Smith v. Aegon Cos. Pension Plan

Decision Date14 October 2014
Docket NumberNo. 13–5492.,13–5492.
Citation769 F.3d 922
PartiesRoger L. SMITH, Plaintiff–Appellant, v. AEGON COMPANIES PENSION PLAN, Defendant–Appellee.
CourtU.S. Court of Appeals — Sixth Circuit


ARGUED: Stacey E. Elias, United States Department of Labor, Washington, D.C., for Amicus Curiae. Michael D. Grabhorn, Grabhorn Law Office, PLLC, Louisville, Kentucky, for Appellant. David R. Levin, Drinker Biddle & Reath LLP, Washington, D.C., for Appellee. ON BRIEF:Michael D. Grabhorn, Grabhorn Law Office, PLLC, Louisville, Kentucky, for Appellant. David R. Levin, Drinker Biddle & Reath LLP, Washington, D.C., Michael D. Risley, Stites & Harbison PLLC, Louisville, Kentucky, for Appellee. Stacey E. Elias, United States Department of Labor, Washington, D.C., for Amicus Curiae.

Before: SILER, BATCHELDER, and CLAY, Circuit Judges.



Appellant Roger Smith appeals the district court's dismissal of his claims without prejudice because of improper venue. The district court held that the venue selection clause in the Employee Retirement Income Security Act (ERISA)-governed AEGON Pension Plan requiring that suit be brought in federal court in Cedar Rapids, Iowa, was enforceable and applied to Smith's claims. Accordingly, the court dismissed his complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). We AFFIRM.


Prior to his retirement in 2000, Smith was an employee of Commonwealth General Corporation (“CGC”). When CGC agreed to merge with AEGON USA, Inc. (“AEGON”), CGC offered some employees, including Smith, enhanced compensation if they would remain with CGC until its merger with AEGON was completed. The offer's terms were reflected in the Voluntary Employee Retention and Retirement Program (“VERRP”), which the CGC Board of Directors (“Board”) adopted and approved on October 10, 1997.

The VERRP provided that Smith would retire on March 1, 2000. Smith elected to receive $1,066.54 under the qualified plan, and $1,122.97 under the non-qualified plan, for a total of $2,189.51 per month.1 The document through which Smith selected this election was titled “AEGON USA Pension Plan: Election for Distribution and Explanation of Benefits,” and an attached letter informed Smith that [i]f you elect to participate in the Voluntary Employee Retention & Retirement Program (‘VERRP’), you will be entitled to receive additional benefits from the Commonwealth General Corporation Retirement Plan under that program.” VERRP Attachment A stated that Smith was entitled to a $154,976.12 benefit under the CGC Change in Control Plan. Attachment B stated, “As a participant in the [VERRP], you are entitled to receive a supplemental benefit either as a lump sum or in the same annuity form that your regular retirement benefit will be paid.”

On February 1, 2000, Smith received a booklet from the AEGON Insurance Group with information on the CGC Retirement Plan and the VERRP, as well as a notice that, effective January 1, 2000, the CGC Plan and the AEGON Companies Pension Plan (Plan) had been integrated pursuant to the merger. The Plan defines “CGC VERRP Participant” as “a CGC Grandfathered Participant ... who was also a participant in the [VERRP] ... which was an early retirement program in effect in the CGC Plan from September 8, 1997 until December 31, 1999 and in effect in this Plan from January 1, 2000 until February 29, 2000, as a result of the merger of the CGC Plan with this Plan....”

Smith retired on March 1, 2000, and the Plan paid him both a lump sum benefit and $2,189.51 per month. In 2007, the AEGON Board of Directors amended the Plan to add a “venue provision.” 2 The provision states: Restriction on Venue. A participant or Beneficiary shall only bring an action in connection with the Plan in Federal District Court in Cedar Rapids, Iowa.” In August 2011, the Plan told Smith that they had been overpaying him by $1,122.97 per month, or the amount of the benefit categorized as “non-qualified” under the VERRP, for the previous eleven years. The Plan reduced, and then eliminated, Smith's entire monthly benefit payments, stating that it would continue to do so until it had recouped the overpayment or Smith remitted to the Plan $153,283.25.

Smith exhausted the administrative remedies provided by the Plan by appealing to the AEGON Pension Committee. In that appeal Smith complained that the Plan had refused “to produce all relevant documents and information in accordance with the Plan terms and the applicable laws and regulations,” and cited a number of ERISA claims regulations.” Further, he argued that [t]he VERRP specifically provided enhanced benefits under the Plan, payable either as a lump sum or in this case in an increased monthly annuity of $1,079.48 per month. The VERRP also entered the date on which Mr. Smith could commence receiving his Plan benefits (including the VERRP enhancement).” The Pension Committee denied Smith's appeal, and Smith filed suit against CGC in Jefferson County Circuit Court, asserting claims for breach of contract, wage and hour state statutory violations, estoppel, and breach of the duty of good faith and fair dealing. CGC removed the action to the U.S. District Court for the Western District of Kentucky, and filed a Rule 12(b)(6) motion to dismiss.

The district court granted CGC's motion and dismissed Smith's complaint under Rule 12(b)(6) for failure to state a claim. The court found that the VERRP was regulated by ERISA, and that Smith was suing to recover benefits under this ERISA plan. The court concluded that because the Pension Committee controlled and administered the Plan, only the Pension Committee—not CGC—was a proper party defendant. We affirmed. See Smith v. Commonwealth General Corp., No. 12–6284, ––– Fed.Appx. ––––, 2014 WL 5032357 (6th Cir. Oct. 9, 2014) ( Smith I ). After the district court dismissed the Smith I complaint, Smith filed suit against the AEGON Companies Pension Plan in the U.S. District Court for the Western District of Kentucky. The district court dismissed Smith's complaint without prejudice under Rule 12(b)(6) because of the Plan's venue selection clause, and Smith appealed.


We are required at the outset to determine the level of deference to be afforded the Secretary of Labor's (“Secretary”) position, expressed in an amicus brief, that venue selection clauses are incompatible with ERISA. 3 The Secretary's interpretation of ERISA appears in the Secretary's amicus brief in this case, and in one prior amicus brief. See Brief of the Secretary of Labor as Amicus Curiae Supporting Appellant, Mozingo v. Trend Personnel Services, 504 Fed.Appx. 753 (10th Cir.2012)( No. 11–3284), 2012 WL 1966227. Smith contends that [t]he DOL's position is entitled to Chevron, or at the very least Skidmore, deference.”

The Supreme Court has yet to address the appropriate level of deference to give the construction of a statute articulated by an agency only in amicus briefs. See Bradley George Hubbard, Comment, Deference to Agency Statutory Interpretations First Advanced in Litigation? The Chevron Two–Step and the Skidmore Shuffle, 80 U. Chi. L.Rev. 447, 459 (2013). Although our Court has provided no answer either, some of our sister circuits have concluded that agency positions expressed in amicus briefs deserve Skidmore deference. 4 We decline to afford either Chevron or Skidmore deference to the Secretary's “regulation by amicus” 5 in this case.

The Secretary's interpretation is not entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Court in United States v. Mead Corp., 533 U.S. 218, 221, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001), made it clear that Chevron's two-step procedure for determining when controlling weight should be given an agency's construction of a statute is triggered only when an agency is acting with the force of law. In our case, the Secretary's interpretation of ERISA is not entitled to Chevron deference because the interpretation was not made with the force of law. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) (We have never applied the principle of [ Chevron ] to agency litigating positions that are wholly unsupported by regulations, rulings, or administrative practice.”); Rosales–Garcia v. Holland, 322 F.3d 386, 403 n. 22 (6th Cir.2003) (“An interpretation contained in a brief—like interpretations contained in opinion letters, policy statements, agency manuals, and enforcement guidelines—lacks the force of law and is therefore not entitled to Chevron deference.”).

Whether the Secretary's amicus interpretations of 29 U.S.C. §§ 1001(b), 1132(e)(2), and 1104(a)(1)(D) are entitled to Skidmore deference is a more difficult question. Despite their factual dissimilarity to our case, cases from both the Supreme Court and our Court have featured deference to amicus briefs. Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), required the Supreme Court to determine whether the time spent within a certain proximity of the Swift plant by fire-response employees was compensable overtime under the Fair Labor Standards Act (“FLSA”). The Department of Labor (“DOL”) had outlined factors to determine compensable work time through informal rulings and an interpretive bulletin. Id. at 138–39, 65 S.Ct. 161. The DOL then applied its guidelines to the specific facts in Skidmore in an amicus brief. The Court held that these informal positions

constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking...

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