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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 14-20358                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
HUMANA HEALTH PLAN, INCORPORATED,                                    May 11, 2015
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

PATRICK NGUYEN,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before JOLLY, WIENER, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      Defendant-appellant Patrick Nguyen (“Nguyen”) appeals from the
district court’s order granting summary judgment in favor of plaintiff-appellee
Humana Health Plan, Inc. (“Humana”). For the reasons explained below, we
REVERSE the judgment of the district court and REMAND for further
proceedings consistent with this opinion.
                          FACTS AND PROCEEDINGS
      Nguyen is a participant in the API Enterprises Employee Benefits Plan
(the “Plan”), an ERISA-governed employee welfare plan established by API
Enterprises, Inc. (“API”). API entered into a Plan Management Agreement
(“PMA”) with Humana, through which Humana agreed to serve as “Plan
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                                      No. 14-20358
Manager” and to provide various administrative services to the Plan. Two
features of the PMA are particularly relevant here.
       First, the PMA made clear that API or the Plan’s administrator would
make all discretionary decisions about the Plan’s administration and
management, and that Humana “act[ed] as an agent of [API] authorized to
perform specific actions or conduct specified transactions only as provided in
this Agreement.” API agreed to give Humana written notice of “the Plan’s
management policies and practices,” and Humana agreed that it “operat[ed]
within a framework of the Plan’s management policies and practices
authorized or established by the Plan Administrator, in accordance with the
provisions of the Plan.” While the PMA authorized Humana to conduct its
affairs according to its normal operating procedures, it stated that Humana
must abandon its normal procedures if “they are inconsistent with the Plan’s
management policies or practices.” 1 The PMA authorized Humana to hire
“subcontractors and/or counsel” of its choosing to perform certain services. But
the parties agreed that API would reimburse Humana for fees paid to outside
counsel only if the “legal fees incurred by [Humana] [were] attributable to a
request, direction, or demand by [API], the Plan Administrator, or the
Employer.”
       Second,      the     PMA       stated       that    Humana       would       provide
“‘Subrogation/Recovery’ services . . . [for] identifying and obtaining recovery of
claims payments from all appropriate parties through operation of the




       1The dissent states that the PMA authorized Humana to follow its own procedures
when performing subrogation and recovery services. Article II of the PMA expressly stated
that where API and Humana’s policies and procedures conflicted, API’s policies and
procedures controlled. Unlike the other articles containing general terms, Article II did not
contain a clause stating that later, specific terms controlled more general terms. Thus even
the provision cited by the dissent does not show that API relinquished control over Humana
when Humana performed subrogation and recovery services.
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                                 No. 14-20358
subrogation or recovery provisions of the Plan.” The PMA defined subrogation
and recovery services to include: “(1) Investigation of claims and obtaining
additional information to determine if a person or entity may be the
appropriate party for payment”; “(2) Presentation of appropriate claims and
demands for payment to parties determined to be liable”; “(3) Notification to
Participants that recovery or subrogation rights will be exercised with respect
to a claim”; and “(4) Filing and prosecution of legal proceedings against any
appropriate party for determination of liability and collection of any payments
for which such appropriate party may be liable.” API agreed to pay Humana
“30% of all amounts recovered” under the subrogation and recovery services
provision.
      According to the district court’s opinion, Nguyen was injured in an
automobile accident in April 2012. Between April 2012 and April 2013, the
Plan paid $274,607.84 to cover Nguyen’s resulting medical expenses. Nguyen
“recovered from a third party settlement funds of $255,000 for damages
sustained in the accident.” Nguyen argued, the district court accepted, and
Humana does not contest that the third party settlement funds were paid by
Nguyen’s own insurance provider.
      The Plan notified Humana that it did not intend to seek reimbursement
from Nguyen, because the Plan’s governing documents did not allow recovery
from a beneficiary’s uninsured motorist policy payout. Humana determined
that it was free to disregard the Plan’s instruction. It sued Nguyen in district
court, seeking, inter alia, an injunction prohibiting Nguyen from disposing of
the insurance payout and an “equitable lien to enforce ERISA and the terms of
the Plan.” Nguyen deposited the disputed funds into the court registry and filed




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a counterclaim against Humana. 2 The parties then filed cross-motions for
summary judgment. The district court granted Humana’s motion, denied
Nguyen’s motion, and entered judgment in favor of Humana. Nguyen appeals
the district court’s order and judgment.
                                STANDARD OF REVIEW
       “Standard summary judgment rules control in ERISA cases.” Green v.
Life Ins. Co. of N. Am., 754 F.3d 324, 329 (5th Cir. 2014) (internal quotation
marks omitted). “We review a district court’s grant of summary judgment de
novo, applying the same standards as the district court.” Id. (internal quotation
marks omitted). “Summary judgment is appropriate when ‘there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)).
       The decision below turned in part on the district court’s interpretation of
the PMA. 3 “[W]e review de novo the interpretation of a contract, including any
questions about whether the contract is ambiguous.” Pioneer Exploration,
L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511-12 (5th Cir. 2014).
                                      DISCUSSION
       The district court held that Humana was an ERISA fiduciary as a matter
of law. In its appeal, Nguyen argues that Humana is not an ERISA fiduciary,
and thus, that Humana does not have the statutory right to seek relief under
29 U.S.C. § 1132(a)(3).




       2 Humana also brought conversion and tortious interference claims, but these claims
are not before us on appeal.
       3 The provisions of the PMA are not the terms of the Plan per se, but it may “provide

elements of a plan by setting out rules” through which the Plan will be administered. Pegram
v. Herdrich, 530 U.S. 211, 223 (2000).

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                                       I.
      Section 1132(a)(3) provides that any “participant, beneficiary, or
fiduciary” has the right to seek an injunction and other “appropriate equitable
relief” when necessary to stop violations of ERISA’s regulatory provisions or
the terms of the ERISA plan. As relevant here, a third party service provider
is an ERISA fiduciary “to the extent . . . [it] exercises any discretionary
authority or discretionary control respecting management of such plan or
exercises any authority or control respecting management or disposition of [the
plan’s] assets,” or it “has any discretionary authority or discretionary
responsibility in the administration of such plan.” 29 U.S.C. § 1002(21)(A)(i),
(iii). In short, “[a] fiduciary within the meaning of ERISA must be someone
acting in the capacity of manager [or] administrator.” Pegram, 530 U.S. at 222.
      “We give the term fiduciary a liberal construction in keeping with the
remedial purpose of ERISA.” Reich v. Lancaster, 55 F.3d 1034, 1046 (5th Cir.
1995) (internal quotation marks and alteration omitted). But the broad
definition of fiduciary is still constrained in at least two ways. First, third-
party service providers can serve as ERISA fiduciaries in one capacity and non-
fiduciaries in another. See Pegram, 530 U.S. at 225-26 (explaining that
“persons who provide services to an ERISA plan” may operate with a conflict
of interest, so long as they comply with fiduciary duties while acting in
fiduciary capacity). Thus, when courts evaluate whether a party is an ERISA
fiduciary, they must focus on the specific role the purported fiduciary played
as relevant to the claim at hand. See id. at 226 (holding that, “[i]n every case
charging breach of ERISA fiduciary duty, . . . the threshold question is




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                                      No. 14-20358
. . . whether that person was acting as a fiduciary . . . when taking the action
subject to complaint”). 4
       Second, not every act that could be described as “discretionary” in the
general sense makes the actor a fiduciary under ERISA. For almost forty years,
the Department of Labor has maintained that “a person who performs purely
ministerial functions,” such as the “[p]reparation of reports concerning
participants’ benefits” or “[m]aking recommendations to others for decisions
with respect to plan administration,” is not an ERISA fiduciary. 29 C.F.R. §
2509.75-8, at D-2. 5 This is because
       a person who performs purely ministerial functions . . . for an
       employee benefit plan within a framework of policies,
       interpretations, rules, practices and procedures made by other
       persons . . . does not have discretionary authority or discretionary
       control respecting management of the plan, does not exercise any
       authority or control respecting management or disposition of the
       assets of the plan, . . . and has no authority or responsibility to do
       so.
Id. The distinction between fiduciaries and ministerial agents applies even to
“an attorney, accountant, actuary or consultant who renders legal, accounting,
actuarial or consulting services to an employee benefit plan,” even though
these parties exercise independent, professional judgment when acting on
behalf of an ERISA plan. Id. § 2509.75-5, at D-1; see also Reich, 55 F.3d at 1049
(stating that “professionals . . . who provide necessary services to ERISA plans”
do not become fiduciaries simply by “play[ing] influential roles by virtue of the


       4 We recognize that Pegram addressed whether a defendant was an ERISA fiduciary.
But ERISA only contains one definition of fiduciary, and nothing in ERISA’s civil
enforcement provisions suggests that we should apply one fiduciary test when determining
whether a party is a proper fiduciary-plaintiff, and another when determining whether a
party is a proper fiduciary-defendant.
       5 Interpretive bulletins from the Department of Labor receive “Skidmore deference,”

see Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), as described in Christensen v. Harris
County, 529 U.S. 576, 587 (2000). See Bussian v. RJR Nabisco, Inc., 223 F.3d 286, 297 (5th
Cir. 2000) (applying Skidmore deference to IRS bulletin).
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expertise that they possess or the capacities in which they act”). “[A]ttorneys,
accountants, actuaries and consultants performing their usual professional
functions will ordinarily not be considered fiduciaries, [unless] the factual
situation in a particular case” shows that the professional serves as a manager
or administrator of the plan. 29 C.F.R. § 2509.75-5, at D-1.
      The Department of Labor’s interpretations of § 1002(21)(A) are even
more persuasive when one considers their similarity to the common law of
trusts, which is the “source” of ERISA’s fiduciary duty provisions. See Pegram,
530 U.S. at 224. Under the common law of trusts, a trustee can delegate
ministerial acts to third-parties. George Gleason Bogert & George Taylor
Bogert, The Law of Trusts & Trustees § 555, at 114-15 (rev. 2d ed. 1980). If a
reasonable businessperson would “employ an outside expert” to perform a
given function, the courts treats those functions as ministerial. Id. at 116-17.
“[E]mploy[ing] an attorney to collect choses in action running to the trust,” id.
§ 556, at 142, is viewed as a ministerial function. See id. § 555-56. 6 The trustee
may entrust such duties “to realtors, lawyers, brokers, and others, not because
there is a total lack of discretion and judgment involved but because such
entrustment is common business practice in similar nontrust affairs.” Bogert,
supra, § 555, at 117.
      Under the Department of Labor’s interpretations—as under the common
law of trusts—the power to collect claims on behalf of the ERISA plan is not
discretionary per se. There are at least two relevant factors that tip the scales
between a ministerial employee and a fiduciary. First, the court must consider
whether the plan administrator has set up “a framework of policies,
interpretations, rules, practices and procedures” for the third-party to follow.



      6 A “chose in action” is a “proprietary right in personam, such as a debt owed by
another person.” Black’s Law Dictionary 294 (10th ed. 2014).
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See 29 C.F.R. § 2509.75-8, at D-2; see also Bogert, supra, § 556, at 142. If the
plan administrator has established such a framework, the court must consider
whether the plan administrator is actively supervising the agent’s
performance of the assigned task. See 29 C.F.R. § 2509.75-8, at D-2; see also
Bogert, supra, § 556, at 142. One hallmark of active supervision is a
requirement that the third-party submit a recommendation to the plan
administrator for approval before the third-party takes further action. If the
plan administrator is actively supervising the claims agent, then the fact that
the agent is empowered to initiate legal action for the plan does not prove the
agent is a fiduciary. See 29 C.F.R. § 2509.75-5, at D-1.
      Accordingly, in considering whether the district court erred when it
determined as a matter of law that Humana is an ERISA fiduciary under §
1132(a)(3), we focus on the specific role that Humana undertook regarding
subrogation and recovery services. And we ask whether API provided a
framework of policies and procedures to guide Humana, and supervised
Humana as it executed its task.
                                           II.
                                           A.
      The district court erred in determining that Humana is an ERISA
fiduciary for two reasons. First, the district court’s interpretation of the PMA
is not persuasive. The district court focused on the subrogation and recovery
clause and determined that its broad language 7 gave Humana independent
power to investigate and prosecute claims, even over the Plan’s objections. But
the relevant language merely defines the range of potential disputes covered
by the contract; it says nothing about who has the right to finally decide



      7   The PMA gives Humana responsibility for the “[i]nvestigation of claims,” and for
“[f]iling and prosecut[ing] . . . legal proceedings against any appropriate party.”
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whether to investigate or pursue a claim. 8 Thus, even considered in isolation,
the subrogation and recovery services clause does not show that Humana had
discretion over the Plan or its assets. Reading the subrogation and recovery
clause as part of the entire PMA raises additional questions about the district
court’s interpretation. See Indem. Ins. Co. of N. Am. v. W & T Offshore, Inc.,
756 F.3d 347, 351 (5th Cir. 2014) (explaining that courts “examine and consider
the entire writing in an effort to harmonize and give effect to all the provisions
of the contract so that none will be rendered meaningless”). For example, the
district court failed to explain how the PMA’s various provisions describing
Humana as the Plan’s agent, operating under the Plan’s policies and
procedures, informed its interpretation of the subrogation and recovery
services clause.
       Second, even if we interpreted the PMA to give Humana broad power,
the district court failed to explain why Humana is not a ministerial agent.
Humana’s various duties outlined in the subrogation and recovery clause
describe the tasks performed by many law firms and collections agencies. 9 And
the mere fact that Humana serves as the Plan’s legal or collections agent is
insufficient to show that Humana was the Plan’s fiduciary, unless specific facts
show that Humana exercised discretion as described in § 1002(21)(A)(i) and
(iii). See 29 C.F.R. § 2509.75-5, at D-1; see also, Nieto v. Ecker, 845 F.2d 868,
870 (9th Cir. 1988), 10 cited with approval in Reich, 55 F.3d at 1049-50



       8   By making clear that the contract covers a broad range of potential claims, the PMA
protects both parties. Without such a broad definition, the Plan could assign lucrative claims
to other third-parties, while Humana could refuse to pursue unprofitable claims.
         9 We list these duties in the “Facts and Proceedings” section above.
         10 In Nieto, the plaintiff accused an attorney hired by the plan of “fail[ing] to collect

. . . plan assets.” Id. at 870. The Ninth Circuit rejected this argument, holding that “[u]nder
[that] rationale anyone performing services for an ERISA plan—be it an attorney, an
accountant, a security guard or a janitor—would be rendered a fiduciary insofar as he
exercised some control over trust assets and through negligence or dishonesty jeopardized
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(explaining that “attorney was not fiduciary absent evidence that he exercised
authority over plan other than by usual professional functions”); cf. Health
Cost Controls of Ill., Inc. v. Washington, 187 F.3d 703, 709 (7th Cir. 1999)
(holding that person was ERISA fiduciary because plan had assigned legal
right to reimbursement, and “[b]y virtue of the assignment,” the attorney
obtained “broader power than that of a lawyer hired to handle a claim, or of an
ordinary collection agent”).
       We hold that the subrogation and recovery clause does not show that
Humana is an ERISA fiduciary. Accordingly, we hold that the district court
erred when it determined that Humana was an ERISA fiduciary based on the
language of that clause. Because the district court based its decision on its
interpretation of the subrogation and recovery clause, we have not had to
consider other evidence that might show whether Humana exercised actual,
decision-making authority over the Plan or its assets. Cf. Musmeci v.
Schwegmann Giant Super Mkts., Inc., 332 F.3d 339, 351 (5th Cir. 2003)
(explaining that this court uses “functional approach” to determine whether
purported fiduciaries exercise discretionary control over ERISA plans);
Hatteberg v. Red Adair Co. Emps.’ Profit Sharing Plan, 79 F. App’x 709, 716
(5th Cir. 2003) (per curiam) (explaining that “factual matter” showing alleged
fiduciary’s actual role are “key”). Because we reverse and remand on statutory
standing grounds, we do not decide whether the district court erred on the
merits.
                                            B.
       We agree with the dissent that a third-party service provider may be an
ERISA fiduciary even if the service provider possesses only “some discretionary



those assets.” Id. at 870-71. The Nieto Panel “[found] no basis for expanding the meaning of
fiduciary in this fashion[.]” Id. at 871.
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authority.” But we disagree with the dissent’s suggestion that Reich somehow
limited the definition of ministerial activities to include only benefits
determinations. As we noted above, the Department of Labor has stated that
attorneys “performing their usual professional functions” are not fiduciaries,
and has described persons “[m]aking recommendations to others for decisions
with respect to plan administration,” who operate “within a framework of
policies, interpretations, rules, practices and procedures made by other
persons,” as “ministerial” employees. 29 C.F.R. § 2509.75-5, at D-1; id. §
2509.75-8, at D-2. Reading these interpretive guidelines together, we see no
reason why collections agents cannot be ministerial employees, so long as they
operate under an ERISA plan’s framework of policies and procedures, and the
plan administrator supervises the agent’s activities.
      We do not hold, as the dissent suggests, that a third-party service
provider must have final decision-making authority to be an ERISA fiduciary.
We focused on final decision-making authority because that was a factor the
district court considered below. Questioning whether a party has final decision-
making authority is simply one way of asking whether the Plan administrator
was actively supervising Humana.
      We also disagree with the dissent that our reasoning is circular. It is of
course true that, by holding that Humana was the Plan’s fiduciary, the district
court impliedly held that Humana was not a ministerial employee. Our point
is that, even if the district court interpreted the PMA to give Humana fairly
broad powers, the proper analysis was not at an end without considering the
factors, discussed above, which the Department of Labor has stated are
relevant in determining whether third-party agents are ministerial employees.
Nothing in the district court’s opinion suggests that the court considered those
factors.


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      Humana may be able to adduce facts showing that API never set out a
framework of policies and procedures as promised, or that it did not supervise
Humana’s collection activities. But the PMA alone does not show either failure.
Until Humana adduces at least some evidence showing that API failed to guide
and supervise its operations, Humana cannot show that it has the right to seek
relief under § 1132(a)(3).
                                      III.
      In his notice of appeal, Nguyen stated that he was appealing both the
district court’s grant of summary judgment in Humana’s favor, and the district
court’s denial of summary judgment in his favor. But Nguyen does not
sufficiently address the district court’s failure to grant his motion for summary
judgment in his appellate brief. Accordingly, Nguyen has waived that issue.
See, e.g., Heimlich v. First Bank N.A., 80 F. App’x 947, 949 (5th Cir. 2003) (per
curiam).
                                 CONCLUSION
      For the reasons explained, we REVERSE the judgment of the district
court and REMAND for further proceedings consistent with this opinion,
beginning with a reexamination of the issue of Humana’s standing.




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WIENER, Circuit Judge, dissenting:
       I respectfully dissent in the firm conviction that the record evidence, as
presented to the district court on summary judgment, compels affirmance of
its holdings that (1) Humana is a fiduciary with statutory standing to bring an
action under 29 U.S.C. § 1132(a)(3) on behalf of the Plan, and (2) Humana
lawfully exercised its discretion, as authorized by the Plan, to recover the funds
that Nguyen had received by virtue of underinsured motorists insurance.
                                       I. Standing
       As noted in the majority opinion, Humana is designated as the Plan
Manager for API’s ERISA health benefits plan. The PMA states:
              [Humana] will provide ‘Subrogation/Recovery’ services
              (in addition to routine application of the coordination
              of benefits provisions of the Plan) for identifying and
              obtaining recovery of claims payments from all
              appropriate parties through operation of the
              subrogation or recovery provisions of the Plan.
              (a) Subrogation/Recovery services will be provided by
              the Plan Manager following its normal procedures and
              such services may be performed by subcontractors
              and/or counsel selected by [Humana]. 1
       Three points here.        First, the PMA distinguishes Humana’s express
discretionary authority to initiate and conduct subrogation and recovery
services from its “routine application” of benefits functions—the type of activity


       1 The implication of Footnote 1 to the panel majority’s opinion is based on flawed logic:
Even if API’s policies and procedures might be deemed to trump those of Humana in the final
analysis, that does not mean that Humana does not possess discretion—and thus fiduciary
status—in the normal course of administering subrogation and recovery services under the
express provisions of the Plan. Moreover, the panel majority fails to acknowledge that
Section 2.1’s statement that “the Plan Manager operates within a framework of the Plan’s
management policies and practices” is followed by sections containing limiting language:
“Accordingly, except as may otherwise be expressly provided herein, [Humana] is not a . . .
fiduciary . . . .[and] [e]xcept with respect to duties expressly assumed hereunder, [Humana] is
not responsible for maintaining the Plan in compliance with ERISA . . .”
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considered “ministerial” and thus insufficient to support a finding of fiduciary
status. 2     Second, the PMA recognizes that in Humana’s performance of
subrogation and recovery services, it will “follow[] [Humana’s] normal
procedures”—not those of API—another hallmark of discretion. 3 And, third,
the    PMA     gives     Humana       the    option—discretion—to           select   its   own
subcontractors and counsel to assist in performing subrogation and recovery
services that it conducts on behalf of the Plan.
        Moreover, the PMA contains a descriptive list of discrete activities that
constitute the “Subrogation/Recovery” services that Humana is authorized to
provide in its discretion:
              (1) Investigation of claims and obtaining additional
              information to determine if a person or entity may be
              the appropriate party for payment,
              (2) Presentation of appropriate claims and demands
              for payment to parties determined to be liable,
              (3) Notification to Participants that recovery or
              subrogation rights will be exercised with respect to a
              claim, and
              (4) Filing and prosecution of legal proceedings against
              any appropriate party for determination of liability
              and collection of any payments for which such
              appropriate party may be liable.
The scope of these services and the discretion inherent in the way that
Humana may choose to perform them further compels the conclusion that it is




        2See Reich v. Lancaster, 55 F.3d 1034, 1047 (5th Cir. 1995) (citing Kyle Rys. v. Pac.
Admin. Servs. Inc., 990 F.2d 513, 516 (9th Cir. 1993)).
       3 Cf. id. (recognizing that “[a]n entity which assumes discretionary authority or control

over plan assets will not be considered a fiduciary if that discretion is sufficiently limited by
a pre-existing framework of policies, practices, and procedures” (alteration in original)
(quoting Useden v. Acker, 947 F.2d 1563, 1575 (11th Cir. 1991)) (internal quotation marks
omitted)).
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vested with discretionary authority. 4 The other plan documents in the record,
viz., the NCD and SPD—which we review in pari materia with the PMA—lend
further support to the conclusion that Humana is a fiduciary of the Plan. 5
        Examine first the NCD, which only Nguyen contends constitutes the
Plan. 6 The “Claims Cost Management” section of the NCD states: “Humana
retains a percentage of recovery on all cases they work . . . . Humana will pay
for any legal expenses we/Humana incur based on Humana’s decision to retain
legal       counsel,”   and   “[o]nce   the   Plan     pays,    we   [Humana]        have    a
contractual/equitable right to request money back from the responsible
appropriate party or their insurance carrier.” 7




        4 See, e.g., W.E. Aubuchon Co. v. BeneFirst, LLC, 661 F. Supp. 2d 37, 52–53 (D. Mass.
2009) (listing “investigation of subrogation claims” as an activity requiring “the exercise of
substantial discretion”).
        5 See, e.g., Cataldo v. U.S. Steel Corp., 676 F.3d 542, 552 (6th Cir. 2012) (reviewing

plan documents to ascertain whether the union qualified as an ERISA fiduciary); Chi. Dist.
Council of Carpenters Welfare Fund v. Caremark, Inc., 474 F.3d 463, 472–73 (7th Cir. 2007)
(reviewing a series of contracts between the client and pharmaceutical benefits manager to
determine whether the manager’s obligations rendered it an ERISA fiduciary); Bouboulis v.
Transp. Workers Union of Am., 442 F.3d 55, 64 (2d Cir. 2006) (relying on the summary plan
description’s allocation of responsibilities to conclude that the plan’s administrator was a
fiduciary under § 1002(21)(A)(iii)).
        6 The NCD is actually nothing more than a questionnaire—a 396-part instrument that

“Humana [used] to draft the Summary Plan Description for the Plan and to administer
benefits under the Plan during the period prior to the delivery of a final Summary Plan
Description.” Like many a questionnaire, the NCD contains check-off boxes that describe a
number of optional plan provisions from among which API could (and did) pick and choose
only those that it wanted included in the Plan. Significantly, the record indicates that the
NCD evanesced when the 2012 SPD became effective, permanently supplanting the NCD.
        7 Emphases supplied.      The NCD spells out the Subrogation/Recovery provision:
“Subrogation allows the Plan to ‘stand in the shoes of the covered person and collect money
from the responsible appropriate party’ . . . . Reimbursement allows the Plan, by a contractual
right, to recover the money the Plan paid on behalf of the covered person, when benefits are
paid and the covered person recovered monetary damages from the responsible appropriate
party. This can be by settlement, judgment or other manner.” Accordingly, Humana seeks
reimbursement from Nguyen because he has already obtained funds from the responsible
appropriate party or parties, viz., his insurance company, an underinsured motorist, the
insurance company or companies covering that motorist, or some combination thereof.
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                                     No. 14-20358
      Turn next to the SPD, the instrument that Humana insists constitutes
the Plan. Not surprisingly, the SPD tells the same story as does the NCD, i.e.,
that Humana is accorded discretion to pursue subrogation and reimbursement
on behalf of the Plan: “This Plan shall be repaid the full amount of the covered
expenses it pays from any amount received from others for the bodily injuries
or losses which necessitated such covered expenses.” The provisions of the SPD
that accompany this declaration set out Humana’s “Right to Collect Needed
Information,” as well as each Plan participant’s “Duty to Cooperate in Good
Faith”:
               You must cooperate with Humana and when asked,
               assist Humana by . . . . [p]roviding information about
               other insurance coverage and benefits, including
               information related to any bodily injury or sickness for
               which another party may be liable . . . . and []
               [p]roviding information Humana requests to
               administer this Plan.

               You are obliged to cooperate with Humana in order to
               protect this Plan’s recovery rights . . . . You will do
               whatever is necessary to enable Humana to enforce
               this Plan’s recovery rights and will do nothing after
               loss to prejudice this Plan’s recovery rights . . . .
               Failure of the covered person to provide Humana such
               notice or cooperation . . . will be a material breach of
               this Plan . . . . 8
      Read in pari materia, as they must be, the PMA, NCD, and SPD all
identify Humana as the entity vested with discretionary responsibility to
pursue subrogation and recovery of claims on behalf of the Plan.
      The majority opinion raises two principal objections to the district court’s
determination that Humana is a fiduciary to the extent that it is charged with
conducting subrogation and recovery services on behalf of the Plan: (1) The



      8   Underlining emphases supplied.
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                                       No. 14-20358
PMA defines the range of potential disputes covered by the contract, but does
not make clear that Humana has the ultimate authority to decide whether to
investigate or pursue a claim; and, (2) the district court failed to explain why
Humana’s responsibilities as outlined in the subrogation and recovery clause
are not merely ministerial in nature.
       Consider first the majority opinion’s statement that the PMA “says
nothing about who has the right to finally decide whether to investigate or
pursue a claim,” 9 leading it to conclude that the district court erred in holding
that Humana is an ERISA fiduciary. Although final decision-making authority
can be persuasive evidence that an entity is a fiduciary, neither § 1002(21)(A)
nor our case law holds that the converse is true, i.e., that an entity must
possess “final” authority to qualify as a fiduciary of an ERISA plan. 10 Rather,
“[t]o be fiduciaries, such persons must exercise discretionary authority and
control that amounts to actual decision making power.” 11 This principle is
illustrated by American Federation of Unions Local 102 Health & Welfare
Fund v. Equitable Life Assurance Society of the United States, wherein we held
that “[the Plan Administrator]’s fiduciary status was not diminished by the
trustees’ final authority to grant or deny claims or approve investments.” 12



       9  Emphasis supplied.
       10  See Reich, 55 F.3d at 1047 (citing Am. Fed. of Unions Local 102 Health & Welfare
Fund v. Equitable Life Assurance Soc’y of the U.S., 841 F.2d 658, 663 (5th Cir. 1988)).
        11 Id. at 1049 (emphasis supplied). This does not require a history of decision-making;

the scienter doctrine is not applicable. Rather, the authority to make actual decisions
suffices.
        12 Am. Fed. of Unions, 841 F.2d at 663 (emphasis supplied). The panel majority makes

much of the purported similarities between § 1002(21)(A) and ministerial functions as
defined by the common law of trusts. I urge the district court on remand not to be distracted
by the panel majority’s smoke screen of resorting to the common law of trust and trustees.
Several decades of evolving ERISA jurisprudence demonstrate a dramatic divergence from
that beginning—ERISA fiduciaries and their duties have become sui generis. See Varity
Corp. v. Howe, 516 U.S. 489, 506 (1996) (“We recognize . . . that we are to apply common-law
trust standards bearing in mind the special nature and purpose of employee benefits plans.”
(internal quotation marks and citation omitted)). More to the point, both common law
                                              17
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                                      No. 14-20358
       “The term fiduciary includes those to whom some discretionary authority
has been delegated.” 13 The record evidence makes clear that, at a minimum,
the PMA accords Humana some “discretionary authority,” even if not final
authority, to conduct subrogation and recovery efforts on behalf of the Plan.
Although the panel majority concludes that “considered in isolation, the
subrogation and recovery services clause does not show that Humana had
discretion over the Plan or its assets,” relying on the purported absence of
language in the PMA assigning Humana final decision-making authority, this
analysis fails to acknowledge the PMA’s straightforward language that
Humana “will provide ‘Subrogation/Recovery’ services . . . for identifying and
obtaining recovery of claims payments from all appropriate parties.” 14 And,
although the panel majority defends their position by claiming that
“[q]uestioning whether a party has final decision-making authority is simply
one way of asking whether the Plan Administrator was actively supervising
Humana,” this leads down yet another path: If the determinative factor is
whether API was “actively supervising” Humana, rather than whether the
PMA accorded Humana final decision-making authority, the panel majority
should ground its analysis thusly.          And, I must add, Nguyen adduced no



trustees and ERISA fiduciaries might well employ legal counsel, CPAs, actuaries or the like
to provide “ministerial functions,” but that is in no way comparable to the relationship
between API and Humana in this case. It was Humana, one of the largest (if not the largest)
providers of group healthcare plans in the country—both ERISA and non-ERISA—that
created and provided the Plan for API from provisions that API selected in a questionnaire,
expressly reserving, among other things, Humana’s furnishing and performing the most “pro-
active” subrogation and recovery services—as expressly selected by API. Thus it was
Humana, not API, that “set up” the framework of policies, interpretations, rules, practices,
and procedures for it to follow.
       13 Am. Fed. of Unions, 841 F.2d at 663 (emphasis supplied). I do not suggest, as the

panel majority implies, that Reich limits ministerial functions to benefit determinations;
rather, my point is that Reich contemplates that a third-party manager need not possess
absolute or final authority to qualify as an ERISA fiduciary—keeping in mind that our
precedent requires that we construe the term “liberally.”
       14 Emphasis supplied.

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                                         No. 14-20358
credible evidence that API actively supervised Humana’s provision of
subrogation and reimbursement services on behalf of the Plan. 15
       Consider next the panel majority’s criticism of the district court for
failing to explain why the duties outlined in the PMA are not ministerial in
nature, observing that they resemble the tasks performed by law firms and
collections agencies. But this criticism is circular and thus self-defeating: By
ruling that Humana’s responsibilities are discretionary in nature, the district
court’s inescapable corollary implication is that Humana’s duties were not
ministerial; they cannot be both. 16
       One final point. The panel majority states that, on remand, “Humana
may be able to adduce facts showing that API never set out a framework of
policies and procedures as promised, or that it did not supervise Humana’s
collection activities. But the PMA alone does not show either failure.” I
acknowledge that Humana, as the moving party on summary judgment, had
the initial burden of adducing evidence that establishes its standing to sue




       15  The panel majority further criticizes the district court for failing to address
language in the PMA describing Humana as the Plan’s agent. But, this criticism does not
account for the PMA’s permissive language that “[Humana] may act as an agent of [API] to
perform specific actions or conduct specific transactions . . . . ” (Emphasis supplied). And, as
observed in Footnote 1, the panel majority fails to acknowledge that the same article
providing that Humana “may” act as an agent contains limiting language that “except as may
otherwise be expressly provided herein, [Humana] is not a . . . fiduciary . . . [and] [e]xcept with
respect to duties expressly assumed hereunder, [Humana] is not responsible for maintaining
the Plan in compliance with ERISA . . . .” (Emphases supplied).
        16 Although the panel majority defends its reasoning by claiming that it only suggests

that the district court’s analysis was incomplete because it should have considered the factors
contained in Department of Labor interpretive bulletin, 29 C.F.R. § 2509.75-5, before ruling
in favor of Humana, I have located no case law that holds or even suggests that the district
court is obligated to do so in every instance involving a question of ERISA fiduciary standing.
Especially when, as here, the relevant plan documents identify Humana as the entity
responsible for recovering subrogation and reimbursement on behalf of the Plan, and Nguyen
has adduced no credible evidence suggesting otherwise, working through the factors
contained in 29 C.F.R. §2509.75-5 is simply repetitive.
                                               19
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                                     No. 14-20358
under § 1132(a)(3). 17 But, “once the moving party meets its initial burden of
pointing out the absence of a genuine issue for trial, the burden is on the
nonmoving party to come forward with competent summary judgment
evidence establishing the existence of a material factual dispute.” 18 If evidence
existed that API actively supervised Humana, or that Humana operated solely
within API’s framework of policies, it was Nguyen’s burden to adduce such
evidence in his opposition.        Instead, Nguyen presented only an affidavit
prepared by API’s Human Resources Director, Ms. Amy Manuel, in which her
testimony contradicted the plain terms of the PMA as well as those of the
Plan. 19 Remanding the case for Humana to adduce the absence of evidence
that would establish its standing represents a fishing expedition with no end.
      As the record evidence compels the conclusion that Humana has
discretion to pursue subrogation and reimbursement on behalf of the Plan, I
would affirm the district court’s summary judgment that (1) Humana is an
ERISA fiduciary by virtue of its discretion to seek subrogation and
reimbursement on behalf of the Plan, and (2) Humana therefore has standing
to bring this action. 20
                                      II. Merits
      The merits of this case are not addressed in the majority opinion because
it remands for further consideration of the threshold issue of standing. As I
would affirm Humana’s standing, however, I briefly address the merits of the



      17   See Coleman v. Champion Int’l Corp./Champion Forest Prods., 992 F.2d 530, 533
(5th Cir. 1993) (noting that party seeking to establish standing under § 1132 must satisfy
statutory definitions).
        18 Clark v. America’s Favorite Chicken, 110 F.3d 295, 297 (5th Cir. 1997).
        19 It bears noting that Ms. Manuel works under Nguyen’s father, who is the CEO of

API, a 100% family-owned company.
        20 The court may affirm summary judgment on any basis raised in the district court

that is supported by the record. EEOC v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014)
(citing City of Alexandria v. Brown, 740 F.3d 339, 350 (5th Cir. 2014)).
                                           20
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                                       No. 14-20358
case. At issue is whether the terms of the Plan support Humana’s efforts to
recover, on behalf of the Plan, the funds that Nguyen received by virtue of
underinsured motorists insurance.
       Continuing to rely on the NCD only, Nguyen contends that it shields him
from Humana’s recovery, pointing to Ms. Manuel’s affidavit. In her affidavit,
Ms. Manuel, who also serves as Plan Administrator, avers that API interprets
the Plan to bar recovery of any payment that a Plan participant receives by
virtue of his own insurance policy.            On appeal, Nguyen asserts that Ms.
Manuel’s interpretation is consistent with the NCD, which, he contends, limits
the Plan’s right of reimbursement and subrogation to recovering from the
“responsible appropriate party or his insurance carrier”—who, insists Nguyen,
could never be a Plan participant or his insurance carrier because a participant
could not be responsible for injuring himself. 21
       Although the parties dispute which document constitutes the Plan,
neither they nor I dispute that Ms. Manuel, as the Plan Administrator, is
vested with discretionary authority to interpret the Plan.                  And, when an
ERISA health benefits plan vests the plan administrator with discretionary
authority to construe its terms, courts review such administrator’s denial of
benefits for abuse of discretion. 22         The same principle applies to a plan’s


       21 Nguyen’s “logic” suffers from a flawed syllogism: Although the record does not make
clear whether Nguyen recovered the funds from his underinsured motorists insurance policy
or from the tortfeasor, or some from each, the verified complaint states that “Nguyen settled
his claims relating to the April 14, 2012 accident with responsible third parties for
approximately $275,000.00," and Nguyen admitted to that in his Answer. The parties later
stipulated and agreed that Nguyen would preserve $255,000 in settlement proceeds that he
“received in connection with the injuries [he] suffered”; and he states in his appellate brief
that he “secured funds from his underinsured motorist policy provider.”                As the
Reimbursement/Recovery provisions of the Plan expressly cover proceeds received pursuant
to a Plan participant’s underinsured motorists insurance policy, any inconsistency in the
summary judgment record on this point is not material.
       22 Cooper v. Hewlett-Packard Co., 592 F.3d 645, 652 (5th Cir. 2009) (citing Gosselink

v. Am. Tel. & Tel., Inc., 272 F.3d 722, 726 (5th Cir. 2001)). As noted in the majority opinion,
standard summary judgment rules control in ERISA cases, meaning we review a district
                                             21
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                                       No. 14-20358
assertions of rights to reimbursement and subrogation. 23 This means that,
under de novo review, the plan administrator’s decision is assessed on appeal
“from the same perspective as did the district court, and we directly review the
Plan’s decision for an abuse of discretion.” 24
        Courts apply a two-step process to determine whether an ERISA plan
administrator’s interpretation constitutes an abuse of discretion.                 They first
consider whether that interpretation is legally correct; if so, the inquiry ends.
If deemed legally incorrect, the court then considers whether the interpretation
is also an abuse of discretion and thus reversible. To determine whether an
administrator’s interpretation is legally correct, the court evaluates several
factors: (1) whether the administrator gives the plan a uniform construction,
(2) whether the interpretation is consistent with a fair reading of the plan, and
(3)    whether     any    unanticipated        costs    would     result    from     different
interpretations of the plan. 25 As noted, Ms. Manuel’s interpretation would
prohibit the Plan from seeking reimbursement from Nguyen’s underinsured
motorist recovery: “The terms of the API Employee Benefits Plan do not allow
a claim for subrogation or reimbursement from an uninsured or underinsured
motorist policy, nor any other policy of insurance secured by the Plan
participant.”




court’s grant of summary judgment de novo and apply the same standards as the district
court.
        23 See Sunbeam-Oster Co. Grp. Benefits Plan for Salaried & Non-Bargaining Hourly

Emps. v. Whitehurst, 102 F.3d 1368, 1373 (5th Cir. 1996).
        24 Cooper, 592 F.3d at 651 (quoting Meditrust Fin. Servs. Corp. v. Sterling Chems. Inc.,

168 F.3d 211, 214 (5th Cir. 1999)) (internal quotation mark omitted).
        25 Wildbur v. ARCO Chem. Co., 974 F.2d 631, 638 (5th Cir. 1992) (citing Jordan v.

Cameron Iron Works, Inc., 900 F.2d 53, 56 (5th Cir. 1990)).
                                              22
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                                       No. 14-20358
       But, Ms. Manuel’s interpretation is directly contradicted by the plain
language of the NCD, 26 which states: “Reimbursement allows the Plan, by
contractual right, to recover the money paid on behalf of the covered person,
when benefits are paid and the covered person recovers monetary damages
from the responsible appropriate party.” Here, Nguyen recovered monetary
damages on the basis of underinsured motorists insurance. The NCD does not
define the term “responsible appropriate party,” but when we give the words
of that term their plain and ordinary meanings, as we are required to do, only
one conclusion makes sense: That term includes a Plan participant’s own
insurers, not just those of third parties. 27
       Moreover, even if we were to determine that the term “responsible
appropriate party” is ambiguous (which I would not), we would be bound to
construe the term as closely as possible to the SPD, 28 which states:
              The Plan shall be repaid the full amount of the covered
              expenses it pays from any amount received from
              others for the bodily injuries or losses which
              necessitated such covered expenses.            Without
              limitation, ‘amounts received from others’ specifically
              includes, but is not limited to . . . underinsured
              motorists, ‘no-fault’ and automobile med-pay
              payments or recovery from any identifiable fund

       26  I assume for the sake of argument, as did the district court, that the NCD
constitutes the Plan despite evidence in the record that the NCD was supplanted by the 2012
SPD.
        27 Courts interpret ERISA plans “in an ordinary and popular sense as would a person

of average intelligence and experience.” Wegner v. Standard Ins. Co., 129 F.3d 814, 818 (5th
Cir. 1997) (quoting Todd v. AIG Life Ins. Co., 47 F.3d 1448, 1452 n.1 (5th Cir. 1995)) (internal
quotation marks omitted); see also U.S. Airways, Inc. v. McCutchen, 133 S. Ct. 1537, 1549
(2013) (“Courts construe ERISA plans, as they do other contracts, by looking to the terms of
the plan as well as to other manifestations of the parties’ intent.” (quoting Firestone Tire &
Rubber Co. v. Bruch, 489 U.S. 101, 113 (1989)) (internal quotation marks omitted)).
        28 Although the plan text, and not the plan summary, ultimately controls the plan

administrator’s obligations, our precedent holds that (1) ambiguous plan language be given
a meaning as close as possible to what is said in the plan summary, and (2) plan summaries
be interpreted in light of the applicable statutes and regulations. Koehler v. Aetna Health
Inc., 683 F.3d 182, 189 (5th Cir. 2012) (citations omitted).
                                              23
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                                        No. 14-20358
               regardless of whether the beneficiary was made
               whole. 29
Thus, the SPD expressly confirms that amounts recoverable from others on
behalf of the Plan include payments to members of the Plan from underinsured
motorists insurance—the exact type of payment that Nguyen received but is
now attempting to shield from recovery by Humana for the benefit of the Plan.
       The only conclusion that I can draw from all of this is that, on its face,
Ms. Manuel’s interpretation directly contradicts the plain terms of the NCD
(and the other plan documents, including the SPD) and is therefore incorrect
as a matter of law. And, even though a legally incorrect interpretation like Ms.
Manuel’s does not automatically constitute an abuse of discretion, when, as
here, an administrator’s interpretation flies in the face of the express and
unambiguous terms of the Plan, it does indeed constitute an abuse of
discretion. 30 As such, we must disregard her interpretation entirely. Thus,
relying on the plain language of the NCD as incorporated in the SPD, I would
hold that these terms create an equitable lien in favor of the Plan against
Nguyen’s underinsured motorists recovery.
                                      III. Conclusion
       Finally, a few thoughts on the “brooding omnipresence” overarching this
dispute that we simply cannot ignore. Nguyen is the son of API’s CEO, who is
Ms. Manuel’s superior. I take judicial notice of the fact that the Nguyen family




       29 Underlining emphasis supplied.
       30  See Wildbur, 974 F.2d at 638 (“Although the fact that an administrator’s
interpretation is not the correct one does not in itself establish that the administrator abused
his discretion, ‘[w]hen [his] interpretation of a plan is in direct conflict with express language
in a plan, this action is a very strong indication of arbitrary and capricious behavior.’”
(alterations in original) (quoting Batchelor v. Int’l Bhd. of Elec. Workers Local 861 Pension &
Ret. Fund, 877 F.2d 441, 445 (5th Cir. 1989))).
                                               24
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                                         No. 14-20358
owns 100% of the stock of API, and employs only around 180 persons. 31 The
Plan covered and paid the medical expenses that Nguyen incurred as a result
of an automobile accident, to the tune of about a quarter-million dollars.
Nguyen subsequently received a second, virtually identical payout by virtue of
underinsured motorists insurance. Despite the plain language of the PMA, the
NCD, and the SPD—each of which empowers Humana to recover such payouts
(as well as other types), up to the amount of covered expenses previously paid
by the Plan—Nguyen, like Ms. Manuel, baldly and self-servingly (but
incorrectly) denies that Humana, acting on behalf of the Plan, is entitled to do
so. 32 Moreover, relying on the affidavit prepared by Ms. Manuel, Nguyen
insists that the Plan may not recover funds that he received pursuant to
underinsured motorists’ insurance.
       Stated simply, I am convinced beyond cavil that the record evidence
compels the conclusion that Humana not only has discretion to pursue
subrogation and reimbursement on behalf of the Plan and thus has standing,
but that the Plan is entitled to recover the sums obtained by Nguyen by virtue
of underinsured motorists insurance, particularly when his retention of that
sum would constitute nepotistic double-dipping at the expense of the Plan. 33 I
am firmly convinced that reversing and remanding today for a redetermination
of both standing and the merits—with predictably the same results—merely
prolongs the resolution of this dispute, which I conclude has already been


       31  See FED. R. EVID. 201(b)(2) (“The court may judicially notice a fact that is not subject
to reasonable dispute because it . . . can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.”).
        32 I acknowledge that Humana is entitled to retain a portion of the amounts it recovers

via subrogation and recovery on behalf of the Plan.
        33 That the pater familias who runs the family-owned business would support (if not

direct) the efforts of his minions to obtain a tax-free windfall of a quarter-million dollars for
a family member at the expense of his company’s faceless insurers is not surprising. But it
is nevertheless wrong and—more to the point of this case—violative of both the letter and
the spirit of the contracts that govern the relationship between the parties.
                                               25
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                                 No. 14-20358
correctly decided by the district court. These are the reasons why I respectfully
DISSENT.




                                       26
