# Hughes Salaried Retirees Action Committee Peter Formo Richard E. Miller Norman C. Rigby v. Administrator of the Hughes Non-Bargaining Retirement Plan

> Court of Appeals for the Ninth Circuit · December 15, 1995 · 72 F.3d 686

URL: https://www.frixlaw.com/law-library/cases/9488771

## Case

- **Full name:** HUGHES SALARIED RETIREES ACTION COMMITTEE; Peter Formo; Richard E. Miller; Norman C. Rigby, Plaintiffs-Appellants, v. ADMINISTRATOR OF the HUGHES NON-BARGAINING RETIREMENT PLAN, Defendant-Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** December 15, 1995
- **Citations:** 72 F.3d 686; 95 Daily Journal DAR 16685; 19 Employee Benefits Cas. (BNA) 2269; 95 Cal. Daily Op. Serv. 9584; 1995 U.S. App. LEXIS 35262; 1995 WL 740011
- **Precedential status:** Published
- **Opinion:** Dissent by Pregerson
- **Judges:** Wallace, Hug, Fletcher, Pregerson, Canby, Norris, Reinhardt, Wiggins, Brunetti, O'Scannlain, Rymer
- **Cited by:** 50 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9488771

## How later opinions describe it (automated extraction)

- holding that the term “other instruments under which the plan is established or operated” refers to "documents that are similar in nature to the documents specifically listed in [ERISA § 104(b)(4)]”
- holding that participants had no right to the names and addresses of other participants, even though that knowledge would have facilitated litigation that might in turn have increased benefits
- holding that a list of names and addresses of retired participants did not need to be disclosed under § 1024(b)(4) because it was not a document under which plan was established or operated
- explaining that ERISA Section 104(b) “requires the disclosure of only the 15 documents described with particularity and ‘other instruments’ similar in nature.”
- holding that required disclosures under § 1024(b)(4) include documents that “allow the participant to know ... what procedures he must follow to obtain benefits”

## Opinion text

PREGERSON, Circuit Judge,
joined by HUG, FLETCHER, and REINHARDT, Circuit Judges, dissenting:
The Retirees of the Hughes Non-Bargaining Retirement Plan seek a list of the names and addresses of plan participants for two purposes: (1) to communicate with other plan participants about increasing benefits from the plan’s $1 billion of surplus funds, and (2) to create a watchdog committee to ensure that the Administrator properly manages the plan. I dissent on two independent bases: I believe that the Administrator has a duty to furnish such a list under ERISA §§ 404(a)(1)(A) (the general fiduciary duty provision) and 104(b)(4) (as a plan instrument).
A. ERISA § 404(a)(1)(A)
ERISA § 404(a)(1)(A) provides that the Administrator, as a fiduciary to the plan, must discharge his duties of plan administration “solely in the interest of the participants and beneficiaries and — (A) for the exclusive *696 purpose of: (i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the plan...
In Acosta v. Pacific Enterprises, 950 F.2d 611, 619 (9th Cir.1991), we held that a plan administrator did not have a duty to disclose a list of participants’ shareholdings because “there is not a sufficient nexus between ... the list ... for the purpose of soliciting votes and the provision of benefits or defrayment of expenses.” We explained that the term “benefit” refers to a participant’s right to receive monies from the plan administrator, not the right to vote in an election for corporate officers. Id.
The purpose for which the Retirees seek the mailing list is directly related to their right to receive monies from the plan Administrator. The list will enable the Retirees to communicate with other plan participants about increasing benefits from the plan’s surplus funds of more than $1 billion, and to create a watchdog committee to ensure that the Administrator properly manages the plan.
The majority opinion misreads Acosta as requiring a nexus between the disclosure requested and the provision of benefits. In Acosta , we made clear that the disclosure of the list could have been required if the purpose for which the list would be used was sufficiently related to the provision of benefits. Id. (‘TTJhere is not a sufficient nexus between ... [the] list ... for the purpose of soliciting votes in a proxy contest and the provision of benefits_”). Following Acosta , the original panel narrowly limited its holding by emphasizing that administrators do not have a fiduciary duty to disclose a list of plan participant names and addresses “as a matter of course in every ease.” Hughes v. Administrator, 39 F.3d 1002, 1007 (9th Cir.1995).
The majority opinion notes that in the context of disclosure requests under the Freedom of Information Act, the Supreme Court in United States Dep’t of Justice v. Reporters Committee, 489 U.S. 749, 771 , 109 S.Ct. 1468, 1480 , 103 L.Ed.2d 774 (1989), stated that disclosure “cannot turn on the purposes for which the request for information is made.” But in Reporters Committee , the Court went on to say that whether disclosure was warranted “must turn on the nature of the requested document and its relationship to the basic purpose of the Freedom of Information Act to open agency action to the light of public scrutiny.” Id. at 772 , 109 S.Ct. at 1481 . See also United States Dep’t of Defense v. Federal Labor Relations Authority, — U.S. -, -, 114 S.Ct. 1006, 1013 , 127 L.Ed.2d 325 (1994) (disclosure of employees’ home addresses would not appreciably further “the citizens’ right to be informed about what their government is up to”). 1
In the instant case, the disclosure of the list of plan participants would directly advance the very purposes Congress had in mind when it enacted ERISA’s disclosure provisions. Section 404(a)(1)(A) requires a fiduciary to furnish all information to the extent that the request “relate[s] to” the provision of benefits, and § 104(b)(4) requires a fiduciary to furnish all “plan instruments.” As discussed above, Congress intended for these disclosure provisions to help beneficiaries secure benefits to which they may be entitled, and to enable them to better police the administration of their plan. 2
*697 Finally, the majority opinion is based on an unfounded fear of the list falling into “the wrong hands.” The majority opinion states that there is no practical way to restrict a requestor’s use of information to the purpose asserted, and that there is no practical way of preventing third parties from exploiting the list for commercial or other improper purposes.
There are at least three ways to protect the list. First, the Administrator can prevent the Retirees from misusing the list by requesting the court to issue an appropriate protective order. Second, the Administrator can prevent the list from falling into the wrong hands by doing the mailing for and at the expense of the Retirees. Third, the Administrator can prohibit improper use of the list as one of the terms of the plan, and then use the Administrator’s powers to enforce the prohibition under ERISA § 502(a)(3) (fiduciary may enjoin any act or practice which violates terms of plan).
Invasion of privacy need not be an issue here, but for the Administrator’s unwillingness to cooperate with the Retirees. The Retirees informed the Administrator that the list need not be turned over to them, and that they would pay any expenses that the Administrator incurred to mail the necessary information to the plan participants. This offer the Administrator rejected.
B. ERISA § 104(b)(4)
The majority opinion concludes that a list of the names and addresses of plan beneficiaries does not qualify as a “plan instrument” under ERISA § 104(b)(4). The majority opinion reasons that the disclosure duties of the Administrator extend only to those documents specifically enumerated in § 104(b)(4), and other documents that are similar to those listed in that section.
But as the original panel found, neither the statutory text nor the legislative history of § 104(b)(4) support such a narrow construction of the term “plan instrument.” Hughes, 39 F.3d at 1008 . Indeed, both the text and legislative history indicate that Congress contemplated “plan instrument” to include the kind of list that the Retirees seek.
Section 104(b)(4) requires the disclosure of “other instruments under which the plan is established or operated.” The mailing list is necessarily an instrument under which the plan is operated because without it, an administrator could not possibly pay benefits or keep plan participants informed of plan administration. The purpose for which the Retirees seek the list, to police the administration of the plan, is precisely one of the reasons why Congress enacted § 104(b)(4). The Senate Committee on Labor and Public Welfare explained that the disclosure requirements were intended to improve the quality of information participants receive about the operation of their plan, and thus enable them to better police the plan:
Disclosure ... impartís] to employees sufficient information and data to enable them to know whether the plan [i]s financially sound and being administered as intended .... [T]he information disclosed would enable employees to police their plans_ [There is] a need for more particularized form of reporting so that the individual participant knows exactly where he stands with respect to the plan — what benefits he may be entitled to .... [T]he fiduciary responsibility section will operate efficiently only if fiduciaries are aware that ... their dealings will be open to inspection and the ... beneficiaries will be armed with enough information to enforce their own rights as well as the obligations owed by the fiduciary to the plan in general.
S.Rep. No. 127, 93d Cong., 2d Sess. (1973), reprinted in, 1974 U.S.C.C.A.N. 4838, 4863 (emphasis added).
The majority opinion argues that the test articulated by the original panel — whether a document is critical to the operation of the plan — “admits of no limiting principle.” The *698 majority opinion incorrectly hypothesizes that documents such as medical histories and wage records would be subject to disclosure because those documents are necessary to the operation of an ERISA plan. However, medical histories and wage records would not qualify as a plan instrument because they do not in any way serve the purposes for which Congress enacted § 104(b)(4): to enable beneficiaries to enforce their rights and police the administration of the plan. Thus, contrary to the majority opinion’s assertion, the test established by the original panel is narrowly circumscribed by the additional criterion of whether the document is crucial to the enforcement of plan benefits.
The majority opinion also relies on Curtiss-Wright Corp. v. Schoonejongen, — U.S. -, -, 115 S.Ct. 1223, 1231 , 131 L.Ed.2d 94 (1995), for the proposition that § 104(b)(4) only requires the disclosure of “governing plan documents,” and that a mailing list clearly does not fall in this category. Cur-tiss-Wright involved the adequacy of a company’s procedure for amending its employee benefit plan. The Supreme Court did not rule in any way on the question presented in the instant appeal, which involves the disclosure requirements of an ERISA fiduciary.
To the extent that the Court discussed § 104(b)(4), it did so only to make its point that because § 104(b)(4) would require the disclosure of any new amendments to the plan, it obviated the need for a separate notice requirement. Moreover, although the Court characterized the documents to be disclosed under § 104(b)(4) as “governing plan documents,” it did not define what constituted such documents, but only decided that a new amendment to the plan was a governing plan document.
CONCLUSION
The holding of the original panel is narrow and tailored to its particular facts. Congress intended for both ERISA §§ 404(a)(1)(A) and 104(b)(4) to equip beneficiaries with the necessary information to enforce their rights, particularly in securing benefits to which they may be entitled. The list of plan participants unquestionably effectuates these objectives in the circumstances of this case. Accordingly, I dissent.
. In any event, Reporters Committee and other FOIA cases are of limited guidance because FOIA, which requires full agency disclosure, is limited by an exemption clause: disclosure is not required if it would constitute “a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552 (b)(6). ERISA contains no such limitation on the fiduciary's duty to disclose plan instruments or documents that relate to the provision of benefits.
. In Acosta we noted that:
ERISA's legislative history demonstrates that "Congress invoked the common law of trusts to define the general scope of [a fiduciary's] authority and responsibility.” The language of section 404(a) reflects this congressional intent that common law trust principles animate the fiduciary responsibility provisions of ERISA.
Acosta, 950 F.2d at 618 (citations omitted). Thus, I refer to the general law of trusts to conclude that the ERISA administrator has a duly to malee available the names and addresses of beneficiaries to all other beneficiaries. See George Gleason Bogert, The Law of Trusts and Trustees § 961 (Rev.2d ed. 1983).
*697 The majority opinion quickly distinguishes some of the cases that undergird the common law principle that trustees must provide beneficiaries with the information necessary to police the trust. Following its brief survey of the common law of trusts, the majority concludes that the common law only requires disclosure under "special circumstances.” I believe the majority avoids the critical question: Does such a special circumstance exist when ERISA beneficiaries seek to police the trust? Given the unequivocal legislative history on this issue, I believe it does.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9488771. Public record. Not legal advice.