§ 1132. Civil enforcement
(a)
Persons empowered to bring a civil action
A civil action may be brought—
(2)
by the Secretary, or by a participant, beneficiary or fiduciary for appropriate relief under section
1109 of this title;
(3)
by a participant, beneficiary, or fiduciary
(A)
to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or
(4)
by the Secretary, or by a participant, or beneficiary for appropriate relief in the case of a violation of 1025(c) of this title;
(5)
except as otherwise provided in subsection (b) of this section, by the Secretary
(6)
by the Secretary to collect any civil penalty under paragraph (2), (4), (5), (6), (7), (8), or (9) of subsection (c) of this section or under subsection (i) or (l) of this section;
(7)
by a State to enforce compliance with a qualified medical child support order (as defined in section
1169
(a)(2)(A) of this title);
(8)
by the Secretary, or by an employer or other person referred to in section
1021
(f)(1) of this title,
(9)
in the event that the purchase of an insurance contract or insurance annuity in connection with termination of an individual’s status as a participant covered under a pension plan with respect to all or any portion of the participant’s pension benefit under such plan constitutes a violation of part
4 of this title [1] or the terms of the plan, by the Secretary, by any individual who was a participant or beneficiary at the time of the alleged violation, or by a fiduciary, to obtain appropriate relief, including the posting of security if necessary, to assure receipt by the participant or beneficiary of the amounts provided or to be provided by such insurance contract or annuity, plus reasonable prejudgment interest on such amounts; or
(10)
in the case of a multiemployer plan that has been certified by the actuary to be in endangered or critical status under section
1085 of this title, if the plan sponsor—
(A)
has not adopted a funding improvement or rehabilitation plan under that section by the deadline established in such section, or
(B)
fails to update or comply with the terms of the funding improvement or rehabilitation plan in accordance with the requirements of such section,
by an employer that has an obligation to contribute with respect to the multiemployer plan or an employee organization that represents active participants in the multiemployer plan, for an order compelling the plan sponsor to adopt a funding improvement or rehabilitation plan or to update or comply with the terms of the funding improvement or rehabilitation plan in accordance with the requirements of such section and the funding improvement or rehabilitation plan.
(b)
Plans qualified under Internal Revenue Code; maintenance of actions involving delinquent contributions
(1)
In the case of a plan which is qualified under section
401
(a),
403
(a), or
405
(a) [2] of title
26 (or with respect to which an application to so qualify has been filed and has not been finally determined) the Secretary may exercise his authority under subsection (a)(5) of this section with respect to a violation of, or the enforcement of, parts 2 and 3 of this subtitle (relating to participation, vesting, and funding), only if—
(B)
one or more participants, beneficiaries, or fiduciaries, of such plan request in writing (in such manner as the Secretary shall prescribe by regulation) that he exercise such authority on their behalf. In the case of such a request under this paragraph he may exercise such authority only if he determines that such violation affects, or such enforcement is necessary to protect, claims of participants or beneficiaries to benefits under the plan.
(3)
Except as provided in subsections (c)(9) and (a)(6) (with respect to collecting civil penalties under subsection (c)(9)), the Secretary is not authorized to enforce under this part any requirement of part 7 against a health insurance issuer offering health insurance coverage in connection with a group health plan (as defined in section
1191b
(a)(1) of this title). Nothing in this paragraph shall affect the authority of the Secretary to issue regulations to carry out such part.
(c)
Administrator’s refusal to supply requested information; penalty for failure to provide annual report in complete form
(1)
Any administrator
(A)
who fails to meet the requirements of paragraph (1) or (4) of section
1166 [2] of this title, section
1021
(e)(1) of this title, section
1021
(f) of this title, or section
1025
(a) of this title with respect to a participant or beneficiary, or
(B)
who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary (unless such failure or refusal results from matters reasonably beyond the control of the administrator) by mailing the material requested to the last known address of the requesting participant or beneficiary within 30 days after such request may in the court’s discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day from the date of such failure or refusal, and the court may in its discretion order such other relief as it deems proper. For purposes of this paragraph, each violation described in subparagraph (A) with respect to any single participant, and each violation described in subparagraph (B) with respect to any single participant or beneficiary, shall be treated as a separate violation.
(2)
The Secretary may assess a civil penalty against any plan administrator of up to $1,000 a day from the date of such plan administrator’s failure or refusal to file the annual report required to be filed with the Secretary under section
1021
(b)(1) of this title. For purposes of this paragraph, an annual report that has been rejected under section
1024
(a)(4) of this title for failure to provide material information shall not be treated as having been filed with the Secretary.
(3)
Any employer maintaining a plan who fails to meet the notice requirement of section
1021
(d) of this title with respect to any participant or beneficiary or who fails to meet the requirements of section
1021
(e)(2) of this title with respect to any person or who fails to meet the requirements of section
1082
(d)(12)(E) [2] of this title with respect to any person may in the court’s discretion be liable to such participant or beneficiary or to such person in the amount of up to $100 a day from the date of such failure, and the court may in its discretion order such other relief as it deems proper.
(4)
The Secretary may assess a civil penalty of not more than $1,000 a day for each violation by any person of subsection (j), (k), or (l) of section
1021 of this title or section
1144
(e)(3) of this title.
(5)
The Secretary may assess a civil penalty against any person of up to $1,000 a day from the date of the person’s failure or refusal to file the information required to be filed by such person with the Secretary under regulations prescribed pursuant to section
1021
(g) of this title.
(6)
If, within 30 days of a request by the Secretary to a plan administrator for documents under section
1024
(a)(6) of this title, the plan administrator fails to furnish the material requested to the Secretary, the Secretary may assess a civil penalty against the plan administrator of up to $100 a day from the date of such failure (but in no event in excess of $1,000 per request). No penalty shall be imposed under this paragraph for any failure resulting from matters reasonably beyond the control of the plan administrator.
(7)
The Secretary may assess a civil penalty against a plan administrator of up to $100 a day from the date of the plan administrator’s failure or refusal to provide notice to participants and beneficiaries in accordance with subsection (i) or (m) of section
1021 of this title. For purposes of this paragraph, each violation with respect to any single participant or beneficiary shall be treated as a separate violation.
(8)
The Secretary may assess against any plan sponsor of a multiemployer plan a civil penalty of not more than $1,100 per day—
(A)
for each violation by such sponsor of the requirement under section
1085 of this title to adopt by the deadline established in that section a funding improvement plan or rehabilitation plan with respect to a multiemployer plan which is in endangered or critical status, or
(B)
in the case of a plan in endangered status which is not in seriously endangered status, for failure by the plan to meet the applicable benchmarks under section
1085 of this title by the end of the funding improvement period with respect to the plan.
(9)
(A)
The Secretary may assess a civil penalty against any employer of up to $100 a day from the date of the employer’s failure to meet the notice requirement of section
1181
(f)(3)(B)(i)(I) of this title. For purposes of this subparagraph, each violation with respect to any single employee shall be treated as a separate violation.
(B)
The Secretary may assess a civil penalty against any plan administrator of up to $100 a day from the date of the plan administrator’s failure to timely provide to any State the information required to be disclosed under section
1181
(f)(3)(B)(ii) of this title. For purposes of this subparagraph, each violation with respect to any single participant or beneficiary shall be treated as a separate violation.
(10)
[3] Secretarial enforcement authority relating to use of genetic information.—
(A)
General rule.—
The Secretary may impose a penalty against any plan sponsor of a group health plan, or any health insurance issuer offering health insurance coverage in connection with the plan, for any failure by such sponsor or issuer to meet the requirements of subsection (a)(1)(F), (b)(3), (c), or (d) of section
1182 of this title or section
1181 or
1182
(b)(1) of this title with respect to genetic information, in connection with the plan.
(B)
Amount.—
(C)
Minimum penalties where failure discovered.—
Notwithstanding clauses (i) and (ii) of subparagraph (D):
(i)
In general.—
In the case of 1 or more failures with respect to a participant or beneficiary—
(I)
which are not corrected before the date on which the plan receives a notice from the Secretary of such violation; and
the amount of penalty imposed by subparagraph (A) by reason of such failures with respect to such participant or beneficiary shall not be less than $2,500.
(D)
Limitations.—
(i)
Penalty not to apply where failure not discovered exercising reasonable diligence.—
No penalty shall be imposed by subparagraph (A) on any failure during any period for which it is established to the satisfaction of the Secretary that the person otherwise liable for such penalty did not know, and exercising reasonable diligence would not have known, that such failure existed.
(ii)
Penalty not to apply to failures corrected within certain periods.—
No penalty shall be imposed by subparagraph (A) on any failure if—
(iii)
Overall limitation for unintentional failures.—
In the case of failures which are due to reasonable cause and not to willful neglect, the penalty imposed by subparagraph (A) for failures shall not exceed the amount equal to the lesser of—
(E)
Waiver by secretary.—
In the case of a failure which is due to reasonable cause and not to willful neglect, the Secretary may waive part or all of the penalty imposed by subparagraph (A) to the extent that the payment of such penalty would be excessive relative to the failure involved.
(F)
Definitions.—
Terms used in this paragraph which are defined in section
1191b of this title shall have the meanings provided such terms in such section.
(d)
Status of employee benefit plan as entity
(1)
An employee benefit plan may sue or be sued under this subchapter as an entity. Service of summons, subpena, or other legal process of a court upon a trustee or an administrator of an employee benefit plan in his capacity as such shall constitute service upon the employee benefit plan. In a case where a plan has not designated in the summary plan description of the plan an individual as agent for the service of legal process, service upon the Secretary shall constitute such service. The Secretary, not later than 15 days after receipt of service under the preceding sentence, shall notify the administrator or any trustee of the plan of receipt of such service.
(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, fiduciary, or any person referred to in section
1021
(f)(1) of this title. 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.
(2)
Where an action under this subchapter is brought in a district court of the United States, it may be brought in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found, and process may be served in any other district where a defendant resides or may be found.
(f)
Amount in controversy; citizenship of parties
The district courts of the United States shall have jurisdiction, without respect to the amount in controversy or the citizenship of the parties, to grant the relief provided for in subsection (a) of this section in any action.
(g)
Attorney’s fees and costs; awards in actions involving delinquent contributions
(1)
In any action under this subchapter (other than an action described in paragraph (2)) by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.
(2)
In any action under this subchapter by a fiduciary for or on behalf of a plan to enforce section
1145 of this title in which a judgment in favor of the plan is awarded, the court shall award the plan—
(h)
Service upon Secretary of Labor and Secretary of the Treasury
A copy of the complaint in any action under this subchapter by a participant, beneficiary, or fiduciary (other than an action brought by one or more participants or beneficiaries under subsection (a)(1)(B) of this section which is solely for the purpose of recovering benefits due such participants under the terms of the plan) shall be served upon the Secretary and the Secretary of the Treasury by certified mail. Either Secretary shall have the right in his discretion to intervene in any action, except that the Secretary of the Treasury may not intervene in any action under part 4 of this subtitle. If the Secretary brings an action under subsection (a) of this section on behalf of a participant or beneficiary, he shall notify the Secretary of the Treasury.
(i)
Administrative assessment of civil penalty
In the case of a transaction prohibited by section
1106 of this title by a party in interest with respect to a plan to which this part applies, the Secretary may assess a civil penalty against such party in interest. The amount of such penalty may not exceed 5 percent of the amount involved in each such transaction (as defined in section
4975
(f)(4) of title
26) for each year or part thereof during which the prohibited transaction continues, except that, if the transaction is not corrected (in such manner as the Secretary shall prescribe in regulations which shall be consistent with section
4975
(f)(5) of title
26) within 90 days after notice from the Secretary (or such longer period as the Secretary may permit), such penalty may be in an amount not more than 100 percent of the amount involved. This subsection shall not apply to a transaction with respect to a plan described in section
4975
(e)(1) of title
26.
(k)
Jurisdiction of actions against the Secretary of Labor
Suits by an administrator, fiduciary, participant, or beneficiary of an employee benefit plan to review a final order of the Secretary, to restrain the Secretary from taking any action contrary to the provisions of this chapter, or to compel him to take action required under this subchapter, may be brought in the district court of the United States for the district where the plan has its principal office, or in the United States District Court for the District of Columbia.
(l)
Civil penalties on violations by fiduciaries
(1)
In the case of—
(A)
any breach of fiduciary responsibility under (or other violation of) part 4 of this subtitle by a fiduciary, or
the Secretary shall assess a civil penalty against such fiduciary or other person in an amount equal to 20 percent of the applicable recovery amount.
(2)
For purposes of paragraph (1), the term “applicable recovery amount” means any amount which is recovered from a fiduciary or other person with respect to a breach or violation described in paragraph (1)—
(3)
The Secretary may, in the Secretary’s sole discretion, waive or reduce the penalty under paragraph (1) if the Secretary determines in writing that—
(4)
The penalty imposed on a fiduciary or other person under this subsection with respect to any transaction shall be reduced by the amount of any penalty or tax imposed on such fiduciary or other person with respect to such transaction under subsection (i) of this section and section
4975 of title
26.
(m)
Penalty for improper distribution
In the case of a distribution to a pension plan participant or beneficiary in violation of section
1056
(e) of this title by a plan fiduciary, the Secretary shall assess a penalty against such fiduciary in an amount equal to the value of the distribution. Such penalty shall not exceed $10,000 for each such distribution.
[1] So in original. Probably should be “subtitle”.
[2] See References in Text note below.
[3] So in original. Two pars. (10) have been enacted.