                    RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit Rule 206
                               File Name: 12a0203p.06

             UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT
                             _________________


                                               X
                                                -
 JAMES CHRISTOPHER BIDWELL; SUSAN

                        Plaintiffs-Appellants, --
 WILSON,

                                                -
                                                    No. 11-5493

                                                ,
                                                 >
                                                -
          v.

                                                -
                                                -
 UNIVERSITY MEDICAL CENTER, INC.;
                                                -
 LINCOLN RETIREMENT SERVICES COMPANY,
                                                -
                       Defendants-Appellees. N
 LLC,

                  Appeal from the United States District Court
               for the Western District of Kentucky at Louisville.
              No. 3:10-cv-5—Thomas B. Russell, District Judge.
                              Argued: June 8, 2012
                        Decided and Filed: June 29, 2012
            Before: MOORE, ROGERS, and GRIFFIN, Circuit Judges.

                               _________________

                                   COUNSEL
ARGUED: John Frith Stewart, STEWART, ROELANDT, CRAIGMYLE & LYNCH,
PLLC, Crestwood, Kentucky, for Appellants. Mark Edward Elsener, PORTER,
WRIGHT, MORRIS & ARTHUR, LLP, Cincinnati, Ohio, Jason P. Renzelmann, FROST
BROWN TODD LLC, Louisville, Kentucky, for Appellees. ON BRIEF: John Frith
Stewart, STEWART, ROELANDT, CRAIGMYLE & LYNCH, PLLC, Crestwood,
Kentucky, for Appellants. Mark Edward Elsener, PORTER, WRIGHT, MORRIS &
ARTHUR, LLP, Cincinnati, Ohio, Jason P. Renzelmann, Gene F. Price, Griffin Terry
Sumner, FROST BROWN TODD LLC, Louisville, Kentucky, for Appellees.




                                         1
No. 11-5493           Bidwell et al. v. Univ. Med. Ctr. et al.                                Page 2


                                      _________________

                                            OPINION
                                      _________________

        KAREN NELSON MOORE, Circuit Judge.                         James Christopher Bidwell
(“Bidwell”) and Susan Wilson (“Wilson”) appeal from a final order granting judgment
on the administrative record to University Medical Center, Inc. (“UMC”) and Lincoln
Retirement Services Company LLC (“Lincoln”). Bidwell and Wilson assert claims
against UMC and Lincoln for breach of fiduciary duty under the Employee Retirement
Income Security Act (“ERISA”) in connection with the transfer of Bidwell’s and
Wilson’s investments from a stable value fund to a Qualified Default Investment
Alternative (“QDIA”) as newly defined by the Department of Labor (“DOL”). For the
reasons that follow, we AFFIRM the judgment of the district court.

                I. BACKGROUND AND PROCEDURAL HISTORY

A. Background

        Bidwell and Wilson were employees at UMC and participated in UMC’s
retirement contribution plans. UMC administered the plan itself, although it sometimes
solicited Lincoln’s assistance for administrative tasks. UMC provided plan participants
with a variety of investment vehicles to choose from, and both Bidwell and Wilson
elected to locate one hundred percent of their investment in the Lincoln Stable Value
Fund. At the time of their election, the Lincoln Stable Value Fund was also used by
UMC as the default investment vehicle for § 403(b) plan participants who failed to elect
a preferred investment vehicle after enrollment.

        In 2007, the DOL promulgated new regulations pursuant to the Pension
Protection Act (“PPA”)1 that aimed to insulate employers from liability for default
investments made on behalf of retirement-plan participants who failed to elect their


        1
          The PPA, which was enacted in 2006, sought to increase employee participation in § 401(k)
retirement plans by removing impediments to automatic-enrollment plans and limiting employer liability
for investments made pursuant to automatic-enrollment plans.
No. 11-5493         Bidwell et al. v. Univ. Med. Ctr. et al.                           Page 3


preferred investment vehicle. In essence, the DOL regulation created “safe harbor relief
from fiduciary liability” for plan administrators that directed automatic-enrollment
investments into QDIAs, which were defined by the DOL as investments “capable of
meeting a worker’s long-term retirement savings needs.” R. 32-1 (DOL Fact Sheet at
1-2). By creating incentives for employers to direct default investments into QDIAs, the
DOL sought to incentivize employers to move investments away from “low-risk, low-
return ‘default’ investments,” such as stable-value funds, that may not always keep pace
with inflation. Id. at 1. Thus, through the Safe Harbor, the DOL placed employers in
the position of being able to make riskier short-term investments that would be more
lucrative in the long term without the fear of liability for market fluctuations. To
accommodate       existing   default-investment       structures,   the   regulation     also
“grandfather[ed]” in stable-value funds that employers utilized as their default-
investment mechanism prior to the PPA’s enactment. Id. at 2 (internal quotation marks
omitted).

        In 2008, UMC sought to harmonize its investment practices with the new DOL
regulation by making its default-investment vehicle the Lincoln LifeSpan Fund and
transferring existing investments in the prior default fund, the Lincoln Stable Value
Fund, into the Lincoln LifeSpan Fund. Because UMC did not have records of which
participants elected to invest in the Lincoln Stable Value Fund and which participants
were investors by default, UMC sent notice of the change to all participants with one-
hundred percent of their investment in the Lincoln Stable Value Fund. The notice
advised the participants that all existing investments in the Lincoln Stable Value Fund
would be transferred to the Lincoln LifeSpan Fund unless the participants gave
instruction otherwise by July 16, 2008.

        UMC solicited the assistance of Lincoln in distributing the notices. UMC sent
Lincoln a list of 2,532 recipients, which included Bidwell and Wilson with their correct
addresses, and instructed Lincoln to mail each recipient a copy of the notice letter.
Lincoln’s records indicate that it mailed all 2,532 letters by first-class postage, although
there is no record of whether the letters were actually received by the intended
No. 11-5493        Bidwell et al. v. Univ. Med. Ctr. et al.                       Page 4


recipients. Bidwell and Wilson maintain that they never received the notice. As a result
they did not respond by the deadline specified in the letter, and UMC transferred their
investment from the Lincoln Stable Value Fund to the Lincoln LifeSpan Fund without
their knowledge. Bidwell and Wilson first learned of the transfer upon receipt of their
quarterly account statements, immediately contacted UMC on October 15, 2008 to
inquire about the change, and then switched their investments back to the Lincoln Stable
Value Fund. Due to market fluctuations in the interim, however, both Bidwell and
Wilson suffered financial losses prior to the return of their funds to the Lincoln Stable
Value Fund.

B. Procedural History

       In February 2009, both Bidwell and Wilson filed claims with UMC seeking
reimbursement for their losses, in the amounts of $85,000 and $16,900 respectively,
resulting from the transfer of their investments from the Lincoln Stable Value Fund to
the Lincoln LifeSpan Fund, but their claims were denied. Both appealed unsuccessfully
to the Administrative Committee.

       Having exhausted the administrative procedures, Bidwell and Wilson filed suit
in federal district court against UMC and Lincoln for breach of fiduciary duty under
ERISA. After filing answers, both Lincoln and UMC moved for judgment as a matter
of law on the administrative record. The district court granted both motions, concluding
that Lincoln could not be liable to Bidwell and Wilson because it was not a fiduciary
under the plan and that UMC was immune from liability because it was entitled to the
Safe Harbor protections of the DOL regulation. Bidwell and Wilson timely appeal.

                                     II. ANALYSIS

       On appeal, Bidwell and Wilson focus their arguments exclusively on the district
court’s grant of judgment in favor of UMC, arguing that the district court erred in
concluding that UMC was shielded by the DOL Safe Harbor regulation. Lincoln
nevertheless has filed a brief on appeal in its defense. Accordingly, we address the
claims against each party in turn.
No. 11-5493        Bidwell et al. v. Univ. Med. Ctr. et al.                        Page 5


A. Standard of Review

       “This Court reviews a district court’s judgment in an ERISA case de novo,
applying the same standard of review to the administrator’s action as required by the
district court.” Moore v. Lafayette Life Ins. Co., 458 F.3d 416, 427 (6th Cir. 2006).
“Claims for breaches of fiduciary duty . . . are not claims for denial of benefits and are
therefore addressed in the first instance in the district court, requiring no deference to
any administrator’s action or decision.” Id.

B. Lincoln

       “The threshold question in all cases charging breach of ERISA fiduciary duty is
whether the defendant was ‘acting as a fiduciary (that is, was performing a fiduciary
function) when taking the action subject to complaint.’” Cataldo v. U.S. Steel Corp.,
676 F.3d 542, 552 (6th Cir. 2012) (quoting Pegram v. Herdrich, 530 U.S. 211, 226
(2000)). “For purposes of ERISA, a fiduciary not only includes persons specifically
named as fiduciaries by the benefit plan, but also anyone else who exercises
discretionary control or authority over a plan’s management, administration, or assets.”
Id. (internal quotation marks and alterations omitted). The district court dismissed the
claims against Lincoln on this threshold fiduciary issue. Lincoln correctly argues that
Bidwell and Wilson have waived appeal of this decision because they have failed to raise
arguments in opposition on appeal. See Harris v. Bornhorst, 513 F.3d 503, 518 (6th Cir.
2008) (arguments before the district court not raised on appeal are deemed waived).
Accordingly, we AFFIRM the district court’s dismissal of Bidwell’s and Wilson’s
claims against Lincoln.

C. UMC

       The parties do not dispute that UMC is the plan administrator and, consequently,
a fiduciary. However, the district court concluded that Bidwell and Wilson could not
proceed with their claims against UMC because UMC is entitled to the Safe Harbor
relief provided in the DOL’s regulation. On appeal, Bidwell and Wilson contend that
the district court’s conclusion was erroneous because the Safe Harbor provision can
No. 11-5493         Bidwell et al. v. Univ. Med. Ctr. et al.                          Page 6


never insulate a fiduciary against claims by plan participants, like Bidwell and Wilson,
who previously elected their investment vehicle rather than having it chosen for them
by default. Bidwell and Wilson also argue that UMC’s act of transferring the investment
from the Lincoln Stable Value Fund to the QDIA is outside the scope of the DOL
regulation and violates the terms of the UMC plan, entitling them to relief. For the
reasons that follow, the district court properly held that the DOL Safe Harbor prevents
Bidwell and Wilson from obtaining the relief requested.

        Section (b) of the DOL regulation sets out a Safe Harbor for plan administrators
as follows:

        (1) Except as provided in paragraphs (b)(2), (3), and (4) of this section,
        a fiduciary of an individual account plan that permits participants or
        beneficiaries to direct the investment of assets in their accounts and that
        meets the conditions of paragraph (c) of this section shall not be liable
        for any loss, or by reason of any breach under part 4 of title I of ERISA,
        that is the direct and necessary result of (i) investing all or part of a
        participant’s or beneficiary’s account in any qualified default investment
        alternative within the meaning of paragraph (e) of this section, or (ii)
        investment decisions made by the entity described in paragraph (e)(3) of
        this section in connection with the management of a qualified default
        investment alternative.

29 C.F.R. § 2550.404c-5(b)(1) (2012). Section (c) of the regulation then sets out six
different conditions that must be satisfied in order for the Safe Harbor provision to apply.
29 C.F.R. § 2550.404c-5(c). The DOL has summarized these requirements as follows:

        (1) “Assets must be invested in a ‘qualified default investment
            alternative’ (QDIA) as defined in the regulation.”
        (2) “Participants and beneficiaries must have been given an opportunity
            to provide investment direction, but have not done so.”
        (3) “A notice generally must be furnished to participants and
            beneficiaries in advance of the first investment in the QDIA and
            annually thereafter. The rule describes the information that must be
            included in the notice.”
        (4) “Material, such as investment propectuses, provided to the plan for
            the QDIA must be furnished to participants and beneficiaries.”
        (5) “Participants and beneficiaries must have the opportunity to direct
            investments out of a QDIA as frequently as from other plan
            investments, but at least quarterly. The rule limits the fees that can
No. 11-5493         Bidwell et al. v. Univ. Med. Ctr. et al.                          Page 7


            be imposed on a participant who opts out of participation in the plan
            or who decides to direct their investments.”
        (6) “The plan must offer a ‘broad range of investment alternatives’ as
            defined in the Department’s regulation under section 404(c) of
            ERISA.”
R. 32-1 (DOL Fact Sheet at 1).

        Rather than challenging UMC’s failure to satisfy one of these conditions, Bidwell
and Wilson argue that UMC’s reliance on the Safe Harbor provision is a red herring.
They argue that the Safe Harbor provision applies only to employer-selected investments
made on behalf of participants who fail to elect an investment vehicle, and that neither
Bidwell nor Wilson qualifies as such a participant because each specifically selected the
Lincoln Stable Value Fund. In keeping with this argument, Bidwell and Wilson also
assert that UMC had a duty to maintain records of which investors in the Lincoln Stable
Value Fund were investors by election and which were investors by default in order to
afford special treatment to the investors by election. Essentially, they argue that as
original investors by election they had a right to have their investment remain within the
Lincoln Stable Value Fund until they explicitly directed UMC otherwise.

        In enacting the Safe Harbor provision, the DOL made clear that it did not agree
with Bidwell’s and Wilson’s interpretation of the regulation. In the preamble to the final
regulation, the DOL stated explicitly that “the final regulation applies to situations
beyond automatic enrollment” including circumstances such as “[t]he failure of a
participant or beneficiary to provide investment direction following the elimination of
an investment alternative or a change in service provider, the failure of a participant or
beneficiary to provide investment instruction following a rollover from another plan, and
any other failure of a participant or beneficiary to provide investment instruction.”
72 Fed. Reg. 60452-01, 60453 (Oct. 24, 2007). Thus, the DOL emphasized that
“[w]henever a participant or beneficiary has the opportunity to direct the investment of
assets in his or account, but does not direct the investment of such assets, plan fiduciaries
may avail themselves of the relief provided by this final regulation, so long as” the other
Safe Harbor requirements are satisfied. Id. (emphasis added). The DOL was clear also
that the “opportunity to direct investment” includes the scenario where a plan
No. 11-5493        Bidwell et al. v. Univ. Med. Ctr. et al.                            Page 8


administrator requests participants who previously had elected a particular investment
vehicle to confirm whether they wish for their funds to remain in that investment vehicle.
The DOL explained:

       It is the view of the Department that any participant or beneficiary,
       following receipt of a notice in accordance with the requirements of this
       regulation, may be treated as failing to give investment direction for
       purposes of paragraph (c)(2) of § 2550.404c-5, without regard to whether
       the participant or beneficiary was defaulted into or elected to invest in the
       original default investment vehicle of the plan.               Under such
       circumstances, and assuming all other conditions of the regulation are
       satisfied, fiduciaries would obtain relief with respect to investments on
       behalf of those participants and beneficiaries in existing or new default
       investments that constitute qualified default investment alternatives.

Id. at 60464. In essence the DOL explained that, upon proper notice, participants who
previously elected an investment vehicle can become non-electing plan participants by
failing to respond. As a result, the plan administrator can direct those participants’
investments in accordance with the plan’s default investment policies and with the
benefit of the Safe Harbor protections.

       “We generally give substantial deference to an agency’s interpretations of its
own regulations” unless the “interpretation is plainly erroneous or inconsistent with the
published regulations.” Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 750 (6th
Cir. 2004) (internal quotation marks and alterations omitted). There is no basis to
disregard the DOL’s interpretation of its Safe Harbor regulation because, despite
Bidwell’s and Wilson’s arguments to the contrary, there is no error or inconsistency in
the DOL’s interpretation. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 1004
(9th Cir. 2010) (stating that deference is due to DOL’s interpretation of its own
regulation); see also Caremark, Inc. v. Goetz, 480 F.3d 779, 790 (6th Cir. 2007)
(according deference to DOL interpretation of ERISA statute in advisory opinion);
Bartling v. Fruehauf Corp., 29 F.3d 1062, 1072 (6th Cir. 1994) (“[W]e are obliged to
accord great deference to DOL interpretations.”). Although Bidwell and Wilson argue
that the DOL’s interpretation conflicts with UMC’s obligation to keep records of which
participants are investors by election and which participants are investors by default,
No. 11-5493         Bidwell et al. v. Univ. Med. Ctr. et al.                           Page 9


Bidwell and Wilson cite no authority stating that such a record-keeping obligation exists.
Moreover, while perhaps this argument would have more traction if UMC had acted
unilaterally without providing notice, that is not the circumstance presented here. UMC
notified all participant investors to substitute for its lack of knowledge and to ensure that
all would have an opportunity to clarify their investment preferences. In sum, Bidwell’s
and Wilson’s unsupported assertions are insufficient to defeat the DOL’s reasonable
interpretation of its own regulation.

        Bidwell and Wilson also argue that the transfer of funds from the Lincoln Stable
Value Fund to the Lincoln LifeSpan Fund is not governed by the Safe Harbor and was
an independent breach of the UMC § 403(b) plan. This argument also fails. First, it is
clear by the plain language of the DOL regulation that the Safe Harbor extends to acts
of a fiduciary in which it transfers funds from one investment vehicle to a QDIA. See
29 C.F.R. § 2550.404c-5(b)(i) (“[A] fiduciary . . . shall not be liable for any loss . . . that
is the direct and necessary result of (1) investing all or part of a participant’s or
beneficiary’s account in any qualified default investment alternative”). Indeed, the DOL
set out such scenarios as specific examples to illustrate the application of the Safe
Harbor. See 72 Fed. Reg. at 60454. Second, as the district court reasoned, UMC’s act
of transferring the funds not otherwise directed by the participants from the Lincoln
Stable Value Fund into the QDIA was within the scope of UMC’s authority. Although
it is true that the § 403(b) plan states that “[a]ll elections shall control until a new
election is made,” R. 19 (Sealed Admin. Record, 403(b) Plan, § 9.11(a), APX at 121-
22), this provision must be read in conjunction with other plan provisions that provide
the plan administrator with “all powers necessary to enable” the proper administration
of the fund, id. at APX 117 (403(b) Plan, § 8.2), including the power to direct a
participant’s investment where no election is made, id. at APX 122 (403(b) Plan,
§ 9.11(a)), to restrict investments as necessary, id. (403(b) Plan, § 9.11(b)), and to
establish uniform rules for the administration of the plan, id. (403(b) Plan, § 9.11(d)).
It is reasonable to conclude that these powers include the capacity to require plan
participants either to confirm their investment election or to have their investment
transferred to a new investment mechanism in the interest of aligning the administration
No. 11-5493            Bidwell et al. v. Univ. Med. Ctr. et al.                                 Page 10


of the fund with new federal regulations. Accordingly, UMC’s transfer did not violate
the terms of the plan.2

         One additional issue, which Bidwell and Wilson do not address, is whether UMC
complied with the notice requirement for the Safe Harbor provision to apply. Although
it is troubling that Bidwell and Wilson did not receive notice of the change, UMC’s
actions in distributing the notice were not deficient under ERISA. Under ERISA, a
fiduciary is obligated to take measures “reasonably calculated to ensure actual receipt
of the material by plan participants.” 29 C.F.R. § 2520.104b-1(b)(1). Here, UMC
provided the correct addresses to Lincoln for distribution of the notice by first-class mail,
and there are records indicating that Lincoln sent out the correct number of letters as
directed. Although more proof could be had, perhaps through individual delivery
confirmation, UMC’s actions were “reasonably calculated to ensure actual receipt” and
it was reasonable for UMC to rely on the dependability of the first-class-mail system and
Lincoln’s proof that the correct number of letters were sent out. See id. (“Material
distributed through the mail may be sent by first, second or third-class mail.”). Indeed,
Bidwell and Wilson do not appear to allege that UMC took inadequate actions in issuing
the notice; they focus only on the fact that they did not receive the notice. Because the
focus of our inquiry is on UMC’s action, their arguments are insufficient to substantiate
their claim. See Custer v. Murphy Oil USA, Inc., 503 F.3d 415, 419 (5th Cir. 2007)
(acknowledging that it is not the actual receipt of notice that is relevant, but the acts of
the fiduciary in attempting to ensure that notice is delivered).

         Bidwell and Wilson do not raise any other arguments in opposition to the Safe
Harbor’s application. Indeed, at one point in their reply brief, they appear to concede
that all requirements for the Safe Harbor are satisfied by stating that “UMC may have
followed QDIA procedures for default investments.” Reply Br. at 5 (alterations omitted).


         2
           To the extent that Bidwell and Wilson argue that statements in the Plan Summary trump the
terms of the Plan itself, UMC is correct that the language Bidwell and Wilson quote as being from the Plan
Summary is included in the § 403(b) plan itself. See Appellants’ Br. at 9; R. 19 (Sealed Admin. Record,
403(b) Plan, § 9.11(a), APX at 121-22 ). Accordingly, there does not appear to be any actual conflict
between the two documents, and we need not consider the applicability of the Supreme Court’s recent
decision in Cigna Corp. v. Amara, --- U.S. ---, 131 S. Ct. 1866 (2011).
No. 11-5493       Bidwell et al. v. Univ. Med. Ctr. et al.                    Page 11


Accordingly, any challenges on this basis are also waived. See Harris, 513 F.3d at 518
(arguments before the district court not raised on appeal are deemed waived).
Consequently, we AFFIRM the district court’s entry of judgment in favor of UMC.

                                III. CONCLUSION

       Based on the foregoing, we AFFIRM the judgment of the district court in favor
of Lincoln and UMC.
