By: John Murray and Violet Borowski
Is an ERISA plaintiff’s lack of participant standing a question of subject matter jurisdiction that can be raised at any time or simply a defense to the claim that can be waived if not timely raised? For now, the answer to that question depends upon the circuit in which the claim is being litigated.
In, Leeson v. Transamerica Disability Income Plan, Case No. 10-35380 (9th Cir.), the plaintiff, a former employee of Transamerica, brought a lawsuit against Transamerica’s ERISA-governed disability benefit plan, challenging the termination of his long-term disability benefits. On remand, to the district court following proceedings concerning the applicable standard of review, the plan moved to dismiss the lawsuit for lack of subject matter jurisdiction, arguing for the first time that plaintiff was not a “participant” under ERISA because the plan expressly stated that he would be ineligible for benefits while on unpaid leave of absence. The plan also argued that questions of jurisdiction can be raised at any time and are never waived. The district court granted the plan’s motion to dismiss, and the plaintiff appealed to the Ninth Circuit. The question presented on appeal was whether the challenge to the plaintiff’s status as a participant went to the federal court’s subject matter jurisdiction, or merely to the substantive sufficiency of the plaintiff’s claim.
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