          United States Court of Appeals
                       For the First Circuit

No. 13-2090

                     THOMAS W. VANDER LUITGAREN,

                        Plaintiff, Appellant,

                                 v.

                SUN LIFE ASSURANCE COMPANY OF CANADA,

                        Defendant, Appellee,

              SUN LIFE ASSURANCE COMPANY OF CANADA (US)
                    AND SUN LIFE FINANCIAL, INC.,

                             Defendants.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. F. Dennis Saylor, IV, U.S. District Judge]


                               Before

                Torruella and Selya, Circuit Judges,
                   and McAuliffe,* District Judge.


     Stuart T. Rossman, with whom Arielle Cohen, The National
Consumer Law Center, John C. Bell, Jr., Lee W. Brigham, Bell &
Brigham, M. Scott Barrett, and BarrettWylie LLC were on brief, for
appellant.
     Byrne J. Decker, with whom Catherine R. Connors, Gavin G.
McCarthy, and Pierce Atwood LLP were on brief, for appellee.


                           August 26, 2014



     *
      Of the District of New Hampshire, sitting by designation.
               SELYA,    Circuit    Judge.        Our   system    of    justice    is

precedent-based.             Once we have decided a legal question and

articulated our reasoning, there is usually no need for us to

repastinate the same soil when another case presents essentially

the same legal question.1          So it is here.

               In Merrimon v. Unum Life Insurance Co., ___ F.3d ___ (1st

Cir. 2014) [Nos. 13-2128, 13-2168, slip op.], we recently held that

an insurer, acting in the place and stead of a plan administrator,

properly discharges its duties under the Employee Retirement Income

Security Act (ERISA), 29 U.S.C. §§ 1001-1461, when it pays a death

benefit by establishing a retained asset account (RAA) as long as

that method of payment is called for by the terms of the particular

employee welfare benefit plan.             See id. at ___ [slip op. at 20,

24].       This case and Merrimon are fair congeners; and for the most

part, this case can be decided on the basis of our opinion in

Merrimon.       We write separately only to cover points not squarely

addressed in Merrimon.

               To assure the reader that this case and Merrimon are cut

from the same cloth, we briefly sketch the largely undisputed

facts.         Plaintiff-appellant       Thomas    Vander     Luitgaren    is     the

beneficiary      of     an    employee   welfare    benefit      plan   (the    Plan)

sponsored by his late brother's employer.               The employer funded the


       1
       There are, of course, exceptions to this "law of the
circuit" rule. See San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d
25, 33 (1st Cir. 2010). No such exception pertains here.

                                         -2-
Plan       by   arranging   with   defendant-appellee   Sun   Life   Assurance

Company of Canada for group life insurance.             The employer, as the

Plan administrator, delegated authority to Sun Life to make claim

determinations.

                Following his brother's demise, the appellant submitted

a claim for death benefits to Sun Life, which promptly approved the

claim and paid the death benefit.             Its method of payment lies at

the heart of this case: through a contractor, Sun Life established

an RAA at State Street Bank; credited the full amount of the death

benefit ($151,000) to that account; and mailed the appellant a book

of drafts that he could use to withdraw the credited funds.

                The RAA funds earned interest for the appellant at a rate

of two percent per annum — an interest rate set by Sun Life.2               As

long as the funds remained unliquidated, Sun Life kept them in its

general account and invested them to its own behoof.

                As in Merrimon, it is uncontroverted that the appellant

had the right to withdraw all or any part of his RAA funds at any

time or times; provided, however, that no withdrawal could be for

less than $250.        Sun Life retained the right to close the RAA if

the balance dipped below $250.          In that event, it was obligated to

remit the balance to the appellant.




       2
       Although Sun Life retained the right to adjust the rate
prospectively, the record does not indicate that any interest rate
adjustment was made during the period with which we are concerned.

                                        -3-
             The appellant's RAA proved fleeting: within a matter of

days, the appellant withdrew the full $151,000.             Sun Life then

closed the account and mailed the appellant a check for the

interest earned: $74.48.

             That was not the end of the matter.        The appellant sued

Sun Life in the United States District Court for the District of

Massachusetts.      This suit, filed on behalf of the appellant and a

putative class of similarly situated beneficiaries, alleged that

Sun Life's use of RAAs as a method for paying death benefits

transgressed its ERISA-inspired fiduciary duties in two ways.

First, this method was said to constitute self-dealing in plan

assets in violation of ERISA section 406(b).                See 29 U.S.C.

§ 1106(b).    Second, this method was said to contravene Sun Life's

obligation under ERISA section 404(a) to act "solely in the

interest of the participants and beneficiaries." Id. § 1104(a)(1).

These are essentially the same claims advanced, on strikingly

similar facts, by the Merrimon plaintiffs.          See Merrimon, ___ F.3d

at ___ [slip op. at 4-6].

             In   due   course,   the   parties   cross-moved   for   summary

judgment. On November 19, 2012, the district court granted partial

summary judgment in Sun Life's favor on the section 406(b) claim.

See Vander Luitgaren v. Sun Life Assurance Co. (Vander Luitgaren

I), 966 F. Supp. 2d 59, 68-69 (D. Mass. 2012).          The court reasoned

that the assets backing the appellant's RAA were not plan assets


                                        -4-
and, thus, Sun Life was not dealing with plan assets when it

retained and invested the RAA funds.          See id.    But the court

withheld summary judgment on the section 404(a) claim, suggesting

that "[f]urther factual development [was] necessary."          Id. at 71.

            While the litigation was continuing, the Third Circuit

rejected a nearly identical claim.       See Edmonson v. Lincoln Nat'l

Life Ins. Co., 725 F.3d 406, 423-24 (3d Cir. 2013), cert. denied,

134 S. Ct. 2291 (2014).    At that point, the district court wisely

revisited the matter and granted summary judgment in favor of Sun

Life on the section 404(a) claim. See Vander Luitgaren v. Sun Life

Assurance Co. (Vander Luitgaren II), No. 09-11410, 2013 WL 4058916,

at *5 (D. Mass. Aug. 9, 2013).     The court's order disposed of the

last remaining claim, setting the stage for this timely appeal. We

have jurisdiction under 28 U.S.C. § 1291.

            Most of the issues raised by the appellant duplicate

issues that were decided in Merrimon, and it would serve no useful

purpose to retrace our steps. We therefore affirm substantially on

the basis of Merrimon, limiting our further discussion to two

issues that were not decided in Merrimon.

            Sun Life mounts a challenge to the appellant's statutory

standing.     No   comparable   challenge   was   seasonably   raised   in

Merrimon.    See ___ F.3d at ___ [slip op. at 11 n.3].

            Constitutional standing differs from statutory standing.

Constitutional standing goes to the power of the court: the


                                   -5-
question is whether the parties have presented the kind of case or

controversy that the Constitution allows federal courts to hear.

See Katz v. Pershing, LLC, 672 F.3d 64, 71, 75 (1st Cir. 2012).   In

contrast, statutory standing "is simply statutory interpretation:

the question it asks is whether Congress has accorded this injured

plaintiff the right to sue the defendant [under the particular

statute] to redress his injury." Graden v. Conexant Sys. Inc., 496

F.3d 291, 295 (3d Cir. 2007) (emphasis in original).

          As framed by Sun Life, the statutory standing inquiry

here turns on whether the appellant "falls within the class of

plaintiffs whom Congress has authorized to sue under" ERISA.

Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S. Ct.

1377, 1387 & n.4 (2014); see Radha A. Pathak, Statutory Standing

and the Tyranny of Labels, 62 Okla. L. Rev. 89, 94 (2009).        The

appellant purposes to sue under ERISA section 502(a)(3), which

authorizes a "beneficiary" to sue to obtain "appropriate equitable

relief" for certain ERISA violations.       29 U.S.C. § 1132(a)(3).

Inasmuch as ERISA defines a beneficiary as "a person designated by

a participant . . . who is or may become entitled to a benefit"

under a benefit plan, id. § 1002(8), the appellant would, at first

blush, appear to satisfy this definition.

          But appearances can be deceiving, cf. Aesop, The Wolf in

Sheep's Clothing (circa 550 B.C.), and Sun Life argues cleverly

that because the appellant received the full amount of the death


                               -6-
benefit when that sum was credited to the RAA, he is no longer

entitled to a benefit under the Plan.           On this basis, Sun Life

suggests that the appellant lacks standing to sue under the

statute.

            This   suggestion    need     not    detain     us.      Unlike

constitutional standing, statutory standing is part and parcel of

the merits of a particular claim.         See Katz, 672 F.3d at 75.        It

follows that, in certain circumstances, we may bypass a statutory

standing inquiry and resolve the dispute on the merits.3                  See

United States v. Moloney (In re Price), 685 F.3d 1, 13 n.15 (1st

Cir. 2012), cert. denied, 133 S. Ct. 1796 (2013); Nisselson v.

Lernout, 469 F.3d 143, 151 (1st Cir. 2006).            This is such a case.

Accordingly, we take no view of whether the appellant has statutory

standing at the threshold but, rather, dive directly into the

merits.    See Faber v. Metro. Life Ins. Co., 648 F.3d 98, 103 (2d

Cir. 2011) (adopting this approach in a substantially similar

case).

            Merrimon, without more, resolves the appellant's section

406(b)    claim.   We   held    there    that   "the    funds   backing   the

plaintiffs' RAAs were not, and never became, plan assets," so that


     3
       We need not decide whether, strictly speaking, questions of
statutory standing are jurisdictional questions. That issue is
complicated. Courts have sometimes treated statutory standing as
jurisdictional, particularly in the ERISA context. See Pathak,
supra, at 106 & n.81, 111 & n.105 (collecting cases). But the
Supreme Court has recently cast doubt on that proposition. See
Lexmark, 134 S. Ct. at 1387 n.4.

                                   -7-
"there was no showing of self-dealing [in plan assets] sufficient

to ground a section 406(b) claim." Merrimon, ___ F.3d at ___ [slip

op. at 20].      We premised this holding on the principle that the

assets of a policy-issuing insurer are not plan assets, see 29

U.S.C. § 1101(b)(2), and are not transformed into plan assets by

the establishment of an RAA.          See Merrimon, ___ F.3d at ___ [slip

op. at 16, 18] (explaining that determining whether an item is a

plan asset will often turn on "ordinary notions of property

rights").     These conclusions apply unreservedly in the instant

case.4

            This    leaves     the    appellant's   section   404(a)   claim.

Section 404(a) directs generally that "a fiduciary shall 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

appellant contends that when Sun Life paid him by establishing an

RAA, its decision was not made solely for his benefit.

            In     Merrimon,     we    rejected     a   virtually   identical

contention.      See ___ F.3d at ___ [slip op. at 21-22, 24].          We held

that a life insurer's payment of death benefits by means of an RAA




     4
       The appellant may have preserved here an argument not
preserved in Merrimon premised on the acknowledged status of the
policy as a plan asset.     See 29 U.S.C. § 1101(b)(2); see also
Merrimon, ___ F.3d at ___ [slip op. at 19-20].        Assuming for
argument's sake that this argument was preserved, it is essentially
duplicative of the appellant's other arguments and wholly
unpersuasive.

                                        -8-
does not violate its ERISA-inspired fiduciary duties when the Plan

promises payment in that manner.         See id. at 23-24.

          But this case may be distinct because here, unlike in

Merrimon, the Plan did not state in haec verba that benefits would

be paid by means of an RAA.        In the circumstances of this case,

however, this is a distinction without a difference.

          The Plan at issue here states: "The Death Benefit may be

payable by a method other than a lump sum.           The available methods

of payment will be based on the benefit options offered by Sun Life

at the time of election."       It is undisputed that, at the relevant

time, the establishment of an RAA was among the payment options

offered by Sun Life.    See Vander Luitgaren I, 966 F. Supp. 2d at

68.

          The district court correctly held that Sun Life did not

violate any fiduciary duties owed to the appellant when it chose to

pay benefits through an RAA.        See Vander Luitgaren II, 2013 WL

4058916, at *4; see also Edmonson, 725 F.3d at 422.               After all,

plan sponsors have "considerable latitude" to set the terms of a

plan, including terms that spell out how benefits are to be paid.

Merrimon, ___ F.3d at ___ [slip op. at 23].          The Supreme Court has

explained that "ERISA's principal function [is] to protect [those]

contractually defined benefits."          US Airways, Inc. v. McCutchen,

133 S. Ct. 1537, 1548 (2013) (internal quotation marks omitted).

Consequently,   a   fiduciary    "must    act   in   accordance    with   the


                                    -9-
documents and instruments governing the plan insofar as they accord

with the statute."    Id. (internal quotation marks omitted).

            These principles are controlling here.     Since payment

through an RAA is not per se prohibited by the statute, see

Edmonson, 725 F.3d at 423-24, our inquiry necessarily focuses on

the terms of the Plan.    The Plan promises a guaranteed benefit to

the appellant and specifies that the benefit may be paid other than

by means of a lump sum.

            This specification has got to mean something.        The

appellant urges us to read it as providing for payment by a mode

other than lump sum only as long as the choice of an alternative

does not benefit Sun Life.       But nothing in the Plan language

suggests so curious a restriction, and we therefore reject the

appellant's embellishment.

            In our view, a better reading of the phrasing is that Sun

Life can discharge its obligations to the beneficiary by paying the

promised benefit through any one of a range of recognized payment

modalities; provided, however, that the chosen modality does not

unfairly diminish, impair, restrict, or burden the beneficiary's

rights.    The focus, we think, is on how the method of payment

affects the beneficiary — not on how it affects the insurer.      So

viewed, Sun Life's choice to pay the appellant through the medium

of an RAA was a permissible step that comported with the Plan

terms.    See id.


                                 -10-
             The short of it is that, in the circumstances presented

here, Sun Life's choice to pay by means of an RAA did not violate

its fiduciary duties.    See id.   This result is entirely consistent

with Merrimon.     There, we found that the insurer was free to pay

the death benefit by means of an RAA when that was the method of

payment specified in the plan documents. See Merrimon, ___ F.3d at

___ [slip op. at 23-24].        We do not believe that a legally

significant difference exists where, as here, the Plan documents,

instead of singling out RAAs as the exclusive method of payment,

allowed the insurer to pay other than by a lump sum.5

             ERISA section 404(a) does not require a fiduciary to don

the commercial equivalent of sackcloth and ashes.       What it does

require is that the fiduciary not place its own interests ahead of

those of the Plan beneficiary.      An example may help to illustrate

the point.     Suppose the Plan specifies that the death benefit may

be paid other than in American dollars.     If, in a particular case,

it makes no practical difference to the beneficiary whether she

receives her promised benefit in dollars or euros, but it is to the

fiduciary's advantage to pay in euros, it could not rationally be

argued that payment in euros was a breach of the fiduciary's duty



     5
       The result that we reach is also consistent with our
decision in Mogel v. Unum Life Insurance Co., 547 F.3d 23 (1st Cir.
2008). There, the plan language specified that benefit payments
would "be made in one lump sum," and we held the insurer to that
language. See id. at 25-26; see also Merrimon, ___ F.3d at ___
[slip op. at 18] (discussing and distinguishing Mogel).

                                   -11-
under section 404(a).       When the fiduciary's payment of a benefit

does   not   unfairly   diminish,      impair,   restrict,   or   burden   the

beneficiary's rights, section 404(a) is not transgressed.

             Let us be perfectly clear.          Our decision turns on two

important considerations: the language of the Plan and the fact

that Sun Life gave the appellant immediate and unfettered access to

the    promised   benefit   in   its    entirety.     If   either   of   those

considerations were not present, this would be a different case.

             We need go no further. For the reasons elucidated above,

the judgment of the district court is affirmed.



Affirmed.




                                       -12-
