In Smith v. Aegon Companies Pension Plan (No. 12-5492), the Sixth Circuit decided whether to enforce a forum selection clause that was included in an ERISA plan seven years after the plaintiff’s benefits accrued.  The Secretary of Labor filed an amicus brief arguing that such clauses are incompatible with ERISA, which requires access to federal courts.  In an opinion that may conflict with decisions from the Second and Fourth Circuits, Judge Batchelder wrote that the Secretary’s position is not entitled to Skidmore deference because that position had only been expressed in two amicus briefs and because it was based only on standard statutory interpretation—it was not a long-held agency position or an exercise of the agency’s expertise.

The opinion then explained that ERISA’s policy of providing “ready access to the Federal courts” and its venue provision stating that actions “may be brought” in federal court (see 29 U.S.C. § 1132) are not contravened by a plan that allows for suit in just one federal court.  It then points out that a forum selection clause both encourages uniformity in the decisions interpreting the plan and lowers the administrative costs of the plan.

Judge Clay dissented on the basis that the text and legislative history of ERISA show that Congress expressly sought to eliminate any jurisdictional or procedural obstacles that might prevent enforcement.  He also points out that claimants in ERISA suits are often “retirees on a limited budget, sick or disabled workers, widows and other dependents” that are “the least likely to have the financial or other wherewithal to litigate in a distant venue.”  Notably, Judge Clay did not find fault with the majority’s decision not to extend Skidmore deference to the agency amicus brief.