Kenneth Chuck v. Hewlett Packard Co., a foreign No. 04-36094 corporation

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 KENNETH CHUCK,
Plaintiff-Appellant,
v.
HEWLETT PACKARD CO., a foreign No. 04-36094 corporation; THE HEWLETT
PACKARD COMPANY DEFERRED D.C. No.
 PROFIT SHARING RETIREMENT PLAN; CV-03-01685-AJB
JOHN CORCORAN, in his capacity as OPINION
the Plan Administrator; JANE AND
JOHN DOES, 1-10, in their capacity
as Plan Administrators and/or
Trustees,
Defendants-Appellees. 
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted
December 6, 2005—Portland, Oregon
Filed July 25, 2006
Before: Dorothy W. Nelson and Diarmuid F. O’Scannlain,
Circuit Judges, and Larry A. Burns,* District Judge.
Opinion by Judge D.W. Nelson
*The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.
8293

-- 1 of 22 --

COUNSEL
Karl G. Anuta and David S. Foster, of Sokol & Anuta, Port-
land, Oregon, for the plaintiff-appellant.
Joseph P. Busch, III, of Gibson, Dunn & Crutcher, Irvine,
California; and Richard F. Liebman and Allyson Krueger, of
Barran Liebman, Portland, Oregon, for the defendants-
appellees.
8297 CHUCK v. HEWLETT PACKARD CO.

-- 2 of 22 --

OPINION
D.W. NELSON, Senior Circuit Judge:
Kenneth Chuck appeals the district court’s grant of the
summary judgment motion put forward by several Hewlett
Packard Company defendants (collectively, “HP”). Chuck’s
principal claim is that the Hewlett Packard Company Deferred
Profit-Sharing Retirement Plan (the “Plan”), which is gov-
erned by the Employee Retirement Income Security Act of
1974 (“ERISA”), 29 U.S.C. § 1001 et seq., owes him addi-
tional retirement benefits arising from his employment at HP
until 1980. He also seeks relief for the Plan’s alleged breach
of its fiduciary duties and for its failure to provide him with
Plan-related documents as required by 29 U.S.C. §§ 1021-
1024.
At the heart of this case, we are faced with an issue of first
impression in this circuit: whether ERISA’s statute of limita-
tions may bar a claim for benefits notwithstanding a plan’s
failure to fulfill its disclosure and review obligations under
ERISA § 503, 29 U.S.C. § 1133. We hold that a plan’s mate-
rial violation of § 1133 is a factor that militates strongly
against a finding that the statute of limitations has begun to
run against a claimant, but that a compelling showing of cir-
cumstances in this case nevertheless indicates that Chuck’s
benefits claim is time-barred. Furthermore, because Chuck’s
benefits claim is time-barred on account of his own actions,
we hold that Chuck lacks statutory standing to bring his
claims under ERISA.
I
Chuck worked for HP from 1968 to 1972, and then again
from 1974 to 1980. In 1978 and 1979, HP appears to have cal-
culated Chuck’s pension credit and provided him with annual
benefit statements as though there had been no break in his
service with HP. Shortly before Chuck’s resignation from HP
8298 CHUCK v. HEWLETT PACKARD CO.

-- 3 of 22 --

in December 1980, however, HP recalculated Chuck’s accrual
of pension benefits in light of the gap in his employment with
HP. The result was a significant decrease in the benefits that
had vested to Chuck under the Plan. Chuck promptly brought
to HP’s attention his dispute with the benefits recalculation.
According to Chuck, he was entitled to the original, higher
benefits calculation as a condition of his agreement to return
to HP in 1974.
In late December 1980, soon after Chuck’s resignation, HP
sent Chuck a “Retirement Benefit Claim Form” with instruc-
tions regarding the election of a method for pension benefit
payment. The option to receive a lump sum payment had been
pre-selected for Chuck, and every other option had been
crossed out. The form also noted that “[o]nce a lump sum
benefit payment has been elected or approval for lump sum
payment obtained, the choice is irrevocable.” Chuck never
returned the form, because, as Chuck alleges, instructions on
the form signaled that an annuity commencing at age 65
would be the default method of payment to Chuck if no
timely election were made. Chuck then wrote a letter to an HP
administrator asking that the amount of his vesting as
announced on that form be corrected to reflect his original
hire date with HP in 1968.
A Plan administrator sent a letter to Chuck dated January
28, 1981, in which she re-affirmed the decrease in Chuck’s
vested benefits and explained that the change was “due to the
fact that from September, 1972 to August, 1974 you were not
an HP employee.” This letter also declared that “corrected”
trust statements for 1978 and 1979 were attached and that
Chuck would be receiving shortly his “final trust statement
for the October 31, 1980 quarter.” Chuck admits that he was
aware at this time that HP was going to take the position that
he was not eligible for any further pension benefits. Soon
afterward, Chuck received a lump sum payment of $3,269.06,
which in HP’s view constituted a full and complete distribu-
tion of Chuck’s benefits under the plan.
8299 CHUCK v. HEWLETT PACKARD CO.

-- 4 of 22 --

In late 1991 and early 1992, Chuck sent a series of letters
to HP seeking clarification of the benefits he could anticipate
receiving when he retired. HP replied in a letter dated March
6, 1992, noting that Chuck had been paid the $3,269.06 in
1981 and that “[n]o further retirement benefits are payable
from our U.S. plans.” For the next several years, and then
again starting in early 2001, Chuck sent numerous letters to
HP seeking to reestablish his entitlement to a benefits calcula-
tion based on continuous service with HP. Some of these let-
ters also requested basic Plan documentation, which HP had
never given Chuck. HP did not respond to many of these let-
ters and did not provide Chuck with the Plan documentation.
Chuck filed his complaint in the district court on December
5, 2003. HP moved for summary judgment, and the district
court granted the motion. The district court held that ERISA’s
statute of limitations bars Chuck’s benefits claim and related
fiduciary duty claims, and that consequently he lacked stand-
ing under ERISA to bring his claims for plan documents and
information.
II
Our jurisdiction arises under 28 U.S.C. § 1291, and we
review the district court’s grant of summary judgment de
novo. Wetzel v. Lou Ehlers Cadillac, 222 F.3d 643, 646 (9th
Cir. 2000) (en banc). Because this is a review of a grant of
summary judgment, we view the evidence “in the light most
favorable to the nonmoving party . . . [and] determine[ ]
whether there are any issues of material fact and whether the
district court correctly applied the relevant substantive law.”
Id. (quoting Robi v. Reed, 173 F.3d 736, 739 (9th Cir. 1999)).
The district court’s interpretation of ERISA also receives de
novo review. Id.
8300 CHUCK v. HEWLETT PACKARD CO.

-- 5 of 22 --

III
A
We first address Chuck’s claim that HP has wrongfully
denied him benefits to which he is entitled. HP argues that
this claim is time-barred because it was filed after the expira-
tion of ERISA’s statute of limitations. Chuck contends that
his cause of action never accrued, and therefore that the stat-
ute of limitations never began to run, because HP failed to
provide him with adequate information regarding either his
benefits denial or his rights to an internal review of that
denial. We hold that a plan’s violation of its notification and
review obligations under ERISA is a highly significant factor,
but not a dispositive one, in determining whether a claim has
accrued for benefits under ERISA. In this case, an unusual
combination of circumstances indicates that Chuck’s claim is
time-barred notwithstanding HP’s failure to provide proper
notification and review.
[1] Chuck brings his benefits claim under 29 U.S.C.
§ 1132(a)(1)(B), which creates a cause of action for a benefit
plan participant “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.” Because there is “no specific federal statute of
limitations governing claims for benefits under an ERISA
plan,” we “look to the most analogous state statute of limita-
tions” to determine the length of the limitations period. Wet-
zel, 222 F.3d at 646. In this case, which arose in Oregon, there
is no dispute that the most analogous state statute is Oregon’s
six-year statute of limitations for breach of contract claims.
See Or. Rev. Stat. § 12.080(1). Once his cause of action
accrued, Chuck therefore had six years to bring his suit in fed-
eral court.
[2] Federal law, however, governs the issue of when a
cause of action accrues and thereby triggers the start of the
8301 CHUCK v. HEWLETT PACKARD CO.

-- 6 of 22 --

limitations period. Wetzel, 222 F.3d at 646. We have earlier
established that “an ERISA cause of action accrues either at
the time benefits are actually denied or when the insured has
reason to know that the claim has been denied.” Id. at 649
(citations omitted). A participant need not file a formal appli-
cation for benefits before having “reason to know” that his
claim has been finally denied. See Martin v. Construction
Laborer’s Pension Trust, 947 F.2d 1381, 1384-85 (9th Cir.
1991). Instead, a cause of action accrues when a pension plan
communicates “a clear and continuing repudiation” of a
claimant’s rights under a plan, id. at 1385, such that the claim-
ant could not have reasonably believed but that his benefits
had been “finally denied.” Wetzel, 222 F.3d at 650.
[3] The central issue in this case, then, is whether Chuck
had reason to know of such a denial more than six years
before he filed suit in 2003.
B
Chuck argues that there could not have been a clear and
continuing repudiation of his claim for further benefits if the
Plan failed to provide Chuck with proper notice of that denial
or with an opportunity to exhaust the Plan’s internal review
procedures. Cf. Martin, 947 F.3d at 950 (relying on both the
denial of a claim and the exhaustion of internal remedies to
find a clear and continuing denial). We agree that the record
demonstrates that the Plan violated its ERISA obligations to
provide Chuck with adequate justification for its denial of
benefits and with a reasonable opportunity for review. We do
not agree, however, that these failures necessarily mean that
Chuck lacked reason to know that the denial of his benefits
claim was final.
[4] As a preliminary matter, we hold that the Plan clearly
breached its duties of notification and review under ERISA.
Under 29 U.S.C. § 1133, all plans must “provide adequate
notice in writing to any participant or beneficiary whose claim
8302 CHUCK v. HEWLETT PACKARD CO.

-- 7 of 22 --

for benefits under the plan has been denied, setting forth the
specific reasons for such denial, written in a manner calcu-
lated to be understood by the participant.” § 1133(1). Plans
must also “afford a reasonable opportunity to any participant
whose claim for benefits has been denied for a full and fair
review by the appropriate named fiduciary of the decision
denying the claim.” § 1133(2). By the time Chuck resigned
from HP, the Department of Labor had promulgated regula-
tions requiring, more specifically, that plan administrators
provide claimants with:
(1) The specific reason or reasons for the denial;
(2) Specific reference to pertinent plan provisions
on which the denial is based;
(3) A description of any additional material or infor-
mation necessary for the claimant to perfect the
claim and an explanation of why such material or
information is necessary; and
(4) Appropriate information as to the steps to be
taken if the participant or beneficiary wishes to sub-
mit his or her claim for review.
29 C.F.R. § 2560.503-1(f) (1980).1
[5] Although we have held that substantial compliance with
these requirements is sufficient, see Brogan v. Holland, 105
F.3d 158, 165 (9th Cir. 1997), here we find it plain that HP
came nowhere close to complying. The only evidence that HP
1The Department of Labor has more recently amended these require-
ments. See 65 Fed. Reg. 70265 (Nov. 21, 2000); 66 Fed. Reg. 35887 (July
9, 2001). Most notably, subsection (4) now requires plan administrators to
inform claimants specifically of their right to bring civil actions under 29
U.S.C. § 1332(a). See 29 C.F.R. § 2560.503-1(g)(1)(iv) (2006). These
amendments do not apply to benefits claims, like Chuck’s, that arose
before January 1, 2002, see 29 C.F.R. § 2560.503-1(o) (2006).
8303 CHUCK v. HEWLETT PACKARD CO.

-- 8 of 22 --

met any of these obligations is its letter dated January 28,
1981, which informed Chuck that his “vested interest has
been changed due to the fact that from September, 1972 to
August, 1974 [Chuck was] not an HP employee.” This state-
ment complies with the requirement that the Plan communi-
cate the specific reason for the denial, but it clearly does not
meet the plan’s other obligations under either 29 U.S.C.
§ 1133 or 29 C.F.R. § 2560.503-1(f).
[6] Accepting that the Plan clearly fell short of these obli-
gations, we must now inquire into the effect of such a breach
on the application of a time bar. In an earlier case, we have
decided that a plan’s noncompliance with these obligations
prevented a limitations period from beginning to run. See
White v. Jacobs Engineering Group Long Term Disability
Benefit Plan, 896 F.2d 344, 350-52 (9th Cir. 1990). There,
however, we addressed only whether the plan’s inadequate
notice could prevent the start of a contractual limitations
period—that is, a limitations period defined in the benefit plan
itself. See id. at 350 (“When a benefits termination notice fails
to explain the proper steps for appeal, the plan’s time bar is
not triggered”) (emphasis added). It is a distinct issue, and one
we have not previously addressed, whether such a failure also
prevents the triggering of ERISA’s statute of limitations. See
also Mogck v. Unum Life Ins. Co., 292 F.3d 1025 (9th Cir.
2002) (holding a plan’s notice insufficient on grounds other
than § 1133, but discussing statutory and contractual limita-
tions periods separately).
Although many considerations remain constant across both
contexts, we are persuaded of three slight but relevant distinc-
tions between statutory and contractual time bars in the
ERISA context. Because of these distinctions, we hold that a
plan’s violation of § 1133 does not always prevent the trigger-
ing of ERISA’s statutory limitations period.
First, as we have discussed above, the trigger for ERISA’s
statute of limitations on a claim for benefits (unlike the trigger
8304 CHUCK v. HEWLETT PACKARD CO.

-- 9 of 22 --

for the contractual limitations period in a given plan) is well-
established by federal law, requiring in cases such as this one
simply that we examine whether a claimant “could have rea-
sonably believed his benefits had not been finally denied,” or
whether instead he had “reason to know” of a “clear and con-
tinuing repudiation” of his claim. Wetzel, 222 F.3d 649-50;
Martin, 947 F.2d at 1385.
A plan’s failure to comply with its disclosure and review
obligations under § 1133 is highly relevant to this inquiry, to
be sure. It is indisputable that the clarity and apparent finality
of a benefits denial are easily affected by whether the plan
discloses its justifications for the denial and by whether there
has been a reasonable opportunity for full and fair review of
that denial. In this vein, for example, it is clear that the statute
of limitations does not begin to run if a plan’s disclosure was
so inadequate that a claimant did not even have reason to
know about the denial. See Price v. Provident Life and Acc.
Ins. Co., 2 F.3d 986, 988 (9th Cir. 1993). Even where a claim-
ant does have reason to believe that benefits might have been
denied, a plan’s compliance with § 1133 serves crucial
information-providing and signaling functions that lend cer-
tainty to a claimant’s understanding whether a given denial is
final or appealable. A plan’s failure to comply with § 1133,
conversely, deprives claimants of a congressionally mandated
means of knowing the proper import of, and response to, a
benefits denial. Even in cases in which a denial might other-
wise seem final, a plan’s failure to comply with § 1133 could
deprive a claimant of “reason to know” that the denial was
final.
Nevertheless, in unusual circumstances, a claimant may
well have reason for such knowledge notwithstanding a plan’s
violation of its notification and review obligations under
§ 1133. In particular, a claimant’s own actions or knowledge
might serve to obviate the need for § 1133 information. A
claimant with actual knowledge of his internal appeal rights
under a plan, for example, could not contend that a benefits
8305 CHUCK v. HEWLETT PACKARD CO.

-- 10 of 22 --

denial was non-final simply because the plan did not remind
him of those rights. Cf. Veltri v. Building Service 32B-J Pen-
sion Fund, 393 F.3d 318, 326 (2d Cir. 2004) (noting that “a
plaintiff with actual knowledge of the right to bring a judicial
action challenging the denial of her benefits may not rely on
equitable tolling notwithstanding inadequate notice from her
pension plan”); I.V. Servs. of America, Inc. v. Inn Dev. &
Mgmt., Inc., 182 F.3d 51 (1st Cir. 1999) (refusing to equitably
toll a contractual limitations period and finding “critical” the
fact that the claimants had had actual knowledge of the
accrual of their cause of action). Although this class of cases
may not be vast, its existence counsels us that a plan’s § 1133
violation cannot create a per se bar against application of
ERISA’s statute of limitations.
A second relevant distinction between the enforcement of
contractual and statutory limitations periods relates to the pol-
icies underlying those limitations periods. With regard to a
contractual limitations period, we have determined that “hold-
ing that inadequate notice does not trigger a . . . time bar will
not create a significant problem of stale claims,” for plan
administrators would have just as much capacity and incen-
tive “to avoid the contingent liability of stale claims by ceas-
ing to rely on benefit termination form letters and giving
adequate, specific notice.” White, 896 F.2d at 352. To a large
extent, this reasoning is applicable in the statutory context as
well, for plans have the identical capacity and incentives to
avoid stale claims. But it is also apparent that the ongoing
passage of time elevates both the burden imposed by a stale
claim and the difficulty of resolving it. This effect is why,
despite ERISA’s goal of providing ready access to courts, and
despite the absence of any express statute of limitations for
benefits claims under ERISA, the federal courts have long
applied a statute of limitations to such claims as a matter of
federal common law. See, e.g., Martin, 947 F.2d at 1384; see
also Flanagan v. Inland Empire Elec. Workers Pension Plan
& Trust, 3 F.3d 1246, 1252 n.4 (9th Cir. 1993) (collecting
cases). We have found that the “policy of finality and repose”
8306 CHUCK v. HEWLETT PACKARD CO.

-- 11 of 22 --

has particular traction against allowing ERISA claims after
potentially extreme delays, given their increased “negative
effects on the availability of witnesses and evidence.” Martin,
947 F.2d at 1385 (citation omitted).
Thus, there is at least some difference between allowing a
claim to be filed several years after the expiration of a plan’s
time bar but before the expiration of ERISA’s statute of limi-
tations (at least in cases in which ERISA’s limitations period
ends later), and allowing a claim to be filed in perpetuity.
While plan administrators have the capacity and the incentive
to avoid stale claims of either sort, perpetual liability opens a
door more widely to claims whose underlying events have
long passed, elevating concerns regarding the plan’s abilities
to anticipate its financial obligations adequately. Cf. Veltri,
393 F.3d at 325 (“We share the . . . concern that to allow toll-
ing of the statute of limitations ‘in perpetuity,’ would thwart
actuarial prediction of plan liability and thereby threaten the
ability of pension plans to prepare in advance to meet finan-
cial obligations simultaneously to both beneficiaries and
adverse litigants.”) Most significant, such concerns are partic-
ularly elevated once a claimant has clear reason to know that
a denial of benefits is final, for at that point there is dimin-
ished justification for indefinitely allowing the claimant to sit
on the matter rather than bring his suit in federal court.
A third reason to differentiate statutory and contractual lim-
itations periods involves claimants’ access to meaningful rem-
edies. Clearly, ensuring the availability of both administrative
and judicial remedies is a central purpose of the ERISA
regime. We have previously noted that adequacy of notice is
“important to [claimants’] ability to obtain full and fair
reviews of their claims,” and the statute and regulations “re-
veal a purpose to aid claimants in avoiding the obstacles a
plan may place in their paths to the appeals board.” White,
896 F.2d at 351. ERISA likewise reveals a purpose of remov-
ing obstacles in claimants’ paths to the courts. Indeed, Con-
gress expressly declared that a central policy goal in creating
8307 CHUCK v. HEWLETT PACKARD CO.

-- 12 of 22 --

ERISA was to protect participants’ interests “by requiring the
disclosure and reporting to participants and beneficiaries of
financial and other information with respect thereto . . . and
by providing for appropriate remedies, sanctions, and ready
access to the Federal courts.” 29 U.S.C. § 1001(b). In keeping
with Congress’ goal of providing “ready access to the Federal
courts,” we must remain mindful that “ERISA is remedial leg-
islation which should be liberally construed in favor of pro-
tecting participants in employee benefit plans.” Batchelor v.
Oak Hill Med. Group, 870 F.2d 1446, 1449 (9th Cir. 1989);
see also Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90 (1983)
(determining that ERISA is “designed to promote the interests
of employees and their beneficiaries in employee benefit
plans”).
One of the most significant remedial concerns regarding the
enforcement of contractual limitations periods, however, is
somewhat mitigated in the context of enforcing ERISA’s stat-
ute of limitations. If, despite a plan’s insufficient notification
to the claimant, ERISA’s limitations period is enforced—
unlike the enforcement of contractual limitations periods—
plan boards still would not be entirely capable of “deter[ring]
claimants from timely appealing by sending vague and inade-
quate appeal notices.” White, 896 F.2d at 351; cf. Chappel v.
Laboratory Corp. of America, 232 F.3d 719, 726 (9th Cir.
2000) (noting that missing the deadline for invoking a plan’s
administrative procedures would “entirely foreclose[ ]” judi-
cial review). After all, a claimant could still potentially seek
a remedy in federal district court by filing a timely claim
under 29 U.S.C. § 1132(a)(3) to enforce the notification and
review requirements of § 1133—a claim for which the
exhaustion of internal dispute procedures would not be
required. See Graphic Communications Union, Dist. Council
No. 2, AFL-CIO v. GCIU-Employer Retirement Ben. Plan,
917 F.2d 1184, 1187 (9th Cir. 1990) (“[E]xhaustion of inter-
nal dispute procedures is not required where the issue is
whether a violation of the terms or provisions of the [ERISA]
statute has occurred.”) (quotation marks and citations omit-
8308 CHUCK v. HEWLETT PACKARD CO.

-- 13 of 22 --

ted); Chappel, 232 F.3d at 724 (“[A]n ERISA plaintiff whose
claim is governed by the contractual terms of the benefits
plan, rather than by the statutory provisions of ERISA itself,
must first exhaust the administrative dispute-resolution mech-
anisms of the benefit plan’s claims procedure.”) (emphasis
added). Such a suit would remove “the obstacles a plan may
place in [claimants’] paths to the appeals board,” White, 896
F.2d at 351, for the usual remedy for a violation of § 1133 is
“to remand to the plan administrator so the claimant gets the
benefit of a full and fair review.” Syed v. Hercules Inc., 214
F.3d 155, 162 (3d Cir. 2000); see also McKenzie v. General
Telephone Co. of California, 41 F.3d 1310, 1315 (9th Cir.
1994) (noting that the ordinary relief is not substantive for “a
claimant who suffers because of a fiduciary’s failure to com-
ply with ERISA’s procedural requirements”) (quoting Blau v.
Del Monte Corp., 748 F.2d 1348, 1353 (9th Cir. 1984)).
Granted, the availability of federal courts to hear such suits
provides only a very limited safety valve for claimants. After
all, these suits effectively require claimants to learn indepen-
dently of their internal appeal rights, when Congress and the
Department of Labor have, to the contrary, explicitly placed
the burden on plans of informing claimants of those rights.
See 29 U.S.C. § 1133; 29 C.F.R. § 2560.503-1. Nevertheless,
it is a safety valve that is most likely to be meaningful for the
occasional claimant who had no basis other than the ERISA
statute itself for learning of his internal appeal rights but who
had received unmistakable notification from a plan that its
decision was final.2
[7] We recognize that, as between the enforcement of con-
tractual and statutory time bars, these distinctions are not
2We do not address whether we would reach the same conclusion under
the Department of Labor’s current regulations, which require plan admin-
istrators to inform claimants not only of their internal appeal rights but
also of their right to bring civil actions under 29 U.S.C. § 1332(a). See 29
C.F.R. § 2560.503-1(g)(1)(iv) (2006); supra, note 1.
8309 CHUCK v. HEWLETT PACKARD CO.

-- 14 of 22 --

great. Nevertheless, we find it significant that they are all rela-
tively salient in the case of a claimant who, despite the § 1133
violation, still has clear reason to know that the plan’s denial
of benefits is final. We are therefore persuaded that a plan’s
noncompliance with § 1133 does not prevent per se the trig-
gering of ERISA’s statute of limitations. Instead, we hold
that, while a great deal of caution is necessary before finding
a claim barred by ERISA’s statute of limitations notwith-
standing a plan’s violation of § 1133, an investigation of the
facts of each case is necessary to determine whether a plan
nevertheless foreclosed a claimant from any reasonable belief
that the plan had not finally denied benefits.3
3We do not believe this interpretation of ERISA differs materially from
the law in our sister circuits. The Third Circuit has asserted in a similar
situation that “[w]here a termination letter does not comply with the statu-
tory and regulatory requirements, the [statutory] time limits for bringing
an administrative appeal are not enforced against the claimant.” Syed, 214
F.3d at 162. That case, however, found that the plan had “fully complied
with the statutory and regulatory requirements for notice” under § 1133,
and its statement regarding non-enforcement of the time bar was offered
with neither discussion of the distinction between contractual and statutory
time limits nor support from any authority other than one case involving
a contractual time bar. See id. (citing Epright v. Environmental Resources
Management, Inc. Health and Welfare Plan, 81 F.3d 335, 342 (3d Cir.
1996)). We therefore read as dictum its brief statement of the legal conse-
quences had the plan not complied with the relevant ERISA obligations.
See Drelles v. Metropolitan Life Ins. Co., 357 F.3d 344 347-48 (3d Cir.
2003) (“As defined by this Court, dictum is a statement in a judicial opin-
ion that could have been deleted without seriously impairing the analytical
foundations of the holding.”) (internal quotation marks and citation omit-
ted).
The Second Circuit has allowed a tardy claim in circumstances similar
to those presented here, but it did so by relying on equitable tolling
grounds, thus avoiding a decision whether a cause of action had ever
accrued in the first place. See Veltri v. Building Service 32B-J Pension
Fund, 393 F.3d 318, 322-26 (2d Cir. 2004). Here, we find that under Ninth
Circuit law a cause of action can accrue, in some circumstances, despite
a plan’s failure to comply with its obligations under § 1133, and that
ERISA’s limitations period can therefore begin to run. We do not reach
the question of equitable tolling, for Chuck has waived it both by failing
to raise it before the district court and by failing to raise it adequately in
his opening brief before this court. See Martin, 947 F.2d at 1387 n.10;
Int’l Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th
Cir. 1985).
8310 CHUCK v. HEWLETT PACKARD CO.

-- 15 of 22 --

C
[8] The facts of this case convince us that, despite the
Plan’s failure to notify Chuck of his appeal rights or of the
full justification for its denial of benefits, Chuck nevertheless
had reason to know of the Plan’s final repudiation of his claim
by no later than March 1992, such that his claim is time-
barred. In particular, we note a number of factors that, taken
together, close off any possibility that Chuck could have rea-
sonably believed the denial of his benefits was not final, not-
withstanding the Plan’s violation of § 1133.
First, Chuck admits that he knew even before resigning in
1980 that HP was going to take the position that he was not
eligible for further pension benefits beyond those to which he
was entitled at the decreased vesting rate. A claimant in such
a position is clearly on heightened notice that communications
from the plan may reflect a final denial of eligibility for the
benefits claimed.
Second, the Plan then did consistently communicate to
Chuck that it was taking the position he expected. As early as
January 1981, a Plan administrator sent Chuck a letter affirm-
ing the decrease in his vesting credit, and HP did not subse-
quently waver in its position with respect to the benefits due
to Chuck under the pension plan at issue.
Third, Chuck had actual notice that a lump sum payment,
if made, would constitute his only payment option. The
Retirement Benefit Claim Form that Chuck received in
December 1980 can only be read as providing Chuck with at
most two options: a lump sum payment payable soon after his
termination, or a life annuity commencing at age 65.4 In his
4When Chuck received this form, every annuity option on it had been
crossed out with the annotation “N/A,” leaving only the option, pre-
selected and completed for Chuck, of receiving a lump sum payment.
Chuck alleges that this sole option was trumped by the fact that he never
8311 CHUCK v. HEWLETT PACKARD CO.

-- 16 of 22 --

own declaration, however, Chuck acknowledges that he reads
the instructions on this form as informing him that if he were
to receive a life annuity at age 65, he “would not be eligible
for . . . a lump sum payment.” Chuck therefore admits that
receipt of a lump sum payment would preclude his eligibility
for further benefits at age 65.
Fourth, Chuck had notice that his acceptance of payment by
lump sum would be irrevocable. The same Retirement Benefit
Claim Form prominently notified Chuck that “[a]fter termina-
tion, the options are restricted as follows: . . . Once a lump
sum benefit payment has been elected or approval for lump
sum payment obtained, the choice is irrevocable.”
Fifth, Chuck subsequently accepted the Plan’s check con-
stituting a lump sum payment in the amount set by HP, and
there is no indication in the record that Chuck’s acceptance of
that check was in any way conditioned on the reservation of
his claim to greater benefits. Indeed, there is no evidence that
Chuck communicated further with HP regarding this dispute
for over a decade after accepting the lump sum payment.
Sixth, when Chuck did raise the issue again with HP, a Plan
administrator sent Chuck a letter in March 1992 noting that
the Plan had paid Chuck $3,269.06 in 1981 and unequivocally
announcing that “[n]o further retirement benefits are payable
from our U.S. plans.” HP offered no indication that further
consideration of his claim was pending or could be invoked.5
signed or returned the form to HP, in light of the form’s prominent
instructions—not crossed out—specifying that the failure to make a timely
election would result in the payment of benefits as an annuity commenc-
ing at age 65. Because Chuck appeals a grant of summary judgment
against him, we afford Chuck every benefit of the doubt in interpreting
this evidence. Wetzel, 222 F.3d at 646. In light of his subsequent, informed
acceptance of a lump sum payment, however, Chuck’s reliance on these
instructions is immaterial.
5Because Chuck denies that he ever had access to any relevant Plan doc-
uments, and because nothing in the record indicates otherwise, whether the
8312 CHUCK v. HEWLETT PACKARD CO.

-- 17 of 22 --

[9] These six factors, in combination, convince us that
Chuck could not have reasonably believed but that his claim
had been finally denied. To recap: Chuck had actual notice of
the position HP was going to take regarding the amount of
benefits owed Chuck, HP then took that position, and Chuck
accepted a lump sum payment in that amount; Chuck also had
actual notice that his unconditional acceptance of the lump
sum payment would effectively constitute an irrevocable
waiver of any possible right to an additional payment in an
alternative form; and when Chuck brought his dispute to HP’s
attention years later, HP’s denial could not have been plainer
or more consistent with its earlier views. Chuck thus had no
reasonable basis for believing that the handling of his benefits
claim was not final with respect to either the quantity of bene-
fits owed or the method of their payment. On the contrary,
Chuck’s own actions and understandings play a large role in
foreclosing the possibility that he did not have reason to know
his claim had been conclusively denied.
[10] We do not address whether fewer than all six of these
factors would be sufficient to bar Chuck’s claim. We hold
only that the circumstances in this case leave little doubt that
the Plan’s failure to inform Chuck of its review procedures,
or of the specific plan provisions on which the benefits denial
was based, did not give Chuck any reason to believe that the
denial was not final, for he was informed both before and long
after accepting the lump sum payment that his acceptance of
it effectively settled his account. Therefore, we hold that
Chuck’s cause of action accrued, at the latest, when he
received the March 1992 letter announcing that “[n]o further
retirement benefits are payable from our U.S. plans.” Since
the record reflects that Chuck replied to this letter (and hence
had received it) by the end of the same month, the six-year
Plan adhered to the terms of those documents does not play a role in our
inquiry whether Chuck “ha[d] reason to know” his benefits claim had been
denied. Wetzel, 222 F.3d at 649.
8313 CHUCK v. HEWLETT PACKARD CO.

-- 18 of 22 --

statute of limitations expired no later than the end of March
1998, well before Chuck filed his complaint in district court
in December 2003. His claim for benefits is therefore time-
barred under ERISA’s statute of limitations.
IV
Chuck also brings claims seeking statutory damages under
ERISA for the Plan’s failure to provide him with Plan-related
documents. We hold that Chuck is not a “participant” as
defined in ERISA, as his claim for benefits is time-barred on
account of his own actions, and that he therefore lacks stand-
ing to seek statutory damages under ERISA.
[11] Chuck’s claims arise under 29 U.S.C. § 1132(a)(1)(A),
which allows a “participant or beneficiary” to sue for relief
under § 1132(c). Section 1132(c), in turn, provides that if a
plan fails to provide a claimant with certain requested docu-
mentation promptly, then the court may order the plan admin-
istrator to pay a claimant up to $100 per violation per day of
delay. Specifically, Chuck claims that the defendants are lia-
ble to him under this provision because they failed to provide
him with documentation about employee benefits, a summary
plan description, or annual reports, as required by 29 U.S.C.
§§ 1021-1024.
If Chuck is not a “participant or beneficiary” of the Plan,
however, he lacks standing to bring these claims under
§ 1132(a)(1). See Crotty v. Cook, 121 F.3d 541, 544 (9th Cir.
1997). As Chuck does not claim to be a beneficiary,6 the issue
here is whether Chuck is a “participant,” a term that ERISA
defines in relevant part as “any . . . former employee . . . who
is or may become eligible to receive a benefit of any type
from an employee benefit plan . . . .” 29 U.S.C. § 1002(7).
6ERISA defines “beneficiary” as “a person designated by a participant,
or by the terms of an employee benefit plan, who is or may become enti-
tled to a benefit thereunder.” 29 U.S.C. § 1002(8).
8314 CHUCK v. HEWLETT PACKARD CO.

-- 19 of 22 --

The Supreme Court has held that, “[i]n order to establish that
he or she ‘may become eligible’ for benefits, a claimant must
have a colorable claim that (1) he or she will prevail in a suit
for benefits, or that (2) eligibility requirements will be ful-
filled in the future.” Firestone Tire and Rubber Co. v. Bruch,
489 U.S. 101, 117-118 (1989). Chuck does not contend that
he fits into the second category, so the issue we face is
whether Chuck had a colorable claim that he would prevail in
a suit for benefits. Our examination concerns Chuck’s status
as of the time he filed his complaint. See McBride v. PLM
Intern., Inc., 179 F.3d 737, 749-50 (9th Cir. 1999).
As a preliminary matter, we note that Chuck cannot
bootstrap standing based on this same claim for statutory
damages under § 1132(c), because awards for damages under
ERISA do not qualify as a possible “benefit” for which a par-
ticipant may become eligible under 29 U.S.C. § 1002(7). See
Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir. 1986), abro-
gated on other grounds by Kayes v. Pac. Lumber Co., 51 F.3d
1449, 1455 (9th Cir. 1995). Instead, Chuck must rely on his
claim under § 1132(a)(1)(B), which challenged directly the
Plan’s denial of pension benefits.7
[12] As we have discussed above, however, Chuck’s claim
for benefits was clearly time-barred when he filed this suit, in
light of Chuck’s own actions and understandings. In agreeing
with the district court’s decision on summary judgment that
Chuck’s benefits claim is time-barred, we have necessarily
concluded that no reasonable juror could have decided that
issue in Chuck’s favor. See, e.g., El-Hakem v. BJY Inc., 415
F.3d 1068, 1072 (9th Cir. 2005). Accordingly, it is certain that
7Contrary to HP’s arguments, Kuntz does not resolve the standing ques-
tion in this case, for in Kuntz the only claims raised were for statutory
damages. Here, Chuck also brought a claim for benefits. Cf. Kuntz, 785
F.2d at 1411 (“Former employees who have neither a reasonable expecta-
tion of returning to covered employment nor a colorable claim to vested
benefits simply do not fit within the ‘may become eligible’ language of
§ 1002(7)”) (emphasis added).
8315 CHUCK v. HEWLETT PACKARD CO.

-- 20 of 22 --

Chuck’s claim is time-barred, and a claim that is clearly time-
barred because of the claimant’s own actions is not “color-
able” for the purposes of establishing ERISA standing. See
Adamson v. Armco, Inc., 44 F.3d 650, 654 (8th Cir. 1995). At
the time he initiated this lawsuit, Chuck therefore was not a
plan “participant” under § 1002(7), and thus he lacks standing
to bring his claims against the Plan under § 1132(a)(1)(A).
V
Chuck also brings claims for breach of fiduciary duty,
although it is not clear from the face of the complaint or from
his briefs which of several types of fiduciary claims he means.
On the one hand, § 1132(a)(2) allows suits to enforce a plan’s
fiduciary obligations under § 1109(a), so long as the recovery
for that action inures not merely to an individual claimant but
rather “to the benefit of the plan as a whole.” Massachusetts
Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 140 (1985). More
likely, Chuck means to argue that he has a claim under
§ 1132(a)(3), which allows fiduciary claims for “appropriate
equitable relief” to redress violations of other sections of
ERISA, or that his benefits claim under § 1132(a)(1)(B) con-
tains a fiduciary dimension. See generally Varity Corp. v.
Howe, 516 U.S. 489, 512-515 (1996).
Regardless of what sort of fiduciary claim Chuck believes
he has raised, the statute is clear that to bring any of them
Chuck must be a “participant.”8 Our decision above that
8Section § 1132(a)(1) allows suits by a “participant or beneficiary”;
§ 1132(a)(3) by a “participant, beneficiary, or fiduciary”; and § 1132(a)(2)
by all of these or by the Secretary of Labor. As noted above, Chuck does
not claim to be a beneficiary, and he obviously is not a fiduciary of the
plan or the Secretary. See 29 U.S.C. § 1002(21)(A) (defining fiduciary).
We note that to have standing for his benefits claim under
§ 1132(a)(1)(B), Chuck must likewise be a “participant.” Our examination
of the statute of limitations for that claim was a necessary predicate of our
standing determination, but our resulting conclusion that Chuck was not
a “participant” ultimately deprives Chuck of standing to bring that claim,
too.
8316 CHUCK v. HEWLETT PACKARD CO.

-- 21 of 22 --

Chuck is not a plan participant likewise deprives him of
standing to bring his claims for breach of fiduciary duty.
VI
For the foregoing reasons, we agree with the district court
that summary judgment for the defendants is appropriate.
Chuck’s claim for benefits under 29 U.S.C. § 1132(a)(1)(B)
is barred by ERISA’s statute of limitations. Because Chuck
does not have a colorable claim for benefits, he lacks standing
to bring his claims under ERISA.
AFFIRMED.
8317 CHUCK v. HEWLETT PACKARD CO.

-- 22 of 22 --