                             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
