he could not prove he

was entitled to a pension.

F. Procedural History

On August 13, 2012, Barton filed suit in the Central

District of California pursuant to the Employee Retirement

Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132. He

sought (1) declaratory relief that he was entitled to a pension;

(2) pension benefits based on his employment with ADT;

and (3) recovery of statutory penalties under 29 U.S.C.

ESTATE OF BARTON V. ADT 11

§ 1132(c)(1) based on the pension administrator’s failure to

comply with ERISA’s disclosure obligations.

After a bench trial, the district court issued its Findings of

Fact and Conclusions of Law on July 19, 2013. It held that

the applicable standard of review was abuse of discretion and

that the Committee did not abuse its discretion in denying

Barton pension benefits. It declined to award Barton

statutory penalties, holding that he lacked standing to assert

a violation of ERISA’s disclosure requirements because he

did not have a colorable claim to pension benefits. Barton

timely appealed.

II. ANALYSIS

A. Standard of Review

“We review de novo a district court’s choice and

application of the standard of review to decisions by

fiduciaries in ERISA cases. We review for clear error the

underlying findings of fact.” Abatie v. Alta Health & Life Ins.

Co., 458 F.3d 955, 962 (9th Cir. 2006) (en banc) (citation

omitted). We also review de novo a district court’s allocation

of the burden of proof. See Molski v. Foley Estates Vineyard

& Winery, LLC, 531 F.3d 1043, 1046 (9th Cir. 2008) (citing

Ferrari, Alvarez, Olsen & Ottoboni v. Home Ins. Co.,

940 F.2d 550, 555 (9th Cir. 1991)).

B. Burden of Proof

The district court faithfully applied our precedent in

reviewing the Committee’s denial of benefits for abuse of

discretion. See Abatie, 458 F.3d at 963 (citing Firestone Tire

& Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)). But

12 ESTATE OF BARTON V. ADT

because the district court incorrectly placed the burden of

proof on Barton for matters within defendants’ control, we

remand to the district court in light of this opinion. We

express no view on Barton’s eligibility for pension benefits.3

A claimant may bear the burden of proving entitlement to

ERISA benefits. See, e.g., Muniz v. Amec Constr. Mgmt.,

Inc., 623 F.3d 1290, 1294–95 (9th Cir. 2010) (holding that

where a court reviews a plan administrator’s decision de

novo, the claimant has the burden of proof). This rule makes

sense in cases where the claimant has better—or at least

equal—access to the evidence needed to prove entitlement.

For example, where an employee must establish an illness to

qualify for disability benefits, the burden lies most sensibly

with the claimant, who can provide test results, physician

reports, and other evidence about her condition. See, e.g., id.

at 1298 (holding that the claimant failed to establish he was

“totally disabled” within the meaning of a long-term

disability insurance plan). But in other contexts, the

defending entity solely controls the information that

determines entitlement, leaving the claimant with no

meaningful way to meet his burden of proof. This is one of

those cases.

3

Although not central to our resolution of this case, we note that on

remand, the district court also may wish to consider whether defendants

met the standard of meaningful dialogue in the administrative claims

process, including whether the Committee’s denial letters dated January

10, 2012 and June 29, 2012 were written in common-sense language that

a lay person could understand or respond to, and whether the Committee

sought the information it needed to make a reasoned decision. See Booton

v. Lockheed Med. Benefit Plan, 110 F.3d 1461, 1463 (9th Cir. 1997); see

also Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d

863, 870–74 (9th Cir. 2008).

ESTATE OF BARTON V. ADT 13

The district court placed the burden of proof on Barton to

establish that his various ADT-related employers participated

in defendants’ Plan, and that he worked the requisite hours

per year. There are two problems with this approach. First,

defendants are in a far better position to ascertain whether an

entity was a participating employer. After all, they determine

which employers participate in the plan. Indeed, both Plans

state that affiliates or controlled companies may only

participate if the company’s Board of Directors authorizes

them to do so. Yet defendants asserted in the district court

that they “have no records indicating whether the entities

[identified as Barton’s employers in the Social Security

records] were Participating Subsidiaries in the Plan at any

time.” If Barton has made a prima facie case that he is

eligible for a pension, his claim does not fail simply because

he cannot initially prove whether defendants’ Board of

Directors authorized his employers to participate in the Plans.

Defendants never explain how the long-retired Barton could

possibly answer this question if even they have no relevant

records, particularly when, during his many years of

employment, the corporate sub-entities were not evident from

the company materials provided to Barton.4 It is illogical and

unfair for us to require Barton to close this gap, and the

dissent points to nothing in ERISA that supports such a

Kafkaesque regime where corporate restructuring can license

a plan administrator to throw up his hands and say “not my

problem.”

4

Defendants argue that the absence of recorded service by Barton in

their records proves that he did not work for a participating employer and

is not entitled to a pension benefit. But they fail to explain why they

cannot identify which affiliated companies they approved to participate in

their Plans, nor how Barton could obtain such information.

14 ESTATE OF BARTON V. ADT

It should not greatly burden an ERISA-compliant entity

to determine what companies were authorized as

“participating employers,” so the entity, not the claimant,

should bear the risk of insufficient records. See, e.g.,

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687

(1946) (“When the employer has kept proper and accurate

records the employee may easily discharge his burden by

securing the production of those records. But where the

employer’s records are inaccurate or inadequate and the

employee cannot offer convincing substitutes a more difficult

problem arises.”). As we explained in Brick Masons Pension

Trust v. Industrial Fence & Supply, Inc.:

The records that employers are required to

keep by the FLSA [Fair Labor Standards Act]

and by ERISA may be the only evidence

available to employees to prove that their

employers have failed to compensate them in

accordance with the statute. An employer

cannot escape liability for his failure to pay

his employees the wages and benefits due to

them under the law by hiding behind his

failure to keep records as statutorily required.

839 F.2d 1333, 1338 (9th Cir. 1988).

This shift also follows naturally from ERISA’s disclosure

requirements. Section 502(c)(1) provides for the imposition

of penalties on a plan administrator who has not complied

with disclosure requirements. 29 U.S.C. § 1132(c)(1). One

such requirement, section 104(b)(4), mandates supplying

participants with certain plan information, such as the

summary plan description, annual report, or “other

instruments under which the plan is established or operated.”

ESTATE OF BARTON V. ADT 15

29 U.S.C. § 1024(b)(4). These disclosure requirements and

the corresponding penalties function to ensure that an

individual is duly informed of basic information relating to

his pension plan:

As the legislative history bears out, the

documents contemplated by § 104(b)(4) are

those that allow “the individual participant

[to] know [ ] exactly where he stands with

respect to the plan—what benefits he may be

entitled to, what circumstances may preclude

him from obtaining benefits, what procedures

he must follow to obtain benefits, and who are

the persons to whom the management and

investment of his plan funds have been

entrusted.”

Hughes Salaried Retirees Action Comm. v. Adm’r of Hughes

Non-Bargaining Ret. Plan, 72 F.3d 686, 690 (9th Cir. 1995)

(en banc) (quoting S. Rep. No. 127, 93d Cong., 2d Sess.

(1974), reprinted in 1974 U.S.C.C.A.N. 4838, 4863).5

It follows that if Barton has made a prima facie case that

he is entitled to pension benefits, it is properly defendants’

burden to clarify what entities are covered under the Plans in

the first instance. Employers, plans, and plan administrators

must know the terms and conditions of the benefits they offer

5

Section 104(b) illustrates ERISA’s underlying policies of “promoting

informed financial decision making” and “protecting the reliance interests

of plan participants and beneficiaries.” Peter Joseph Wiedenbeck, ERISA

in the Courts 17 (Federal Judicial Center 2008). We do not address

whether the plan administrator here failed to comply with the specific

disclosure requirements of section 104(b).

16 ESTATE OF BARTON V. ADT

and be able to identify covered employers and participating

employees.6 Cf. Cent. States, Se. & Sw. Areas Pension Fund

v. Cent. Transp., Inc., 472 U.S. 559, 572 (1985) (“[ERISA’s]

reporting and disclosure standards require benefit plans to

furnish all participants with various documents informing

them of their rights and obligations under the plan . . . a task

that would certainly include the duty of determining who is

in fact a plan participant.” (citation omitted)).

Additionally, the district court faulted Barton for not

proving that he worked over 1000 hours a year for the twenty

years he was employed by ADT or its affiliates. But

requiring Barton to prove his hours over the course of two

6

Defendants cite several cases to argue that Barton has the burden “to

provide the Committee with information sufficient to show an entitlement

to a benefit under the plan.” These cases are inapposite. In Mitchell v.

Eastman Kodak Co., 113 F.3d 433, 439 (3d Cir. 1997), the plan itself

allocated the burden to the claimants. Defendants assert for the first time

in their supplemental briefing that the 1985 Plan similarly allocates the

burden of proof to the claimant. Their argument is based solely on

language contained in an informational document entitled “Applying for

Benefits and Claim and Appeal Procedures.” While it is not clear from

the record whether this document provides terms of the 1985 Plan, it is

clear that defendants waived this argument when they failed to raise it in

their answering brief. See, e.g., United States v. McEnry, 659 F.3d 893,

902 (9th Cir. 2011) (holding an argument waived when available at the

time an answering brief is filed but not raised in it). In the other cases, the

district court found that the plaintiffs bore the burden of providing

evidence of a personal medical problem—information within their

possession—to claim disability benefits. See Schwartz v. Metro. Life Ins.

Co., 463 F. Supp. 2d 971, 982 (D. Ariz. 2006); Jordan v. Northrop

Grumman Corp. Welfare Benefit Plan, 63 F. Supp. 2d 1145, 1157 (C.D.

Cal. 1999), aff’d, 370 F.3d 869 (9th Cir. 2004) (holding that it was not

improper to place the initial burden on the claimant where the insurance

company informed her of the information it needed and advised her to call

them if she had questions).

ESTATE OF BARTON V. ADT 17

decades is unreasonable and inconsistent with the goals of

ERISA. That is especially so where, as here, nothing

indicates that Barton was warned at the start of his career that

he needed to retain a log of his hours to obtain pension

benefits a generation or two later. We have previously

shifted the burden of proving the number of hours an

employee works where the calculation of damages is

uncertain due to defendants’ failure to keep statutorily

required records. Brick Masons, 839 F.2d at 1337–39.

We find the reasoning of Brick Masons persuasive in this

context. Brick Masons involved two wholly owned

subsidiaries of one parent company. Id. at 1335. One,

Industrial, had a collective bargaining agreement requiring it

to contribute to the union’s fringe benefit trust funds (Trust)

based on hours that union employees worked. Id. The other,

Harris, was non-union. Id. The Trust sued to recover

contributions for hours that Harris masons had worked on

Industrial jobs. Id. It was undisputed that non-union masons

had performed work for Industrial, but the Trust could not

prove the exact number of hours because Industrial had failed

to maintain certain records required under ERISA. Id. at

1337–38. This court held that “once the Trust Funds proved

the fact of damage and Industrial’s failure to keep adequate

records, the burden shifted to Industrial to come forward with

evidence of the extent of covered work performed by the 35

Harris employees.” Id. at 1338–39. Industrial could not do

so, and consequently was required to pay contributions for all

hours that non-union masons worked during the time period

where they were shown to have performed some covered

work. Id. at 1339.

The Brick Masons court also found support in Anderson

v. Mt. Clemens Pottery Co. There, the Supreme Court held

18 ESTATE OF BARTON V. ADT

that where an employer fails to keep adequate records of

hours worked as required by FLSA, the employee carries his

burden of establishing damages “if he proves that he has in

fact performed work for which he was improperly

compensated and if he produces sufficient evidence to show

the amount and extent of that work as a matter of just and

reasonable inference.” 328 U.S. at 687. The Court reasoned

that, where it was the employer’s duty to keep the relevant

records, the employer could not complain that the related

damages were inexact. Id. at 688.

Accordingly, we hold that where a claimant has made a

prima facie case that he is entitled to a pension benefit but

lacks access to the key information about corporate structure

or hours worked needed to substantiate his claim and the

defendant controls such information, the burden shifts to the

defendant to produce this information.7 Assuming that

Barton can establish a prima facie case on remand, defendants

will then bear the burden of production as to whether he

worked sufficient hours for a participating employer to

collect a pension.

We recognize that fiduciaries of a defined benefit pension

plan have a duty to protect the pooled funds and distribute

benefits only to those who qualify. See, e.g., Boyd v. Bert

Bell/Pete Rozelle NFL Players Ret. Plan, 410 F.3d 1173,

1178 (9th Cir. 2005) (“An ERISA fiduciary is ‘obligated to

guard the assets of the [Plan] from improper claims, as well

7

This does not require defendants to produce records listing entities not

covered by their pension plans. Cf. Dissent at 25–26, 27. It requires only

that they reveal which companies did in fact participate in their

plans—information they must know to fulfill their fiduciary duty to only

distribute pension funds to qualified individuals.

ESTATE OF BARTON V. ADT 19

as to pay legitimate claims.’” (alteration in original) (quoting

Brogan v. Holland, 105 F.3d 158, 164 (4th Cir. 1997))). We

do not suggest that anyone can force a company to produce

this corporate information by merely asserting that he is owed

a pension—a plaintiff must put forth objective proof. See,

e.g., Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497 (9th

Cir. 2015) (“[A] self-serving declaration does not always

create a genuine issue of fact for summary judgement: The

district court can disregard a self-serving declaration that

states only conclusions and not facts that would be admissible

evidence.”).

Where a claimant, through documentary or other

objective evidence, has made a prima facie case that he is

entitled to a pension but has no means except for information

in the defendant’s control to establish that his work was for

a “covered employer” and of sufficient duration, the burden

then shifts to the defendant to produce such information. A

plaintiff claiming pension benefits will often have access to

at least some objective documentation of prior

employment—such as Social Security records, W-2

statements, income tax returns, and pay stubs—to make his

prima facie case. Cf. Motion Picture Indus. Pension &

Health Plans v. N.T. Audio Visual Supply, Inc., 259 F.3d

1063, 1066–67 (9th Cir. 2001) (holding that the burden does

not shift under Brick Masons where the plaintiff did not

produce sufficient evidence to meet the required threshold

showing).

We leave it to the district court to determine in the first

instance whether Barton has established a prima facie case.

In doing so, it can consider the evidence available at trial,

such as Barton’s Social Security records, W-2 statements, pay

20 ESTATE OF BARTON V. ADT

stubs with the pension box marked, and letter thanking him

for ten years of service.

C. Statutory Penalties

The district court correctly held that to recover statutory

penalties based on a plan administrator’s refusal to comply

with ERISA’s disclosure obligations, a plaintiff must qualify

as a plan participant. See 29 U.S.C. § 1132(c)(1). Thus, if

Barton does not set forth a colorable pension claim, he cannot

assert a violation of ERISA’s disclosure requirements. See

Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004). As

this issue turns on the ultimate merits of Barton’s claim for

pension benefits, we reverse the judgment for defendants.

III. CONCLUSION

This case ultimately is about burdens—to qualify for his

pension, must a former employee who quit working for the

company more than twenty-five years ago decipher the

corporate structure of his former employer from documents

that were not disclosed to him? Should he have saved all of

his pay stubs in the off chance that his employer would

demand proof that he met the hours requirement for obtaining

a pension? Or should the corporate defendant bear this load?

ERISA, our precedent, and common sense dictate that the

corporate defendant should not lay that arduous task at the

feet of former employees. To hold otherwise would

essentially reward Lucy for pulling the football away from

Charlie Brown, something that we do not believe Congress

intended when it enacted ERISA. See It’s Your First Kiss,

Charlie Brown (CBS television broadcast Oct. 24, 1977).

ESTATE OF BARTON V. ADT 21

Accordingly, we REVERSE the judgment and

REMAND this matter to the district court so it can apply the

now-clarified burden of proof in this case.

IKUTA, Circuit Judge, dissenting:

Today the majority goes off the rails. Its one-off burden-

shifting rule, apparently specially designed to let Barton win

on one element of his claim for benefits under an ERISA

plan, is not only contrary to the Supreme Court’s direction

that courts should not make “ad hoc exceptions” to the broad

abuse of discretion standard applicable in this context,

Conkright v. Frommert, 559 U.S. 506, 513 (2010), but it

also does damage to our precedent and basic principles

of ERISA law. Under the abuse of discretion review

applicable to Barton’s claim, Barton must show that the plan

administrator’s decision was “(1) illogical, (2) implausible, or

(3) without support in inferences that may be drawn from the

facts in the record.” Salomaa v. Honda Long Term Disability

Plan, 642 F.3d 666, 676 (9th Cir. 2011). There is no other

burden of proof. And even when de novo review is

applicable, we have held that only the claimant—not the plan

administrator—has the burden of proof. Muniz v. Amec

Constr. Mgmt., Inc., 623 F.3d 1290, 1294–95 (9th Cir. 2010).

I dissent.

I

Under our precedent, when a claimant challenges the

denial of benefits under 29 U.S.C. § 1132(a)(1) and the

ERISA plan at issue grants discretion to the plan

administrator, the district court conducts a bench trial to

22 ESTATE OF BARTON V. ADT

determine if the plan administrator abused its discretion.

Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 962–65

(2006). The scope of evidence considered at such a trial is

generally limited to the administrative record. Id. at 970

(“Today, we continue to recognize that, in general, a district

court may review only the administrative record when

considering whether the plan administrator abused its

discretion, but may admit additional evidence on de novo

review.”). There are exceptions to the rule, as when the

district court needs to consider extrinsic evidence to

determine how much weight to give to a claimed conflict of

interest on the part of a plan administrator, or when the

administrator failed to follow procedural requirements, id. at

970, 972–73, but the majority does not suggest that these

exceptions are applicable here.

In reviewing the plan administrator’s decision in light of

the administrative record, a court may not “substitute [its]

view for that of the factfinder.” Salomaa, 642 F.3d at 676.

Rather, the scope of review is limited: the court may

consider only whether the plan administrator’s decision

was “(1) illogical, (2) implausible, or (3) without support

in inferences that may be drawn from the facts in the

record.” Id. This standard of review applies to the plan

administrator’s factual determinations as well as its ultimate

decision. Walker v. American Home Shield Long Term

Disability Plan, 180 F.3d 1065, 1069–70 (9th Cir. 1999).

Under deferential review, a district court considers only

whether the claimant showed that the plan administrator’s

benefit decision was unreasonable, and the court must uphold

ESTATE OF BARTON V. ADT 23

the decision so long as it is logical, plausible, and supported

by the record, id; there is no other burden of proof.1

Only when a district court reviews a plan administrator’s

decision denying benefits under a de novo standard of review

does our precedent require a district court to impose the

proper burden of proof. Doing so makes sense in this

context: instead of deferring to the plan administrator’s

decision, the district court must evaluate the evidence de

novo, and therefore must determine which party has the

burden of establishing each fact required for eligibility under

an ERISA plan. Under such de novo review, the burden of

proof remains firmly on the claimant. Muniz, 623 F.3d at

1294–95 (“As concluded by other circuit courts which have

addressed the question, when the court reviews a plan

administrator’s decision under the de novo standard of

review, the burden of proof is placed on the claimant.”). And

we have rejected the argument that the claimant may shift the

burden of proof to the plan administrator. Id. (rejecting the

claimant’s argument that once he met the initial burden of

proving disability, the burden of proof shifts to the plan to

justify its decision to terminate benefits).

II

The district court correctly followed our precedent. It

first determined that the plan gave discretion to the

administrators. The majority concedes that determination

1

Different rules may apply when there is evidence that “a plan

administrator’s self-interest caused a breach of the administrator’s

fiduciary obligations to the claimant,” see Tremain v. Bell Indus., Inc.,

196 F.3d 970, 976 (9th Cir. 1999), but this case does not give rise to such

an issue, and the majority does not hold otherwise.

24 ESTATE OF BARTON V. ADT

was correct. Maj. op. at 11. It then reviewed the evidence of

conflict of interest and concluded that it would review the

plan administrator’s decisions with a low level of skepticism.

The majority does not say this was in error. Id. at 13.

Finally, the court determined that there were no procedural

irregularities present. Therefore, the district court correctly

limited its review to the administrative record.

The plans at issue here require a claimant to establish,

among other things, that: (1) he worked for one or more

covered employers, as defined in the plans, (2) for a

continuous term of at least ten years. The evidence in the

administrative record showed that Barton was employed by

various ADT companies, as well as other companies, from

1967 to 1986, but did not show that he had continuous service

for ten years with any ADT company, nor that any of the

ADT companies were “covered” as required by the Plan.

Specifically, documents in the record showed that in 1967,

Barton started working at ADT of Maine. From 1967 to

1976, Barton received sporadic wages from ADT of

Massachusetts, Mittman Realty Co, Inc., Pentate Filtration,

Inc., the Marine Reserves, and Ginn-Marvin Moving &

Storage Co. In 1982 he started working for ADT Diversified

Service, Inc., in New Jersey, where he worked until 1985. In

1985, Barton worked for ADT of Illinois, where he stayed

until he resigned on September 11, 1986. His resignation

took effect on September 25, 1986.

The administrative record also included evidence that the

plan administrator had a system to maintain and update

records regarding pension benefit eligibility for employees

and had an incentive for keeping accurate records. A

declaration from a member of the plan administration

committee stated that those records contained no evidence

ESTATE OF BARTON V. ADT 25

that Barton was a participant in the pension plan or that ADT

of Massachusetts or ADT of Maine were participating

employers. The declaration also set forth the committee’s

determination that Barton’s evidence was inconsistent with a

claim of continuous employment by a participating entity

with no break in service.

Based on its review of the administrative record, the court

made the factual finding that Barton did not establish that he

had worked for a ten-year continuous period for a covered

employer. This factual finding is not clearly erroneous.

Accordingly, the court’s conclusion that the plan

administrator’s benefits denial was not illogical, implausible,

or without support in inferences that may be drawn from the

facts in the record is correct.

Indeed, there is no way to reach a different conclusion

under our precedent. Although in Salomaa we concluded that

a plan administrator’s decision to deny benefits was illogical,

implausible, and without support in the record where virtually

all the evidence in the record pointed in the other direction,

Salomaa, 642 F.3d at 676, the evidence here is more than

adequate to support the plan administrator’s decision. Nor

could we reverse the district court’s decision on the ground

that the plan administrator abused its discretion because it

knew or should have known of additional information that

would substantiate Barton’s claim. See, e.g., Hess v.

Hartford Life & Accident Ins. Co., 274 F.3d 456, 462–63 (7th

Cir. 2001). Even if we adopted such a standard, no one has

argued that the plan administrator is aware of evidence that

would identify Barton’s employers as “covered employers.”

Indeed, given ADT’s multiple acquisitions, mergers, and

divisions since 1986, it would be unsurprising if the plan

26 ESTATE OF BARTON V. ADT

lacks records proving that certain ADT entities were not

covered during the period from 1967 to 1986.

Nor did ADT have a legal duty to maintain such

information. As the majority implicitly acknowledges, no

ERISA provision requires a plan administrator to maintain a

record of covered companies. Maj. op. at 15 n.5. The

majority suggests that 29 U.S.C. § 1024(b)(4) illustrates the

recordkeeping and disclosure requirements imposed on a plan

administrator, Maj. op. at 14–16, but by its terms it does not

require a plan administrator to keep the sorts of records at

issue here.2 The administrative record shows that the plan

administrator provided the information required under

§ 1024(b)(4) to the extent Barton requested it and the

majority does not suggest otherwise, see Maj. op. at 15 n.5.

III

Rather than follow our ERISA precedent, which requires

us to affirm the district court, the majority abandons it

entirely.

First, the majority invents a burden-of-proof standard

(along with a burden-shifting approach) that is in direct

conflict with our abuse of discretion standard. The majority

holds that: “Where a claimant, through documentary or other

objective evidence, has made a prima facie case that he is

entitled to a pension but has no means except for information

2

29 U.S.C. § 1024(b)(4) provides that “[t]he administrator shall, upon

written request of any participant or beneficiary, furnish a copy of the

latest updated summary, plan description, and the latest annual report, any

terminal report, the bargaining agreement, trust agreement, contract, or

other instruments under which the plan is established or operated.”

ESTATE OF BARTON V. ADT 27

in the defendant’s control to establish that his work was for

a ‘covered employer’ and of sufficient duration, the burden

then shifts to the defendant to produce such information.”

Maj. op. at 19. Under this rule, if Barton has established a

“prima facie case that he is entitled to a pension” (and the

majority does not specify what this means), the burden shifts

to the plan administrator to prove that the claimant’s work

was not “for a covered employer.”3 If the plan administrator

does not have information relevant to the claimant’s work

history, this may mean (again, the majority is unclear) that the

claimant prevails, and the district court must invalidate the

plan administrator’s denial of benefits even if the plan

administrator’s decision was not illogical, implausible, or

without support in the record. This is directly contrary to our

deferential standard, Abatie, 458 F.3d at 965, and contrary to

the Supreme Court’s direction that courts should not make

“ad hoc exceptions” to the abuse of discretion standard,

Conkright, 559 U.S. at 513.

Here, for instance, if the district court on remand

determined that Barton has made a “prima facie case that he

is entitled to a pension,” and the plan administrator cannot

introduce any extrinsic evidence establishing that ADT of

Massachusetts, ADT of Maine, or ADT of Illinois were not

“covered employers” as defined in the plans,4 the district

3

Of course, such a burden-shifting approach is contrary to our burden

of proof standard even under de novo review, see Muniz, 623 F.3d at

1294–95, let alone on abuse of discretion review, where the court does not

assign a burden of proof at all.

4

The majority’s burden-shifting rule presumably contemplates that the

plan administrator will have an opportunity to introduce extrinsic evidence

on this issue, which is also contrary to our precedent. Abatie, 458 F.3d at

970, 972–73.

28 ESTATE OF BARTON V. ADT

court would have to credit Barton’s allegations that these

companies are covered employers, which could compel the

conclusion that Barton is entitled to benefits under the plan.5

But such a result would be directly contrary to our and

Supreme Court case law, see Conkright, 559 U.S. at 513;

Abatie, 458 F.3d at 965, because it would require the plan

administrator to provide benefits to Barton even though the

plan administrator did not abuse its discretion in determining

that Barton did not work for covered employers for ten years

of continuous service.

The majority argues that its new burden-shifting rule does

not require the plan administrator to carry the burden of

producing “records listing entities not covered by their

pension plans,” but rather requires the plan administrator to

“reveal which companies did in fact participate in their

plans.” Maj. op. at 18 n.7. According to the majority, plan

administrators must know this information in order to “fulfill

their fiduciary duty to only distribute pension funds to

qualified individuals.” Id. But the plan administrator here

elected to fulfill its fiduciary duty by maintaining and

updating a record of past and present employees who are

entitled to pensions, rather than by listing covered companies.

The majority provides no explanation as to why this approach

breached the plan administrator’s fiduciary duty or what

authority required the plan administrator to maintain a

5

The majority is unclear whether a determination that some of Barton’s

former employers must be deemed to be “covered employers” under a

burden-shifting approach also compels the conclusion that Barton is per

se entitled to benefits. Since the plan requires Barton to have engaged in

ten years of continuous service with a covered employer, such a ruling

would directly contradict the terms of the plans.

ESTATE OF BARTON V. ADT 29

complete list of covered companies in order to comply with

the majority’s unprecedented new rule.

Moreover, assuming that administrators of multi-

employer plans like this one (ADT instituted its first plan on

April 1, 1913) frequently lack information about which

historical companies are “covered” as defined in the plan, the

majority’s new rule does not just shift a burden, but as a

practical matter, could make the claimant eligible for benefits

whenever the historical information is scanty or unavailable.

Putting the “risk of insufficient records” on the ERISA plan,

as required by the majority, enhances the risk that uninsured

claimants will draw funds away from the legitimate

beneficiaries. That risk is in derogation of one of ERISA’s

core policies: to protect the “soundness and stability of plans

with respect to adequate funds to pay promised benefits.”

29 U.S.C. § 1001(a); see also Boyd v. Bert Bell/Pete Rozelle

NFL Players Ret. Plan, 410 F.3d 1173, 1178 (9th Cir. 2005)

(holding that fiduciaries of benefit plans are “obligated to

guard the assets of the Plan from improper claims”) (internal

quotation marks and alteration omitted).

Lacking any support for its new rule in our ERISA case

law, the majority is forced to justify its rule by reference to

cases addressing inapposite issues. See Brick Masons

Pension Trust v. Industrial Fence & Supply, Inc., 839 F.2d

1333, 1337–39 (9th Cir. 1988); see also Anderson v. Mt.

Clemens Pottery Co., 328 U.S. 680, 686–87 (1946).

In Brick Masons, a masonry company entered into a

contract to make contributions to multi-employer welfare

plans based on hours worked by covered employees.

839 F.2d at 1335. The welfare plans proved that during the

relevant time period, the company had breached the contract

30 ESTATE OF BARTON V. ADT

by using covered employees to perform covered work and

failing to make the required contributions, which resulted in

damage to the welfare plans. Id. Although there was only

limited evidence as to the extent of the covered work (and

hence, limited evidence of the amount of the missing

contributions), the welfare plans proved that this data was

unavailable because the company had violated a statutory

requirement to keep adequate records of its employees’ hours.

Id. at 1338. We held that because the welfare plans had

proved “the fact of damage” and had also proved that the

company failed to keep statutorily required records, the

burden shifted to the company to come forward with evidence

that would show the extent of damages. Id. at 1338–39.

Because the company did not have records regarding the

amount of covered work performed by the covered

employees, this in effect required the company to pay the full

amount estimated by the welfare plans. Id.

The majority also cites Anderson v. Mt. Clemens Pottery

Co., 328 U.S. 680, 686–87 (1946), which involved a suit by

employees under the Fair Labor Standards Act claiming that

they were deprived of overtime compensation. Id. at 684.

The Court held that where an employee proved that he “has

in fact performed work for which he was improperly

compensated,” and “the amount and extent of that work,” but

the employer violated its statutory duty to keep adequate and

accurate records, the burden shifted to the employer to

disprove the employees’ estimate of the work performed. Id.

at 686–88.

Brick Masons and Mt. Clemens have nothing to do with

the question presented here, whether a plan administrator

abused its discretion in denying a claimant’s demand for

benefits. The district courts in Brick Masons and Mt.

ESTATE OF BARTON V. ADT 31

Clemens were not considering whether a plan administrator’s

decision was illogical, implausible, or without support in the

record, but rather were conducting a de novo review of the

amount of damages to which claimants were entitled. The

courts shifted the burden to the defendant to show the extent

of damages only after the plaintiffs had both: (1) successfully

proven all elements of their claims; and (2) established that

the defendant’s violation of a statutory requirement to

maintain necessary records precluded them from proving the

precise amount of damages caused by the defendant. Here,

by contrast, Barton has not successfully proven any element

of his claim: The question is not the “amount of damages”

owed to Barton, but rather whether he is owed anything at all.

Moreover, Barton has not pointed to any violation of a

statutory recordkeeping requirement. Even if the majority’s

Brick Masons theory were otherwise applicable in the context

of abuse of discretion review, the lack of any statutory

violation would preclude a court from shifting the burden of

proof. See Motion Picture Indus. Pension & Health Plans v.

N.T. Audio Visual Supply, Inc., 259 F.3d 1063, 1066–67 (9th

Cir. 2001) (noting that the “first threshold burden” for

switching the burden of proof under Brick Masons is proving

that the plan administrator “failed to keep adequate records”

under ERISA).

IV

In short, the majority’s ad hoc rule designed to help

Barton in this case is a disaster. The majority’s requirement

that the district court allocate a burden of proof when it is

supposed to be reviewing a plan administrator’s decision

for abuse of discretion makes no sense and is contrary to

our case law. And the rule itself, which verges on the

incomprehensible, will defy district courts’ efforts to apply it.

32 ESTATE OF BARTON V. ADT

Given that this rule was apparently developed to help a single

claimant, one can only hope that this strange rule will be

confined to the limited facts of this case. I dissent.