                                    PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 18-1989


REMA DAWSON-MURDOCK,

                   Plaintiff – Appellant,

             v.

NATIONAL COUNSELING GROUP, INC.; NATIONAL COUNSELING
GROUP, INC. PLAN,

                   Defendants – Appellees.


Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. John A. Gibney, Jr., District Judge. (3:18-cv-00058-JAG)


Argued: May 8, 2019                                           Decided: July 24, 2019


Before KING, DIAZ, and QUATTLEBAUM, Circuit Judges.


Vacated and remanded by published opinion. Judge King wrote the opinion, in which
Judge Diaz and Judge Quattlebaum joined.


ARGUED: Elizabeth Hopkins, KANTOR & KANTOR LLP, Northridge, California, for
Appellant. Jeremy David Capps, HARMAN CLAYTOR CORRIGAN & WELLMAN,
P.C., Glen Allen, Virginia, for Appellees. ON BRIEF: Michelle L. Roberts, KANTOR
& KANTOR LLP, Northridge, California, for Appellant. Laura Lee Miller, HARMAN
CLAYTOR CORRIGAN & WELLMAN, P.C., Glen Allen, Virginia, for Appellees.
KING, Circuit Judge:

       Plaintiff Rema Dawson-Murdock (“Rema”) appeals from the dismissal of her civil

action in the Eastern District of Virginia. Rema sued National Counseling Group, Inc.

(“NCG”), alleging two claims under the Employee Retirement Income Security Act of

1974 (“ERISA”) (codified primarily in Title 29 of the United States Code). See Dawson-

Murdock v. Nat’l Counseling Grp., Inc., No. 3:18-cv-00058 (E.D. Va. Jan. 26, 2018), ECF

No. 1 (the “Complaint”). 1 More specifically, the Complaint alleges that NCG contravened

ERISA by breaching its fiduciary duties in the administration of a group life insurance plan

in which Rema’s late husband had enrolled and for which NCG is the “named fiduciary.”

The district court dismissed Rema’s ERISA claims pursuant to Federal Rule of Civil

Procedure 12(b)(6), concluding that NCG’s relevant actions were not taken in a fiduciary

capacity. See Dawson-Murdock v. Nat’l Counseling Grp., Inc., No. 3:18-cv-00058 (E.D.

Va. Aug. 7, 2018), ECF No. 12 (the “Opinion”). Because the Complaint sufficiently

alleges NCG’s fiduciary status in relation to those claims, we vacate and remand.




       1
         The Complaint also names a second defendant, the National Counseling Group,
Inc. Plan, but it contains no allegations against that defendant. See 29 U.S.C.
§ 1132(d)(1) (authorizing suit against employee benefit plan). The district court described
the National Counseling Group, Inc. Plan as a nominal defendant that does not exist apart
from NCG. Rema does not contest that description, and she focuses her arguments only
on her claims against NCG.

                                             2
                                             I.

                                             A.

       Because this appeal stems from a Rule 12(b)(6) dismissal, we accept the facts

alleged in the Complaint as true and recite them in the light most favorable to Rema. See

Feminist Majority Found. v. Hurley, 911 F.3d 674, 680 (4th Cir. 2019). As part of the

benefits package that it offers to employees, NCG provides its workers the opportunity to

enroll in a group life insurance plan (the “Plan”). The insurer for the Plan is Unum Life

Insurance Company of America (“Unum”). The documents that constitute the Plan are the

Summary of Benefits and the Summary Plan Description (the “SPD”). 2

       The Summary of Benefits explains that an NCG employee who desires to enroll in

the Plan must pay a premium to NCG, which in turn sends the premium payment to Unum.

In addition to transmitting premiums, NCG is obliged to “regular[ly]” provide Unum with

information about employees “who are eligible to become insured; whose amounts of

coverage change; and[] whose coverage ends.” See J.A. 28. 3




       2
         A summary plan description (or SPD) has been defined as an “outline of an
employee benefit plan, containing such information as the identity of the plan
administrator, the requirements for eligibility and participation in the plan, circumstances
that may result in disqualification or denial of benefits, and the identity of any insurers
responsible for financing or administering the plan.” See Black’s Law Dictionary (10th
ed. 2014). In this appeal, we consider the SPD and the Summary of Benefits — which are
attached to the Complaint — because those documents are integral to the ERISA claims
and neither party questions their authenticity. See Rockville Cars, LLC v. City of Rockville,
891 F.3d 141, 145 (4th Cir. 2018).
       3
         Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by
the parties in this appeal.

                                             3
       The SPD specifies that, for the purposes of ERISA, NCG “is the [p]lan

[a]dministrator and named fiduciary of the Plan,” and that benefits under the Plan are

“administered” by Unum. See J.A. 65 (emphasis added). The SPD also explains that

“ERISA imposes duties upon the people who are responsible for the operation of the . . .

[P]lan,” and that “[t]he people who operate [the] Plan, called ‘fiduciaries’ of the Plan, have

a duty to do so prudently and in the interest of . . . Plan participants and beneficiaries.” Id.

at 71. And the SPD instructs Plan participants and beneficiaries to contact NCG if they

have questions about the Plan.

                                              B.

       While working full-time for NCG, Rema’s late husband, Wayne Murdock

(“Wayne”), elected $150,000 in life insurance coverage through the Plan.                Wayne

identified Rema as his primary beneficiary for any benefits resulting from the coverage.

To secure that coverage, Wayne paid premiums to NCG, which forwarded those payments

to Unum.

       On March 21, 2016, Wayne stopped working full-time for NCG and began working

part-time for it. Although enrollment in the Plan is limited to full-time NCG employees,

NCG either never informed or misinformed Wayne about whether he remained eligible to

participate in the Plan. Additionally, although Wayne could have converted or ported his

life insurance coverage after transitioning to part-time status, NCG never notified him of




                                               4
those options. 4 The parties have not disputed that Wayne continued to pay premiums to

NCG after March 21, 2016, despite his apparent ineligibility.

       On August 30, 2016, Wayne died. Rema, as Wayne’s widow and beneficiary,

thereafter submitted a life insurance benefits claim for $150,000 to Unum pursuant to

Wayne’s participation in the Plan. On October 24, 2016, before Rema heard anything from

Unum regarding her claim, Christopher Baham — NCG’s Vice President of Human

Resources — emailed Rema to notify her that Unum had denied it. Baham assured Rema,

however, that NCG would directly pay her the claim amount and work with Unum to

recoup the payment. Baham also advised Rema that she would “not have to deal with

Unum insurance company going forward.” See Complaint ¶ 16. Three days later, on

October 27, 2016, she received a letter from Unum stating that it had denied her benefits

claim because Wayne “was not eligible for coverage due to his part-time status and [he]

failed to convert or port his coverage.” Id. ¶ 17.

       During the next four months, Rema and Vice President Baham communicated

regularly regarding her life insurance benefits claim. Those communications included the

following:

       •      On November 7, 2016, Rema emailed a copy of Unum’s denial letter
              to Baham and asked him for advice regarding her next steps;

       •      The following day, Baham responded via email and told Rema that
              she did not need to do anything else, such as appeal the claim denial,
              and that NCG was “working through the details,” see Complaint

       4
         Under the Plan, to convert coverage means to change from a group insurance
policy to an individual insurance policy. On the other hand, to port coverage means to
maintain coverage under the group insurance policy.

                                              5
             ¶¶ 20, 39;

      •      On November 15, 2016, Baham emailed Rema and said that NCG was
             still working on her claim;

      •      About two weeks later, Baham again emailed Rema, stating that NCG
             was “working through a separate insurance company to pay out
             Wayne’s benefits,” and that Unum would “not be involved at all.” Id.
             ¶ 22. He again reassured her that “the claim” would be paid, id.;

      •      On December 8, 2016, Baham told Rema that he was “making
             progress toward resolution of the payment,” id. ¶ 23;

      •      Later that month, Baham wrote to Rema that “NCG was still moving
             forward,” id. ¶ 24;

      •      On January 19, 2017, Baham emailed Rema to advise her that he had
             “escalated [her claim] to another level so [he] hope[d] to soon have
             [a] resolution on [NCG’s] side,” id. ¶ 25;

      •      During the first two weeks of February 2017, Baham told Rema that
             he was still working on the claim, that it appeared a resolution was
             “close,” and that there had been “some slow progress” on the claim,
             id. ¶¶ 27, 28; and

      •      Finally, on February 21, 2017, Baham emailed Rema and asked to
             speak with her by telephone. During the ensuing phone call, Baham
             informed her that NCG would not pay her any money on the claim.

      Based on the representations made to her by Vice President Baham from October

2016 through February 2017, Rema did not appeal Unum’s denial of her benefits claim.

By the time Baham informed Rema that NCG would not pay her claim, the ninety-day

window for her to file an appeal with Unum had closed. 5



      5
         According to the SPD, a participant or beneficiary must appeal a denial of a claim
within ninety days of receiving Unum’s denial letter. Because Rema received her denial
letter on October 27, 2016, she had until January 25, 2017, to lodge an appeal with Unum.

                                            6
                                              C.

       In January 2018, Rema filed her Complaint against NCG in the Eastern District of

Virginia. Pertinent to this appeal, the Complaint alleges two causes of action under a

provision of ERISA that authorizes a participant or beneficiary of an employee benefit plan

subject to ERISA to pursue a civil action to obtain “appropriate equitable relief” for

violations of certain ERISA provisions “or the terms of the plan.”            See 29 U.S.C.

§ 1132(a)(3). 6 In the first ERISA claim, the Complaint alleges that NCG breached the

fiduciary duty that it owed to Wayne, as a Plan participant, because it either failed to inform

him or misinformed him about his continued eligibility under the Plan and neglected to

notify him that he had the option to convert or port his life insurance coverage. In the

second ERISA claim, the Complaint alleges that NCG breached the fiduciary duty that it

owed to Rema, as a Plan beneficiary, when Vice President Baham advised her that she need

not appeal Unum’s denial of her benefits claim. 7

       On March 30, 2018, NCG moved the district court for dismissal of the Complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6). In support of its dismissal motion,

NCG argued that neither it nor Vice President Baham was acting as a fiduciary when they

took the actions underlying Rema’s ERISA claims. That is, NCG maintained that it and


       6
        The parties in these proceedings do not dispute that the Plan is subject to the
provisions of ERISA. See 29 U.S.C. § 1003(a) (defining employee benefit plan governed
by ERISA).
       7
        The Complaint also alleged two state law claims, which the district court dismissed
as preempted by ERISA. Rema does not contest on appeal the dismissal of those two
claims.

                                              7
Baham were acting only in an administrative capacity for the Plan, which did not satisfy

ERISA’s definition of a “fiduciary,” as codified in 29 U.S.C. § 1002(21)(A). Thus,

according to NCG, they could not have breached any fiduciary duties owed to Wayne or

Rema.

        On August 7, 2018, the district court granted NCG’s motion to dismiss and

dismissed Rema’s claims. In its accompanying Opinion, the court ruled that the Complaint

failed to sufficiently allege that NCG satisfies ERISA’s definition of a fiduciary. The

Opinion explained that, in order to qualify as a fiduciary under ERISA, an employer must

have some “discretionary control over” the employee benefit plan. See Opinion 5. And

the Opinion concluded that the Complaint did not adequately allege that NCG (and its high-

ranking employee, Vice President Baham) exercised “discretionary control regarding

benefits decisions” under the Plan. Id. at 6. Instead, the Opinion emphasized that Unum

made the benefits decisions for the Plan. The Opinion also described NCG’s and Baham’s

alleged actions as merely “administrative” and thus not of a fiduciary nature. Id. at 5.

Rema noted a timely appeal from the dismissal rulings, and we possess jurisdiction

pursuant to 28 U.S.C. § 1291. 8




        8
         Although neither the dismissal order nor the Opinion specified whether the
Complaint was dismissed with prejudice, nothing in the record rebuts the presumption that
it was so rendered. See McLean v. United States, 566 F.3d 391, 396 (4th Cir. 2009)
(“Courts have held that, unless otherwise specified, a dismissal for failure to state a claim
under Rule 12(b)(6) is presumed to be both a judgment on the merits and to be rendered
with prejudice.”).

                                             8
                                               II.

       We review de novo a district court’s dismissal of a complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6). See Feminist Majority Found. v. Hurley, 911 F.3d 674,

685 (4th Cir. 2019). In conducting such a review, we accept the complaint’s “factual

allegations as true and draw all reasonable inferences in favor of the plaintiff[].” Id. “A

district court can properly grant a Rule 12(b)(6) dismissal only if the complaint fails to

contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible

on its face.” Id. (internal quotation marks omitted).



                                              III.

       On appeal, Rema contests the district court’s dismissal of her two ERISA claims.

She contends that NCG’s alleged conduct necessarily constitutes fiduciary activity because

NCG is both the plan administrator and the named fiduciary. Even if those roles are

insufficient to establish that NCG’s conduct in relation to the Plan is fiduciary in nature,

Rema maintains that NCG and Vice President Baham functioned as fiduciaries in taking

the actions alleged in the Complaint, and that the Opinion erred in ruling otherwise. 9

Specifically, she maintains that NCG acted in a fiduciary capacity by: (1) failing to inform



       9
         Except when describing Baham’s individual actions, our discussion of the ERISA
claims hereinafter refers to NCG and Vice President Baham collectively as “NCG.” The
parties do not dispute that we can consider Baham’s conduct against NCG in assessing the
ERISA claims. See Deschamps v. Bridgestone Ams., Inc. Salaried Emps. Ret. Plan, 840
F.3d 267, 278-79 (6th Cir. 2016) (applying agency principles to employee in assessing
breach of fiduciary duty claim against employer).

                                               9
or misinforming Wayne about his continued eligibility under the Plan and neglecting to

notify Wayne that he had the option to convert or port his life insurance coverage; and

(2) advising Rema not to appeal Unum’s denial of her benefits claim. Before assessing the

alleged fiduciary misconduct, we will identify and discuss some pertinent legal principles

regarding ERISA fiduciaries.

                                              A.

       ERISA specifies several duties, “derived from the common law of trusts,” that are

imposed on a fiduciary for an employee benefit plan. See Tibble v. Edison Int’l, 135 S. Ct.

1823, 1828 (2015) (internal quotation marks omitted); see also 29 U.S.C. § 1104(a)

(defining “standard of care” for ERISA fiduciary); Pegram v. Herdrich, 530 U.S. 211, 224

(2000) (“The[] responsibilities imposed by ERISA have the familiar ring of their source in

the common law of trusts.”). To allege a breach of any such fiduciary duty, a plan

participant or beneficiary must first establish “that the party charged with the breach” is, in

fact, a fiduciary. See Coleman v. Nationwide Life Ins. Co., 969 F.2d 54, 60 (4th Cir. 1992).

       ERISA contemplates two general types of fiduciaries. See, e.g., Mertens v. Hewitt

Assocs., 508 U.S. 248, 251 (1993); Custer v. Sweeney, 89 F.3d 1156, 1161 (4th Cir. 1996).

The first type is a “named fiduciary,” which — as the term suggests — is “a fiduciary who

is named” in the plan documents. See 29 U.S.C. § 1102(a)(2). 10 The Act requires every


       10
         A “named fiduciary” also includes “a fiduciary . . . 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.” See 29 U.S.C. § 1102(a)(2). ERISA permits a
named fiduciary “to designate persons other than named fiduciaries to carry out fiduciary
(Continued)
                                              10
covered employee benefit plan to “provide for one or more named fiduciaries who jointly

or severally shall have authority to control and manage the operation and administration of

the plan.” Id. § 1102(a)(1). That obligation “ensures that responsibility for managing and

operating the plan — and liability for mismanagement — are focused with a degree of

certainty.” See Tatum v. RJR Pension Inv. Comm., 761 F.3d 346, 371 (4th Cir. 2014)

(alterations and internal quotation marks omitted).

       The second type of fiduciary contemplated by ERISA has been called a “functional

fiduciary.” See Tatum, 761 F.3d at 357 n.6. Section 1002(21)(A) of Title 29 defines such

a fiduciary and provides that

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

See 29 U.S.C. § 1002(21)(A). In summarizing the two general types of ERISA fiduciaries,

we have explained that “the concept of a fiduciary under ERISA . . . includes not only those

named as fiduciaries in the plan instrument, . . . but [also] any individual who de facto

performs specified discretionary functions with respect to the management, assets, or




responsibilities . . . under the plan.” See id. § 1105(c)(1)(B). Here, the Plan does not
designate any person or entity other than NCG to carry out fiduciary responsibilities with
respect to plan administration. That is, NCG is the only named fiduciary for plan
administration.

                                              11
administration of a plan.” See Custer, 89 F.3d at 1161 (alterations and internal quotation

marks omitted).

       In assessing whether a person or entity qualifies as a fiduciary under ERISA, we

have consistently utilized an interpretive bulletin published by the Department of Labor in

1975. See 29 C.F.R. § 2509.75-8; Custer, 89 F.3d at 1162; Coleman, 969 F.2d at 61-62.11

The bulletin emphasizes that “[s]ome offices or positions of an employee benefit plan by

their very nature require persons who hold them to perform one or more [of the] functions”

described in ERISA’s definition of a “fiduciary,” provided in section 1002(21)(A). See 29

C.F.R. § 2509.75-8 (D-3). For example, “a plan administrator . . . must, [by] the very

nature of his position, have discretionary authority or discretionary responsibility in the

administration of the plan.”     Id. (internal quotation marks omitted).       Consequently,

“[p]ersons who hold such positions will . . . be fiduciaries.” Id. On the other hand, the

1975 Department of Labor bulletin suggests that “a person who performs purely ministerial

functions . . . within a framework of policies, interpretations, rules, practices and

procedures made by other persons,” such as applying “rules determining eligibility for

participation or benefits,” “advising participants of their rights and options under the plan,”

and collecting “contributions . . . as provided in the plan,” is not acting in a fiduciary

capacity. See id. at (D-2). In sum, the 1975 bulletin explains that a plan administrator is a

functional fiduciary with respect to plan administration, but a person or entity that is not a


       11
         ERISA authorizes the Secretary of Labor to “prescribe such regulations as he
finds necessary or appropriate to carry out the provisions of [the Act].” See 29 U.S.C.
§ 1135.

                                              12
plan administrator and performs only ministerial functions in relation to a plan is not a

functional fiduciary.

                                             B.

                                             1.

       We begin our analysis of this appeal with Rema’s position that NCG’s joint roles as

the plan administrator and the named fiduciary definitively answer the fiduciary capacity

inquiry. Our precedents on the topic of fiduciary capacity under ERISA have addressed

primarily the nature of a functional fiduciary — perhaps because plan administrators and

named fiduciaries do not normally disclaim their fiduciary roles and responsibilities in the

federal courts. See, e.g., Gordon v. CIGNA Corp., 890 F.3d 463, 474-76 (4th Cir. 2018);

Custer, 89 F.3d at 1162-63; Coleman, 969 F.2d at 61-62. But we are now confronted with

precisely such a situation. That is, despite being identified as both the plan administrator

and the named fiduciary for the Plan, NCG maintains in these proceedings that it is not a

fiduciary for the purposes of Rema’s ERISA claims.

       Calling NCG’s assertion into substantial doubt, the Supreme Court has itself

recognized that, as logic would suggest, a named fiduciary is “an ERISA fiduciary.” See

Mertens, 508 U.S. at 251 (internal quotation marks omitted). And we have expressed a

similar, common-sensical understanding. See Tatum, 761 F.3d at 371 (“[T]he Committees

are the only named fiduciaries in the governing Plan document. As such, these entities are

proper defendants in a suit alleging breach of fiduciary duty with respect to the Plan.”);

Custer, 89 F.3d at 1161 (“[T]he concept of a fiduciary under ERISA . . . includes . . . those

named as fiduciaries in the plan instrument.”). We have likewise recognized that “a plan

                                             13
administrator is a fiduciary with respect to her own policy.” See Canada Life Assurance

Co. v. Estate of Lebowitz, 185 F.3d 231, 237 (4th Cir. 1999). In addition, other courts of

appeals have ruled that a plaintiff establishes a defendant’s fiduciary capacity by alleging

that the defendant is the named fiduciary for an ERISA plan. See, e.g., Jordan v. Fed.

Express Corp., 116 F.3d 1005, 1014 & n.16 (3d Cir. 1997) (emphasizing that named

fiduciary in plan instrument is fiduciary); Maez v. Mountain States Tel. & Tel., Inc., 54

F.3d 1488, 1498 (10th Cir. 1995) (concluding that complaint sufficiently demonstrated

defendants’ fiduciary capacities by alleging that defendants were named fiduciaries).

       To the extent that our decisions have said that “being a fiduciary under ERISA is

not an all-or-nothing situation,” our Court has never done so in the context of assessing

whether a plan administrator and a named fiduciary is, in fact, a fiduciary. See Gordon,

890 F.3d at 474 (assessing status of functional fiduciary). That is, our recognition of such

a principle — that ERISA fiduciary status can be a fluid concept — has come in assessing

the nature of a functional fiduciary, as defined by section 1002(21)(A) of Title 29. See id.;

Coleman, 969 F.2d at 61-62. And that principle makes sense in light of ERISA’s definition

of a functional fiduciary. See Coleman, 969 F.2d at 61 (“[T]he inclusion of the phrase ‘to

the extent’ in § 1002(21)(A) means that a party is a fiduciary only as to the activities which

bring the person within the definition.”).

       Our precedents should not, however, be unduly expanded to suggest that an entity

that serves as both the plan administrator and the named fiduciary for an ERISA-covered

plan is not an ERISA fiduciary. Doing so would ignore ERISA’s undisputable recognition



                                             14
of named fiduciaries. 12 And such a ruling would create conflicts with controlling Supreme

Court precedent, see Mertens, 508 U.S. at 251; our relevant decisions, see Tatum, 761 F.3d

at 371; Custer, 89 F.3d at 1161; and the decisions of our sister circuits, see, e.g., Jordan,

116 F.3d at 1014 & n.16. In addition, the adoption of a rule that requires a plan participant

or beneficiary to allege, in every case, that the plan administrator and named fiduciary is

also a functional fiduciary would undermine our obligation to liberally construe fiduciary

status under ERISA. See Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115,

123 (4th Cir. 1991) (emphasizing that ERISA is a “remedial statute” that “should be

liberally construed in favor of protecting the participants in employee benefits plans”); see

also Johnson v. Couturier, 572 F.3d 1067, 1076 (9th Cir. 2009) (explaining that courts

“construe ERISA fiduciary status liberally, consistent with ERISA’s policies and

objectives” (internal quotation marks omitted)). Put succinctly, a participant or beneficiary

is generally not required to allege that the plan administrator and named fiduciary also

satisfies the functional fiduciary test in order to state a plausible fiduciary breach claim

against it under ERISA. 13


       12
          ERISA employs the terms “named fiduciary” and “named fiduciaries” in five
separate sections. See 29 U.S.C. §§ 1002(18), 1102, 1103(a), 1105(c), 1133(2).
       13
         We are not suggesting that a plan administrator and named fiduciary (serving in
those dual roles) will be subject to suit for breach of fiduciary duty as to all plan-related
actions. For example, liability might be limited by the exercise of authority or control over
only certain plan-related activities. See 29 C.F.R. § 2509.75-8 (FR-13) (explaining that
named fiduciary will “not be liable for acts and omissions of other named fiduciaries in
carrying out fiduciary responsibilities which have been allocated to them,” with certain
exceptions). Similarly, there is no liability for breach of fiduciary duty if the challenged
conduct of the plan administrator and named fiduciary is not fiduciary in nature, as there
(Continued)
                                             15
       In concluding that the Complaint fails to sufficiently allege NCG’s fiduciary status,

the Opinion failed to consider and assess the relevant decisions on plan administrators and

named fiduciaries and their application to these ERISA claims. Indeed, it did not recognize

the significance of NCG’s status as the joint plan administrator and named fiduciary, and

it erroneously focused on our precedents addressing functional fiduciaries. Although those

errors alone support a vacatur and a remand, the Opinion also erred in making its functional

fiduciary analysis.

                                             2.

       Aside from NCG’s plausibly alleged fiduciary status resulting from its joint roles as

the plan administrator and the named fiduciary, we are satisfied that the Complaint

sufficiently alleges that NCG is a fiduciary with respect to the particular conduct giving

rise to Rema’s ERISA claims. That is, the Complaint shows that NCG acted as a functional

fiduciary, within the meaning of section 1002(21)(A) of Title 29, with respect to each of

the ERISA claims. We will address separately the facts that support those two claims.

                                             a.

       In her first ERISA claim, Rema alleges that NCG failed to inform or misinformed

Wayne about his continued eligibility under the Plan. She further alleges that NCG




can be no breach of a nonexistent fiduciary duty. See Pegram, 530 U.S. at 226 (explaining
that “the threshold question” in assessing a breach of fiduciary duty claim is whether the
person charged with the breach was performing a fiduciary responsibility “when taking the
action subject to the complaint”); Livick v. Gillette Co., 524 F.3d 24, 29 (1st Cir. 2008)
(recognizing that “[a] fiduciary named in an ERISA plan can undertake non-fiduciary
duties”).

                                            16
neglected to notify Wayne that he had the option to convert or port his life insurance

coverage. Based on the relevant precedents and the Department of Labor’s 1975 bulletin,

we are satisfied that this claim adequately pleads NCG’s status as a functional fiduciary.

       In Griggs v. E.I. DuPont de Nemours & Co., 237 F.3d 371, 379-84 (4th Cir. 2001),

we approved a fiduciary breach claim where a plan administrator had failed to correct the

plan participant’s material misunderstanding of the relevant plan, and where that

misunderstanding had caused an economic loss to the participant. We explained that the

plan administrator was required to speak up “‘when [it] kn[ew] that [its] silence might be

harmful.’” Id. at 380 (quoting Bixler v. Cent. Pa. Teamsters Health & Welfare Fund, 12

F.3d 1292, 1300 (3d Cir. 1993)). To support that proposition, we relied on the decision of

another court of appeals that recognized a breach of fiduciary duty claim where “‘an

ineligible person contributes to a fund’” and the plan fiduciary fails “‘to inform him of his

ineligibility within a reasonable time.’” See id. at 381 (quoting Eddy v. Colonial Life Ins.

Co. of Am., 919 F.2d 747, 751 (D.C. Cir. 1990)).

       In our 2018 Gordon decision, we were again confronted with a breach of fiduciary

duty claim predicated on the defendant’s silence.          There, an employee had paid

supplemental life insurance premiums to his employer for coverage under a group life

insurance plan, and the employer submitted the premium payments to the insurer for the

plan. See Gordon, 890 F.3d at 469. When the employee died, his beneficiary filed a claim

for supplemental life insurance benefits with the insurer. Id. at 468. Despite its acceptance

of the employee’s premiums, the insurer denied the beneficiary’s claim because the

employee had failed to submit certain paperwork demonstrating his eligibility for

                                             17
supplemental coverage. Id. The plaintiff sued the insurer under ERISA, alleging a claim

for breach of fiduciary duty based on the insurer’s failure “to notify [the employee] that he

needed to submit additional evidence of insurability — while simultaneously collecting

premiums for unapproved coverage.” Id. at 469.

       On appeal from a summary judgment award to the insurer, we observed that the plan

documents designated the insurer as the claim administrator and the employer as the plan

administrator. See Gordon, 890 F.3d at 474. Although the insurer was responsible for

adjudicating benefits claims under the plan, we ruled that it was not a fiduciary with respect

to the failure to notify the employee about the paperwork requirement. Id. Instead, we

ruled that the fiduciary for a claim related to that failure was the employer, which the plan

documents tasked with “day-to-day program administration,” such as collecting premiums,

verifying eligibility, and submitting applications for supplemental coverage. Id. (internal

quotation marks omitted).

       Our Griggs and Gordon precedents undermine the Opinion’s ruling that the first

ERISA claim fails to allege NCG’s fiduciary capacity. That is, when a plan administrator

is responsible for verifying employee eligibility for participation in an employee benefit

plan, that administrator acts in a fiduciary capacity with regard to that obligation. See

Gordon, 890 F.3d at 474. Additionally, a plan administrator acts in a fiduciary capacity

when it conveys (or fails to convey) material information to a plan participant concerning

the retention of eligibility for a benefit plan when that administrator is aware that the

participant wishes to maintain his participation therein. See Griggs, 237 F.3d at 381-82;

Eddy, 919 F.2d at 751. Viewed in the light most favorable to Rema, the Complaint

                                             18
plausibly alleges that, in these circumstances, NCG performed such fiduciary activities as

the plan administrator.

       If there were any doubt about whether the allegations in support of the first ERISA

claim establish NCG’s status as a functional fiduciary pursuant to section 1002(21)(A), it

is entirely assuaged by NCG’s role as the plan administrator. As the Department of Labor

has explained, a plan administrator by “the very nature of [its] position, ha[s] discretionary

authority or discretionary responsibility in the administration of the plan within the

meaning of section [1002(21)(A)],” and is therefore a functional fiduciary. See 29 C.F.R.

§ 2509.75-8 (D-3); Estate of Lebowitz, 185 F.3d at 237 (“By the very nature of the position,

a plan administrator is a fiduciary with respect to her own policy.”); U.S. Steel Mining Co.

v. Dist. 17, United Mine Workers of Am., 897 F.2d 149, 152 (4th Cir. 1990) (“As the plan

administrator, the fund is clearly a fiduciary.”). 14

                                               b.

       Turning to Rema’s second ERISA claim, she alleges therein that NCG breached the

fiduciary duty that it owed to her as a beneficiary when Vice President Baham advised her


       14
          In dismissing Rema’s first ERISA claim, the Opinion relied primarily on an
unpublished decision ruling that an employer was not acting as a fiduciary when it accepted
an employee’s life insurance premiums “without advising him that he was not eligible for
group life insurance” under the employer’s group life insurance plan. See Opinion 4-5
(citing Moon v. BWX Tech., Inc., 577 F. App’x 224, 231 (4th Cir. 2014)). Our non-
precedential decision in Moon, however, failed to mention Griggs, which was decided
thirteen years earlier. See Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir.
2006) (explaining that unpublished decisions “have no precedential value” and “are entitled
only to the weight they generate by the persuasiveness of their reasoning” (internal
quotation marks omitted)). And, unlike this case, the employer in Moon was neither a plan
administrator nor a named fiduciary.

                                               19
not to appeal Unum’s denial of her benefits claim. Pertinent to this claim, the Supreme

Court and our Court have both recognized that conveying information about plan benefits

to a beneficiary in order to assist plan-related decisions can constitute fiduciary activity.

See Varity Corp. v. Howe, 516 U.S. 489, 502 (1996) (explaining that “[c]onveying

information about the likely future of plan benefits, thereby permitting beneficiaries to

make an informed choice about continued participation” is a fiduciary activity); Griggs,

237 F.3d at 379-80 (accepting that plan administrator acted in fiduciary capacity by

communicating with participant about pension benefits).

       In these circumstances, we are satisfied that the Complaint plausibly alleges that

Vice President Baham engaged in a fiduciary activity when he instructed Rema that she

need not appeal Unum’s decision denying her benefits claim. In so instructing Rema,

Baham was not merely “advising [a] participant[] of [her] rights and options under the

[P]lan.” See 29 C.F.R. § 2509.75-8 (D-2). Instead, in responding to Rema’s request for

assistance, Baham offered tailored advice concerning her decision on whether to pursue an

appeal. See J.A. 71 (stating that Plan beneficiary should contact NCG if she has questions

about the Plan). Such conduct by an employee imbued with a plan administrator’s

authority constitutes discretionary activity in the “administration” of the plan, and it is thus

a fiduciary activity under ERISA. See 29 U.S.C. § 1002(21)(A)(iii) (providing that a

person is a functional fiduciary when “he has any discretionary authority or discretionary

responsibility in the administration of [a] plan”); In re DeRogatis, 904 F.3d 174, 192 (2d




                                              20
Cir. 2018) (explaining that individualized consultation regarding plan benefits constitutes

fiduciary activity). 15



                                           IV.

       Pursuant to the foregoing, we vacate the district court’s dismissal of the ERISA

claims and remand for such other and further proceedings as may be appropriate.

                                                           VACATED AND REMANDED




       15
          The Opinion relied on another unpublished decision in dismissing the second
ERISA claim. See Opinion 4-5 (citing Estate of Weeks v. Advance Stores Co., 99 F. App’x
470 (4th Cir. 2004)). That decision is both non-precedential and distinguishable. Weeks
ruled that an administrative employee was not an ERISA fiduciary when she “simply
repeated information that was given to her by upper-management or that had already been
inputted into the company’s computer database.” See Estate of Weeks, 99 F. App’x at 476.
In contrast, Vice President Baham offered tailored advice, over a sustained period,
regarding Rema’s right to prosecute an appeal, and the Complaint does not reveal that he
was merely relaying or repeating information.

                                            21
