from the United States District Court for the District of
Kansas (D.C. No. 6:15-CV-01065-MLB-KGG)
Randall K. Rathbun, Depew Gillen Rathbun & McInteer, LC,
Wichita, Kansas, for Plaintiffs-Appellants.
Jessica L. Skladzien, Lewis Brisbois Bisgaard & Smith,
Wichita, Kansas (Alan L. Rupe, Lewis Brisbois Bisgaard &
Smith, Wichita, Kansas, on the brief), for
HOLMES, MURPHY, and BACHARACH, Circuit Judges.
BACHARACH, Circuit Judge.
appeal involves claims under the Employee Retirement Income
Security Act of 1974, commonly known as ERISA. Invoking
ERISA, Mr. Trent Lebahn and his wife claim that a
pension-plan consultant breached a fiduciary duty by
misstating the amount of the monthly pension payments that
Mr. Lebahn would receive if he were to retire. But under
ERISA, the plan consultant could be considered a fiduciary
only if she exercised discretionary authority over the
plan's administration. On appeal, we ask: Does a
consultant exercise discretionary authority in administering
the plan simply by making a calculation of benefits at the
request of a plan participant? We conclude that a consultant
does not exercise discretionary authority under these
The plan consultant's computation error resulted in Mr.
Lebahn's premature retirement, prompting Mr. Lebahn to
to retire, Mr. Lebahn contacted Ms. Eloise Owens, a
consultant hired by his company's pension plan, to ask
what his monthly pension payment would be. Ms. Owens told Mr.
Lebahn that if he retired soon, he would be entitled to $8,
444.18 per month. At Mr. Lebahn's request, Ms. Owens
checked her calculations and assured Mr. Lebahn that the
figure she had quoted was correct. Mr. Lebahn then retired
and soon began receiving monthly checks of $8, 444.18.
Owens' calculations proved to be too good to be true.
Shortly after Mr. Lebahn retired, a representative of the
pension plan contacted Mr. Lebahn and told him that he was
being overpaid by almost $5, 000 per month. A pension-plan
attorney then told Mr. Lebahn that he would need to return
over $43, 000 in overpayments that he had already received.
Unable to retire on his true pension benefit of $3, 653.78
per month, Mr. Lebahn tried to go back to work, but he was
unable to find a suitable job.
Lebahn and his wife then sued under ERISA. The Lebahns
alleged that in incorrectly representing Mr. Lebahn's
benefits and failing to pay Mr. Lebahn in accordance with
those representations, the pension plan, the pension
committee, and "National Farmers Union Pension
Consultants" incurred ERISA liability under theories of
breach of fiduciary duty and equitable estoppel. On the
defendants' motion, the district court dismissed the
complaint for failure to state a valid claim. The Lebahns
appeal this dismissal, and we affirm.
We affirm the dismissal of the Lebahns' claims for breach
of fiduciary duty and equitable estoppel.
appeal, the Lebahns challenge the dismissal of their claims
for breach of fiduciary duty and equitable estoppel. We
reject each challenge.
first address the Lebahns' claim for breach of fiduciary
duty. For this claim, the Lebahns must show that the
defendants were ERISA fiduciaries. Although Ms. Owens is not
named as a defendant, the Lebahns argue that she was a
fiduciary of the plan, rendering the named defendants liable
for Ms. Owens' breach of her fiduciary
duty. The district court rejected this position
on the ground that Ms. Owens had not acted as an ERISA
fiduciary when calculating pension benefits. We agree:
Because Ms. Owens lacked discretionary authority in
administering the pension plan, she lacked fiduciary status.
And in the absence of fiduciary status of the wrongdoer, the
claim for breach of fiduciary duty was properly dismissed.
Lebahns' claim of equitable estoppel was also properly
dismissed. In dismissing this claim, the district court
reasoned that the Lebahns had failed to plead facts
satisfying two of the five elements of equitable estoppel:
awareness of the true facts and justifiable reliance. On
appeal, the Lebahns do not challenge the district court's
conclusion that they failed to adequately plead justifiable
reliance. Because the Lebahns fail to challenge one of the
grounds relied on by the district court, we affirm the
dismissal of the equitable estoppel claim.
Our review of the dismissal is de novo.
review de novo a dismissal under Federal Rule of Civil
Procedure 12(b)(6), applying the same legal standard used by
the district court. Mocek v. City of Albuquerque,
813 F.3d 912, 921 (10th Cir. 2015). Under that standard, we
inquire whether the complaint contains factual allegations
that "state a claim to relief that is plausible on its
face." Khalik v. United Air Lines, 671 F.3d
1188, 1190 (10th Cir. 2012) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is facially
plausible "when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is
not enough for the plaintiff to plead "labels and
conclusions" or to provide "a formulaic recitation
of the elements of a cause of action." Khalik,
671 F.3d at 1190-91 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
The Lebahns failed to plead facts showing that Ms. Owens was
a plan fiduciary.
Lebahns argue that Ms. Owens was a plan fiduciary under
ERISA. We disagree.
ERISA's definition of a functional fiduciary requires
discretionary authority or discretionary responsibility over
plead a breach of fiduciary duty, the Lebahns must adequately
allege fiduciary status of the wrongdoer. ERISA § 409,
29 U.S.C. § 1109(a) (rendering personally liable
"[a]ny person who is a fiduciary with respect to a plan
who breaches any of the responsibilities, obligations, or
duties imposed upon fiduciaries by this subchapter"). In
their complaint, the Lebahns alleged that Ms. Owens was
responsible for calculating and reporting pension benefits.
That responsibility, the Lebahns argue, is sufficient to
characterize Ms. Owens as a plan fiduciary under ERISA. We
disagree. In our view, calculating and reporting pension
benefits, without more, does not establish fiduciary status
are two types of ERISA fiduciaries: named fiduciaries and
functional fiduciaries. 29 U.S.C. § 1102(a) (named
fiduciaries); 29 U.S.C. § 1002(21)(A) (functional
fiduciaries). The Lebahns invoke only the
the functional-fiduciary provision prescribes three means of
becoming a functional fiduciary, the Lebahns focus on only
one of these: "[A] person is a fiduciary with
respect to a plan to the extent . . . he has any
discretionary authority or discretionary responsibility in
the administration of such plan." 29 U.S.C. §
1002(21)(A). Under this provision, fiduciary status
requires authority or responsibility that is discretionary,
which entails "the freedom to decide what should be done
in a particular situation." "Discretion, "
New Oxford American Dictionary (3d ed. 2010). In our
view, conducting a routine computation, as required by
one's job, does not inherently require discretion.
See Schmidt v. Sheet Metal Workers' Natl. Pension
Fund, 128 F.3d 541, 546-47 (7th Cir. 1997) (holding that
an employee who sent the wrong form to a pension beneficiary,
causing the beneficiary to forfeit his pension benefits, was
not a fiduciary because the employee's tasks were
Department of Labor has expressed the same view in two
interpretive bulletins discussing the ...