Cobb v. Central States

United States Court of Appeals
Fifth Circuit
F I L E D
August 22, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-30906
Summary Calendar
_______________
DAISY ESTELLE COBB,
WIDOW OF OLIVER RAY GIBBS,
Plaintiff-Appellant,
VERSUS
CENTRAL STATES, SOUTHWEST AND SOUTHEAST AREAS PENSION FUND,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
m 2:04-CV-1421
_________________________
Before SMITH, GARZA, and PRADO,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
DaisyCobb appeals an adverse benefit deter-
mination by Central States, Southwest and
Southeast Areas Pension Plan (“Central
States”). We vacate the judgment and remand
with instruction to dismiss for want of subject
matter jurisdiction.
I.
In about August 1979, Oliver Gibbs sub-
mitted an “Application for a Retirement Pen-
sion Benefit” to Central States stating that he
was retiring on October 26, 1979. Central
States is a multiemployer pension plan. At the
time he submitted his application, Gibbs was
married to, but separated for thirteen years
from, Cobb. In his pension application, Gibbs
represented under oath that his spouse was
“deceased.” Gibbs died in 1985. In 2002

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2
Cobb submitted a claim for the Joint and Sur-
vivor Pension Benefit.
When he retired, Gibbs was eligible to re-
ceive an unreduced lifetime pension of $675.00
per month, with no pension benefits after his
death (the “Lifetime Benefit”). Central States’
Pension Plan also allowed a participant to re-
ceive or reject the Joint and Survivor Pension
Benefit (“JSO”) if he met the three eligibility
criteria for this plan. Generally, this benefit
provides a reduced pension to the participant,
and 50% of the reduced lifetime pension as a
lifetime monthly income to his/her spouse after
the participant’s death.
Gibbs would have received a reduced life-
time pension of $588.60 per month, but only by
meeting several conditions, including that he
had to be married at the time of his retirement.
The plan provided that
[i]n order to be eligible for this pension
benefit, you MUST meet each of the follow-
ing requirements AT THE TIME OF YOUR
RETIREMENT:
SSyou MUST be married; and
SSyou MUST be at least age 55; and
SSyou MUST be eligible to receive a Twen-
ty-Year Service Pension Benefit, an Early
Retirement Pension Benefit or a Vested Pen-
sion Benefit from this Plan.
Because Gibbs represented that his spouse
was deceased, he did not meet the criteria, so
he was never sent an election form for the JSO.
He started receiving unreduced lifetime benefits
in November 1979. In February 1981 (before
Gibbs’s death), Cobb contacted Central States
and advised it that she was Gibbs’s spouse.
Cobb stated that she and Gibbs had been sepa-
rated for “about 15 years” but that they were
legally married. Cobb also stated that Gibbs
was receiving a pension benefit and that she
wanted to receive some of it. Central States
informed Cobb that she was not eligible to
receive any part of Gibbs’s pension because
the Pension Plan provided that “[a]ll Pension
Benefits provided by this Plan shall be paid di-
rectly to the Pensioner, and not to any creditor
or other person not eligible for such benefits.”
In 2002, Cobb requested benefits from Cen-
tral States by submitting an Application for
Death Benefit. In September, Central States
advised Cobb that she was not eligible to
receive any benefits because Gibbs did not
elect the “Joint and 50% Surviving Spouse
Option” when he retired in 1979. Cobb ap-
pealed this adverse benefit determination to
Central States’ Benefits Claim Appeals Com-
mittee.
In April 2003, Central States advised her
that her appeal was rejected because Gibbs had
not elected to have his benefit paid in the JSO
form when he retired. Cobb exhausted the
administrative appeals process when her ap-
peal was considered by the trustees, who
determined that “the communications, acts and
omissions by the late Oliver Ray Gibbs, at and
around the time of his 1978 [sic] retirement,
induced the Pension Fund to rely, and the
Pension Fund did in fact actually and reason-
ably rely, upon his intention to reject the JSO.”
Cobb appealed this decision in court, but her
claim was rejected, so she appeals.
II.
Cobb asserts district court jurisdiction un-
der section 502(a) of ERISA, 29 U.S.C.
1132(a). That provision, however, limits those
who can maintain suit under the statute to
“participants,” “beneficiaries,” or “fiduciaries.”
Coleman v. Champion Int'l Corp., 992 F.2d

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3
530, 533 (5th Cir. 1993). Because “[w]here
Congress has defined the parties who may bring
a civil action founded on ERISA, we are loathe
[sic] to ignore the legislature’s specificity,”
standing to bring an action founded on ERISA
is a “jurisdictional” matter.1
Accordingly, the issue of whether a particu-
lar plaintiff falls within one of the three enu-
merated classes of litigants (participants, bene-
ficiaries or fiduciaries) is a jurisdictional one.
Herman, 845 F.2d at 1289. This court has
“hewed to a literal construction of § 1132(a)”
on this issue. Id. (emphasis added).
Because the issue of standing is one of sub-
ject matter jurisdiction, we raised it sua sponte
and directed the parties to submit briefing on
the issue. Although the basis for inclusion in
one of the three jurisdictional classes of ERISA
litigants is uncertain from Cobb’s complaint,
she claims in her appellate brief and supple-
mental briefing that she is a “beneficiary” to
whom the plan trustees owed a fiduciary duty.2
ERISA defines “beneficiary” as “a person
designated by a participant, or by the terms of
any employee benefit plan, who is or may be-
come entitled to a benefit thereunder.” ERISA
§ 3(8), 29 U.S.C. § 1002(8) (emphasis added).
In favor of jurisdiction, the parties cite a case
that involved the definition of “participant,”
Firestone Tire & Rubber Co. v. Bruch, 489
U.S. 101, 117-18 (1989), which held that “to
establish that he or she ‘may become eligible’
for benefits, a claimant must have a colorable
claim that (1) he or she will prevail in a suit for
benefits, or that (2) eligibility requirements will
be fulfilled in the future.” Id. (emphasis
added). The parties explain that given that the
definition of beneficiary, like the definition of
participant, involves the term “is or may be-
come entitled to a benefit,” Cobb has standing
because she has a “colorable claim” that she
may be entitled to benefits. We disagree.
This case involves the definition of “benefi-
ciary,” not “participant.” Although both re-
quire “colorable” entitlement to benefits, the
definition of beneficiary additionally requires
something that the definition of participant
does not: that the “beneficiary” be “designat-
ed” as such by the participant or by the terms
1 Hermann Hosp. v. MEBA Med. & Benefits
Plan, 845 F.2d 1286, 1288-89 (5th Cir. 1988) (an-
alyzing ERISA standing as a question of subject
matter jurisdiction); accord Ward v. Alternative
Health Delivery Sys., Inc., 261 F.3d 624, 627 (6th
Cir. 2001) (finding that lack of standing warrants
dismissal for lack of subject matter jurisdiction).
2 Cobb has never purported to be, a “partici-
pant,” or “fiduciary” as defined by ERISA; nor can
she qualify within those two categories. Section
3(7) of ERISA, 29 U.S.C. § 1002(7), defines “par-
ticipant” as any employee or former employee of an
employer, or any member or former member of an
employee organization, who is or may become
eligible to receive a benefit of any type from an
employee benefit plan which covers employees of
such employer or members of such organization, or
(continued...)
2(...continued)
whose beneficiaries may be eligible to receive any
such benefit. Section 3(21) of ERISA, 29 U.S.C.
1002(21), defines “fiduciary” as a person who
(i) exercises any discretionary authority or discre-
tionary control respecting management of such
plan or exercises any authority or control respect-
ing management or disposition of its assets,
(ii) renders investment advice for a fee or other
compensation, direct or indirect, with respect to
any moneys or other property of such plan, or has
any authority or responsibility to do so, or (iii) has
any discretionary authority or discretionary respon-
sibility in the administration of such plan.

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4
of the plan.3 Post-Firestone, this court has
continued to adhere to a “literal construction”
of the three classes of plaintiffs with standing,
and we have refused to read the “designation”
requirement out of the statutory definition: A
beneficiary must prove both a “colorable claim”
under Firestone and a “designation” by the
participant or the terms of the plan: A bene-
ficiary is “a person designated by a participant,
or by the terms of an employee benefit plan,
who is or may become entitled to a benefit
thereunder.” 29 U.S.C. § 1002(8) (emphasis
added).
In Coleman we held that a pension plan par-
ticipant’s son, who was his descendant, heir at
law, and the representative of his estate, was
not a “beneficiary” of the plan with standing to
sue under ERISA because (1) the participant
never designated the son to receive benefits un-
der the plan, and (2) the terms of the plan,
which directed the Trustees to designate a ben-
eficiary from the group of the decedent’s
spouse, descendants, heirs at law, and represen-
tatives of the estate, if there were any benefits
“payable,” could not designate a beneficiary,
because there were no benefits payable (The
participant received benefits under the “Life-
time Only” option, as here.):
Charlie Coleman elected to remain under the
normal Lifetime Only Income payment
option. While this Plan option provides the
greatest amount of monthly income, the
Plan states clearly that, under this option, at
the time of the participant's death, all pen-
sion benefits cease.
Because no pension benefits were payable
at the time of Charlie Coleman’s death, the
Retirement Committee was not, and is not
now, authorized to name a beneficiary from
the list in Section 4.2. As such, the terms
of Plan Section 4.2 do not afford Coleman
beneficiary status as contemplated in §
1132. Coupled with the fact that Charlie
Coleman did not name his son as his benefi-
ciary, this conclusion forecloses any statu-
tory basis for Coleman’s assertion of stand-
ing.
Coleman, 992 F.2d at 533-34.
Under this precedent, Cobb is not a benefi-
ciary. Gibbs never personally “designated
[Cobb] or anyone else as beneficiary of his
Plan assets.” Id. at 533. “[T]herefore,
[Cobb’s] assertion of beneficiary status rests
upon the language and terms contained in the
Plan.” Id.
In its letter brief, Central States admits that
the plan does not define the term “beneficiary.”
In her letter brief, Cobb also acknowledges
that the plan does not specifically define the
surviving spouse as the beneficiary. She
argues, however, that because the plan allows
for benefits to be paid to surviving spouses of
individuals receiving benefits under the JSO
plan, she is or may become entitled to a benefit
under the plan, which makes her a beneficiary.
Again, the fact that Cobb is or may become
entitled to a benefit does not necessarily prove
the separate requirement that she be “desig-
3 Section 1002(7) defines “participant” as any
“employee or former employee . . . who is or may
become eligible to receive . . . employee benefit[s]”
(emphasis added). Section 1002(8) defines “benefi-
ciary” as “a person designated by a participant, or
by the terms of an employee benefit plan, who is or
may become entitled to a benefit thereunder”
(emphasis added). “Therefore, based on the statu-
tory language, a “beneficiary” is not anyone who
claims to be one . . . . [but] is one who has a reason-
able or colorable claim to benefits.” Crawford v.
Roane, 53 F.3d 750, 754 (6th Cir. 1995).

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5
nated” as a beneficiary by the terms of the plan.
Assuming, arguendo, that entitlement to
benefits under the JSO would count as a “desig-
nation,” Cobb’s claim fails for the same reason
that the son’s claim failed in Coleman—the
plan plainly provides that if the decedent re-
ceived the lifetime-only benefit, the spouse is
not entitled to a JSO benefit after his death.
The plan section on “Pre-Retirement and Post-
Retirement Benefit to Spouse” explains that
[a] Joint and Survivor Pension Benefit (sub-
ject to the election and rejection provisions
in “Appendix A” of this Plan) shall be pay-
able to a Pensioner upon Retirement (com-
mencing upon his 55th birthday), or the
surviving spouse of a Participant upon his
death on or after his 55th birthday but before
his Retirement, if the Participant was then
eligible for immediate payment of a pension
benefit in accordance with Article IV, §2, 3
or 4. Upon death of a Pensioner receiving
this pension benefit, 50% thereof becomes
payable to his surviving spouse . . . .
That is, if the plan participant dies after age
55 but before retirement, the spouse is eligible
for a “pre-retirement” benefit if the pensioner
was eligible to receive a pension at the time of
death. If the plan participant dies after retire-
ment, the spouse is eligible for a “post-retire-
ment” benefit only if the Pensioner was receiv-
ing “this” pension benefit, that is, the reduced
joint and survivor benefit, not the Lifetime Ben-
efit.
Gibbs did not die before retirement, so only
the post-retirement provision could apply here.
But Cobb is not “entitled” to any benefit under
it, because she does not satisfy one of the eli-
gibility criteria for it: Gibbs was not receiving
“this” benefit (i.e. the joint and survivor bene-
fit); he was receiving the lifetime-only benefit.4
Therefore, as was the case with the son in
Coleman, the terms of the plan do not afford
Cobb beneficiary status. Under the plan, no
pension benefits are to be paid to surviving
spouses of those who received benefits under
the unreduced Lifetime Benefit option.5
Although it may not be advisable to inter-
pret the terms of the plan at this jurisdictional
stage, we are bound to do so by Coleman,
which interpreted the term “payable” under the
plan to determine whether the descendant and
heir of the plan participant qualified as a bene-
ficiary. Further, the definition of “beneficiary”
directs the courts to look to the terms of the
plan at the jurisdictional stage to decide
whether the terms “designate” a plaintiff as a
beneficiary or whether they provide plaintiff
with a colorable claim for benefits.6
4 See also section 17 (“If you die while receiv-
ing a Joint and Survivor Pension Benefit, your
spouse will receive one-half of your pension for the
rest of his or her life. . . .”) (emphasis added).
5 This case is also similar to Lerra v. Monsanto
Co., 521 F. Supp. 1257 (D. Mass. 1981), in which
the widow of a former plan participant alleged that
the defendant had failed to disclose sufficient ben-
efit information to the decedent at the time he made
his election to receive pension benefits as a “single
life annuity.” The court held that it lacked jurisdic-
tion because plaintiff, never having been designated
as a joint annuitant, was not a “beneficiary” and
thus lacked standing to sue under ERISA.
6 See, e.g., Crawford, 53 F.3d at 755 (interpret-
ing a plan provision providing that “a spouse of a
married participant must consent to any beneficiary
designation which does not name the spouse as a
(continued...)

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6
We are aware that in Sladek v. Bell System
Management Pension Plan, 880 F.2d 972,
976–78 (7th Cir. 1989), which was decided be-
fore Coleman, the court gave the term “benefi-
ciary” a broader reading than the “literal con-
struction” we provided in Coleman. See id. at
976 (noting that “it is not proper for us to give
an unduly cramped reading to those provisions
granting standing to certain classes of persons
under the Act, i.e., participants, beneficiaries,
and fiduciaries. . . . [T]his Court has consis-
tently given the definition of “fiduciary” found
in § 1002(9) a ‘broad reading’”). Sladek relied
inter alia on the “zone of interest” analysis that
we rejected in Coleman.
Furthermore, Sladek is distinguishable be-
cause there the benefit plan itself designated
plaintiff, the deceased participant’s spouse, as
survivor annuitant, unless the participant elect-
ed to receive an unreduced lifetime-only bene-
fit. Although in Sladek the participant elected
to receive the lifetime-only benefit, the surviv-
ing spouse argued that the election was void-
able because the participant was incompetent to
make a decision because of Alzheimer’s Dis-
ease. In contrast, here, Gibbs’s de facto elec-
tion of the Lifetime Benefit7 is not voidable
even if he misrepresented that his wife was
deceased.8 Because Gibbs retired in 1978, he
was entitled to select the Lifetime Benefit
without the consent of his spouse.9 Therefore,
his harmless misrepresentation does not render
his election voidable.
Cobb also argues in her letter brief that al-
ternatively, she has standing under the “but
for” analysis in Christopher v. Mobil Oil
Corp., 950 F.2d 1209 (5th Cir. 1992). We
rejected that argument in the analogous situa-
6(...continued)
sole beneficiary of the participant’s death benefit”
as not providing a colorable claim to beneficiary
status (and standing) to participant’s children, where
the spouse did not consent to a beneficiary other
than her to be named as a beneficiary).
7 The Plan documents explain that when an ap-
plication for retirement benefits is made, an election
form will be mailed to those eligible for the JSO.
Because Gibbs declared under oath that his wife
was deceased, he was not eligible for the JSO,
which requires that the participant be married—that
is, that the spouse be alive—at the time the JSO
(continued...)
7(...continued)
eligibility is determined.
It would have been pointless for the Plan to
send Gibbs an election form as Cobb suggests:
what was there to elect? Accordingly, the default
provision, that in the absence of an election of the
“Lifetime Benefit,” the pension will be paid as a
“Joint and Survivor Benefit,” is inapplicable; it
applies only if an employee is entitled to the JSO.
Therefore, by declaring that his wife was deceased,
Gibbs rendered himself eligible for only the Life-
time Benefit.
8 It is uncertain whether Gibbs did make a
misrepresentation. Cobb has not proved that Gibbs
made a knowing misrepresentation, namely that he
knew that his estranged wife was still alive.
9 Before 1984, the spouse of a participant was
not required to join in an JSO election. Boggs v.
Boggs, 520 U.S. 833, 843 (1997). “It was not un-
til August 23, 1984, to be effective January 1,
1985, that congress amended 29 U.S.C. § 1055 to
require pension plans to offer joint and survivor
annuities unless otherwise elected by the partici-
pant and his spouse.” Williams v. Wright, 783 F.
Supp. 1392, 1400-01 (S.D. Ga. 1992) (citing Re-
tirement Equity Act of 1984, P.L. 98-397, Title I,
Section 103(a), 98 Stat. 1429). The amended act
does not apply to Cobb, “because it did not take
effect until January 1, 1985.” Id.

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tion we faced in Coleman, where we explained
that
Christopher clearly poses a different sce-
nario than [sic] the one we face today. In
Christopher, this court restored ERISA
standing to individuals who had standing but
were divested of that standing through the
ERISA violations of their employer. The
employees alleged that they had been
wrongfully induced to retire, and but for the
ERISA violation, would have continued
their employment and plan participation,
thereby retaining status to sue under ERISA.
In the present case, Coleman never had
standing to sue under ERISA since he was
neither a Plan participant nor a beneficiary.
Thus, even if the Coleman’s allegations of
ERISA improprieties were true, those viola-
tions could not be said to have divested him
of his status to sue. As such, Christopher
does not help the appellant.
Coleman, 992 F.2d at 535.
The instant case is similar to Coleman in that
Cobb was never a plan participant or a benefi-
ciary, because Gibbs never received the JSO
post-retirement, but only a Lifetime Benefit,
which did not entitle Cobb to benefits after
Gibbs’ death. Because Gibbs could select the
Lifetime Benefit without the consent of his
wife, there is no pre-existing standing that Cobb
had and of which Gibbs’ misrepresentation
divested her.
Nor was there a duty for Central States to
correct Gibbs’s misrepresentation about his
wife’s death once it learned about it in 1981.
The plan’s terms provide that in case of a mis-
representation, Central States “may” recover
any benefit payments that Gibbs was not enti-
tled to receive, not that the Central States
“will” or “must” recover such benefits. Also,
as explained, Gibbs was entitled to receive the
Lifetime Benefit without the consent of his
spouse, so Central States had no right to re-
cover the excess Lifetime Benefit payments
from him to keep them in trust for his wife.
Last, there was no duty owed by Central
States to Cobb as a “beneficiary” to insure that
Gibbs submitted adequate documentation of
his marital status. Before 1985 Gibbs had the
right to elect the Lifetime Benefit without the
consent of his spouse. Therefore, any docu-
mentation burden Central States would have
imposed, in addition to the application signed
under oath by Gibbs, would not have protect-
ed Cobb against the harm of which she com-
plains—that Gibbs did not intend her to re-
ceive a survivor benefit. Although Congress
enacted legislation in 1984 to protect spouses
like Cobb of this harm, unfortunately for her,
as we have explained, that legislation does not
apply retroactively to this case.
In summary, the district court lacked sub-
ject matter jurisdiction. The judgment, ac-
cordingly, is VACATED, and this matter is
REMANDED with instruction to dismiss the
complaint for want of jurisdiction.

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