                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


R. ALEXANDER ACOSTA, Secretary of     No. 16-56529
Labor,
               Plaintiff-Appellee,       D.C. No.
                                      2:14-cv-03911-
                v.                      JAK-AGR

SCOTT BRAIN,
               Defendant-Appellant,

               and

MELISSA W. COOK; MELISSA W.
COOK & ASSOCIATES, PC,
                     Defendants.
2                         ACOSTA V. BRAIN


 R. ALEXANDER ACOSTA, Secretary of               No. 16-56532
 Labor,
                Plaintiff-Appellee,                D.C. No.
                                                2:14-cv-03911-
                     v.                           JAK-AGR

 MELISSA W. COOK; MELISSA W.
 COOK & ASSOCIATES, PC,                            OPINION
             Defendants-Appellants,

                    and

 SCOTT BRAIN,
                               Defendant.



        Appeal from the United States District Court
           for the Central District of California
        John A. Kronstadt, District Judge, Presiding

            Argued and Submitted April 10, 2018
                   Pasadena, California

                    Filed December 4, 2018

   Before: MARY M. SCHROEDER and MILAN D.
SMITH, JR., Circuit Judges, and GERSHWIN A. DRAIN, *
                     District Judge.



    *
       The Honorable Gershwin A. Drain, United States District Judge
for the Eastern District of Michigan, sitting by designation.
                        ACOSTA V. BRAIN                              3

            Opinion by Judge Milan D. Smith, Jr.;
             Partial Dissent by Judge Schroeder


                          SUMMARY **


                              ERISA

    The panel affirmed in part, reversed in part, and vacated
in part the district court’s judgment in a civil enforcement
action brought by the Secretary of the Department of Labor
against Scott Brain, a former trustee, and Melissa Cook and
Melissa W. Cook & Associates, PC, former counsel to the
Cement Masons Southern California Trust Funds, alleging
violations of the Employee Retirement Income Security Act
of 1974 (“ERISA”).

    The action alleged violations of two sections of ERISA
– unlawful retaliation in violation of ERISA section 510,
29 U.S.C. § 1140, and breach of fiduciary duty in violation
of ERISA section 404, 29 U.S.C. § 1104.

    The panel held that the district court did not err in
concluding that Brain violated ERISA section 510 by
retaliating against whistleblower Cheryle Robbins, the
Director of the Trust Funds’ internal Audit and Collections
Department. The panel held that Robbins’s participation in
the Department of Labor (“DOL”) investigation of Brain
was unmistakably protected activity under ERISA, and
constituted an independently sufficient ground for the

    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4                    ACOSTA V. BRAIN

district court’s conclusion. The panel noted that there was a
circuit split on the issue of whether “unsolicited internal
complaints” constituted protected activity within the
meaning of ERISA section 510, but concluded that the issue
of Robbins’s letter-writing being protected activity was
immaterial where Robbins’s cooperation with the DOL
investigation provided an independent basis for the section
510 claim.

    The panel held that the district court did not err in
concluding that Robbins’s protected activity was the but-for
cause of Robbins being placed on leave. The panel assumed,
without deciding, that the higher but-for causation standard
applied. The panel held that the fact that Brain was not the
ultimate decisionmaker – where a group of trustees were the
ones voting to place Robbins on leave – did not immunize
him under a “cat’s paw” theory of liability given that Brain
was the one who set the vote into motion.

    The panel held that the district court erred in concluding
that Brain breached his fiduciary duty in violation of ERISA
section 404 by placing Robbins on administrative leave. The
panel held that the district court erred by not addressing the
threshold “two-hat” inquiry of whether Brain was wearing
his ERISA fiduciary hat when he took the action alleged in
the Secretary of DOL’s complaint. The panel further held
that the Secretary’s overbroad use of the phrase
“management and administration” – to argue that Brain was
acting as an ERISA fiduciary when he caused Robbins to be
placed on leave – contravened Supreme Court authority.
The panel held that it necessarily followed that the district
court erred in concluding that the Cook Defendants violated
section 404 by knowingly aiding Brain in violating section
404.
                      ACOSTA V. BRAIN                        5

    The panel held that the district court erred in basing the
permanent injunction on ERISA section 409. The panel held
that because section 409 required a breach of fiduciary duty,
and because the Secretary did not prove that there was a
breach of fiduciary duty in this case, the permanent
injunction was vacated in its entirety as to Brain and the
Cook Defendants. The panel held that ERISA section
502(a)(5) did not provide an alternative basis for the district
court’s permanent injunction where no aspect of the district
court’s injunction redressed or enforced a violation of
ERISA section 510.

    The panel held that the district court did not err in
determining that the Cook Defendants were not immune
under the attorney immunity doctrine. The panel further
held that the Cook Defendants’ remaining arguments were
meritless.

    Judge Schroeder dissented in part. Judge Schroeder
agreed with the majority’s affirmance of the district court’s
ruling that Brain violated ERISA by retaliating against
Robbins, but disagreed with the majority’s conclusion that
the retaliatory act – placing Robbins on administrative leave
– was not a breach of Brain’s fiduciary duty, and disagreed
with the majority’s decision to vacate the injunction.
6                    ACOSTA V. BRAIN

                        COUNSEL

Melissa W. Cook (argued), Melissa W. Cook & Associates,
San Diego, California; Peter Morris (argued) and L. Rachel
Lerman, Barnes & Thornburg LLP, Los Angeles, California;
Brian E. Casey, Barnes & Thornburg LLP, South Bend,
Indiana; for Defendants-Appellants.

Blair L. Byrum (argued), Trial Attorney; Thomas Tso,
Counsel for Appellate and Special Litigation; G. William
Scott, Associate Solicitor, Plan Benefits Security; Nicholas
C. Geale, Acting Solicitor of Labor; United States
Department of Labor, Washington, D.C.; for Plaintiff-
Appellee.


                         OPINION

M. SMITH, Circuit Judge:

    Defendant-Appellant Scott Brain, a former trustee of the
Cement Masons Southern California Trust Funds (the Trust
Funds), and Defendants-Appellants Melissa Cook and
Melissa W. Cook & Associates, PC (collectively, the Cook
Defendants), former counsel to the Trust Funds, appeal from
the district court’s entry of judgment against them in a civil
enforcement action brought by Plaintiff-Appellee the
Secretary of the Department of Labor (the Secretary). The
action alleges violations of two sections of the Employee
Retirement Income Security Act of 1974 (ERISA)—
unlawful retaliation in violation of ERISA section 510,
29 U.S.C. § 1140, and breach of fiduciary duty in violation
of ERISA section 404, 29 U.S.C. § 1104.
                     ACOSTA V. BRAIN                        7

    After conducting a bench trial, the district court
concluded that Brain and the Cook Defendants violated
ERISA sections 510 and 404. We have jurisdiction pursuant
to 28 U.S.C. § 1291. We affirm the district court with
respect to the ERISA section 510 claim, but reverse with
respect to the ERISA section 404 claim, and vacate the
district court’s entry of a permanent injunction against Brain
and the Cook Defendants.

  FACTUAL AND PROCEDURAL BACKGROUND

   A. The Parties

    The Trust Funds are five employee benefit trust funds
established by Cement Masons Local 500, Cement Masons
Local 600, and four employer contractor associations
pursuant to collective bargaining agreements. Each of the
Trust Funds has its own Board of Trustees. The Joint Board
of Trustees (Joint Board), comprised of trustees for the five
trusts, coordinates administration of the Trust Funds.

    Brain was the business manager and financial secretary
for the Cement Masons Local 600, a trustee for each of the
Trust Funds, and a member of the Joint Board. Cook and
her law firm served as counsel to the Trust Funds from
August 2005 through May 2013.

    The Trust Funds had an internal Audit and Collections
Department (A&C Department) that was responsible for
auditing employers and collecting overdue or otherwise
unpaid employer contributions. Cheryle Robbins was the
director of the A&C Department. The Trust Funds
established a Joint Delinquency Committee (JDC),
composed of trustees, to oversee the A&C Department, as
well as the Cement Masons Southern California
8                     ACOSTA V. BRAIN

Administrative Corporation (Administrative Corporation) to
employ A&C Department staff.

   The Trust Funds hired Zenith American Solutions
(Zenith), to provide third-party administrative services to the
Trust Funds. Cory Rice was a Zenith employee who worked
on the Trust Funds’ matters. The Trust Funds’ primary
contact at Zenith was manager Bill Lee.

    B. Robbins’s Concerns About Brain

    Beginning in as early as 2006, Robbins expressed to
several trustees her concerns that Brain was interfering with
the A&C Department’s collection efforts. Robbins’s
concerns stemmed from several incidents over a number of
years. For example, Brain allegedly told certain contractors
who owed smaller contributions to the A&C Department to
“fly under the radar,” and he often interpreted certain
agreements “in a manner that reduced the amount owed by
covered contractors.”

    C. The Audit of the A&C Department

    In March and April of 2011, the JDC began to consider
hiring an outside firm to audit the A&C Department. On
September 8, 2011, the JDC convened and voted to move
forward with an external audit. The JDC asked Cook to
prepare audit procedures and solicit bids from auditing
firms. Kathryn Halford, the Trust Funds’ collections
counsel, and trustee David Allen, who had an accounting
background, reviewed the audit procedures Cook drafted.
Allen informed Cook and Halford of his concern that the
proposed procedures violated Generally Accepted
Accounting Procedures. The district court found that the
audit procedures “appear[ed] to have been created in an
                      ACOSTA V. BRAIN                        9

effort to influence the outcome by increasing the likelihood
of a finding that the A&C Department was not well run.”

    On October 13, 2011, the JDC decided on two finalists
to perform the audit, Bond Beebe and Hemming Morse, and
scheduled the firms to present at a JDC meeting on
November 18, 2011.

   D. Brain and Cook’s Romantic Relationship

    By October 2011, or “very shortly thereafter,” the “close,
personal relationship” between Brain and Cook became
romantic. They misled other trustees about their relationship
during this time, and Cook failed to disclose the relationship.
They communicated extensively with each other,
exchanging “a substantial amount of flirtatious comments,”
and staying in constant contact during the events described
below.

   E. Robbins’s Protected Activity

    On October 11, 2011, Robbins and Rice met with Allen
to discuss Brain’s purported misconduct. At the time, Allen
shared Robbins’s concerns and wanted Brain removed.
Allen proposed drafting a letter to the president of the
Operative Plasterers’ and Cement Masons International
Association (OPCMIA or International Union), because the
OPCMIA could remove Brain from his position as Local 600
Business Manager, which would result in Brain losing his
position as trustee. Subsequently, Rice sent Allen an email
describing Brain’s alleged misconduct for use in the letter to
the OPCMIA. In his email, Rice alleged that Brain acted “to
reduce amounts owed to Fund” and “advise[d] contractor[s]
how to handle audit[s],” and he expressed “concerns about
our own trust attorney,” referring to Cook.
10                   ACOSTA V. BRAIN

    On October 14, 2011, DOL investigator Matt Chandler
contacted Robbins and informed her that he was conducting
a criminal investigation of Brain. Robbins was not the initial
whistleblower to the DOL. Rather, Chandler’s call was the
result of a complaint made by Thomas Mora, the OPCMIA
vice president, at some point between March and May of
2011. Mora had concerns about Brain’s conduct based on
conversations with Robbins, Halford, and two trustees.
Robbins reported Chandler’s call to Halford and Allen, who
in turn informed Cook on October 26, 2011.

     F. The Plan to Remove Robbins

    After learning about Robbins’s contact with the DOL,
Cook and Brain called a special Joint Board meeting into
session. Cook stated that the meeting’s purpose was to
discuss whether to outsource the A&C Department’s work,
but the district court found that Cook and Brain actually
intended to remove Robbins.

    Leading up to the special Joint Board meeting, Cook and
Allen exchanged several text messages and phone calls
about Robbins, and they discussed outsourcing the A&C
Department’s work to Zenith.          Although Allen had
participated in the earlier effort to report Brain’s alleged
misconduct to the OPCMIA, Allen distanced himself from
Robbins after he learned about her contact with the DOL.

    On November 11, 2011, Cook told Allen that she
believed a special Joint Board meeting should take place
immediately after the JDC meeting scheduled for November
18, 2011, and stressed that the meeting must occur before
outsourcing the A&C Department’s work to Zenith. Allen
then scheduled the meeting.
                      ACOSTA V. BRAIN                       11

    The district court found that in the few days prior to the
meeting, “Brain and Cook were ‘firing up’ their allies for the
actions that would be taken in response to Robbins’[s]
contacts with the DOL, not for a more pedestrian discussion
about a potential change to the performance of the functions
of the A&C Department.” They wanted to “line up their
votes at the meeting for the positions that they planned to
advance,” and even jokingly referred to their scheme as
“[r]evisionist history.”

    At some point between November 14, 2011 and
November 18, 2011, Robbins asked Chandler to issue a DOL
subpoena for the Trust Funds’ records, because both Cook
and her personal counsel had instructed Robbins not to
provide any records voluntarily to the DOL. She urged
Chandler to move quickly because she feared she would lose
her position.

    On November 17, 2011, Robbins received a DOL
subpoena and forwarded it to Cook and Halford, telling them
that it concerned an investigation of Brain, not of the Trust
Funds. Cook reacted furiously to the subpoena and began
planning with associate counsel to “put [Robbins] on paid
admin leave asap [sic],” stating that she “want[ed] [Robbins]
out of there,” but “without violating erisa [sic].” Cook’s
associate suggested “put[ting] [Robbins] on paid admin [sic]
leave” because Robbins and the DOL may not be able to
obtain “damages or equitable relief.” Cook’s associate
concluded, “I think she should be put on paid leave to at least
prevent her from taking out documents,” and recommended
that the trustees “proceed with the independent audit” of the
A&C Department and thereafter “dissolve” the
Administrative Corporation and outsource the A&C
Department’s work.
12                    ACOSTA V. BRAIN

     G. The November 18, 2011 Joint Board Meeting

    The scheduled JDC meeting took place on November 18,
2011. The JDC selected Bond Beebe to perform an audit of
the A&C Department.

    The special Joint Board meeting immediately followed.
First, the trustees voted to solicit bids to evaluate the cost of
outsourcing the A&C Department’s services. Next, Cook
informed the trustees of the DOL subpoena and Robbins’s
contact with the DOL. Cook described Robbins’s conduct
as inappropriate and made statements that implied
inaccurately that Robbins had initiated the DOL’s
investigation. Cook made clear she believed Robbins should
be placed on leave, saying, “Come on. You’re all smart
people here. Do the right thing.” Next, Brain asked Allen
to share how Robbins had pressured him to write a letter to
the OPCMIA to complain about Brain.

      Brain recused himself from the vote, but remained in the
room during the discussion and vote. Notably, Brain had the
power to remove Local 600 trustees or have them terminated
from their jobs with the union. The district court found that
Cook and Brain’s critical statements of Robbins “created an
environment that was hostile to her,” and “caused” the
trustees to vote unanimously to put Robbins on leave “until
. . . the matter pending before the DOL [was] resolved.”

     H. Rice’s Termination

    In early December 2011, Cook informed Lee of Rice’s
role in the efforts to report Brain to the OPCMIA. Cook told
Lee that because of Rice’s involvement with the letter, it
would be in Zenith’s best interest to terminate Rice. Around
the same time, Brain informed Lee that Zenith’s work was
being put out to bid. Cook told Brain privately that she
                      ACOSTA V. BRAIN                       13

believed Rice and his mother, Louise Bansmer, also a Zenith
employee, were “blindly loyal” to Robbins.

    Although Lee did not believe that terminating Rice was
in the Trust Funds’ best interest, and did not feel comfortable
terminating him, Cook urged that Rice and Bansmer be
“terminated together due to the mother/son connection”
because she was fearful of retaliation by Rice. Cook also
asked Lee to speak with Brain, who Lee believed had
“doubts” and “major concerns” about Rice. Lee’s supervisor
reminded Lee that Zenith had to do the right thing for its
client, and that she was not sure that retaining Rice was “the
right thing[;] especially after your conversation with
[Brain].” On January 4, 2012, Lee emailed the trustees to
inform them that Zenith had terminated Rice and Bansmer.

   I. Robbins’s Termination

    Zenith submitted a bid to take over the A&C
Department’s work on February 13, 2012, but Allen told
Zenith to “sharpen [its] pencil” and submit a revised
proposal. Allen suggested that Zenith could reduce the cost
of its proposal by hiring replacement staff or lowering
salaries of A&C Department staff and replacing them if they
did not agree to salary reductions. Accordingly, Zenith
submitted a revised proposal the next month:

       If [Zenith] is able to hire qualified staff at a
       lower salary rate than the current staff[,] we
       will pass the savings on to the Trust Funds.
       If we are not able to lower salaries (through
       new people or reduced salaries of current
       staff)[,] our current fee quote would stand.”

    During this time, Cook engaged in an unauthorized
investigation of Robbins, despite being fully aware that the
14                   ACOSTA V. BRAIN

DOL investigation centered on Brain’s conduct only. Cook
reviewed Robbins’s phone records, taking note of Robbins’s
calls with various trustees and calls made in connection with
the DOL’s investigation. Cook kept Brain apprised of her
investigation—she referred to the phone records as a
“treasure trove,” and to Robbins’s placement on
administrative leave as when Robbins “got canned.”

    Cook also asked the Bond Beebe auditor to review hard
drives for emails between Robbins and various trustees, as
well as emails relating to the DOL investigation or referring
to Brain. In their emails discussing Robbins’s “termination,”
Cook and Brain observed, “Its [sic] a lot of work covering
[Robbins’s] tracks or lack thereof, would be more
appropriate!”

    Bond Beebe presented its audit findings to the Joint
Board on April 12, 2012. In conducting its audit, Bond
Beebe interviewed every A&C Department employee except
for Robbins, the Department’s director. While Bond Beebe
gave the A&C Department a “D” grade, it did not
recommend outsourcing, but rather gave suggestions for
operational improvements.

    The trustees and Cook then discussed the audit results.
“Cook encouraged the trustees to support outsourcing the
services of the A&C Department and to eliminate Robbins.”
Cook stated that the quality of Robbins’s work was subpar,
and that Robbins “had to go.” After a short deliberation, the
trustees voted to dissolve the A&C Department and
outsource its functions to Zenith.

    Cook urged Lee several times that Robbins should not
return to her position as A&C Department director.
Subsequently, Zenith hired every A&C Department
employee except for Robbins. But Zenith never eliminated
                     ACOSTA V. BRAIN                       15

Robbins’s position. Instead, with Cook’s assistance, Zenith
immediately began to look for Robbins’s replacement. The
district court found that there was “no evidence that Lee or
any other person at Zenith decided not to hire Robbins due
to the quality of her work as director of the A&C
Department.”

   J. The Secretary’s Action

    On May 21, 2014, the Secretary initiated the present civil
enforcement action pursuant to ERISA section 502(a)(2) and
(a)(5).

    On November 21, 2014, the Secretary filed a Second
Amended Complaint (SAC) against the Trust Funds, the
Joint Board members, the Administrative Corporation,
Zenith, Lee, and the Cook Defendants. The Secretary
alleged that the defendants retaliated against Robbins and
Rice for attempting to send a letter to OPCMIA regarding
their concerns about Brain, and against Robbins for
participation in a DOL investigation, in violation of ERISA
section 510. The Secretary also alleged that Brain
committed a breach of fiduciary duty in violation of ERISA
section 404(a)(1)(A)–(B), and that the Cook Defendants
knowingly participated in Brain’s breach. Finally, the SAC
alleged that certain defendants were subject to co-fiduciary
liability under ERISA section 405(a).

   On August 24, 2015, the district court entered a Consent
Judgment and Order reflecting a settlement between the
Secretary and all defendants except for Briceno, Brain, and
the Cook Defendants. In relevant part, the settlement
provided Robbins with $400,000 in lost wages, plus certain
benefits, and Rice with $56,000 in lost wages.
16                       ACOSTA V. BRAIN

     K. The District Court’s Judgment

    The district court conducted a five-day bench trial in
May 2016. On July 25, 2016, the district court issued its
findings of fact and conclusions of law.

    On October 14, 2016, the district court entered a final
judgment and permanent injunction. The district court
entered judgment in favor of the Secretary on the following
claims: 1 The district court found that (1) Brain and the Cook
Defendants violated ERISA section 510 by causing Robbins
to be placed on paid administrative leave in retaliation for
protected conduct; (2) Brain and the Cook Defendants
violated ERISA section 510 by causing the termination of
Rice in retaliation for protected conduct and for an improper
purpose; (3) Brain and the Cook Defendants violated ERISA
section 510 by causing the removal of Robbins from her
employment with the Administrative Corporation and by
preventing her from performing any services or work for the
Trust Funds, in retaliation for protected conduct; (4) Brain
violated his fiduciary duties to the Trust Funds under ERISA
section 404(a)(1)(A)–(B) when he caused Robbins to be
placed on paid administrative leave in retaliation for
protected conduct; and (5) the Cook Defendants violated
ERISA section 404(a)(1)(A)–(B) by knowingly participating
in Brain’s breach of his fiduciary duties.

    The district court ordered that the Cook Defendants
disgorge $61,480.62 to the Trust Funds. The district court
also entered a permanent injunction against Brain and the
Cook Defendants. In relevant part, the district court

     1
     The district court also entered judgment in favor of Brain, the Cook
Defendants, and Briceno on several claims. These issues are not on
appeal.
                      ACOSTA V. BRAIN                       17

(1) removed Brain as a trustee for any and all of the Trust
Funds; (2) permanently enjoined him from serving in any
fiduciary capacity, including, but not limited to, serving as a
trustee for any of the Trust Funds; (3) permanently enjoined
him from applying for or accepting any fiduciary position
with any ERISA-covered plan, unless he first discloses the
terms of the district court’s final judgment and permanent
injunction in his application for the position and prior to
accepting any such position; (4) terminated any attorney-
client relationship between the Cook Defendants and any of
the Trust Funds; and (5) permanently enjoined the Cook
Defendants from providing any services to any of the Trust
Funds.

   Brain and the Cook Defendants timely appealed.

                STANDARD OF REVIEW

    We review de novo the district court’s interpretation of
ERISA. Shaver v. Operating Eng’rs Local 428 Pension Tr.
Fund, 332 F.3d 1198, 1201 (9th Cir. 2003). We review de
novo the district court’s conclusions of law, but review for
clear error the district court’s findings of fact. Husain v.
Olympic Airways, 316 F.3d 829, 835 (9th Cir. 2002), aff’d,
540 U.S. 644 (2004).

                        ANALYSIS

   I. The District Court Did Not Err in Concluding
      that Brain Violated ERISA Section 510 by
      Retaliating Against Robbins.

    Brian challenges the district court’s conclusion that he
violated ERISA section 510. Brain first argues that the
district court erred in concluding that Robbins engaged in
protected activity. Brain next argues that the district court
18                   ACOSTA V. BRAIN

failed to apply properly the but-for standard of causation.
We reject both arguments.

       a. The District Court Did Not Err in Concluding
          that Robbins Engaged in Protected Activity.

    ERISA section 510 makes it “unlawful for any person to
discharge, fine, suspend, expel, or discriminate against any
person because he has given information or has testified or
is about to testify in any inquiry or proceeding relating to
[ERISA].” 29 U.S.C. § 1140. To establish a claim of
retaliation under section 510, the Secretary must show that:
(1) Robbins engaged in an activity protected under ERISA;
(2) Robbins suffered an adverse employment action; and
(3) there is a causal link between the protected activity and
the adverse employment action. Teutscher v. Woodson,
835 F.3d 936, 945 (9th Cir. 2016).

    Here, the district court found—and Brain does not
dispute—that the DOL contacted Robbins for information,
which she provided, in connection with the DOL’s
investigation of Brain. Robbins thus engaged in prototypical
protected activity, and the district court did not err in
concluding that Brain violated section 510.

    Sidestepping the fact that Robbins participated in the
DOL investigation, Brain argues that another activity
Robbins participated in was not protected under ERISA.
Specifically, Brain contends that Robbins’s participation in
the effort to report Brain to the OPCMIA was not protected
activity. We need not address this argument because
Robbins’s participation in the DOL investigation was
unmistakably protected under ERISA and constitutes an
independently sufficient ground for the district court’s
conclusion.
                           ACOSTA V. BRAIN                               19

     In any event, Brain’s argument is meritless. “One . . .
ERISA-protected activity is protesting a legal violation in
connection with an ERISA-governed plan.” Id. (citing
Hashimoto v. Bank of Haw., 999 F.2d 408, 411 (9th Cir.
1993)). We have observed that “[section 510] is clearly
meant to protect whistle blowers” because “[i]f one is . . .
discharged for raising the problem [to the managers of an
ERISA plan], the process of giving information or testifying
is interrupted at its start: the anticipatory discharge
discourages the whistle blower before the whistle is blown.”
Hashimoto, 999 F.2d at 411. Robbins’s letter writing falls
within the ambit of “protesting a legal violation in
connection with an ERISA-governed plan.” Teutscher,
835 F.3d at 945. Although the intended recipient of the
letter—the president of the OPCMIA—was not an internal
manager of the Trust Funds, the district court found that the
OPCMIA “could have acted to remove Brain as a Local 600
Business Manager,” and that “[i]f it had done so, [Brain]
would have lost his position as a trustee.” Since Robbins’s
aim in writing the letter was to remove Brain from his
position, the fact that the intended recipient of the letter was
an outside party is inconsequential. 2 Cf. id. at 940
     2
       There is a circuit split on the issue of whether “unsolicited internal
complaints” constitute protected activity within meaning of ERISA
section 510. Edwards v. A.H. Cornell & Son, Inc., 610 F.3d 217, 220–
22 (3d Cir. 2010). While the Fifth, Seventh, and Ninth Circuits have
recognized unsolicited employee complaints as protected activity for
purposes of section 510 claims, the Second, Third, Fourth, and Sixth
Circuits have reached a contrary conclusion. See id. (citing and
discussing cases); see also Sexton v. Panel Processing, Inc., 754 F.3d
332, 340–42 (6th Cir. 2014) (same). Nonetheless, as we noted above,
whether Robbins’s letter-writing was protected activity is ultimately
immaterial, because Robbins’s cooperation with the DOL’s investigation
provides an independent basis for the Secretary’s section 510 claim.
Furthermore, Hashimoto is still the law in our court. Although Brain
asks the panel to revisit Hashimoto, Brain has not identified “intervening
20                       ACOSTA V. BRAIN

(reviewing an ERISA retaliation claim where the plaintiff
complained to the Riverside Sherriff’s Department, an
outside party, about potential ERISA violations by the
Riverside Sheriffs’ Association, an organization that
administers an ERISA-governed plan).

        b. The District Court Did Not Err in Concluding
           that Robbins’s Protected Activity Was the
           But-For Cause of Robbins Being Placed on
           Leave.

    We begin by addressing the threshold question of which
standard of causation applies—the but-for standard or the
substantial factor standard. In a past decision, we used
language suggestive of the substantial factor standard in
describing ERISA section 510. See Dytrt v. Mountain State
Tel. & Tel. Co., 921 F.2d 889, 896 (9th Cir. 1990) (“[N]o
action lies where the alleged loss of rights is a mere
consequence, as opposed to a motivating factor behind the
termination.”). However, in two recent decisions, the
Supreme Court held that the use of “because” or “because
of” in statutory text mandates but-for causation. See Univ.
of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013)
(holding that the standard of causation in Title VII retaliation
claims is but-for causation, because the statute prohibits
retaliation against an employee “because” of certain
protected activity); Gross v. FBL Fin. Servs., Inc., 557 U.S.
167, 175–78 (2009) (holding that the standard of causation
in an ADEA discrimination claim is but-for causation,
because the statute prohibits retaliation against an employee
“because of” age). Like Title VII and the ADEA, ERISA

higher authority” with which our prior authority is “clearly
irreconcilable.” Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en
banc).
                          ACOSTA V. BRAIN                              21

section 510 also uses “because.” 29 U.S.C. § 1140.
Following Nassar and Gross, the district court concluded
that the but-for causation standard applied. We assume,
without deciding, that the higher but-for causation standard
applies here. 3

     We now turn to the district court’s application of the but-
for causation standard, and hold that the district court did not
err in concluding that Brain and the Cook Defendants caused
Robbins to be placed on leave.

    Citing nonbinding authority, Brain argues that he is
immune from liability because “when a majority of a group
decides to take action for non-retaliatory reasons, none of the
group is liable.” However, Brain sidesteps two important
distinctions. Brain was not part of the group of trustees that
voted to place Robbins on leave, but was responsible for
setting the vote in motion. In addition, the Secretary was not
seeking to hold the whole Joint Board liable at trial. But for
Brain’s orchestrating the vote to place Robbins on leave, the
Joint Board would not have done so.

    We have recognized this so-called “cat’s-paw” theory in
cases even more attenuated than the present one. In Poland
v. Chertoff we held:

         [I]f a subordinate, in response to a plaintiff’s
         protected activity, sets in motion a
         proceeding by an independent decisionmaker
         that leads to an adverse employment action,
         the subordinate’s bias is imputed to the

    3
       We need not decide this question because the issue of which
standard applies is not on appeal, and the application of the stricter but-
for standard does not affect the resolution of this case.
22                    ACOSTA V. BRAIN

        employer if the plaintiff can prove that the
        allegedly independent adverse employment
        decision was not actually independent
        because the biased subordinate influenced or
        was involved in the decision or
        decisionmaking process.

494 F.3d 1174, 1182 (9th Cir. 2007). Here, there is one less
level of liability to establish, as the Secretary did not seek to
impute Brain’s retaliatory motive upward to his employer.
Rather, the Secretary sought to prove only Brain’s liability
by showing that in response to Robbins’s protected activity,
Brain, who had significant authority over the Board
members, “set[] in motion a proceeding by an independent
decisionmaker that le[d] to an adverse employment action.”
Id.

    Contrary to Brain’s contention, the district court did not
impermissibly water down the but-for causation standard.
The fact that Brain was not the ultimate decisionmaker does
not immunize him under a cat’s-paw theory of liability. At
least four of our sister circuits have concluded that a cat’s-
paw theory of liability for retaliation is compatible with the
but-for causation standard, and still viable after Nassar. See
Zamora v. City of Houston, 798 F.3d 326, 331–32 (5th Cir.
2015) (citing cases). As the Fifth Circuit observed,

        Plaintiffs use a cat’s paw theory of liability
        when they cannot show that the
        decisionmaker—the person who took the
        adverse employment action—harbored any
        retaliatory animus. Under this theory, a
        plaintiff must establish that the person with a
        retaliatory motive somehow influenced the
        decisionmaker to take the retaliatory action.
                      ACOSTA V. BRAIN                       23

       Put another way, a plaintiff must show that
       the person with retaliatory animus used the
       decisionmaker to bring about the intended
       retaliatory action.

Id. at 331. Noting that the Supreme Court in Staub v. Proctor
Hospital, 562 U.S. 411, 416–17, 419–22 (2011), had
previously “explicitly blessed the use of cat’s paw analysis
in the context of an employment claim requiring that the
unlawful animus be a ‘motivating factor’ for the employer’s
action,” the Fifth Circuit explained that Nassar did not
eliminate the availability of the cat’s-paw theory. Id. at 332.
Rather, “in Nassar, the Court changed only the strength of
the causal link—between the supervisor’s actions and the
adverse employment action—that the plaintiff must
establish.” Id. “Nassar says nothing about whether a
supervisor’s unlawful animus may be imputed to the
decisionmaker; it simply requires that the supervisor’s
influence with the decisionmaker be strong enough to
actually cause the adverse employment action.” Id.

    Here, the same reasoning applies. That the causal link
between Brain’s actions and Robbins’s placement on
administrative leave must be strong does not speak to the
issue of whether Brain’s retaliatory motive may be imputed
to the ultimate decisionmaker. Rather, Brain’s “influence
with the decisionmaker [must] be strong enough to actually
[have] cause[d] the adverse employment action.” Id.

    Brain notes that only a minority of the trustees on the
Joint Board cited Robbins’s protected activity as a basis for
voting to place Robbins on leave. Crucially, Brain does not
contest or even mention the district court’s findings of fact
regarding how he and the Cook Defendants set in motion the
vote to place Robbins on leave. His arguments effectively
24                    ACOSTA V. BRAIN

boil down to urging us to reweigh the evidence before the
district court.

    We decline to do so. The district court discounted the
weight of the non-retaliatory reasons provided by the voting
trustees, characterizing their explanations as “vague” and
insufficient to state a legitimate, non-retaliatory reason for
placing Robbins on leave. Moreover, the majority of the
evidence stemmed from deposition testimony taken while
the trustees were still named defendants in the action. The
district court concluded that the fact that the witnesses still
faced potential liability significantly affected the weight of
their testimony.

    Furthermore, the district court laid out lengthy findings
of fact showing how Brain and the Cook Defendants set the
vote in motion in order to retaliate against Robbins. Without
recapitulating the district court’s findings in full, we note a
few key ones. The district court found “substantial evidence
that Cook and Brain frequently communicated through
phone calls, text messages and emails during the weeks prior
to the November 18, 2011 meeting at which Robbins was put
on leave.” In fact, “Cook, Brain and Allen called th[e]
special meeting” at which the vote to put Robbins on leave
occurred. Not only did Brain have an incentive to retaliate,
but Cook did as well, as they had begun a romantic
relationship at the time.

    Moreover, after Cook, Brain, and Allen called the special
meeting, “Brain and the Cook Defendants coordinated
efforts to talk with other trustees with whom they had
positive relationships” before the meeting “in an effort to
line up their votes at the meeting for the positions they
planned to advance.” Brain and Cook sent messages to each
other saying that they were “firing up” other trustees, “lining
                      ACOSTA V. BRAIN                         25

up [Brain’s] peeps [sic],” and informing the trustees of the
actions planned for the meeting.

     At the meeting itself, Brain and Cook took control by
discussing Robbins’s contact with the DOL and the DOL
subpoena, and making “statements critical of Robbins,” thus
“creat[ing] an environment that was hostile to her.” Of note,
they made statements suggesting that Robbins had in fact
initiated contact with the DOL, rather than the other way
around, in an effort to lead the trustees to “regard her as
disloyal.” Cook encouraged the trustees to vote to place
Robbins on leave, and Brain prompted Allen to discuss the
draft letter to the OPCMIA and Robbins’s role in
“pressuring” him repeatedly to write it.

    Importantly, Brain remained in the room, although he
abstained from voting. The district court found that “his
mere presence could have influenced others,” as Brain had
the power to remove Local 600 trustees or have them
terminated from their jobs with the union.

    “The district court, as the trier of fact in this matter, was
in a superior position to appraise and weigh the evidence,
and its determination regarding the credibility of witnesses
is entitled to special deference.” Husain, 316 F.3d at 840.
We decline Brain’s invitation to reweigh the evidence or
second-guess the district court’s credibility determinations,
as Brain has not argued, much less shown, that the district
court clearly erred in in its fact finding. The record is rife
with evidence establishing but-for causation, and Brain’s
attempts to recast the evidence are unavailing. We
accordingly conclude that the district court properly applied
the but-for standard of causation to the facts before it, and
did not err in concluding that the standard was met.
26                    ACOSTA V. BRAIN

     II. The District Court Erred in Concluding that
         Brain Breached His Fiduciary Duty in Violation
         of ERISA Section 404.

    Congress designed ERISA “‘to ensure that employees
will not be left empty-handed’ by imposing fiduciary duties
on those responsible for management of [private employee
benefit] plans.” Santomenno v. Transamerica Life Ins. Co.,
883 F.3d 833, 836–37 (9th Cir. 2018) (quoting Lockheed
Corp. v. Spink, 517 U.S. 882, 887 (1996)). There are two
general categories of fiduciaries under ERISA—named (or
statutory) and functional. Id. at 837.

        [T]he term ‘named fiduciary’ means a
        fiduciary who is named in the plan
        instrument, or who, pursuant to a procedure
        specified in the plan, is identified as a
        fiduciary (A) by a person who is an employer
        or employee organization with respect to the
        plan or (B) by such an employer and such an
        employee organization acting jointly.

29 U.S.C. § 1102(a)(2). A party not named in the plan
instrument can become a functional fiduciary.     Id.
§ 1002(21)(A). Specifically,

        [A] person is a fiduciary with respect to a
        plan to the extent (i) he exercises any
        discretionary authority or discretionary
        control respecting management of such plan
        or exercises any authority or control
        respecting management or disposition of its
        assets, (ii) he 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
                      ACOSTA V. BRAIN                       27

       responsibility to do so, or (iii) he has any
       discretionary authority or discretionary
       responsibility in the administration of such
       plan.

Id.; see Santomenno, 883 F.3d at 837.

     “Whether named or functional, an ERISA fiduciary has
a ‘duty of care with respect to management of existing . . .
funds, along with liability for a breach of that duty.’”
Santomenno, 883 F.3d at 837 (quoting Lockheed Corp.,
517 U.S. at 887). “Under two of the prongs of the functional
fiduciary definition” enumerated in § 1002(21)(A)(i) and
(iii), “[o]nly discretionary acts of plan . . . management
trigger fiduciary duties.” Id. at 838 (alterations in original)
(quoting Santomenno ex rel. John Hancock Tr. v. John
Hancock Life Ins. Co. (U.S.A.), 768 F.3d 284, 293 (3d Cir.
2014)).

    ERISA section 404(a)(1) outlines the “prudent man
standard of care” that governs ERISA fiduciaries:

       [A] fiduciary shall discharge his duties with
       respect to a plan solely in the interest of the
       participants and beneficiaries and—

       (A) for the exclusive purpose of:

           (i) providing benefits to participants and
           their beneficiaries; and

           (ii) defraying reasonable expenses of
           administering the plan;

       (B) with the care, skill, prudence, and
       diligence under the circumstances then
28                   ACOSTA V. BRAIN

       prevailing that a prudent man acting in a like
       capacity and familiar with such matters
       would use in the conduct of an enterprise of a
       like character and with like aims;

       (C) by diversifying the investments of the
       plan so as to minimize the risk of large losses,
       unless under the circumstances it is clearly
       prudent not to do so; and

       (D) in accordance with the documents and
       instruments governing the plan . . . .

29 U.S.C. § 1104(a)(1) (emphases added).

    The Supreme Court has repeatedly emphasized the “two-
hat” principle of fiduciary duties under ERISA. The Court
has observed that “the analogy between ERISA fiduciary
and common law trustee becomes problematic” after a
certain point because, unlike a trustee at common law who
“characteristically wears only his fiduciary hat when he
takes action to affect a beneficiary,” a “trustee under ERISA
may wear different hats,” and “may have financial interests
adverse to beneficiaries.” Pegram v. Herdrich, 530 U.S.
211, 225 (2000). For example, a fiduciary, when acting as
an employer, wears his or her employer hat, not his or her
fiduciary hat:

       Employers . . . can be ERISA fiduciaries and
       still take actions to the disadvantage of
       employee beneficiaries, when they act as
       employers (e.g., firing a beneficiary for
       reasons unrelated to the ERISA plan), or even
       as plan sponsors (e.g., modifying the terms of
                      ACOSTA V. BRAIN                        29

       a plan as allowed by ERISA to provide less
       generous benefits).

Id. Accordingly, “ERISA . . . require[s] . . . that the
fiduciary with two hats wear only one at a time, and wear the
fiduciary hat when making fiduciary decisions.” Id.
(emphasis added).

    Importantly, ERISA “does not describe fiduciaries
simply as administrators of the plan, or managers or
advisers. Instead it defines an administrator, for example, as
a fiduciary only ‘to the extent’ that he acts in such a capacity
in relation to a plan.” Id. at 225–26 (quoting 29 U.S.C.
§ 1002(21)(A)). Thus,

       [i]n every case charging breach of ERISA
       fiduciary duty, . . . the threshold question is
       not whether the actions of some person
       employed to provide services under a plan
       adversely affected a plan beneficiary’s
       interest, but whether that person was acting
       as a fiduciary (that is, was performing a
       fiduciary function) when taking the action
       subject to complaint.

Id. at 226 (emphasis added); see also Santomenno, 883 F.3d
at 838 (“The Supreme Court has stressed that the central
inquiry is whether the party was acting as an ERISA
fiduciary ‘when taking the action subject to complaint.’”
(quoting Pegram, 530 U.S. at 226)). Simply put, “ERISA’s
definition of ‘fiduciary’ is functional rather than formal.”
Santomenno, 883 F.3d at 841 (quoting Parker v. Bain,
68 F.3d 1131, 1139 (9th Cir. 1995)).

    This threshold “two-hats” inquiry is important
“[b]ecause virtually every business decision an employer
30                          ACOSTA V. BRAIN

makes can have an adverse impact on an employee benefit
plan.” In re Luna, 406 F.3d 1192, 1207 (10th Cir. 2005).
“[C]ourts must ‘examine the conduct at issue to determine
whether it constitutes management or administration of the
plan, giving rise to fiduciary concerns, or merely a business
decision that has an effect on an ERISA plan not subject to
fiduciary duties.’” Id. (quoting COB Clearinghouse Corp.
v. Aetna U.S. Healthcare, Inc., 362 F.3d 877, 881 (6th Cir.
2004)). “This is so even where some of the decisions
personally benefitted the employer . . . .” Id.

    Here, the district court concluded that Brain breached his
fiduciary duty under section 404 by placing Robbins on
administrative leave. 4       However, as Brain correctly

     4
         The district court concluded as follows:

                 The DOL has shown by a preponderance of the
            evidence that Brain breached his fiduciary duty by
            engaging in retaliatory conduct against Robbins, and
            that the Cook Defendants knowingly participated in
            that breach. The requirement in § 404 of ERISA that
            a fiduciary discharge duties “solely in the interest of
            the participants and beneficiaries” includes an
            obligation not to violate other ERISA provisions to the
            detriment of the plan participants and beneficiaries.
            The obligations of a fiduciary include a duty to “deal
            fairly” with others in transactions. See Peralta v.
            Hispanic Bus., Inc., 419 F.3d 1064, 1070 n.7 (9th Cir.
            2005). This includes a duty not to interfere with the
            exercise by another person of his or her rights under
            ERISA.

     The district court’s citation to a footnote in Peralta does not dispose
of the threshold inquiry of whether Brain was performing a fiduciary
function when placing Robbins on leave. In other words, there is no
dispute that an ERISA fiduciary is subject to certain fiduciary duties
when wearing his or her fiduciary hat. In addition, the district court
                           ACOSTA V. BRAIN                                31

observes, the district court did not address the threshold
question of whether Brain was wearing his ERISA fiduciary
hat when he took the actions alleged in the Secretary’s
Complaint. Indeed, we lack basic information such as
whether Brain was a named or a functional fiduciary, and the
Secretary has not pointed to any evidence in the record—
such as the written instrument governing the plan—to
elucidate this issue.

    Nor has the Secretary cited any authority establishing
that placing Robbins, an employee of the Administrative
Corporation, on leave was a fiduciary function under
ERISA, rather than a corporate or business operations action.
The case law weighs heavily against the Secretary’s
position. 5


construed the Peralta footnote too broadly—the footnote is much
narrower in reality. See Peralta v. Hispanic Bus., Inc., 419 F.3d 1064,
1070 n.7 (9th Cir. 2005) (noting in a parenthetical that under the common
law of trusts, trustees have “a duty of loyalty . . . to ‘administer the trust
solely in the interest of the beneficiaries’ and . . . ‘a duty to deal fairly
and to communicate to the beneficiary all material facts the trustee
knows or should know in connection with the transaction’” (quoting
Restatement (Second) of Trusts § 170 (1992))).

    5
      See, e.g., Bodine v. Emp’rs Cas. Co., 352 F.3d 245, 251 (5th Cir.
2003) (concluding that the defendant’s “failure to terminate the
Employees’ employment” was a business decision and not a breach of a
fiduciary duty under section 404); Haberern v. Kaupp Vascular
Surgeons Ltd. Defined Benefit Pension Plan, 24 F.3d 1491, 1499 (3d Cir.
1994) (“[T]he appellants’ decision to reduce [the plaintiff’s]
compensation . . . was managerial in character. The fact that this
decision may not have been in [the plaintiff’s] interest makes no
difference.”); Berger v. Edgewater Steel Co., 911 F.2d 911, 918 (3d Cir.
1990) (“[I]n making the decision as to whether the Employees’
retirements were in the company’s interest, [the defendant] was acting in
its capacity as employer and not as a fiduciary under ERISA.”);
32                        ACOSTA V. BRAIN

    Instead, the Secretary uses the phrase “management and
administration” loosely to argue that Brain was acting as an
ERISA fiduciary when he caused Robbins to be placed on
leave. Not only does the Secretary ignore the threshold
“two-hat” inquiry, but his overbroad approach also
contravenes the Supreme Court’s express warning that the
ERISA “statute does not describe fiduciaries simply as
administrators of the plan, or managers or advisers. Instead
it defines an administrator, for example, as a fiduciary only
‘to the extent’ that he acts in such a capacity in relation to a
plan.” Pegram, 530 U.S. at 225–26 (quoting 29 U.S.C.
§ 1002(21)(A)). Contrary to the Secretary’s approach, we
must distinguish between a fiduciary “acting in connection
with its fiduciary responsibilities” with regard to the plan, as
opposed to the same individual or entity “acting in its
corporate capacity.” Cunha v. Ward Foods, Inc., 804 F.2d
1418, 1432 (9th Cir. 1986) (concluding that “[t]he decision

Dzinglski v. Weirton Steel Corp., 875 F.2d 1075, 1080 (4th Cir. 1989)
(concluding that the defendant “was acting in its capacity as [the
plaintiff’s] employer, not as a fiduciary, when it decided to discharge
him”); cf. Husvar v. Rapoport, 430 F.3d 777, 782 (6th Cir. 2005)
(concluding that a complaint that “does not challenge the actions of a
plan fiduciary,” but instead “merely questions the propriety of certain
business decisions made by the company’s board of directors” is
insufficient to support a claim of breach of fiduciary duty under ERISA,
despite the fact that the business decisions at issue “affected the value of
the company stock that comprised the employees’ benefit plan assets”);
Flanigan v. Gen. Elec. Co., 242 F.3d 78, 88 (2d Cir. 2001) (“Because
GE’s decision to spin-off the division along with its pension plan was, at
its core, a corporate business decision, and not one of a plan
administrator, GE was acting as a settlor, not a fiduciary, when it
transferred the surplus to Lockheed.”); Martin v. Feilen, 965 F.2d 660,
665 (8th Cir. 1992) (noting that although “[a]n employer’s business
decisions will often indirectly affect an ERISA plan or its beneficiaries,”
individuals “who make such corporate decisions” and who “also happen
to be ERISA fiduciaries” are not subject to liability under ERISA section
404).
                       ACOSTA V. BRAIN                         33

to terminate the Plan was a business decision that properly
rested with Ward’s corporate offices”). Only the former
triggers fiduciary status; the latter does not. See id.; see also
Lockheed Corp., 517 U.S. at 890 (“‘[O]nly when fulfilling
certain defined functions, including the exercise of
discretionary authority or control over plan management or
administration,’ does a person become a fiduciary under
[§ 1002(21)(A)].” (quoting Siskind v. Sperry Ret. Program,
Unisys, 47 F.3d 498, 505 (2d Cir. 1995))).

    Furthermore, the text of ERISA section 404 speaks
plainly of fiduciary duties owed to participants and
beneficiaries, but not to employees. Although section 404 is
conjunctive, the Secretary tellingly focuses only on the first
full clause of the statute, which requires that “a fiduciary . . .
discharge his duties with respect to a plan solely in the
interest of the participants and beneficiaries.” 29 U.S.C.
§ 1104(a)(1). The statute does not stop there, however. It
continues on, requiring a fiduciary to discharge his duties not
only “solely in the interest of the participants and
beneficiaries,” but also for the sole purpose of “providing
benefits to participants and their beneficiaries” and
“defraying reasonable expenses of administering the plan.”
29 U.S.C. § 1104(a)(1)(A). The plain text of the statute thus
underscores the fact that ERISA fiduciary duties run to the
interests of participants and beneficiaries of an ERISA plan.
Cf. Tibble v. Edison Int’l, 843 F.3d 1187, 1194 (9th Cir.
2016) (recognizing breach of fiduciary duty claim for
“failure to exercise prudence” in monitoring and managing
plan investments); Patelco Credit Union v. Sahni, 262 F.3d
897, 909 (9th Cir. 2001) (recognizing breach of fiduciary
duty claim for self-dealing in plan administration). In
contrast, the text says nothing about employees, let alone
anything about fiduciary duties owed in the course of
managing employees. Thus, the Secretary’s contention that
34                       ACOSTA V. BRAIN

Brain’s fiduciary duty of loyalty extended to all of “his
dealings with people, like Robbins, who serve the plan and
its administration,” is overbroad and is not based on
recognized authority.

    For the first time on appeal, the Secretary argues that
Brain’s fiduciary duties extended to “decisions to hire, fire,
or discipline plan service providers, such as Robbins and the
A&C Department, and how to compensate them.” This
argument is meritless. To start, the district court did not find
that Brain breached his fiduciary duty by causing the A&C
Department’s work to be outsourced to Zenith. Rather, the
district court found that Brain breached his fiduciary duty by
causing Robbins to be placed on leave. Even more
fundamentally, the Secretary has not shown how Robbins’s
position was akin to that of a professional service provider. 6
E.g., Mertens v. Hewitt Assocs., 508 U.S. 248, 262 (1993)
(recognizing actuaries as service providers); Bui v. AT&T
Co., 310 F.3d 1143, 1146 (9th Cir. 2002) (recognizing a
company that “contracted to provide emergency medical
advice and evacuation services” as a service provider).
Professional service providers are typically designated
through the relevant plan instruments and documents, see

     6
       To the extent the Secretary argues that placing Robbins on leave
somehow interfered with Robbins’s ability to carry about a fiduciary
function, the Secretary has provided no evidence supporting such an
assertion. Service providers generally occupy advisory, instead of
fiduciary, roles in relation to ERISA plans. Cf. Mertens, 508 U.S. at 262
(emphasizing that service providers are liable for damages only when
they “cross the line from advisory to fiduciary”). Thus, the Secretary’s
argument requires several layers of attenuation. It is too conjectural to
conclude that Brain was wearing his fiduciary hat when he caused
Robbins—who the Secretary has not shown to be a service provider, and
who, even if she were a service provider, may or may not have been a
fiduciary in any given instance—to be placed on leave.
                      ACOSTA V. BRAIN                       35

29 C.F.R. § 2509.75-8, FR-14; Bui, 310 F.3d at 1150 (noting
that the service provider was designated in the plan), none of
which we have before us.

    The Secretary further argues, again for the first time on
appeal, that Brain’s decision to place Robbins on leave
harmed plan participants and beneficiaries, as Cook received
over $60,000 from the Trust Funds for her services. This
argument also fails.       First, and fundamentally, the
Secretary’s argument does not satisfy the threshold “two-
hat” inquiry. Second, the district court did not base its
section 404 conclusion on the Trust Funds’ payments to
Cook. Rather, it concluded that Brain violated section 404
by causing Robbins to be placed on leave.

    Third, even if the fees could constitute harm to plan
participants and beneficiaries, the Secretary makes no effort
to prove the extent of the harm. The Secretary does not
disaggregate the fees incurred from the alleged violation of
section 404 from the proven violation of section 510.
Indeed, the district court noted that the vast majority of the
fees stemmed from charges incurred after Robbins was
placed on leave, and included charges incurred as late as
April 2013, indicating that most of the fees are not related to
Robbins’s placement on leave.

    Fourth, Brain and Cook’s retaliatory animus toward
Robbins was, at bottom, personal: Robbins cooperated in a
DOL criminal investigation of Brain, not the Trust Funds.
Critically, the Secretary failed to allege or prove any
standalone breach of fiduciary duty independent of Brain’s
retaliatory conduct. The district court concluded that the
Secretary untimely raised its section 404 claim that Brain
failed to pursue all monies to which the Trust Funds may
have been entitled from contractors, and failed to prove that
36                        ACOSTA V. BRAIN

Brain breached any fiduciary duty to investigate Robbins’s
allegations against him.

    We thus hold that the district court erred in concluding
that Brain violated section 404. It also necessarily follows
that the district court erred in concluding that the Cook
Defendants violated section 404 by knowingly aiding Brain
in violating section 404.

     III.      The District Court Erred in Basing the
               Permanent Injunction on ERISA Section 409.

    ERISA section 503(a)(2) provides that a civil action may
be brought “by the Secretary, or by a participant, beneficiary
or fiduciary for appropriate relief under [ERISA section
409].” 29 U.S.C. § 1132(a)(2). Section 409, in turn,
provides for removal of a fiduciary who has breached his or
her fiduciary duties under ERISA:

            Any person who is a fiduciary with respect to
            a plan who breaches any of the
            responsibilities, obligations, or duties
            imposed upon fiduciaries by this subchapter
            shall be personally liable to make good to
            such plan any losses to the plan resulting
            from each such breach, and to restore to such
            plan any profits of such fiduciary which have
            been made through use of assets of the plan
            by the fiduciary, and shall be subject to such
            other equitable or remedial relief as the court
            may deem appropriate, including removal of
            such fiduciary.

29 U.S.C. § 1109(a).
                       ACOSTA V. BRAIN                         37

    Expressly relying upon ERISA section 409, the district
court entered a permanent injunction against Brain and the
Cook Defendants. For the reasons discussed above, the
Secretary did not establish that Brain and the Cook
Defendants violated ERISA section 404. Because section
409 requires a breach of fiduciary duty, and because the
Secretary did not prove that there was a breach of fiduciary
duty in this case, we vacate the permanent injunction in its
entirety as to Brain and the Cook Defendants.

    IV.     ERISA Section 502(a)(5) Does Not Provide an
            Alternative Basis for the District Court’s
            Permanent Injunction.

    As a fallback position, the Secretary argues that
notwithstanding the absence of a violation of section 404, a
violation of section 510 may serve as an independent basis
for the district court’s injunction. We disagree.

    ERISA section 502(a)(5) provides that a civil action may
be brought “by the Secretary (A) to enjoin any act or practice
which violates any provision of [ERISA], or (B) to obtain
other appropriate equitable relief (i) to redress such violation
or (ii) to enforce any provision of [ERISA].” 29 U.S.C.
§ 1132(a)(5). The permanent injunction removing Brain as
a trustee and preventing him from serving as a fiduciary does
not fall under section 502(a)(5)(A), as it is not an injunction
prohibiting Brain from retaliating in violation of section 510.

    The remaining option is for the permanent injunction to
be permissible under section 502(a)(5)(B), which allows
“appropriate equitable relief” either “to redress [the]
violation” or “to enforce any provision of [ERISA].” Id.
Under this provision, the Secretary “must prove both (1) that
there is a remediable wrong, i.e., that the plaintiff seeks relief
to redress a violation of ERISA . . . ; and (2) that the relief
38                        ACOSTA V. BRAIN

sought is ‘appropriate equitable relief.’” Gabriel v. Alaska
Elec. Pension Fund, 773 F.3d 945, 954 (9th Cir. 2014)
(citation omitted) (quoting 29 U.S.C. § 1132(a)(3)(B)). 7 “A
claim fails if the plaintiff cannot establish the second prong,
that the remedy sought is ‘appropriate equitable relief,’ . . . ,
regardless of whether ‘a remediable wrong has been
alleged.’” Id. (quoting Mertens, 508 U.S. at 254). Similarly,
a claim fails if the first prong—that there is a wrong
remediable by the relief sought—is unmet. See id.

    Here, the Secretary argues that the district court’s
permanent injunction falls within the relief contemplated by
ERISA section 503(a)(5)(B). Without a doubt, injunctions
are a type of traditional equitable relief appropriate under
section 503(a)(5). See Mertens, 508 U.S. at 256. However,
no aspect of the district court’s injunction redresses or
enforces a violation of ERISA section 510.

    First, section 409 expressly authorizes removal of a
trustee for a breach of fiduciary duty. In turn, section
502(a)(2) expressly references section 409, providing that
the Secretary may bring a civil action to obtain “appropriate
relief under section [409] of this title.” 29 U.S.C.
§ 1132(a)(2). The fact that removal is codified in its own
statutory section, in conjunction with the fact that section
502 references section 409 separately from the equitable
relief available under section 502(a)(5), indicates that
section 409 authorizes a form of relief distinct from that
typically available under section 502(a)(5). Put differently,

     7
      In Gabriel, we discussed ERISA section 502(a)(3)(B), 29 U.S.C.
§ 1132(a)(3)(B), which shares language nearly identical to ERISA
section 502(a)(5)(B), 29 U.S.C. § 1132(a)(5)(B). The former provides
for enforcement by a private plaintiff; the latter provides for enforcement
by the Secretary.
                     ACOSTA V. BRAIN                      39

if section 502(a)(5) independently allowed for removal of a
trustee, even in the absence of a proven breach of fiduciary
duty, there would be no need for sections 409 or 502(a)(2).

     Next, the Secretary has cited no authority bringing
removal of a trustee within the realm of “appropriate
equitable relief” designed to “redress [a] violation” of
section 510 or to “enforce” section 510. We have observed,
for example, that appropriate equitable relief for an
employee who has suffered retaliatory discharge may take
the form of reinstatement to her former position. See
Teutscher, 835 F.3d at 946. In such a scenario, reinstatement
is a form of redress clearly designed to make the discharged
employee whole. In contrast, here, the Secretary has not
shown how removing Brain from his trustee position
redresses the retaliation that Robbins, who received a
settlement payout and benefits, suffered.

    For the same reason, it is not apparent how enjoining
Brain from “applying for, or accepting any fiduciary position
with any ERISA-covered plan,” unless he first discloses the
terms of the district court’s judgment, redresses a violation
of section 510. The Secretary presents no viable reasoning
as to why Brain’s retaliation against an individual employee,
who has already been made whole, justifies enjoining Brain
from serving in a fiduciary capacity with other ERISA plans.

    Nor is it apparent how removing Brain as a trustee and
permanently enjoining him from serving as a fiduciary for
the Trust Funds or any other ERISA plan enforces ERISA
section 510. The cases cited by the Secretary are easily
distinguishable from this case for one crucial reason: They
involved breaches of fiduciary duty in violation of section
404. See, e.g., Shaver, 332 F.3d at 1203–04 (instructing
district court to consider various equitable remedies,
including removal, should defendants be found to have
40                    ACOSTA V. BRAIN

breached their fiduciary duties by failing to keep records
essential to the well-being of the plan); Martin v. Feilen,
965 F.2d 660, 672 (8th Cir. 1992) (affirming permanent
injunction against defendants who “repeatedly used their
fiduciary control over the [employee stock ownership
plan’s] assets to profit from self dealing”); Beck v. Levering,
947 F.2d 639, 641 (2d Cir. 1991) (affirming removal of
fiduciaries who engaged in egregious self-dealing, using
approximately $30 million of the plans’ assets); Donovan v.
Mazzola, 716 F.2d 1226, 1235 (9th Cir. 1983) (“Where there
has been a breach of fiduciary duty, ERISA grants to the
courts broad authority to fashion remedies for redressing the
interests of participants and beneficiaries.”). As we have
explained, the Secretary has not proven that a breach of
fiduciary duty occurred here. It is incongruous to order the
removal of a trustee—equitable relief specially designed to
remedy a breach of fiduciary duty—when there has been no
breach of fiduciary duty.

    Lastly, the Secretary fails to explain how enjoining the
Cook Defendants from providing services to the Trust Funds
constitutes “appropriate equitable relief,” where the
Secretary did not prove that the Cook Defendants aided in
any breach of fiduciary duty. As with the injunction against
Brain, the injunction against the Cook Defendants does not
“redress” or otherwise “enforce” a violation of section 510.
See 29 U.S.C. § 1132(a)(5).

    We cannot conclude in the Secretary’s favor without
construing ERISA section 502 in an impermissibly broad
manner. See Gabriel, 773 F.3d at 953–54. The Supreme
Court has cautioned that ERISA section 502 “does not . . .
authorize ‘appropriate equitable relief’ at large, but only
‘appropriate equitable relief’ for the purpose of ‘redress[ing
any] violations or . . . enforc[ing] any provisions’ of
                         ACOSTA V. BRAIN                              41

ERISA.” Harris Tr. & Sav. Bank v. Salomon Smith Barney,
Inc., 530 U.S. 238, 246 (2000) (alterations in original)
(quoting Peacock v. Thomas, 516 U.S. 349, 353 (1996)).
Because the Secretary has not shown how the district court’s
permanent injunction redresses a violation of section 510 or
otherwise enforces section 510, section 502(a)(5) does not
supply an alternative basis to uphold any aspect of the
injunction. 8

    V. The District Court Did Not Err in Determining
       that the Cook Defendants Were Not Immune
       Under the Attorney Immunity Doctrine.

    The Cook Defendants argue that they are immune from
liability pursuant to the attorney immunity doctrine. Their
arguments are meritless.

    First, the plain text of the ERISA statute makes it
unlawful for “any person” to retaliate in violation of section
510. 29 U.S.C. § 1140; see Tingey v. Pixley-Richards W.,
Inc., 953 F.2d 1124, 1132 n.4 (9th Cir. 1992) (observing that
because section 510 refers to “any person,” not just an
employer, “an insurer who coerces an employer to fire an
employee must be covered by this language”). Second, none
of the cases the Cook Defendants rely upon involve
    8
      In contrast, the district court properly ordered the Cook Defendants
to disgorge $61,480.62 they received in connection with their section
510 violation. ERISA permits equitable relief against nonfiduciaries in
the form of restitution or disgorgement. See Gabriel, 773 F.3d at 957;
Concha v. London, 62 F.3d 1493, 1504 (9th Cir. 1995) (holding plaintiffs
“are entitled to pursue their claim for restitution . . . against all
defendants, including [nonfiduciaries]”); see also Mertens, 508 U.S. at
262 (assuming nonfiduciaries can be sued under section 502(a)(3),
nonfiduciaries “may be . . . compelled to make restitution”). Unlike the
remedy of removal, disgorgement is a form of equitable relief within the
scope of section 502(a)(5).
42                    ACOSTA V. BRAIN

violations of section 510. Most of them involve state-law
causes of action, such as professional negligence. See, e.g.,
Goodman v. Kennedy, 556 P.2d 737, 742–44 (Cal. 1976)
(concluding that attorneys did not owe a duty of care to non-
client plaintiffs); Skarbrevik v. Cohen, England & Whitfield,
282 Cal. Rptr. 627, 636–37 (Ct. App. 1991) (concluding that
an attorney could not be sued for professional negligence by
a third-party to whom the attorney owed no duty of care);
Whitehead v. Rainey, Ross, Rice & Binns, 997 P.2d 177, 181
(Okla. Civ. App. 1999) (holding that attorneys providing
“proper and legal” advice to clients, although such advice
“might potentially harm some third party,” were not liable to
non-client plaintiffs under a common-law professional
negligence claim). The Secretary did not sue the Cook
Defendants under a common-law cause of action, but rather
under a statute that authorizes “any person” to be liable.

    The Cook Defendants’ remaining citations to federal
cases are wholly inapposite because they involve other
statutory causes of action. See, e.g., Heffernan v. Hunter,
189 F.3d 405, 407 (3d Cir. 1999) (rejecting conspiracy claim
brought under 42 U.S.C. § 1985, which sought to hold an
attorney and client liable for conspiring to intimidate a
plaintiff from serving as a witness in federal court); Travis
v. Gary Cmty. Mental Health Ctr., Inc., 921 F.2d 108, 111
(7th Cir. 1990) (another § 1985 conspiracy claim). Here, the
Secretary did not pursue a § 1985 conspiracy claim against
Brain and the Cook Defendants, but rather sought to hold
them individually liable under ERISA section 510.

     VI.   The Cook Defendants’ Remaining Arguments
           Are Meritless.

    Finally, the Cook Defendants assert a litany of
challenges to the district court’s findings of fact, attempting
to relitigate this case on appeal. We reject their invitation to
                     ACOSTA V. BRAIN                       43

reweigh the evidence or second-guess the district court’s
careful credibility determinations, which warrant significant
deference on appeal. See Anderson v. City of Bessemer City,
470 U.S. 564, 575 (1985); Husain, 316 F.3d at 840. The
Cook Defendants have not shown that the district court
committed any errors in its findings of fact, much less clear
error. Without recapitulating the district court’s thorough
and amply supported findings of fact, we briefly list and
reject the Cook Defendants’ challenges to the district court’s
findings.

    The district court did not err in finding that Cook’s
actions extended well beyond providing legal advices or that
her “actions and advice as counsel were both substantially
affected by her relationship with Brain.” Nor did the district
court err in finding that the November 18, 2011 Joint Board
meeting was called in response to the DOL investigation,
and that Cook played a key role in bringing about the
meeting for retaliatory purposes.

    The district court did not err in finding Robbins credible
at trial—the district court thoughtfully excised from its
consideration portions of Robbins’s testimony that it deemed
incredible, but properly considered the remainder of
Robbins’s testimony. The district court also did not err in
concluding that Robbins had a good-faith belief that Brain
was engaged in conduct that violated ERISA or in finding
that the audit procedures Cook drafted were “designed with
the expectation that the results of the audit would be
unfavorable to Robbins.” Furthermore, the district court did
not err in finding that the Cook Defendants caused the A&C
Department’s work to be outsourced to Zenith, that the non-
retaliatory reasons offered by Brain and the Cook
Defendants in support of the outsourcing decision were
pretextual, and that Cook caused Zenith not to hire Robbins.
44                    ACOSTA V. BRAIN

Finally, the district court did not err in concluding that Cook
retaliated against Rice.

                       CONCLUSION

    For the foregoing reasons, we affirm the district court
with respect to the ERISA section 510 claim, as described
herein, but reverse with respect to the ERISA section 404
claim, and vacate the district court’s entry of a permanent
injunction against Brain and the Cook Defendants.

     The parties shall bear their own costs on appeal.

   AFFIRMED IN PART, VACATED AND REVERSED
IN PART.



SCHROEDER, Circuit Judge, dissenting in part:

    The district court conducted a five-day bench trial. In
comprehensive findings of fact and conclusions of law, the
district court ruled that Scott Brain violated ERISA by
retaliating against the whistleblower, Robbins, who had
reported Brain’s interference with Fund contributions. I
agree with the majority’s affirmance of this ruling. Yet the
majority inexplicably then concludes that the retaliatory act,
placing Robbins on administrative leave, was not a breach of
Brain’s fiduciary duty, and the majority vacates the court’s
injunction against Brain’s returning to work for the Funds.
As to this, I cannot agree.

    The majority reaches its anomalous result by asking, and
then answering incorrectly, a question that no one in this
case heretofore has thought necessary to ask: whether Brain
                      ACOSTA V. BRAIN                         45

was acting as an employer or a fiduciary. In my view, and
the district court’s view, he was clearly acting as a fiduciary.

    There is not the slightest indication in this record that the
decision to place Robbins on administrative leave was for
any reason other than to cover up Brain’s misconduct in
cheating the Funds. Nor can there be any legal question that
such misconduct was a breach of Brain’s fiduciary duty to
administer the Funds in the exclusive interest of the
beneficiaries and participants.              See 29 U.S.C.
§ 1104(a)(1)(B); see also Rest. 3d. Trusts § 78(1) (“a trustee
has a duty to administer the trust solely in the interest of the
beneficiaries . . . .”). The district court correctly found that
the defendants could not articulate any “legitimate,
nondiscriminatory reason for placing Robbins on leave.”

    There are, of course, cases in which what were primarily
business decisions were challenged because of collateral
effects on a fund. See, e.g., Husvar v. Rapoport, 430 F.3d
777, 782 (6th Cir. 2005) (noting plaintiffs never “allege that
the defendants themselves mismanaged any fund . . . . the
complaint is replete only with allegations that the individual
defendants mismanaged the company”); Martin v. Feilen,
965 F.2d 660, 666 (8th Cir. 1992) (no fiduciary breach where
employers merely “engaged in unwise business
transactions”) (quotation marks omitted); Flanigan v. Gen.
Elec. Co., 242 F.3d 78, 88 (2d Cir. 2001); Haberern v.
Kaupp Vascular Surgeons Ltd. Defined Benefit Pension
Plan, 24 F.3d 1491, 1499 (3d Cir. 1994); Dzinglski v.
Weirton Steel Corp., 875 F.2d 1075, 1080 (4th Cir. 1989) (a
business decision’s incidental effect on the trust funds does
not trigger ERISA protections). These are cases that the
majority cites. Yet there is no law to support characterizing
a fiduciary’s efforts to cover up trust fund mismanagement
as business, rather than fiduciary decisions.
46                   ACOSTA V. BRAIN

    Unlike traditional business and personnel decisions that
only tangentially affect ERISA plan management,
dismissing Robbins was inextricably intertwined with the
“control over plan management or Administration.” See
Lockheed Corp. v. Spink, 15 U.S. 882, 890 (1996) (citation
and quotations omitted). The meeting during which the vote
to expel Robbins occurred was a meeting of trustees
discussing their obligations as trustees. Robbins blew the
whistle on Brain’s Fund mismanagement – Brain’s decision
to oust her was a calculated move to insulate the Fund
mismanagement from further scrutiny. The majority’s
conclusion that Brain wore only his “employer” hat is
therefore untenable.

    The majority’s approach conflicts with ERISA’s goal to
safeguard trust funds, and the Supreme Court’s
implementing directive to construe broadly the fiduciary
duties incumbent in administering an ERISA trust. See
Varity Corp. v. Howe, 516 U.S. 489, 504 (1996) (fiduciary
duties extend to all activities that are “ordinary and natural
means of achieving the objective of the plan.”) (citation and
internal quotation marks omitted); see also Peralta v.
Hispanic Bus., Inc., 419 F.3d 1064, 1071 (9th Cir. 2005)
(narrow interpretations of these fiduciary duties “conflict
with ERISA’s purpose”); Kayes v. Pac. Lumber Co., 51 F.3d
1449, 1468 (9th Cir. 1995) (Ninth Circuit’s policy is to
“interpret[] the fiduciary duty broadly”); Martori Bros.
Distrib. v. James-Massengale, 781 F.2d 1349, 1359 (9th
Cir.) (ERISA’s primary goal is preventing fund
mismanagement), amended, 791 F.2d 799 (9th Cir. 1986).

    The district court correctly concluded that Brain violated
his fiduciary duty when he retaliated against Robbins for
blowing the whistle on his Fund mismanagement, and Brain
                     ACOSTA V. BRAIN                     47

should not be allowed to do so again. I respectfully dissent
from the majority’s contrary decision.
