                                In the
    United States Court of Appeals
                 For the Seventh Circuit
                       _________________

No. 16-3808

IN RE: GEORGE W. MATHIAS,
                                                             Petitioner.
                       _________________

        Petition for Writ of Mandamus from the United States
           District Court for the Central District of Illinois.
             No. 16-CV-1323 — Michael M. Mihm, Judge.
                       _________________

 SUBMITTED DECEMBER 23, 2016 — DECIDED AUGUST 10, 2017
                 __________________

   Before BAUER, RIPPLE, and SYKES, Circuit Judges.
   SYKES, Circuit Judge. This mandamus petition raises a
question of first impression in this circuit: Does ERISA’s
venue provision, 29 U.S.C. § 1132(e)(2), preclude enforce-
ment of a forum-selection clause in an employee-benefits
plan? George Mathias, the plan beneficiary and mandamus
petitioner here, argues that it does; the Secretary of Labor, as
amicus curiae, supports that interpretation. The respondent
health plans argue that § 1132(e)(2) is permissive only and
does not invalidate a forum-selection clause contained in
plan documents.
2                                                   No. 16-3808

    Only one circuit has addressed this question. The Sixth
Circuit has held that an ERISA plan’s forum-selection clause
is enforceable even if it overrides the beneficiary’s choice of a
venue permitted by § 1132(e)(2). Smith v. Aegon Cos. Pension
Plan, 769 F.3d 922, 931–34 (6th Cir. 2014), cert. denied,
No. 14-1168 (Jan. 11, 2016). The court reasoned that because
the statute is phrased in permissive terms—it states that a
suit “may be brought” in one of several federal judicial
districts—it does not preclude the parties from contractually
channeling venue to a particular federal district. Id. at 932.
We agree and join the Sixth Circuit in holding that ERISA’s
venue provision does not invalidate a forum-selection clause
contained in plan documents.
                        I. Background
    This case is in its early stages and the mandamus petition
raises a single legal issue, so we can be brief about the factual
and procedural background. From 1978 to 1997, Mathias
worked for Caterpillar, Inc., at its plant in York, Pennsylva-
nia. In May 1997 he experienced serious health issues, and
the Social Security Administration declared him disabled as
of that date. Caterpillar covered his health insurance as an
employee on long-term disability, billing him accordingly for
his portion of the premium. In September 2012 Mathias chose
to retire retroactively, effective October 1, 2009. Caterpillar
failed to change Mathias’s status and did not realize its
mistake until the middle of 2013. The company then notified
Mathias that he owed more than $9,500 in past-due premi-
ums, which reflected the difference between the rate for a
long-term disabled employee and the rate for a retired
No. 16-3808                                                            3

employee. When Mathias did not pay that amount,
Caterpillar terminated his benefits.
    Mathias sued Caterpillar and the relevant health plans in
federal court in the Eastern District of Pennsylvania. 1 (We’ll
refer to the defendants collectively as “Caterpillar.”) The plan
documents require suit in federal court in the Central District
of Illinois, so Caterpillar moved to transfer the case under
28 U.S.C. § 1404(a). Mathias opposed the motion, arguing
that the forum-selection clause is invalid in light of
§ 1132(e)(2), ERISA’s venue provision. Judge Robreno of the
Eastern District of Pennsylvania rejected that argument,
relying primarily on the Sixth Circuit’s decision in Smith,
which held that forum-selection clauses in ERISA plans are
enforceable and not inconsistent with the text of ERISA’s
venue provision or the purposes of ERISA more generally.
769 F.3d at 931–34. Judge Robreno accordingly granted
Caterpillar’s motion and transferred the case to the Central
District of Illinois.
   When the case arrived in the Central District, Mathias
moved to transfer it back to Pennsylvania—either to the
Eastern or Middle District 2—again arguing that the plan’s
forum-selection clause is invalid under § 1132(e)(2). Judge
Mihm denied the motion.


1
 The company maintains several health plans covering active and retired
employees.

2
  Mathias lives in the Middle District of Pennsylvania. Caterpillar’s York
plant, where he worked, is also located there. Caterpillar has dealerships
in the Eastern District of Pennsylvania.
4                                                   No. 16-3808

    Mathias petitioned for mandamus relief in this court. He
asks us to direct Judge Mihm to transfer the case to the
Eastern or Middle District of Pennsylvania. Caterpillar has
responded, and Mathias tendered a reply brief with a motion
for leave to file it. We now grant that motion and accept the
reply brief. In addition, we invited the Secretary of Labor to
file an amicus curiae brief. He has done so and supports
Mathias’s interpretation of § 1132(e)(2). The matter is ready
for decision.
                          II. Analysis
    We begin by noting that mandamus is the appropriate
procedural method to obtain review of a district court’s
decision on a § 1404(a) transfer motion. Without the availa-
bility of mandamus relief, the question of proper venue
escapes meaningful appellate review. In re Hudson, 710 F.3d
716, 717 (7th Cir. 2013); In re LimitNone, LLC, 551 F.3d 572, 575
(7th Cir. 2008) (per curiam); In re Nat’l Presto Indus., Inc.,
347 F.3d 662, 663 (7th Cir. 2003).
    Mathias could have asked the Third Circuit for manda-
mus relief from Judge Robreno’s transfer order, but for
reasons not clear to us, he waited to seek appellate review
until after Judge Mihm denied his motion to send the case
back to Pennsylvania. Appellate review would have been
more appropriate in the Third Circuit, where the transferor
court sits. See 15 CHARLES ALAN WRIGHT ET AL., FEDERAL
PRACTICE AND PROCEDURE § 3846 (4th ed. 2016). In consider-
ing Mathias’s motion to retransfer, Judge Mihm was bound
by law-of-the-case principles that apply to transfer decisions
of another district court.
No. 16-3808                                                      5

     Constrained by those principles, the motion was highly
unlikely to succeed. Although a court may revisit a prior
decision of its own or a coordinate court, it ordinarily should
not do so “in the absence of extraordinary circumstances
such as where the initial decision was ‘clearly erroneous and
would work a manifest injustice.’” Christianson v. Colt Indus.
Operating Corp., 486 U.S. 800, 817 (1988) (quoting Arizona v.
California, 460 U.S. 605, 618 n.8 (1983)). “[T]he policies sup-
porting the doctrine [of law of the case] apply with even
greater force to transfer decisions than to decisions of sub-
stantive law; transferee courts that feel entirely free to revisit
transfer decisions of a coordinate court threaten to send
litigants into a vicious circle of litigation.” Id. at 816; see also
United States v. Wyatt, 672 F.3d 519, 523 (7th Cir. 2012) (“[I]n
the usual case another court should not respond by batting
the suit back again.”).
    Unsurprisingly then, Mathias’s retransfer motion failed.
Judge Mihm found no clear defect or manifest injustice in
Judge Robreno’s ruling that the plan’s forum-selection clause
is valid and enforceable. With no controlling Supreme Court
or Seventh Circuit precedent, Judge Mihm quite reasonably
deferred to Judge Robreno’s decision, which drew primarily
on the Sixth Circuit’s opinion in Smith, the only appellate
ruling on this subject. Judge Mihm also looked to a recent
decision by a district judge in the Southern District of Illinois
collecting district-court decisions on this issue, most of which
follow Smith. Feather v. SSM Health Care, 216 F. Supp. 3d 934
(S.D. Ill. 2016) (collecting cases).
  Like Judge Robreno before him, Judge Mihm rejected
Mathias’s argument that § 1132(e)(2) gives plan beneficiaries
6                                                    No. 16-3808

a statutory right to their choice of venue. He observed that
forum-selection clauses are “not inconsistent with the pur-
poses of ERISA generally or its venue statute in particular.”
The judge went on to explain that a forum-selection clause
like the one at issue here “allows a plaintiff access to federal
courts when it provides for venue in a federal court” and
“promotes other ERISA policies, including uniformity of
administration and reducing costs, which benefit all partici-
pants and beneficiaries.”
    Our review of Judge Mihm’s order necessarily incorpo-
rates the merits of Judge Robreno’s original transfer decision.
Alexander v. Erie Ins. Exch., 982 F.2d 1153, 1156 (7th Cir. 1993);
see also Posnanski v. Gibney, 421 F.3d 977, 980–81 (9th Cir.
2005); SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172, 177
(2d Cir. 2000); Hill v. Henderson, 195 F.3d 671, 677 (D.C. Cir.
1999). Law-of-the-case principles do not insulate the question
from appellate review. Christianson, 486 U.S. at 817; Minch v.
City of Chicago, 486 F.3d 294, 302 (7th Cir. 2007); McMasters v.
United States, 260 F.3d 814, 818 (7th Cir. 2001). If the district
court applied the wrong standard, mandamus relief may be
appropriate. Atl. Marine Constr. Co. v. U.S. Dist. Court for W.
Dist. of Tex., 134 S. Ct. 568, 575 (2013).
    As in all mandamus proceedings, however, the party
seeking mandamus in the transfer context “has an uphill
fight”; the writ may be used to reverse a transfer decision
“only if the applicant can show that the transfer order is a
‘violation of a clear and indisputable legal right, or, at the
very least, is patently erroneous.’” Hudson, 710 F.3d at 718–19
(quoting In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1295 (7th
Cir. 1995) (alteration omitted)); see also In re Balsimo, 68 F.3d
No. 16-3808                                                     7

185, 187 (7th Cir. 1995). That steep standard has not been met
here.
    The transfer statute provides: “For the convenience of
parties and witnesses, in the interest of justice, a district court
may transfer any civil action to any other district or division
where it might have been brought or to any district or
division to which all parties have consented.” § 1404(a). The
Supreme Court has recently reiterated that § 1404(a) is the
proper “mechanism for enforcement of forum-selection
clauses that point to a particular federal district.” Atl. Marine,
134 S. Ct. at 579. But the § 1404(a) analysis is much narrower
in this context:
       In the typical case not involving a
       forum-selection clause, a district court consid-
       ering a § 1404(a) motion (or a forum non con-
       veniens motion) must evaluate both the con-
       venience of the parties and various
       public-interest considerations. Ordinarily, the
       district court would weigh the relevant factors
       and decide whether, on balance, a transfer
       would serve “the convenience of parties and
       witnesses” and otherwise promote “the interest
       of justice.” § 1404(a)
       The calculus changes, however, when the par-
       ties’ contract contains a valid forum-selection
       clause, which “represents the parties’ agree-
       ment as to the most proper forum.” Stewart
       [Org., Inc. v. Ricoh Corp., 487 U.S. 22, 31 (1988)].
       The “enforcement of valid forum-selection
8                                                  No. 16-3808

       clauses, bargained for by the parties, protects
       their legitimate expectations and furthers vital
       interests of the justice system.” Id. at 33
       (Kennedy, J., concurring). For that reason, and
       because the overarching consideration under
       § 1404(a) is whether a transfer would promote
       “the interest of justice,” “a valid fo-
       rum-selection clause [should be] given control-
       ling weight in all but the most exceptional cas-
       es.” Id.
Atl. Marine, 134 S. Ct. at 581.
    Atlantic Marine clarified that “[t]he presence of a valid
forum-selection clause requires district courts to adjust their
usual § 1404(a) analysis in three ways. First, the plaintiff’s
choice of forum merits no weight.” Id. Second, and relatedly,
“a court evaluating a defendant’s § 1404(a) motion to transfer
based on a forum-selection clause should not consider
arguments about the parties’ private interests.” Id. at 582. The
Court explained that a contractual forum-selection clause is
an agreed-upon predispute allocation of the plaintiff’s
“venue privilege” and the parties’ respective private inter-
ests. Id. at 581–82. Accordingly, to resolve a transfer motion
in this context, “a district court may consider arguments
about public-interest factors only.” Id. at 582. And because
public-interest factors will “rarely defeat” a transfer to the
contractually chosen forum, “the practical result is that
forum-selection clauses should control except in unusual
cases.” Id.
   Although ERISA plans are a special kind of contract and
courts are attentive to the statutory goal of protecting bene-
No. 16-3808                                                    9

ficiaries, an ERISA plan is nonetheless a contract. Larson v.
United Healthcare Ins. Co., 723 F.3d 905, 911 (7th Cir. 2013)
(explaining that a claim for benefits “is governed by a federal
common law of contract keyed to the policies codified in
ERISA”); Herzberger v. Standard Ins. Co., 205 F.3d 327, 330 (7th
Cir. 2000). And the Supreme Court held long ago—well
before Atlantic Marine limited the scope of the § 1404(a)
analysis in this context—that contractual forum-selection
clauses are presumptively valid even in the absence of
arm’s-length bargaining. Carnival Cruise Lines, Inc. v. Shute,
499 U.S. 585, 593–95 (1991).
   What all this means for the present dispute is that the
forum-selection clause in the Caterpillar plan is controlling
unless ERISA invalidates it. The relevant part of ERISA’s
venue provision states:
       Where an action under this subchapter is
       brought in a district court of the United States,
       it may be brought in the district where the plan is
       administered, where the breach took place, or where a
       defendant resides or may be found, and process
       may be served in any other district where a
       defendant resides or may be found.
§ 1132(e)(2) (emphasis added). Nothing in this text expressly
invalidates forum-selection clauses in employee-benefits
plans.
   Mathias argues that ERISA’s broad beneficiary-protection
purpose requires us to read this language as conferring on
plan beneficiaries a statutory right to choose any of the listed
venues without regard to a forum-selection clause contained
10                                                 No. 16-3808

in the governing plan documents. This beneficiary right of
venue choice, the argument goes, maximizes ERISA’s goal of
“protect[ing] … the interests of participants … by provid-
ing … ready access to the Federal courts.” 29 U.S.C. § 1001(b).
With support from the Secretary of Labor, Mathias argues
that forum-selection clauses in plan documents are categori-
cally invalid because they deprive plan participants and
beneficiaries of the right to select from the menu of venue
options offered by § 1132(e)(2).
    The Sixth Circuit has carefully considered and rejected
this interpretation of ERISA’s venue provision. Smith,
769 F.3d at 931–33. At issue in Smith was a pension plan’s
forum-selection clause directing litigation to federal court in
Iowa. Id. at 925. A beneficiary sued in Kentucky instead,
arguing that the plan’s forum-selection clause was invalid
under § 1132(e)(2). As here, the Secretary of Labor appeared
as amicus curiae in support of the beneficiary’s position. The
Sixth Circuit rejected that view, noting that the statute is not
phrased in rights-granting terms: it states only that when a
civil action is brought in federal court, “it may be brought in
the district where the plan is administered, where the breach
took place, or where a defendant resides or may be found.”
§ 1132(e)(2) (emphasis added). This “may be brought”
phrasing is entirely permissive, and no other statutory
language precludes the parties from contractually narrowing
the options to one of the venues listed in the statute. Smith,
769 F.3d at 931–32.
   The Sixth Circuit also explained that forum-selection
clauses channeling litigation to a particular federal court
preserve ready access to federal court, consistent with the
No. 16-3808                                                             11

general policy expressed in § 1001(b). Id. at 931. Finally, the
court observed that plan language limiting litigation to a
single federal district promotes uniformity in decisions
interpreting the plan, thus reducing administrative costs for
plan sponsors and beneficiaries alike. 3 Id. at 931–32.
    Though Smith was not unanimous, see id. at 934–36 (Clay,
J. dissenting), we find the majority’s reasoning convincing.
The Sixth Circuit’s analysis is faithful to the statutory text
and not inconsistent with the broader statutory policy of
maintaining access to federal court. Moreover, the
forum-selection clause in the Caterpillar plan funnels litiga-
tion to a venue listed in § 1132(e)(2) and so has simply settled
on one of the various statutory options. See Fry v. Exelon Corp.
Cash Balance Pension Plan, 571 F.3d 644, 646 (7th Cir. 2009)
(“Employers are entitled to vary by contract those aspects of
pension plans ERISA makes variable … .”). As the Sixth
Circuit explained in Smith, ERISA’s statutory scheme “is built
around reliance on the face of written plan documents,”
769 F.3d at 929–30 (quoting US Airways, Inc. v. McCutchen,
133 S. Ct. 1537, 1548 (2013)), and sponsoring employers and
plan administrators are given significant leeway in the
design of benefits plans.
   In support of their position, Mathias and the Secretary
direct us to an obscure decision of the Supreme Court: In
Boyd v. Grand Trunk Western Railroad Co., 338 U.S. 263 (1949)
(per curiam), the Court invalidated a contractual

3
  The Sixth Circuit declined to defer to the views of the Secretary of
Labor. See Smith v. Aegon Cos. Pension Plan, 769 F.3d 922, 926–29 (7th Cir.
2014). The Secretary has not argued for agency deference in this case.
12                                                  No. 16-3808

forum-selection clause as inconsistent with the Federal
Employers’ Liability Act (“FELA”). Boyd involved a railroad
employee who was injured on the job and twice received
advances from his employer while he was recuperating, each
time signing a stipulation that any suit regarding the accident
would be brought in the county or district where the injury
occurred. Id. at 263–64.
    In a brief per curiam opinion, the Court invalidated the
stipulated forum clause, noting that the agreements were
signed after the employee was injured and limited fora
otherwise available under FELA. Id. at 265–66. This limita-
tion, the Court held, violated a provision in FELA voiding
“[a]ny contract, rule, regulation, or device whatsoever, the
purpose or intent of which shall be to enable any common
carrier to exempt itself from any liability created by this Act.”
Id. at 265.
   Boyd is a bit of a relic, but it has not been overruled.
Mathias and the Secretary urge us to give it controlling force
here. We’re not inclined to extend Boyd to modern
forum-clause jurisprudence. Boyd was decided in an era of
marked judicial suspicion of contractual forum selection. The
Court has since adopted “a more hospitable attitude toward
forum-selection clauses.” M/S Bremen v. Zapata Off-Shore Co.,
407 U.S. 1, 10 (1972). Indeed, as Atlantic Marine holds, a
contractual choice of forum is now considered controlling
“except in unusual cases.” 134 S. Ct. at 582.
    More to the point here, Boyd sheds no light on the proper
interpretation of ERISA’s venue provision. As we’ve ex-
plained, nothing in the text of § 1132(e)(2) precludes the
parties from contractually channeling litigation to a particu-
No. 16-3808                                                                13

lar federal district. Nor is contractual forum selection in-
compatible with ERISA’s policy goals more generally.
“ERISA represents a ‘careful balancing’ between ensuring
fair and prompt enforcement of rights under a plan and the
encouragement of the creation of such plans.” Fifth Third
Bancorp v. Dudenhoeffer, 134 S. Ct. 2459, 2470 (2014) (quoting
Conkright v. Frommert, 559 U.S. 506, 517 (2010)); see also Varity
Corp. v. Howe, 516 U.S. 489, 497 (1996) (explaining that “courts
may have to take account of competing congressional pur-
poses” when examining to what extent ERISA requires
departing from common-law trust requirements). As the
Sixth Circuit observed in Smith, forum-selection clauses
promote uniformity in plan administration and reduce
administrative costs and in that sense are consistent with the
broader statutory goals of ERISA. 769 F.3d at 931–32.
   The forum-selection clause in the Caterpillar plan chooses
from among the venue options listed in § 1132(e)(2), and
nothing in the statute makes that choice invalid. Accordingly,
we hold that the plan’s forum-selection clause is enforceable. 4
Mathias’s petition for a writ of mandamus is DENIED.



4 The Eighth Circuit recently considered a very similar petition for a writ
of mandamus in which the petitioner argued that a contractual
forum-selection clause was invalid under ERISA’s venue provision and
sought retransfer of the case. In re Clause, No. 16-2607 (8th Cir. Sept. 27,
2016), cert. denied, 84 U.S.L.W. 3344 (U.S. Jan. 17, 2017) (No. 16-641). After
consideration of an amicus curiae brief filed by the Secretary of Labor, the
Eighth Circuit denied the petition without explanation. Id.
14                                                            No. 16-3808

    RIPPLE, Circuit Judge, dissenting. My esteemed colleagues
have voted to deny the petition. Their opinion, as well as the
thoughtful opinions of other courts that have taken that posi-
tion, demonstrate that their view is a very defensible perspec-
tive on a very difficult issue.1 Nevertheless, I part company



1 As my colleagues have noted, the question presented here has been pre-
sented previously in many district courts throughout the country, and the
majority have determined that forum selection clauses are not inconsistent
with ERISA. Among our sister circuits, only the Sixth has considered the
question. In Smith v. Aegon Cos. Pension Plan, 769 F.3d 922 (6th Cir. 2014),
cert. denied, 136 S. Ct. 791 (2016), the panel held, over a dissent, that the
clause was enforceable. It first considered the views of the Secretary and
concluded that they were entitled to no deference both because the ques-
tion was one of pure statutory interpretation and because the opinion ex-
pressed by the Secretary had not been consistently asserted over the life
of the statute. Turning to the statutory question without the benefit of the
Secretary’s position, the court concluded that ERISA’s venue provision is
permissive, because its language provides only that an ERISA action “may
be brought” in one of several districts and that Congress nowhere prohib-
ited the parties from narrowing those options. Id. at 932. The court further
reasoned that forum selection clauses are consistent with ERISA’s statu-
tory scheme because it is built around reliance on the face of written plan
documents and because employers are given large leeway in the design of
pension plans. Id. at 929–30 (citing US Airways, Inc. v. McCutchen, 133 S. Ct.
1537, 1548 (2013)).
    Judge Clay dissented. He concluded that the public policy embodied
in ERISA was designed to protect the interests of plan participants and the
statute explicitly set forth as an enacted purpose to remove jurisdictional
and procedural obstacles. Id. at 935–36 (Clay, J., dissenting). He wrote that
the broad venue provision
        is indispensable for many of those individuals whose
        rights ERISA seeks to protect, since claimants in suits for
No. 16-3808                                                            15

because, in my view, the statutory text of ERISA, read in con-
text and in light of the purposes of the statute, gives plan par-
ticipants certain procedural protections, including a right to
select from among the venues enumerated in the statute.
     Mr. Mathias admittedly has to face an array of general
principles that militate against acceptance of his position.
First, although federal law once disfavored forum selection
clauses, after the Supreme Court’s decision in The Bremen v.
Zapata Off-Shore Co., 407 U.S. 1 (1972), courts have accepted
them as prima facie valid. Indeed, the Supreme Court has not
required forum selection clauses to be the result of arms-
length negotiations in order to be enforceable. See Carnival
Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593–95 (1991). General
principles governing the transfer of cases within the federal
system also militate against his position, as outlined in the
majority opinion. See Op. at 7‒8 (discussing Atl. Marine Con-
str. Co., Inc. v. United States Dist. Court for the W. Dist. of Tex.,
134 S. Ct. 568 (2013)). Mr. Mathias also must contend with the
basic principle of ERISA interpretation that the Plan must be
administered according to the plan documents, and, here, the
documents plainly state that suit can be brought only in the
Central District of Illinois.
   In the face of these general principles, Mr. Mathias, along
with the Secretary of Labor, contend that the forum selection

         plan benefits—retirees on a limited budget, sick or disa-
         bled workers, widows and other dependents—are often
         the most vulnerable individuals in our society, and are
         the least likely to have the financial or other wherewithal
         to litigate in a distant venue.
Id. at 935.
16                                                   No. 16-3808

clause in this case is invalid, and that therefore the district
court should have employed the traditional 1404(a) inquiry
without any reference to the forum selection clause in the plan
documents. Their core contention is that forum selection
clauses in ERISA plan documents cannot narrow the venues
available to a plaintiff so as to exclude a venue specifically au-
thorized by the ERISA venue provision. That provision states
that a challenge under the relevant subchapter of ERISA “may
be brought in the district where the plan is administered,
where the breach took place, or where a defendant resides or
may be found, and process may be served in any other district
where a defendant resides or may be found.” 29 U.S.C.
§ 1132(e)(2). The Secretary views this provision as intention-
ally protective of the ERISA beneficiary. It ensures that the
beneficiary has recourse to the federal court at a place near
where the benefit was due. While he acknowledges that fidu-
ciaries must “discharge … duties … in accordance with the
documents and instruments governing the plan insofar as
such documents and instruments are consistent with the pro-
visions of” the statute, id. § 1104(a)(1), he points out that the
statute ought to be read “to protect … the interests of partici-
pants in employee benefit plans … by providing for appropri-
ate remedies, sanctions, and ready access to the Federal
courts,” id. § 1001(b). Therefore, he argues, the special venue
provisions cannot be cancelled out by agreement between the
employer and the plan.
    I think there is merit in the Secretary’s view. Certainly, the
Supreme Court’s cases have sanctioned the widespread use
of forum selection clauses. But, as the Supreme Court has
made clear, “[a] contractual choice-of-forum clause should be
held unenforceable if enforcement would contravene a strong
No. 16-3808                                                              17

public policy of the forum in which suit is brought, whether
declared by statute or by judicial decision.” The Bremen, 407
U.S. at 15. In my view, a contractual clause that restricts the
right of an ERISA plan participant to an action in a forum far
away from his home and his place of employment2 with the
defendant contravenes the strong public policy embodied in
ERISA itself. I am persuaded by the opinion of Judge Torresen
in the District of Maine, in Dumont v. PepsiCo, Inc., No. 1:15-
cv-469-NT, -- F. Supp. 3d --, 2016 WL 3620736 (D. Me. June 29,
2016). As she notes, ERISA was enacted in 1974 against a back-
drop of public dissatisfaction with the private pension sys-
tem. The subchapter before us in the present action,
        entitled “Protection of Employee Benefit
        Rights[,]” sets forth the Congressional findings
        and contains a declaration of policy. 29 U.S.C.
        § 1001. In enacting ERISA, Congress found that
        the “continued well-being and security of mil-
        lions of employees and their dependents are di-
        rectly affected by [employee benefit plans].” Id.
        § 1001(a). Congress further declared that a pol-
        icy of ERISA was “to protect … the interests of
        participants in employee benefit plans and their
        beneficiaries … by providing for appropriate

2 Mr. Mathias, a resident of Hanover, Pennsylvania, employed by Cater-
pillar most recently in York, Pennsylvania, brought this action against his
employer and the relevant plans in the Eastern District of Pennsylvania.
Both of these cities are within the confines of the Middle District of Penn-
sylvania. Mr. Mathias claimed venue was proper in the Eastern District
under the clause of the ERISA venue provision allowing an action “where
a defendant resides or may be found,” 29 U.S.C. § 1132(e)(2), citing Cater-
pillar’s distributorships throughout the Eastern District. See R.7-3 at 1–2.
18                                                 No. 16-3808

       remedies, sanctions, and ready access to the Fed-
       eral Courts.” Id. § 1001(b) (emphasis added).
Dumont, 2016 WL 3620736, at *7 (second, third, and fourth al-
terations in original). In ERISA, Congress chose to enact a spe-
cific venue provision, rather than relying on the general fed-
eral venue rules provided by § 1391. As Judge Torresen notes,
the Supreme Court considered a similarly worded special
venue provision under the Federal Employers’ Liability Act
in Boyd v. Grand Trunk Western Railroad Co., 338 U.S. 263
(1949), and concluded that “[t]he right to select the forum
granted in [FELA’s venue provision] is a substantial right. It
would thwart the express purpose of the [statute] to sanction
defeat of that right by the device at bar.” Id. at 266. The “de-
vice at bar” that the Court considered was an individually ne-
gotiated instrument between an injured worker and his em-
ployer, following the injury, that limited the worker’s choice
of venue in exchange for money. In short, in considering a dif-
ferent protective statute, the Court found a “right” to the
venue that could not be abrogated by a directly negotiated
contract for consideration with the beneficiary. Although
Boyd was decided prior to The Bremen and in an era of skepti-
cism toward forum selection clauses, its holding on the ques-
tion of statutory interpretation remains intact. Although the
Sixth Circuit concluded that the “permissive” language of the
ERISA venue provision did not create a right to the enumer-
ated venues, see Smith v. Aegon Companies Pension Plan, 769
F.3d 922, 932 (6th Cir. 2014), such a decision is hard to square
with Boyd’s holding.
    As Judge Torresen notes, an ERISA plan beneficiary is in
a unique and difficult position with respect to a forum selec-
No. 16-3808                                                    19

tion clause embedded in the plan documents. An ERISA ben-
eficiary has no role in the negotiation or even the acceptance
of the plan terms. Unlike the plaintiffs in cases like Shute, who
chose to enter a contract as a party, even though they did not
negotiate the terms in an arms-length transaction, an ERISA
beneficiary is, as a practical matter, simply a beneficiary of an
agreement that other parties have negotiated and accepted.
    Although I reach this result on the basis of my own inter-
pretation of the statute, I hasten to add that I also am per-
suaded that the Secretary’s interpretation is indeed entitled to
respect. Although “[c]ertain aspects of statutory interpreta-
tion remain within the purview of the courts” rather than
“properly understood as delegated by Congress to an expert
and accountable administrative body,” Negusie v. Holder, 555
U.S. 511, 531 (2009) (Stevens, J., concurring in part and dis-
senting in part), I believe that we need to give some respect to
the interpretation of the officer charged with the administra-
tion of the statute. While I would reach the same result on the
basis of my own analysis, I respectfully acknowledge the Sec-
retary’s expertise with respect to the statute.
    Accordingly, I respectfully part company with my es-
teemed colleagues. In my view, the forum selection clause at
issue is invalid and unenforceable because it is inconsistent
with the forum selection rights protected by § 1132. I therefore
conclude that mandamus relief is appropriate in the present
case. I would direct the district court to retransfer the case for
adjudication.
