As courts have observed, the principle of easy removal on reasonably short notice "may be frustrated where a plan sponsor . . . can [remove a trustee and appoint a successor] only upon successfully bringing such charges as misfeasance or incapacity." Levy, 20 F.3d at 519 (quoting DOL Opinion, at *3); see also Mobile, Alabama-Pensacola, Florida Bldg. Constr. Trades Council v. Daugherty, 684 F. Supp. 270, 277 (S.D.Ala. 1988) (same); cf. Teamsters Local No. 145 v. Kuba, 631 F. Supp. 1063, 1070 (Conn. 1986) (holding that purpose of labor laws would be undermined if appointing body "could not remove at will any of their trustees in whom they lacked confidence without having to demonstrate `proper and just cause' for such removal").
However, the power (through plan amendment) to appoint, retain and remove plan fiduciaries constitutes "discretionary authority" over the management or administration of a plan within the meaning of ยง 1002 (21)(A). Defries, 943 F.2d at 477; Miniat, 805 F.2d at 736; Leigh v. Engle, 727 F.2d 113, 134-35 (7th Cir. 1984); Atwood v. Burlington Indus. Equity, Inc., 18 E.B.C. 2009, 1994 WL 698314, *6 (M.D.N.C.); Bromenn Healthcare v. Northwestern Nat'l Life Ins. Co., 806 F. Supp. 799, 804 (C.D. Ill. 1992); Newton v. Van Otterloo, 756 F. Supp. 1121, 1132 (N.D. Ind. 1991); Mobile, Ala.-Pensacola, Fla. Bldg. and Constr. Trades Council v. Daugherty, 684 F. Supp. 270, 275 (S.D. Ala. 1988); 29 C.F.R. ยง 2509.75-8, D-4 (1995). Moreover, this authority carries with it a duty "to monitor appropriately" those subject to removal.
Employee trustees can be removed "as required by law" or by "unanimous vote of the remaining existing employee Trustees" and a trustee must be removed if he ceases to be either "an elected local union officer of a participating local union, or a representative of such participating local union officially designated by such local union." Seeking to support their argument that the amendment violates the "equally represented" standard of ยง 302, Joint Council 18 and Olivadoti point to two district court cases: Mobile, Alabama-Pensacola, Florida Building and Construction Trades Council v. Daugherty, 684 F.Supp. 270 (S.D.Ala. 1988), and Teamsters Local No. 145 v. Kuba, 631 F.Supp. 1063 (D.Conn. 1986). However, in both these cases, where courts rejected amendments to provisions for appointment and removal of trustees, employee trustees had adopted provisions designed to prevent their own removal.
The Department of Labor also has expressed concern with entrenchment, stating that fiduciaries "should be subject to effective oversight on behalf of plan participants and beneficiaries." Department of Labor, Pension & Welfare Benefits Opinion Letter 85-41A, December 5, 1985; see also Mobile, Alabama-Pensacola, Fla. Bldg. & Const. Trades Council v. Daugherty, 684 F. Supp. 270, 278 (S.D. Ala. 1988). Although DOL opinion letters are not binding on the court, they represent "the views of the agency charged with implementing ERISA, [and] are at least 'a body of experience and informed judgment to which courts and litigants may properly resort for guidance.'"
) The Court is unaware of an Eleventh Circuit opinion addressing the issue of what is specifically required to be produced pursuant to Section 1024. While considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer, Mobile, Ala.-Pensacola, Fla. Bldg. Const. Trades Council v. Daugherty, 684 F. Supp. 270, 278 (S.D. Ala 1988), such opinions are neither binding on this Court nor entitled to blind deference. Patelco Credit Union v. Sahni, 262 F.3d 897, 908 (9th Cir. 2001); Mack Boring Parts v. Meeker Sharkey Moffitt, 930 F.2d 267, 277 n. 18 (3d Cir. 1991) ("[L[etter opinions apply only to the situation described therein."); Barker v. Pick N Pull Auto Dismantlers, Inc., 819 F. Supp. 889, 896 n. 11 (E.D. Cal. 1993) ("Although the advisory opinion properly is consulted, ERISA Procedure 76-1 provides that such an opinion is binding only on the parties to the letter, and that such letters have no precedential effect.").
It is by now well-established that the power to appoint plan trustees confers fiduciary status. Tomasso, 682 F. Supp. at 1300, 1305 (Union is liable for trustees' fiduciary breaches where it had power to appoint and remove trustees); Hickman v. Tosco Corp., 840 F.2d 564, 566 (8th Cir. 1988) (defendant corporation "is a fiduciary within the meaning of ERISA . . . because it appoints and removes the members of the administrative committee that administers the pension plan"); 29 C.F.R. ยง 2509.75-8 at D-4 (employer's board of directors with power to select and retain plan fiduciaries is fiduciary); see also Licensed Div. Dist. No. 1 MEBA/NMU, AFL-CIO v. Defries, 943 F.2d 474, 477-78 (4th Cir. 1991) ( Defries) (power to appoint trustees confers standing to sue as fiduciary); Mobile, Alabama-Pensacola, Fla. Bldg. and Constr. Trades Council v. Daugherty, 684 F. Supp. 270, 275 (S.D.Ala. 1988) (same). The extent of the concomitant fiduciary responsibility is less clear.