Bergamatto v. Bd. of Trs. of the Nysa Ila Pension Fund

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 18-2811

_____________

NICHOLAS BERGAMATTO,

Appellant

v.

BOARD OF TRUSTEES OF THE NYSA- ILA PENSION

FUND; CHARLES WARD

_______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-16-cv-5484)

District Judge: Hon. Kevin McNulty

_______________

Submitted Under Third Circuit LAR 34.1(a)

June 3, 2019

Before: SMITH, Chief Judge, JORDAN, and MATEY,

Circuit Judges.

(Filed: August 6, 2019)

_______________

Samuel J. Halpern

347 Mount Pleasant Ave. – Ste. 203

West Orange, NJ 07052

Counsel for Appellant

Donato Caruso

Ian A. Weinberger

The Lambos Firm

303 South Broadway – Ste. 410

Tarrytown, NY 10591

Kevin J. Marrinan

John P. Sheridan

Marrinan & Mazzola Mardon

26 Broadway – 17th Fl.

New York, NY 10004

Kyle D. Winnick

Chamberlain Hrdlicka White Williams & Aughtry

191 Peachtree St. NW – 46th Fl.

Atlanta, GA 30303

Counsel for Appellees

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

Nicholas Bergamatto appeals from the District Court’s

grant of summary judgment against him on his claims under

the Employee Retirement Income Security Act (“ERISA”), 29

2

U.S.C. § 1001 et seq. He contends that, under his pension plan,

he is entitled to more benefits than he was awarded and that

ERISA allows him to sue a “de facto administrator” of the plan

for failing to provide requested information. We disagree and

so will affirm the judgment of the District Court.

I. BACKGROUND

The operative facts are not in dispute. Bergamatto

began working for the Port of New York and New Jersey as a

longshoreman in 2000. He last worked there in April 2010. In

April 2013, he applied for retirement benefits under his

pension plan.

That plan is the New York Shipping Association-

International Longshoremen’s Association Pension Trust Fund

and Plan, a plan covered by ERISA. The 2010 version of the

plan said that “[t]he provisions … in effect during the

Participant’s last year of credited service shall be applied to

determine the Participant’s right to benefits and the amount

thereof.” (Supp. App. at 5.) The 2010 plan also originally

precluded longshoremen hired between October 1996 and

September 2004 from accruing benefits for work performed

before October 2004. 1 It did so by excluding from the

definition of “Participant” “any employee who was not a

Participant prior to October 1, 1996” and stating that:

1

At all times relevant to this case, a year of credited

service required a set number of hours of credited service and

was based on an October 1 to September 30 fiscal year.

3

[n]otwithstanding anything to the contrary

contained in this Plan, any person who was first

hired for employment in the longshore industry

on or after October 1, 1996, and who was not a

Participant as of September 30, 2004, shall be

eligible to participate as a Participant in the Plan

effective October 1, 2004, but shall not be

entitled to accrue credited service for pension

benefit accrual purposes under the Plan for any

hours of employment earned prior to October 1,

2004.

(Supp. App. at 10-11.)

In 2013, however, an amendment was made to the 2010

plan. That amendment provided that, “[e]ffective October 1,

2012, Participants hired on or after October 1, 1996 shall

receive pension benefit accruals for years of credited service

earned from 1996 through 2004[.]” (D. Ct. D.I. 31-3, at

*173.) 2

The 2010 plan contained several administrative

provisions. Among other things, it said that “[t]he Fund shall

be administered by a Board of Trustees” (Supp. App. at 65) and

that the Board had to “make available to the Fund’s

Participants and beneficiaries such reports and other

documents as are required by ERISA” (Supp. App. at 68). It

further provided that

2

“D. Ct. D.I.” refers to items listed on the District

Court’s docket.

4

[t]he Board of Trustees shall have sole and

absolute discretionary authority (1) to determine

eligibility for benefits, (2) to interpret and

construe the terms and provisions of the Trust

and Plan, and (3) to make factual findings in

connection with applications for benefits and to

make other determinations involving application

of the provisions of the Trust and Plan.

(Supp. App. at 73.) Finally, it said that the Board “delegates

to the Executive Pension Director … the power and authority

to process and approve all non-disputed applications for

pension benefits and to commence timely payments of such

benefits” but that “[a]ll actions taken and decisions made

pursuant to [that delegation] are subject to ratification by the

Board of Trustees.” 3 (Supp. App. at 73.)

In January 2015, an updated version of the plan was

produced. Like the 2010 plan, the 2015 plan contained a “last

year of credited service” clause, saying that “[t]he provisions

of the Plan in effect during the Participant’s last Year of

Credited Service shall be applied to determine the Participant’s

3

Although the record is not entirely clear, it appears that

the “Executive Pension Director” is the same individual

elsewhere referred to as the Executive Director of the Fund.

The delegated power of the Director in handling benefits

applications is to be exercised in concert with “his counterpart

designated by the [New York Shipping Association.]” (Supp.

App. at 73.) That aspect of the plan’s administration is not at

issue in this case.

5

right to benefit and the amount thereof.” 4 (App. at 70.) The

2015 plan also expressly incorporated the 2013 amendment to

the 2010 plan, providing that, “[e]ffective October 1, 2012,

Participants hired on or after October 1, 1996 shall receive

pension benefit accruals for Years of Credited Service earned

from 1996 through 2004.” (App. at 58.) Relatedly, it

eliminated the language preventing employees hired between

October 1996 and September 2004 from accruing benefits for

work prior to October 2004. The 2015 plan also contained the

same administrative provisions from the 2010 plan that have

just been noted.

In June 2013, Bergamatto’s application for pension

benefits was approved by Charles Ward, Executive Director of

the Fund, but based on only the years of credited service

starting in October 2004. Ward reasoned that the 2010 plan

required that benefit determinations be made based on the plan

provisions in force during the participant’s last year of credited

service, that Bergamatto’s last year of credited service was

2010, and that the 2010 plan terms prevented longshoremen

hired between October 1996 and September 2004 – like

Bergamatto – from receiving benefit accruals for work

performed before October 2004.

Bergamatto responded to Ward’s decision by requesting

that, in light of the 2013 amendment to the 2010 plan, his

pension benefits incorporate his years of service before

October 2004. A series of communications between Ward and

Bergamatto ensued, which ultimately led to Bergamatto

4

The 2010 plan used the word “benefits” (Supp. App.

at 5, 34), whereas the 2015 plan used “benefit” (App. at 70).

The change does not appear to have been substantive.

6

accusing Ward of failing to respond to him as required by

ERISA. Specifically, Bergamatto maintained that Ward had

not adequately addressed his request for the pre-October 2004

benefit accruals and for the relevant plan provisions or

summary plan description.

Bergamatto ultimately filed an appeal with the pension

fund’s Board of Trustees, which denied the appeal after a

hearing. Its decision was based on the following reasoning: the

2015 plan “provides that the provisions of the Plan in effect

during the Participant’s last year of credited service shall be

applied to determine the Participant’s right to a benefit and the

amount thereof”; Bergamatto’s last year of credited service

was 2010; the 2010 plan likewise “provides, with various

exceptions that apply only to the amount of benefits, that the

provisions of the Plan in effect during the Participant’s last

year of credited service shall be applied to determine the

Participant’s right to benefits and the amount thereof”; and the

2010 plan further “provides that … any person who was hired

… on or after October 1, 1996, and who was not a Participant

as of September 30, 2004, shall be eligible to participate as a

Participant in the Plan effective October 1, 2004, but shall not

be entitled to accrue credited service for pension benefit

accrual purposes under the Plan for any hour of employment

earned prior to October 1, 2004[.]’” (D. Ct. D.I. 31-3, at *206-

07.)

The Board’s decision was communicated to

Bergamatto, and he then filed this action under ERISA, naming

the Board of Trustees and Ward as defendants. 5 He claimed

5

The timeliness of Bergamatto’s claims is not disputed.

7

first that the denial of his claim for pre-October 2004 benefit

accruals was erroneous, as it was based on a misinterpretation

of the plan provisions and, second, that Ward’s failure to

adequately respond during the parties’ correspondence

amounted to a violation of the statutory responsibility of the

plan administrator to respond to a plan participant. 6 The

defendants ultimately moved for summary judgment, which

the District Court granted.

As to Bergamatto’s first claim, the Court concluded

that, under the applicable “arbitrary-and-capricious standard”

of review, the Board of Trustees’ interpretation of the 2015 and

2010 plans was “reasonably consistent” with the plans’

unambiguous language, which “makes clear that Bergamatto

was not eligible for benefit accruals” for the years that he

worked before October 2004. (App. at 15-16 (citation

omitted).) Mirroring the Board’s reasoning, the Court said

that, under the 2015 plan, the terms in place during a

participant’s last year of credited service are controlling for

purposes of benefit determinations; that Bergamatto’s last year

of credited service was 2010; and that, therefore, the 2010 plan

governs Bergamatto’s claim. It then concluded that the 2010

plan also requires that the provisions in effect during a

participant’s last year of credited service control. The Court

said that the 2010 provisions preclude workers like Bergamatto

from earning benefit accruals for years of service before

October 2004, and that the 2013 amendment allowing such

accruals was not in effect in 2010. It rejected Bergamatto’s

assertion that the “last year of credited service” clause does not

6

Bergamatto raised other issues, but the District Court

concluded “that he is no longer pursuing” them (App. at 12

n.5), and Bergamatto does not press them on appeal.

8

apply, saying instead that “the Clause does clearly apply to

such accruals.” (App. at 17.) The Court also disagreed with

Bergamatto’s contention that Moench v. Robertson, 62 F.3d

553 (3d Cir. 1995), abrogated on other grounds by Fifth Third

Bancorp v. Dudenhoeffer, 573 U.S. 409, 417-19 (2014),

dictated a result in his favor. According to the Court,

Bergamatto’s Moench argument failed because the Board’s

interpretation was consistent with the goals of the plan, did not

render any language in the plan meaningless or internally

inconsistent, did not conflict with ERISA, was not inconsistent

with other Board interpretations, and was consistent with the

clear language of the plan.

As to Bergamatto’s second claim – that Ward breached

an obligation to respond to Bergamatto’s requests for

information – the District Court observed that the claim was

misdirected since the plan identifies the Board of Trustees, not

Ward, as the administrator. The Court rejected Bergamatto’s

argument “that Ward is the de facto plan administrator[,]”

reasoning that “the plain and unambiguous text of ERISA, as

well as the weight of existing case law,” foreclosed that

argument. (App. at 20-21.) It noted that, although “[t]he Third

Circuit has not yet ruled on” “whether a party can be held liable

under [29 U.S.C. § 1132(c)(1)] under a de facto plan

administrator theory[,]” numerous other circuit courts and the

District of New Jersey have rejected that theory. (App. at 20.)

The Court also rebuffed two alternative arguments

advanced by Bergamatto: that equitable estoppel should apply

because “Ward ‘never disavowed the title of Plan

Administrator and never advised Bergamatto’s counsel to

redirect his request to the Board’”; and that Ward was a co-

administrator because “a Notice [from the plan] advis[ed]

9

participants to contact the Board or Ward if they ha[d]

additional questions[.]” (App. at 21 (citation omitted).) As to

the first argument, the District Court said that Bergamatto

could not satisfy the requirements of equitable estoppel

because he had provided no evidence “that he detrimentally

relied on Ward’s alleged misrepresentations.” (App. at 22.) As

to the second, it determined that the Notice “is not sufficient to

support a finding that Ward was a co-administrator” because it

“identifies Ward as Executive Director, not co-administrator,

and merely states that he can answer relevant questions.”

(App. at 22.)

Bergamatto timely appealed.

II. DISCUSSION 7

On appeal, Bergamatto presses two claims: (1) that he

is entitled to benefit accruals for the years he worked before

October 2004; and (2) that Ward should be viewed as a de facto

administrator of the pension plan and thus subject to liability

7

The District Court had jurisdiction under 28 U.S.C.

§ 1331 and 29 U.S.C. § 1132(e). We have jurisdiction

pursuant to 28 U.S.C. § 1291. “We exercise plenary review

over the district court’s grant of summary judgment, applying

the same standard that the court should have applied.” Howley

v. Mellon Fin. Corp., 625 F.3d 788, 792 (3d Cir. 2010).

“Summary judgment is appropriate if, viewing the facts in the

light most favorable to the non-moving party, there is no

genuine issue of material fact and the moving party is entitled

to judgment as a matter of law.” Id.

10

for failing to timely respond to Bergamatto’s correspondence. 8

Bergamatto contends that the District Court erred in resolving

those claims against him and should have granted summary

judgment in his favor under Federal Rule of Civil Procedure

56(f). 9 We disagree and, consequently, will affirm.

A. Bergamtto’s Ineligibility for Benefit Accruals

for Pre-October 2004 Service

With respect to his first claim, Bergamatto says that the

Board of Trustees’ decision was arbitrary and capricious in that

it erroneously relied on the “last year of credited service”

clause of the 2015 plan to deny his request for benefit accruals

for pre-October 2004 work. In Bergamatto’s view, that clause

is inapplicable because it “appears to apply to the entitlement

to and calculation of the pension benefit but is silent as to

benefit accruals and appears to be a rule of general

application.” (Opening Br. at 15.) He says that the amendment

granting benefit accruals for pre-October 2004 service for

8

Bergamatto does not contend that the Board is liable

for being unresponsive. He also does not raise equitable

estoppel or assert that the District Court’s rejection of his

equitable estoppel argument was in error. We therefore

consider these arguments forfeited. See In re: Asbestos Prods.

Liab. Litig. (No. VI), 873 F.3d 232, 237 (3d Cir. 2017) (“As a

general matter, an appellant waives an argument in support of

reversal if it is not raised in the opening brief.”).

9

Bergamatto did not move for summary judgment, but

Rule 56(f) provides, in relevant part, that, “[a]fter giving notice

and a reasonable time to respond, the court may … grant

summary judgment for a nonmovant[.]” Fed. R. Civ. P. 56(f).

11

workers such as him, as incorporated into the 2015 plan, should

govern “because it directly addresses accruals.” (Opening Br.

at 15.) He maintains that he is covered by the amendment

because he was a participant in the plan after the amendment’s

effective date of October 2012.

Bergamatto’s first claim arises under 29 U.S.C.

§ 1132(a)(1)(B), which permits “a participant in an ERISA

benefit plan [who has been] denied benefits” to bring suit “to

recover benefits due to him under the terms of his plan.”

Howley v. Mellon Fin. Corp., 625 F.3d 788, 792 (3d Cir. 2010).

Where a plan administrator possesses “discretionary authority

to determine eligibility for benefits or to construe the terms of

the plan[,]” we review the administrator’s decision under an

“abuse of discretion” standard 10 or an “arbitrary and

capricious” standard, 11 which, in this context, are effectively

the same. Id. at 792, 793 n.6 (citation omitted); see also

Fleisher v. Standard Ins. Co., 679 F.3d 116, 121 n.2 (3d Cir.

2012) (“We have clarified that ‘[i]n the ERISA context, the

arbitrary and capricious and abuse of discretion standards of

review are essentially identical.’” (alteration in original)

(citation omitted)). Here, both the 2015 and 2010 plans grant

10

“An administrator’s decision constitutes an abuse of

discretion only if it is ‘without reason, unsupported by

substantial evidence or erroneous as a matter of law.’” Howley,

625 F.3d at 792 (citation omitted).

11

“An administrator’s decision is arbitrary and

capricious if it is without reason, unsupported by substantial

evidence or erroneous as a matter of law.” Fleisher v. Standard

Ins. Co., 679 F.3d 116, 121 (3d Cir. 2012) (internal quotation

marks and citation omitted).

12

the Board such discretionary authority, and it is undisputed that

the Board possesses it.

Under our broadly deferential standard of review, we

first consider whether the language of an ERISA plan is

ambiguous, i.e., “subject to reasonable alternative

interpretations.” Bill Gray Enters., Inc. Emp. Health &

Welfare Plan v. Gourley, 248 F.3d 206, 218 (3d Cir. 2001)

(citations omitted). If the plan’s language is unambiguous, “we

will not set aside the administrator’s interpretations … as long

as those interpretations are ‘reasonably consistent’ with the

plan’s text[.]” 12 Dowling v. Pension Plan for Salaried Emps.

of Union Pac. Corp. & Affiliates, 871 F.3d 239, 245 (3d Cir.

2017) (quoting Fleisher, 679 F.3d at 121). “If the reviewing

court determines the terms of a plan document are ambiguous,

it must take [an] additional step and analyze whether the plan

administrator’s interpretation of the document is reasonable.”

Bill Gray Enters., 248 F.3d at 218.

12

In assessing whether an administrator’s interpretation

is “reasonably consistent” with plan language, we are not

considering whether the interpretation is one reasonable

alternative. By definition, when plan terms are clear, they have

only one meaning and are “unsuited to any further

interpretation.” Funk v. CIGNA Grp. Ins., 648 F.3d 182, 192

(3d Cir. 2011), abrogated on other grounds by Montanile v.

Bd. of Trs. of the Nat’l Elevator Indus. Health Benefit Plan,

136 S. Ct. 651, 656-57 & n.2 (2016). What we are doing,

instead, is considering whether the administrator acted within

the scope of the plan’s unambiguous terms while engaging in

“straightforward Plan execution[.]” Id. at 192 & n.12.

13

Bergamatto’s argument fails at the first step because the

plan language at issue here is unambiguous and the Board’s

decision is “reasonably consistent” with that language. The

2015 plan states expressly that “[t]he provisions of the Plan in

effect during the Participant’s last Year of Credited Service

shall be applied to determine the Participant’s right to benefit

and the amount thereof.” 13 (App. at 70.) The original 2010

plan contains the same “last year of credited service” clause

and directly forbids workers hired between October 1996 and

September 2004 from earning benefit accruals for pre-October

2004 work. 14 And, the effective date of the 2013 amendment

that changed that restriction and authorized such benefit

accruals was October 1, 2012, well after Bergamatto’s last year

of credited service in 2010. The language of the un-amended

2010 plan is thus controlling. Given that Bergamatto was hired

in 2000, he is subject to the benefit accrual exclusion for pre-

October 2004 work. We cannot see how the 2015 and 2010

plans could be read in any other way. The Board’s decision

13

The Board of Trustees considered the 2015 plan to be

the operative one, and Bergamatto too relies on that plan to

support his arguments. We will assume that the 2015 plan is

the appropriate one to look to, although we need not

conclusively resolve whether the 2015 or 2010 plan governs

because, in any event, the 2015 plan looks to the 2010 plan for

the decisive language.

14

Recall that the 2010 plan provides that any

longshoreman hired “on or after October 1, 1996, and who was

not a Participant as of September 30, 2004 … shall not be

entitled to accrue credited service for pension benefit accrual

purposes under the Plan for any hours of employment earned

prior to October 1, 2004.” (Supp. App. at 10-11.)

14

tracks that reading and is thus “reasonably consistent” – in fact,

totally consistent – with the unambiguous language of the

plans.

Bergamatto’s suggestion that the “last year of credited

service” clause does not encompass benefit accruals is

unpersuasive. That clause, under both the 2015 and 2010

plans, is framed expansively, covering any term used to

determine a participant’s right to benefits and the amount

thereof. The clause, on its face, encompasses anything that

could affect the benefits a worker receives, and it is hard to

imagine how the accrual of benefits could fall outside its reach.

Indeed, under both the 2015 and 2010 plans, “Accrued

Benefit” is defined as the monthly pension benefit – i.e., the

amount of benefit – that a participant in the plan would be

entitled to receive if certain conditions were met. (App. at 48;

Supp. App. at 14.) And Bergamatto necessarily concedes that

benefit accruals affect the amount of a pension, given that he

has consistently sought benefit accruals for additional years in

order to increase his pension.

In light of all that, Bergamatto’s remaining arguments

are unavailing. His assertion that the amendment should

govern since it directly addresses benefit accruals fails

because, if the “last year of credited service” clause applies to

benefit accruals (and it does), the 2010 provisions relating to

benefit accruals must control. No one disputes that

Bergamatto’s last year of credited service was 2010. And,

again, because that was his last credited year, the 2010

provisions govern. Bergamatto’s argument that he was a

participant in 2012 – when the amendment authorizing the

benefit accruals Bergamatto seeks became effective – is thus

irrelevant.

15

In sum, the plan language is unambiguous; the Board’s

interpretation aligns with that language; and Bergamatto’s first

claim fails. 15

B. The “De Facto” Plan Administrator Theory

As to Bergamatto’s second claim, he cites 29 U.S.C.

§ 1132(c) and says that “a plan administrator who fails or

refuses to comply with a request for information which the

administrator is required by law to provide to a participant or

beneficiary within 30 days is subject to a penalty of $100.00

per day.” (Opening Br. at 17.) He then asserts that Ward failed

to respond to his request for “a copy of the pertinent plan

provisions or a summary plan description” within that 30-day

period. (Opening Br. at 17.) Bergamatto maintains that Ward

15

Bergamatto’s arguments rely on our decision in

Moench, in which we adopted “factors to consider in

determining whether an interpretation of a plan is

reasonable[.]” 62 F.3d at 566; see also Howley, 625 F.3d at

795 (noting that we consider the Moench factors “[i]n

determining whether an administrator’s interpretation of a plan

is reasonable”). He frames all of his arguments using Moench,

and he asserts that the Board’s interpretation would frustrate

the goals of the plan, which is an argument tied specifically to

the Moench factors.

The Moench factors, however, are inapposite here.

They apply in evaluating the reasonableness of an

administrator’s interpretation. But we only move to that

inquiry if we decide that the terms of a plan document are

ambiguous. Bill Gray Enters., 248 F.3d at 218, 220 n.12; see

supra note 11. In the present case, the plan is clear.

16

should thus be penalized because, even though he has the title

of Executive Director of the plan, he is a de facto plan

administrator. According to Bergamatto, “Ward appeared to

function in all respects as a plan administrator” – for example,

answering participants and beneficiaries’ questions, supplying

them with information they requested, and providing summary

plan descriptions – and that, “more importantly, he never

disavowed the title.” (Opening Br. at 18.) As the District

Court noted and Bergamatto acknowledges, a majority of our

sister circuits have rejected the de facto administrator theory.

He nevertheless asserts that we should not follow those other

courts.

His claim arises under 29 U.S.C. § 1132(a)(1)(A),

which allows a participant or beneficiary to sue “for the relief

provided for in [29 U.S.C. § 1132(c).]” 29 U.S.C.

§ 1132(a)(1)(A). The specific provision at issue is

§ 1132(c)(1), which provides, in relevant part:

Any administrator … who fails or refuses to

comply with a request for any information which

such administrator is required by this subchapter

to furnish to a participant or beneficiary (unless

such failure or refusal results from matters

reasonably beyond the control of the

administrator) by mailing the material requested

to the last known address of the requesting

participant or beneficiary within 30 days after

such request may in the court’s discretion be

personally liable to such participant or

beneficiary in the amount of up to $100 a day

from the date of such failure or refusal, and the

17

court may in its discretion order such other relief

as it deems proper.

Id. § 1132(c)(1) (emphasis added). 16 In short, that provision

allows suit against an administrator for not responding to

requests for certain information.

Ward, however, does not formally qualify as an

“administrator” for purposes of 29 U.S.C. § 1132(c)(1). Under

ERISA, the word “administrator” is defined as “the person

specifically so designated by the terms of the instrument under

which the plan is operated[,]” if there is such a designation. 17

Id. § 1002(16)(A). Both the 2015 and 2010 plans designate the

Board of Trustees – and only the Board of Trustees – as the

administrator. 18

16

For instance, 29 U.S.C. § 1024(b)(4) requires “[t]he

administrator” to, “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.”

29 U.S.C. § 1024(b)(4).

17

Otherwise, the “administrator” is “the plan sponsor”

or, if “an administrator is not designated and a plan sponsor

cannot be identified, such other person as the Secretary [of

Labor] may by regulation prescribe.” 29 U.S.C.

§ 1002(16)(A).

18

Bergamatto asserts that Ward should be viewed as a

co-administrator because a Notice from the plan told

“participants and beneficiaries to contact the Board of Trustees

18

That leads to the question of whether a person, like

Ward, who does not fit the statutory definition of

“administrator” may be liable under 29 U.S.C. § 1132(c)(1) as

a de facto administrator. We have not previously addressed

that question. Most courts that have, though, have rejected the

idea. See Ibson v. United Healthcare Servs., Inc., 877 F.3d

384, 390-91 (8th Cir. 2017); Mondry v. Am. Family Mut. Ins.

Co., 557 F.3d 781, 793-94 (7th Cir. 2009); Sgro v. Danone

Waters of N. Am., Inc., 532 F.3d 940, 945 (9th Cir. 2008)

(citing Moran v. Aetna Life Ins. Co., 872 F.2d 296, 299-300

(9th Cir. 1989)); Krauss v. Oxford Health Plans, Inc., 517 F.3d

614, 631 (2d Cir. 2008) (citing Lee v. Burkhart, 991 F.2d 1004,

1010 n.5 (2d Cir. 1993)); Averhart v. US WEST Mgmt. Pension

Plan, 46 F.3d 1480, 1489-90 (10th Cir. 1994); see also Conn.

Gen. Life Ins. Co. v. Humble Surgical Hosp., L.L.C., 878 F.3d

478, 486 (5th Cir. 2017) (observing that “[t]he Fifth Circuit has

never adopted the de facto plan administrator theory[,]” that

“[t]he de facto administrator argument has been flatly rejected

by at least eight circuits[,]” and that “[a]nother two circuits

‘have refused to extend the de facto administrator doctrine to

an insurance company involved in claims handling,’” as in the

case at bar (third alteration in original) (citations omitted)); 19

or Ward if they have questions or to request additional

information.” (Opening Br. at 18.) But that Notice does not

change who the plans specify as administrator, and the Notice

characterizes Ward as “Executive Director,” not administrator.

(D. Ct. D.I. 11-2, at *20.)

19

The Fifth Circuit has not clarified whether Humble

constituted a wholesale rejection of the de facto administrator

theory. It has since cited that case for the proposition that “the

19

Davis v. Liberty Mut. Ins. Co., 871 F.2d 1134, 1138 (D.C. Cir.

1989) (concluding that an insurer could not be liable under 29

U.S.C. § 1132(c) because it was “nowhere designated by the

plan as ‘administrator’” and no one had suggested that the

insurer “fit[] within the statutory definition of ‘plan

sponsor’”). 20 Only two appellate courts appear to have adopted

the theory, 21 Rosen v. TRW, Inc., 979 F.2d 191, 193-94 (11th

Fifth Circuit does not recognize a de facto administrator

doctrine in the context of an insurance company involved in

claims handling.” N. Cypress Med. Ctr. Operating Co. v.

Aetna Life Ins. Co., 898 F.3d 461, 483 & n.87 (5th Cir. 2018)

(emphasis added).

20

The D.C. Circuit has not cited Davis or addressed the

de facto administrator issue since, so the scope of that decision

is not wholly clear. Cf. Law v. Ernst & Young, 956 F.2d 364,

374 (1st Cir. 1992) (distinguishing Davis on the ground that it

“involved [an attempt] to recover against entities which were

clearly distinct from the plan administrator and which were not

shown to have exercised actual control over the administrator’s

functions”). At least one court, however, has read Davis as

rejecting the de facto administrator theory. Jones v. UOP, 16

F.3d 141, 145 (7th Cir. 1994).

21

Two other Courts of Appeals have suggested that they

might adopt the de facto administrator theory in the appropriate

case. The Sixth Circuit has remanded where “the record did

not sufficiently explain the relationship between the employer

and the plan administrator for it to determine liability.” Gore

v. El Paso Energy Corp. Long Term Disability Plan, 477 F.3d

833, 843 (6th Cir. 2007) (citing Minadeo v. ICI Paints, 398

F.3d 751, 759 (6th Cir. 2005)). But see Mondry, 557 F.3d at

20

Cir. 1992); Law v. Ernst & Young, 956 F.2d 364, 374 (1st Cir.

1992), and both have done so only to a limited degree, see

Oliver v. Coca Cola Co., 497 F.3d 1181, 1194 (11th Cir. 2007)

(“Rosen applied the de facto administrator doctrine to

employers, not to third-party administrative services

providers.”), vacated in part on other grounds by Oliver v.

Coca Cola Co., 506 F.3d 1316, 1317 (11th Cir. 2007);

Tetreault v. Reliance Standard Life Ins. Co., 769 F.3d 49, 60

(1st Cir. 2014) (“Law was careful to distinguish the case before

it, which involved an employer with ‘little, if any, separate

identity’ from the internal retirement committee that had been

designated as the ‘plan administrator,’ from cases involving

‘attempts to recover against entities which were clearly distinct

from the plan administrator.’” (citation omitted)).

794 (concluding that Gore supports the view that Courts of

Appeals “have held that liability under section 1132(c)(1) is

confined to the plan administrator”). Similarly, the Fourth

Circuit has suggested that a non-administrator could assume

the administrator’s duty to provide documents and be subject

to suit. Coleman v. Nationwide Life Ins. Co., 969 F.2d 54, 62

n.3 (4th Cir. 1992). But see id. at 62 (holding that an insurer

had no duty to provide documents as an administrator and

reasoning that, “[w]hile it is true that an insurer will usually

have administrative responsibilities with respect to the review

of claims under the policy, that does not give this court license

to ignore the statute’s definition of plan administrator and to

impose on [the insurer] the plan administrator’s notification

duties”); Jones, 16 F.3d at 145 (indicating that Coleman

rejected the de facto administrator theory).

21

We are persuaded by the weight of authority, as well as

the plain text and character of the statutes at issue, 22 and so

reject the de facto administrator theory. As set out above, §

1132(c)(1) imposes liability only on administrators. We have

said that “administrator” is a “term[] of art under ERISA[,]”

defined, with certain exceptions, “as ‘the person specifically so

designated by the terms of the instrument under which the plan

is operated.’” Groves v. Modified Ret. Plan for Hourly Paid

Emps. of Johns Manville Corp. & Subsidiaries, 803 F.2d 109,

116 (3d Cir. 1986) (citation omitted). To treat those who do

not fully satisfy that “detailed definition[]” as administrators

“would ‘slight[ ] the wording of the statute[.]’” Id. (second

alteration in original) (citation omitted). We cannot allow that,

for three reasons.

First, the Supreme Court has taught, quite forcefully,

that courts should avoid reading remedies into ERISA’s

carefully-crafted enforcement scheme:

The … carefully integrated civil enforcement

provisions found in § 502(a) … provide strong

evidence that Congress did not intend to

authorize other remedies that it simply forgot to

incorporate expressly. The assumption of

inadvertent omission is rendered especially

suspect upon close consideration of ERISA’s

22

See 29 U.S.C. § 1002(16) (defining “administrator”);

id. § 1024(b)(4) (mandating that it is the “administrator” that

“shall” furnish certain documentation to the participant or

beneficiary); id. § 1132(c)(1) (specifying that it is an

“administrator” that may be “personally liable” for failing to

comply with the statutory duty of furnishing information).

22

interlocking, interrelated, and interdependent

remedial scheme, which is in turn part of a

“comprehensive and reticulated statute.” … We

are reluctant to tamper with an enforcement

scheme crafted with such evident care as the one

in ERISA.

Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146-47

(1985) (citation omitted); see also Hozier v. Midwest

Fasteners, Inc., 908 F.2d 1155, 1167, 1169-70 (3d Cir. 1990)

(relying on Russell to conclude that a “rather freewheeling

statutory construction [of ERISA], even though embarked

upon to vindicate correctly perceived underlying purposes, has

little place in the context of a carefully balanced and reticulated

statute like ERISA”).

Second, § 1132(c) “is a penal provision” and, as such,

“should be leniently and narrowly construed[.]” Groves, 803

F.2d at 111, 118; see also Haberern v. Kaupp Vascular

Surgeons Ltd. Defined Benefit Pension Plan, 24 F.3d 1491,

1505 (3d Cir. 1994) (“We start our discussion … [concerning

29 U.S.C. § 1132(c)(1)] by pointing out that statutory penalty

provisions are construed strictly.”).

Third, we have in fact consistently construed this

statutory penalty provision narrowly and there is no reason to

depart from that approach. See Kollman v. Hewitt Assocs.,

LLC, 487 F.3d 139, 147 (3d Cir. 2007) (reversing the district

court’s award of a penalty under § 1132(c) because the

applicable ERISA provision pertained to fiduciaries, not plan

administrators, and the obligation to provide information was

contained in the Plan, not ERISA); Haberern, 24 F.3d at 1505-

06 (setting aside the § 1132(c) penalty because the plaintiff’s

23

request, instead of seeking documentation that a plan

administrator must provide, simply asked to schedule a

meeting); Groves, 803 F.2d at 111 (affirming the district

court’s determination that a § 1132(c) sanction could not be

imposed upon a plan administrator because ERISA imposed

the duty to furnish documentation “exclusively on ‘the plan,’

not upon the ‘plan administrator[,]’” and limiting liability for

the administrator’s breach of a regulation because § 1132(c)

applied to failures to comply with a request under “this

subchapter[,]” which did not encompass regulations

promulgated under the statute).

In short, we must restrict application of the title

“administrator” to those who fit the statutory definition and not

stretch the term to authorize penalties against others whom a

disappointed plan participant might like to reach. That means

that Ward is not an administrator, “de facto” or otherwise. 23 At

23

That conclusion is not altered by the fact that the 2015

and 2010 plans delegate to the Executive Pension Director the

Board’s “power and authority to process and approve all non-

disputed applications for pension benefits and to commence

timely payments of such benefits[,]” subject to ratification by

the Board. (Supp. App. at 73; D. Ct. D.I. 31-3, at *276.) That

language does not show that the Executive Pension Director is

the statutory administrator, even for disclosure purposes.

Indeed, the plans require the Board to “make available to the

Fund’s Participants and beneficiaries such reports and other

documents as are required by ERISA.” (Supp. App. at 68; D.

Ct. D.I. 31-3, at *272.) Moreover, a non-administrator does

not become an administrator simply by virtue of possessing

responsibilities under a plan. See Ross v. Rail Car Am. Grp.

Disability Income Plan, 285 F.3d 735, 743 (8th Cir. 2002)

24

least in this context, then, there is no such thing as a “de facto

administrator,” and Bergamatto’s second claim fails.

III. CONCLUSION

For the foregoing reasons, we will affirm the judgment

of the District Court.

(“Canada Life admits that it had control over claims under the

policy, but assuming that function did not transform it into the

Plan Administrator.”); Averhart, 46 F.3d at 1489-90 (“[E]ven

where ‘company personnel other than the plan administrator

routinely assume responsibility for answering requests from

plan participants and beneficiaries … [t]he statutory liability

for failing to provide requested information remains with the

designated plan administrator[.]’” (second alteration in

original)).

25