Jack Leeson v. Transamerica Disability Income

Filing

FILED OPINION (BETTY BINNS FLETCHER, M. MARGARET MCKEOWN and RICHARD A. PAEZ) VACATED; REMANDED. Leeson shall recover his costs on appeal. Judge: RAP Authoring. FILED AND ENTERED JUDGMENT. [8040220]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT



JACK C. LEESON,



Defendant-Appellee.

TRANSAMERICA
PLAN,

Plaintiff-Appellant,
v.
DISABILITY INCOME



No. 10-35380
D.C. No.
2:04-cv-00471-RSM
OPINION

Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Submitted January 23, 2012*
Filed January 23, 2012
Before: Betty B. Fletcher, M. Margaret McKeown, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez

*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

633

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LEESON v. TRANSAMERICA DISABILITY

COUNSEL
Steven Krafchick, Krafchick Law Firm, Seattle, Washington,
for the appellant.
David Levin, Drinker Biddle & Reath LLP, Washington, DC,
for the appellee.

OPINION
PAEZ, Circuit Judge:
Plaintiff Jack Leeson (“Leeson”), a former employee of
Defendant Transamerica Corporation (“Transamerica”), filed
this action under the Employee Retirement Income Security
Act (“ERISA”), 29 U.S.C. § 1101, et seq., to challenge the
termination of his long-term disability benefits. The district
court, applying an abuse of discretion standard of review,
upheld the Transamerica Corporation Disability Income
Plan’s decision to terminate his benefits. Leeson appealed. In
a prior disposition, we reversed the district court’s grant of
summary judgment to Transamerica and remanded with
instructions to the district court to apply a de novo standard
of review in determining whether Transamerica properly terminated Leeson’s benefits. Leeson v. Transamerica Disability
Income Plan, 279 F. App’x 563 (9th Cir. 2008).
On remand, Transamerica filed a motion to dismiss Leeson’s action for lack of subject matter jurisdiction on the
ground that Leeson did not have statutory standing as a plan
participant to file suit under ERISA. Leeson, on the other
hand, argued that he was a plan participant because he was
employed at Transamerica at the time he applied for benefits.
Leeson also stressed that Transamerica approved his claim
and, in fact, paid him benefits for four years. The district
court, relying on Curtis v. Nevada Bonding Corp., 53 F.3d

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1023 (9th Cir. 1995), concluded that Leeson was not a plan
participant and granted Transamerica’s motion to dismiss.
The district court concluded that because Leeson lacked
standing to pursue an ERISA claim, there was no federal subject matter jurisdiction. Leeson again timely appealed.
In this appeal, Leeson argues that the district court erroneously relied on our prior holding in Curtis to dismiss the case
for lack of subject matter jurisdiction. In Curtis, we held that
a district court lacked jurisdiction to consider an ERISA claim
where a former employee “had neither a reasonable expectation of returning to covered employment nor a colorable claim
to vested benefits.” Id. at 1027. Relying on a more recent
decision, Vaughn v. Bay Environmental Management, Inc.,
Leeson contends that, under ERISA, a “dismissal for lack of
statutory standing is properly viewed as a dismissal for failure
to state a claim rather than a dismissal for lack of subject matter jurisdiction.” 567 F.3d 1021, 1024 (9th Cir. 2009). Leeson
therefore argues that because he alleged a colorable claim for
benefits, the district court had subject matter jurisdiction to
address the merits of his case on remand.
For the reasons explained below, we agree with Leeson that
Vaughn controls. Whether Leeson is a participant for purposes of ERISA is a substantive element of his claim, not a
prerequisite for subject matter jurisdiction. As the Supreme
Court has instructed, “when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should
treat the restriction as nonjurisdictional in character.”
Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006). To the
extent our prior cases—including Curtis—hold otherwise,
they have “no precedential effect” because they are precisely
the type of “drive-by jurisdictional rulings” the Supreme
Court has since rejected. Id. at 511 (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91 (1998)). We therefore
vacate the dismissal and remand for further proceedings.

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I
Leeson is a former employee of Transamerica. While
employed there, he participated in Transamerica’s long-term
disability (“LTD”) income plans. The Basic Plan, known as
the Transamerica Corporation Disability Income Plan (“Basic
Plan”), provided benefits based on a participant’s predisability annual earnings up to $150,000. A second plan,
known as the Transamerica Corporation Class 2 Long Term
Disability Coverage Supplemental Plan (“Supplemental
Plan”),1 provided benefits on eligible pre-disability annual
earnings over $150,000.
Leeson began working as a Regional Pension Manager for
Transamerica in 1983. In December 1993, Leeson was in an
automobile accident that resulted in injury to his neck and
caused him to suffer severe headaches. Leeson continued to
work until June 1996, at which time he took a leave of
absence due to his deteriorating physical condition. Shortly
thereafter, Leeson timely applied for LTD benefits under both
the Basic and Supplemental Plans.
On April 1, 1997, Prudential Insurance Company of America (“Prudential”), as Claims Administrator, determined that
Leeson was eligible for LTD benefits2 and approved his application subject to “continuing evaluation of his claim.”3 Pru1

The Basic Plan provided LTD benefits of 70 percent of the first
$150,000 of eligible pre-disability annual earnings. The Supplemental
Plan provided benefits on eligible pre-disability annual earnings over
$150,000. Leeson’s last eligible salary was $221,648.40, an amount which
qualified him for benefits under the Supplemental Plan as well as the
Basic Plan.
2
After Leeson filed this case, Prudential, as Plan Administrator for the
Supplemental Plan, settled Leeson’s dispute over the allegedly improper
termination of his Supplemental Plan benefits. As a result of this settlement, Leeson dismissed his claims against Prudential. Accordingly, unless
otherwise noted, all further references to “long-term disability benefits,”
“LTD plan,” or “LTD benefits” refer to the Basic Plan.
3
At the time Leeson applied for benefits, Transamerica was the Plan
Administrator for the Basic Plan. Prudential, however, was the Claims

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dential paid Leeson LTD benefits until July 2, 2001, when it
determined that he was no longer disabled within the meaning
of the LTD plan.4 In terminating Leeson’s benefits, Prudential
determined that the medical evidence no longer supported
Leeson’s claim that he suffered from a physical impairment
that prevented him from returning to work. Prudential further
concluded that, although Leeson may have suffered from an
impairment that resulted from a psychological condition, the
maximum benefits available for a mental impairment limitation had been exhausted.
Leeson appealed Prudential’s decision to terminate his
LTD benefits. Leeson disputed Prudential’s interpretation of
the medical evidence and requested that Prudential reinstate
his benefits. In a letter dated October 19, 2001, Prudential
affirmed its decision to terminate Leeson’s benefits. The letter
explained that Leeson’s benefits were terminated because of
the 24-month mental disorder limitation and because the medical evidence did not show that Leeson suffered from a physical disability that prevented him from working.
In February 2002, Leeson filed a second administrative
appeal with the AEGON Committee, which had replaced
Transamerica as the Plan Administrator.5 Subsequently, on
Administrator. As Claims Administrator, Prudential made initial eligibility
determinations, including review of first level appeals from the denial of
benefits. If Prudential’s appeals unit upheld the denial of benefits, the
employee could appeal to the Transamerica Corporation Benefits Administration Committee.
4
As we noted in our prior disposition, although Prudential determined
that Leeson was no longer eligible for benefits under the Basic Plan, its
termination letter quoted the definition of disability from the Supplemental
Plan, not the Basic Plan. See Leeson, 279 F. App’x at 565.
5
In 1999, AEGON USA, Inc., acquired Transamerica. As a result of this
acquisition, the AEGON Committee replaced Transamerica as Plan
Administrator. The AEGON Committee also assumed responsibility for
second level appeals from the denial of benefits.

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June 19, 2002, the AEGON Committee denied Leeson’s
appeal on the ground that he “d[id] not meet the definition of
disability under the Plan that is applicable after the first 24
months of disability.”
One year later, in August 2003, Leeson filed a second
appeal with the AEGON Committee. The Committee denied
this appeal, explaining that its June 19, 2002, decision was
final. Having pursued his administrative remedies, Leeson
filed this action pursuant to 29 U.S.C. § 1132(a)(1)(B) and
invoked federal court jurisdiction pursuant to 29 U.S.C.
§ 1132(e)(1).6
Ruling on cross-motions for summary judgment, the district
court granted Transamerica’s motion on the ground that the
termination of benefits did not constitute an abuse of discretion. In its ruling, the district court concluded that Transamerica did not breach its fiduciary duty under the then-existing
standard recognized in Atwood v. Newmont Gold Co., 45 F.3d
1317 (9th Cir. 1995), when it provided Leeson with a copy of
the 1997 Restatement Plan that was in effect at the time Leeson’s benefits were terminated, rather than the version of the
plan in effect at the time Leeson became disabled and applied
for benefits. The district court further concluded that Leeson
received a full and fair administrative review, and that there
was substantial evidence to support the determination that
“[Leeson’s] disability resulted from a mental condition.”
6

In his complaint, Leeson named Transamerica Corporation Disability
Income Plan, Prudential Insurance Company of America, and AEGON
Long Term Disability Plan as defendants. As a result of the settlement of
Leeson’s claim regarding benefits under the Supplemental Plan, Leeson
dismissed Prudential as a defendant. Because Leeson was never a participant in the AEGON Plan, Leeson dismissed the AEGON Plan as a defendant. The only remaining defendant is the Transamerica Disability Income
Plan. Although the final administrative decision was made by the AEGON
Committee, the parties do not dispute that Transamerica Disability Income
Plan is the proper defendant.

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As noted above, Leeson appealed. In Leeson’s first appeal,
we held that, under our then-recent decision in Abatie v. Alta
Health & Life Insurance Co., 458 F.3d 955 (9th Cir. 2006)
(en banc), the district court erred in reviewing for abuse of
discretion the decision to terminate Leeson’s benefits. We
remanded the case for further consideration under a de novo
standard of review to determine whether Leeson was disabled
under the terms of the 1997 Restatement Plan.7 Leeson, 279
F. App’x at 567.
Transamerica never asserted in the administrative process,
in the original district court proceeding, or in the prior appeal
that Leeson was not a plan participant within the meaning of
29 U.S.C. § 1002(7). After our remand, however, Transamerica filed a Federal Rule of Civil Procedure 12(h)(3) motion to
dismiss for lack of subject matter jurisdiction on the ground
that Leeson did not qualify as a plan participant, and therefore
lacked statutory standing to sue under ERISA. In support of
its argument, Transamerica explained that after the remand,
its newly retained counsel located relevant plan documents8
that governed Leeson’s eligibility for benefits. Under these
LTD plan documents, Transamerica argued that Leeson was
not a plan participant because he was on an unpaid leave of
absence when he applied for benefits. Citing to the 1997
Restatement Plan, Transamerica argued that Section 3.3.4
expressly provided that “if an Eligible Employee is on an
unpaid leave of absence, his or her status as a Long-Term Participant shall be suspended and he or she shall be ineligible
for Long-Term Disability Benefits.” Recognizing that it had
7
Because Leeson was entitled to de novo review of the decision to terminate his benefits, we instructed the district court to reconsider Leeson’s
request to conduct discovery. Leeson, 279 F. App’x at 566-67. We also
directed that “[i]n the absence of record evidence that Leeson’s rights had
vested under a prior plan, the Plan in effect when his claim was denied—
the so-called 1997 Plan—governs his claim for benefits.” Id. at 565 (citations omitted).
8
Following our remand, Transamerica produced the 1988 and 1996
Summary Plan Descriptions, and the 1993 Restatement Plan.

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not previously raised this standing issue, Transamerica argued
that because the issue ultimately related to the district court’s
subject matter jurisdiction it could, under Rule 12(h)(3), raise
the issue at any time. As noted above, Transamerica relied on
our decision in Curtis to support its argument.
In opposing Transamerica’s motion, Leeson submitted a
series of three declarations, the second and third of which corrected typographical errors in the first declaration. In these
declarations, Leeson declared that at the time he applied for
LTD benefits, he was not on a leave of absence. In response
to Transamerica’s motion challenging the propriety of the
later filed declarations, the district court struck them. As for
the original declaration, the district court found that it was
“self-serving” because it was made on “information and belief
rather than personal knowledge,” and was not signed under
penalty of perjury. The district court ultimately concluded that
Leeson’s “self-serving declaration [did] not provide cognizable evidence that [he] was not on unpaid leave” when he
applied for benefits.9
With this ruling, the district court found that Leeson was
not a plan participant under 29 U.S.C. § 1132(a)(1)(B),10 and
therefore lacked statutory standing to pursue an ERISA claim.
Accordingly, the district court granted Transamerica’s motion
to dismiss. In so ruling, the district court relied on Curtis to
further conclude that because Leeson lacked statutory standing, federal court subject matter jurisdiction did not exist.
Leeson timely appealed.
9
In light of our disposition, we need not decide whether the district
court erred in striking any of Leeson’s declarations.
10
29 U.S.C. § 1132(a)(1)(B) provides:

(a) Persons empowered to bring a civil action. A civil action may
be brought —
(1) by a participant or beneficiary —
(B) to recover benefits due to him under the terms of his plan, to
enforce his rights under the terms of the plan, or to clarify his
rights to future benefits under the terms of the plan . . . .

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II
We review de novo a dismissal for lack of subject matter
jurisdiction. United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 968 (9th Cir. 1999). We also
review de novo the district court’s interpretation of ERISA.
See Spink v. Lockheed Corp., 125 F.3d 1257, 1260 (9th Cir.
1997).
III
[1] Leeson, who filed this action pursuant to 29 U.S.C.
§ 1132(a)(1)(B), alleges that he was a participant in the Transamerica LTD plan and that federal jurisdiction existed under
29 U.S.C. § 1132(e)(1).11 Transamerica contends that the district court lacked subject matter jurisdiction because Leeson
was not a plan participant as required by § 1132(a)(1)(B). As
Transamerica correctly notes, the Supreme Court has
explained that “[t]he express grant of federal jurisdiction in
ERISA is limited to suits brought by certain parties . . . .”
Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463
U.S. 1, 21 (1983) (concluding that the district court lacked
subject matter jurisdiction over a lawsuit brought by state tax
authorities for a declaratory judgment involving an ERISAcovered employee benefit plan). Participants are among those
parties expressly entitled to bring suit under ERISA. 29
U.S.C. § 1132(a)(1)(B). Thus, the question presented in this
appeal is whether the challenge to Leeson’s status as a plan
participant implicates federal court subject matter jurisdiction,
11

29 U.S.C. § 1132(e)(1) provides:
(e) Jurisdiction
(1) Except for actions under subsection (a)(1)(B) of this section,
the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, [or] fiduciary. . . . State
courts of competent jurisdiction and district courts of the United
States shall have concurrent jurisdiction of actions under paragraphs (1)(B) and (7) of subsection (a) of this section.

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or the substantive adequacy of Leeson’s claim. Our prior case
law has undoubtedly contributed to the conflation of these
two distinct concepts. This appeal provides us with an opportunity, in light of the Supreme Court’s decision in Arbaugh,
to clarify that Vaughn sets forth the correct rule.
We begin by recognizing that federal courts have broad
adjudicatory authority over “all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C.
§ 1331. Because of this extensive power, jurisdictional dismissals in actions predicated on federal questions are “exceptional.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039
(9th Cir. 2004) (quoting Sun Valley Gasoline, Inc. v. Ernst
Enters., Inc., 711 F.2d 138, 140 (9th Cir. 1983)). In Bell v.
Hood, one of the seminal decisions addressing the contours of
subject matter jurisdiction, the Supreme Court held that a
claim alleged to arise under federal law should not be dismissed for lack of subject matter jurisdiction if “the right of
the petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are
given one construction and will be defeated if they are given
another.” 327 U.S. 678, 685 (1946). Consequently, a federal
court may dismiss a federal question claim for lack of subject
matter jurisdiction only if: (1) “the alleged claim under the
Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction”; or (2) “such a claim is wholly insubstantial and
frivolous.” Id. at 682-83.
Although seemingly clear in theory, our analysis of subject
matter jurisdiction has been substantially more complicated in
practice. Strictly speaking, “subject-matter jurisdiction” concerns “the courts’ statutory or constitutional power to adjudicate” cases. Steel Co., 523 U.S. at 89; see also Henderson ex
rel. Henderson v. Shinseki, ___ U.S. ___, 131 S. Ct. 1197,
1202 (2011) (“[U]rg[ing] that a rule should not be referred to
as jurisdictional unless it governs a court’s adjudicatory
capacity, that is, its subject-matter or personal jurisdiction.”).

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The Supreme Court, however, has observed that the term
“ ‘[j]urisdiction’ . . . ‘is a word of many, too many, meanings.’ ” Arbaugh, 546 U.S. at 510 (quoting Steel Co., 523 U.S.
at 90). According to the Court, federal courts have “sometimes been profligate in [their] use of the term.” Id. Indeed,
we “have sometimes mischaracterized claim-processing rules
or elements of a cause of action as jurisdictional limitations,
particularly when that characterization was not central to the
case, and thus did not require close analysis.” Reed Elsevier,
Inc. v. Muchnick, ___ U.S. ___, 130 S. Ct. 1237, 1243-44
(2010). These cases, which the Supreme Court has referred to
as “drive-by jurisdictional rulings” due to their cursory analysis, have “no precedential effect.” Arbaugh, 546 U.S. at 511
(quoting Steel Co., 523 U.S. at 91).
Acknowledging the muddled state of the case law, the
Supreme Court in Arbaugh squarely addressed the lack of
precision used by federal courts in analyzing the “subjectmatter jurisdiction/ingredient-of-claim-for-relief dichotomy.”12
Id. at 511. After the trial court entered judgment on a jury verdict in favor of an employee in an action involving Title VII
of the Civil Rights Act of 1964, the employer brought a
motion challenging subject matter jurisdiction. Id. at 503-04.
Although the trial court noted the waste of judicial resources
caused by the delay in asserting such a challenge, the trial
court dismissed the action because it concluded that Title
VII’s 15-employee requirement was a jurisdictional prerequisite. Id. at 504. The Supreme Court reversed, holding that
12

This is a significant distinction with dispositive consequences. Subject
matter jurisdiction “can never be forfeited or waived” and federal courts
have a continuing “independent obligation to determine whether subjectmatter jurisdiction exists . . . .” Arbaugh, 546 U.S. at 514 (internal quotation marks and citation omitted). Whereas a trial judge may resolve factual
disputes related to subject matter jurisdiction, a trier of fact is responsible
for resolving contested facts concerning an essential element of a claim.
Id. Additionally, “when a federal court concludes that it lacks subjectmatter jurisdiction, the court must dismiss the complaint in its entirety[,]”
including pendant state law claims. Id.

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Title VII’s employee numerosity limitation is not a jurisdictional requirement; therefore, it cannot be raised defensively
in a post-trial motion. Id. The Court reasoned that the limitation related to the substantive adequacy of a Title VII claim
because “the 15-employee threshold appears in a separate provision that ‘does not speak in jurisdictional terms or refer in
any way to the jurisdiction of the district courts.’ ” Id. at 515
(quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
394 (1982)). The Court articulated a bright line rule:
If the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional, then courts and litigants will be duly
instructed and will not be left to wrestle with the
issue . . . [b]ut when Congress does not rank a statutory limitation on coverage as jurisdictional, courts
should treat the restriction as nonjurisdictional in
character.
Id. at 515-16 (footnote omitted).
In Reed Elsevier, the Supreme Court further examined the
scope of federal court subject matter jurisdiction, this time
with respect to the Copyright Act. The Court concluded that
§ 411(a) of the Copyright Act, which requires copyright registration of original works of authorship, “is a precondition to
filing a claim that does not restrict a federal court’s subject
matter jurisdiction.” 130 S. Ct. at 1241. In so holding, the
Supreme Court applied the same approach that it followed in
Arbaugh. The Court explained that § 411’s registration
requirement “is not clearly labeled jurisdictional, is not
located in a jurisdiction-granting provision, and admits of
congressionally authorized exceptions.” Id. at 1247. Therefore, it is properly construed as a claim-processing rule.
The Supreme Court again endeavored to clarify the distinction between jurisdictional prerequisites and claim-processing
rules in Shinseki. There, the Court held that a 120-day dead-

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line for filing a notice of appeal with the Court of Appeals for
Veterans’ Claims does not have “jurisdictional” consequences. Shinseki, 131 S. Ct. at 1200. The Court concluded
that the relevant provision “does not speak in jurisdictional
terms,” the provision is located in a completely separate subchapter entitled “Procedure,” and construing the provision to
restrict veterans’ benefits is inconsistent with the pro-veteran
administrative scheme. Id. at 1204-06.
With the benefit of recent Supreme Court precedent, we
examined the scope of federal court subject matter jurisdiction
arising from claims involving the Individuals with Disabilities
Education Act (“IDEA”). Payne v. Peninsula Sch. Dist., 653
F.3d 863 (9th Cir. 2011) (en banc). Because the plaintiffs had
not first sought relief through an administrative due process
proceeding, the district court dismissed their IDEA claims for
lack of subject matter jurisdiction. Id. at 866. Overturning our
previous cases to the contrary, we held that the IDEA’s
exhaustion requirement is an affirmative defense, not a jurisdictional requirement. Id. at 870-71. Three factors —derived
from recent Supreme Court cases—guided our analysis. First,
the provision “is not clearly labeled jurisdictional.” Id. at 870
(quoting Reed Elsevier, 130 S. Ct. at 1247). Second, it “is not
located in a jurisdiction-granting provision.” Id. at 870-71
(quoting Reed Elsevier, 130 S. Ct. at 1247). Finally, no other
reasons necessitated that the provision be construed as jurisdictional. Id. at 870.
With that framework in mind, we return to the federal statute currently before us. ERISA authorizes a participant or
beneficiary to initiate a civil action in state or federal court to
recover benefits, enforce his or her rights, or clarify his or her
rights under the terms of an ERISA plan. 29 U.S.C.
§§ 1132(a)(1)(B), (e)(1). A separate section entitled “Definitions” provides that:
[t]he term “participant” means any employee or former employee of an employer, or any member or

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former member of an employee organization, who is
or may become eligible to receive a benefit of any
type from an employee benefit plan which covers
employees of such employer or members of such
organization, or whose beneficiaries may be eligible
to receive any such benefit.
29 U.S.C. § 1002(7). The Supreme Court has interpreted
§ 1002(7) to include a former employee who has “a colorable
claim that . . . she will prevail in a suit for benefits.” Firestone
Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117 (1989).
Because federal jurisdiction existed in Firestone Tire, the
Court did not have occasion to explore the contours of participant status and ERISA subject matter jurisdiction.
[2] In Vaughn, a former employee alleged that he was entitled to lost benefits caused by his employer’s breach of the
fiduciary duty to invest prudently the assets of a defined contribution pension plan. 567 F.3d at 1023. Vaughn’s employer
argued that Vaughn lacked statutory standing because he had
failed to allege sufficient facts to satisfy ERISA’s definition
of the term “participant.” Id. at 1024. The district court dismissed the action for lack of subject matter jurisdiction. Id.
On appeal, we held that “a dismissal for lack of statutory
standing is properly viewed as a dismissal for failure to state
a claim rather than a dismissal for lack of subject matter jurisdiction.” Id. In so holding, we relied on two cases from our
sister circuits that addressed the issue. See id. (citing Lanfear
v. Home Depot, Inc., 536 F.3d 1217, 1221-22 (11th Cir. 2008)
(concluding that statutory standing under ERISA involves the
merits of the action, not subject matter jurisdiction) and
Harzewski v. Guidant Corp., 489 F.3d 799, 803-04 (7th Cir.
2007) (“Except in extreme cases . . . , the question whether
an ERISA plaintiff is a ‘participant’ entitled to recover benefits under the Act should be treated as a question of statutory
interpretation fundamental to the merits of the suit rather than
a question of the plaintiff’s right to bring the suit.”)).

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[3] In Harris v. Amgen, Inc., former employees of Amgen,
Inc. initiated an action against Amgen, Inc.’s directors and
officers for breach of their fiduciary duties in the operation of
two ERISA retirement plans. 573 F.3d 728, 731 (9th Cir.
2009). The district court concluded that one of the employees
lacked statutory standing as a plan participant because he had
withdrawn his assets from the plan. Id. Citing Vaughn, we
again reiterated that whether a plaintiff has statutory standing
in an ERISA action is a merits-based determination, not a
subject matter jurisdiction issue. Id. at 732 n.3.
[4] After surveying recent Supreme Court precedent and
examining the relevant provision, we conclude that Vaughn
and its progeny reached the correct outcome. We recognize
that several of our cases prior to Vaughn treated participant
status as a prerequisite to subject matter jurisdiction. See
Freeman v. Jacques Orthopaedic & Joint Implant Surgery
Med. Grp., Inc., 721 F.2d 654, 655-56 (9th Cir. 1983) (holding that the district court lacked subject matter jurisdiction
because the plaintiff was not a participant in the plan as
defined in § 1002(7)); Harris v. Provident Life Accident Ins.
Co., 26 F.3d 930, 934 (9th Cir. 1994) (concluding that “a federal court has no jurisdiction to hear a civil action under
ERISA that is brought by a person who is not a ‘participant,
beneficiary, or fiduciary.’ ” (quoting Franchise Tax Bd., 463
U.S. at 27)); Curtis, 53 F.3d at 1027 (holding that “a plaintiff’s standing under section 1132(a)(1) is a prerequisite to
ERISA jurisdiction.”). Applying the approach set forth in
Arbaugh, however, we conclude that these cases failed to adequately consider the “critical difference[s] between true jurisdictional conditions and nonjurisdictional limitations on
causes of action . . . .” Reed Elsevier, 130 S. Ct. at 1244
(internal quotation marks and citations omitted) (alteration in
original). In deciding these cases, our court did not have the
benefit of the Supreme Court’s clarification on the proper
scope of jurisdictional rulings as articulated in Shinseki, Reed
Elsevier, and Arbaugh. Accordingly, in light of Vaughn, they

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represent the type of “drive-by jurisdictional rulings” that lack
any precedential weight. Arbaugh, 546 U.S. at 511.
First, the only limitation to invoking federal court jurisdiction under § 1132(a)(1)(B) relates to the categories of individuals entitled to initiate a civil action in state or federal court.
Franchise Tax Bd., 463 U.S. at 21. As explained above, participants are among those parties authorized to bring suit
under ERISA. 29 U.S.C. § 1132(a)(1)(B). Like Title VII’s
employee numerosity requirement, the definition of “participant” “appears in a separate provision that ‘does not speak in
jurisdictional terms or refer in any way to the jurisdiction of
the district courts.’ ” Arbaugh, 546 U.S. at 515 (quoting
Zipes, 455 U.S. at 394). Section 1002(7) serves to identify
those plaintiffs who may be entitled to relief, not to limit the
authority of federal courts to adjudicate claims under ERISA.
Second, nothing in the jurisdiction-conferring provision
requires that a plaintiff must assert anything more than a colorable claim that he or she is a participant in order to assert
a claim under ERISA. Our earlier cases imported an additional requirement—that a plaintiff must also actually prove
that he or she is a participant to obtain access to federal court.
In light of Arbaugh, however, “we are reluctant to infer such
a restriction where Congress has not made it explicit.” Payne,
653 F.3d at 870.
[5] Finally, we can discern no other reason for importing
§ 1002(7)’s definitions into ERISA’s jurisdiction-conferring
provisions. To conclude otherwise would contravene clearly
established precedent. Bell, 327 U.S. at 685 (explaining that
“the right of the petitioners to recover under their complaint
will be sustained if the Constitution and laws of the United
States are given one construction and will be defeated if they
are given another.”). If the district court concludes that Leeson is a plan participant, he may be entitled to relief. If, on the
other hand, the district court concludes that Leeson is not a
plan participant, his claim fails. See 29 U.S.C.

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§ 1132(a)(1)(B). Because Leeson’s ERISA claim rises and
falls on the district court’s determination of participant status,
the construction of the term “participant” involves a meritsbased determination, even if it results in a dismissal. As a
result, he has a “right” to bring suit in federal court. Bell, 327
U.S. at 685.
[6] We recognize that this conclusion requires us to overrule our prior statements to the contrary. This is appropriate
because the current case falls within one of our exceptions to
the general rule that a three-judge panel may not overrule a
prior three-judge panel opinion. Miller v. Gammie, 335 F.3d
889, 899 (9th Cir. 2003) (en banc). We have held:
that in circumstances . . . where the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening
higher authority, a three-judge panel should consider
itself bound by the later and controlling authority,
and should reject the prior circuit opinion as having
been effectively overruled.
Id. at 893. We have also specifically noted that drive-by jurisdictional rulings lack precedential force. See Gospel Missions
of Am. v. City of Los Angeles, 328 F.3d 548, 554 (9th Cir.
2003) (“[W]e would not give precedential effect to a ‘driveby’ jurisdictional determination by our or a higher court . . . .”
(quoting Steel Co., 523 U.S. at 91)); Bell v. Bonneville Power
Admin., 340 F.3d 945, 952 (9th Cir. 2003) (“‘[D]rive-by jurisdictional rulings’ are not precedential.” (quoting Steel Co.,
523 U.S. at 91)). In light of the above discussion, intervening
Supreme Court precedent compels us to conclude that participant status is an element of an ERISA claim, not a jurisdictional limitation. Therefore, the reasoning applied in Arbaugh,
Reed Elsevier, and Shinseki requires us to overrule Freeman,
Harris v. Provident Life Accident Insurance Co., and Curtis,
to the extent that they held that participant status as defined

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in § 1002(7) is a prerequisite to federal court subject matter
jurisdiction.
[7] Accordingly, we conclude that the district court erroneously dismissed Leeson’s case for lack of subject matter jurisdiction. By asserting a colorable claim that he is a plan
participant, Leeson has satisfied the threshold for establishing
federal court subject matter jurisdiction. The issue of participant status goes to the merits of his claim and not to the subject matter jurisdiction of the district court. In this context, the
district court should not have attempted to resolve the issue of
participant status when ruling on Transamerica’s motion to
dismiss under Rule 12(h)(3). Rather, because Leeson’s participant status relates to the merits of his claim, the district court
should have addressed it at the summary judgment stage or at
trial.
IV
On remand, as we directed in our prior disposition, unless
the district court determines that another plan applies, it shall
apply the 1997 Restatement Plan. Further, if the district court
determines that Leeson was a plan participant, it shall comply
with our prior mandate and review de novo whether Transamerica improperly terminated Leeson’s LTD benefits under
the 1997 Restatement Plan (or other governing plan, as determined by the district court). In light of the limited nature of
our holding, Leeson is not foreclosed from raising the equitable principles of estoppel and waiver to bar Transamerica’s
challenge to his eligibility as a plan participant. Leeson is
likewise free to argue that Transamerica is foreclosed from
raising an entirely new eligibility argument, when it failed to
do so in the administrative process. We express no views on
the merits of any of these issues.
VACATED and REMANDED.
Leeson shall recover his costs on appeal.