Petition — Board of Trustees of Carpenters Pension Trust Fund v. Reyes

Supreme Court brief1983

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Text

82-1697

No.

Office-Supreme Court, U.S.

FIL:

APR 18 [96°

ALEXANDER L. STEVAS,

“J

In the Supreme Court“

OF THE

United States

Ocroser TERM, 1982

Boarp oF TrRuSTEES OF CARPENTERS PENSION Trust FunD

FoR NoRTHERN CALIFORNIA,

Petitioner,

VS.

Toni Reyes, Ratpu Reyes, Superion Court

OF THE STATE OF CALIFORNIA, IN AND FOR

THE County oF Mercep, Georce C. Barrett,

as Judge of said Court and Micuae. Hennessey,

as Sheriff of the City and County of San Francisco,

Respondents.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

Of Counsel: Tuomas K. Stanton, Jr.

Jounson & Stanton COUNSEL OF RECORD

Van Bourse, ALLEN, 221 Sansome

Wernserc & Roczr San Francisco, CA 94104

San Francisco, CA Telephone: (415) 981-3211

Victor J. Van Bourc

875 Battery Street

San Francisco, CA 94111

Telephone: (415) 864-4000

Counsel for Petitioner

BOWNE OF SAN FRANCISCO, INC. © I90 NINTH ST. © S.F.,.CA 94103 © (418) 864-2300

QUESTIONS PRESENTED FOR REVIEW

1. Is the divorced spouse of a participant in an em-

ployee pension benefit plan covered by ERISA herself a

participant in the plan by virtue of the provisions of the

California community property laws, notwithstanding that

she is not included within the term “participant” as used in

the plan and the plan provides that no pension, prospective

pension, right or interest of a participant or pensioner

shall be subject to any order, decree, execution or other

legal or equitable process or proceeding for the benefit of

such spouse directed to the plan?

2. Under the circumstances stated in question 1, is the

divorced spouse of the participant entitled to an award of

attorney fees against the employee pension benefit plan as

a participant under ERISA § 502(g), 29 U.S.C. § 1132(g),

in a marriage dissolution proceeding under the California

Family Law Act in which the plan was ordered to pay

directly to the spouse a community property share of the

participant’s pension benefit?

3. Do the principles of federalism recognized in

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 756 (1971), apply

to a case where the fiduciary of an ERISA plan has invoked

the exclusive jurisdiction of the federal district court to

enjoin acts which violate ERISA and the terms of the plan

and to obtain other appropriate equitable relief to redress

such violations and enforce the provisions of HRISA and

the terms of the plan?

4. If the principles of federalism do apply in the cir-

cumstances stated in question 3, should the federal district

court retain jurisdiction over the federal issues until the

state issue leading to absention is resolved?

5. Does ERISA preempt state community property law

as it relates to the payment of benefits by an employee pen-

sion benefit plan covered by ERISA?

‘The names of all parties to the proceedings in The United States

Court of Appeals for the Ninth Circuit are as follows:

Board of Trustees of the

Carpenters Pension Trust Fund

for Northern California

Plaintiff / Appellant

The individual members of the Board are as follows:

Employer Trustees Employee Trustees

John Griffin Warren O. Stevens

Robert Balliet Jim R. Green

George Detweiler Harvey H. Landry

Charley Petersen Frank Morabito

Paul C. Petersen Larry Nuil

Howard A. Russell Ken Oliver

Lawrence F, Walters John L. Watts

Toni Reyes Defendant/Appellee/ Real

Party in Interest

ili

TABLE OF CONTENTS

Page

Questions presented for PeVIOW ..........0.cccccceseseseseseseseeeeeees i

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Reasons for granting the Wit 2.0.0.0... 6 cccccescecseseseeeeeees Hy)

ES CR OIE OE ROLE "NOSE EN Oe COO 21

TABLE OF AUTHORITIES CITED

Cases

Page

Alessi v. Raybestos Manhattan, Inc. (1981) 451 U.S.

es BE Gy FIO Sincecessacctinienitincateckimameddldasitentawiinies 7, 9,10, 11

Amato v. Bernard (9th C.A. 1980) 618 F.2d 559 00... 14

Board of Trustees of Carpenters Pension Trust Fund

for Northern California v. Reyes (1982) 688 F.2d 671 7

Carpenters Pension Trust for Southern California v.

Kronschnabel (1980) 632 F.2d 745, cert. den. (1981)

BD TB, Fey BUR Te TD aan cssisescccstntsicvaescssiencsctenses 6,7,9

Cartledge v. Miller (S.D. N.Y. 1978) 457 F.Supp. 1146 20

Etlin v. Robb (1982) ...... US. ....... 102 S.Ct. 3496 .......... 21

Franchise Tax Board of the State of California v. Con-

struction Laborers Vacation Trust for Southern

California (1982) 679 F.2d 1807 200.0... eeeeeeeeeee 8, 18, 19

General Motors Corp. v. Buha (6th C.A. 1980) 623

a ge lacie scngS at 20

Gunn v. United Air Lines, Ine. (1982) 138 Cal.App.3d

UR IRMIUINGIS, GHUIE soccacostcscestninndecdeiesanrssnskiesndeatupotoekaati 17

In re Marriage of Campa (1979) 89 Cal.App.3d 113,

152 Cal.Rptr. 362, app. dism., (1980) 444 U.S. 1028,

SI I hae sa ndenentandiccecssececnieinosiieieliiiteennabidnncn 5, 11, 14, 19

In re Marriage of Gillmore (1981) 29 Cal.3d 418, 174

I Ma cticlhiacaniittanatciateniahisecansnssiniersensineston 16

In re Marriage of Lionberger (1979) 97 Cal.App.3d 56,

158 Cal.Rptr. 535, cert. den. (1980) 446 U.S. 951, 100

BR | IIR Reiner RSCG Er ORs <a ee ae eae 16

Taste or Autuorities Crrep

Cases

Page

In re Marriage of Reyes (1979) 97 Cal.App.3d 879, 159

AS RES i ate Ee id Oe” en 5, 19

In re Marriage of Stenquist (1978) 21 Cal.3d 779 .......... 17

Kramarsky v. Delta Air Lines, Inc., No. 81-1578 .......... 18, 19

L.U. v. Jamison (9th C.A. 1981) 643 F.2d 1352 ............. 21

McCarty v. McCarty (1981) 453 U.S. 210, 101 S.Ct.

ROSA RE SER Nee a aN ee ee 7

Malone v. White Motor Co., 435 U.S. 497, 98 S.Ct. 1185 11

Marshall v. Chase Manhattan Bank (2d C.A. 1977) 558

I a aod is acl blechbeliceoseanaebibonaie 20

Railroad Commission v. Pullman (1941) 312 U.S. 496,

SEERA OLGA Se RAE EE he Maa ae 21

Ridgway v. Ridgway (1981) 454 U.S. 46, 102 S.Ct.

a eo sinlesaiineoanicegecned 7, 10,12

Sinai Hosp. of Baltimore v. Nat. Ben. Fund (4th C.A.

I I carla enasiacittsesolchensdniieiaivaliegd 12

Stone v. Stone (1980) 632 F.2d 740, cert. den. (1981)

ie Ra 8s | nee n ona Te 6,7,18

Thurber v. Western Conference of Teamsters Fension

Plan (9th C.A. 1976) 542 F.2d 1106 —..0000000000...... iecented 14

Wilson v. Board of Trustees (9th C.A. 1977) 564 F.2d

a i ee 14

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 756 (1971) ..1, 8, 20

Taste or Avutuorities CiTep

Statutes and Rules

Page

California Civil Code:

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AR REL aR RO orcs Oe Pe a a 13

TE a sarad i dsrnnedesn ales BY COS TO 13

EGA SEES RT a Soy Sc Oe 2

§4370(a) ...... ADL) EN 14

California Rules of Court, Rule 1250 et seq. .................... 4,5

Consumer Credit Protection Act:

RE US |. SSAA NT ALA OP wu. 4,6

§ 303(b) (3), 15 U.S.C. 1673(b) (3) nn. eeeceeceseeeeeee 18

CEs ROIs EE Og Gs GO, Wh MO cookie sccsitestcctczcvensesenensscebadlins 12

Employee Retirement Income Security Act:

DUE Fy ie RII) cn cscbsetasensncecscasosestonesecccccasecssse 2

CBG) 20 UBC, 6 LOOR (SG) ncncscinsccccic so cctesesccesccececnccoscnsee 2

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§$ 205(a), 29 U.S.C. § 1055 (a) 2. .......cccccenccccsccececcesees 14, 16

§ 205(d), 29 U.S.C. § 1055(d) 15

vii

Tasie or Autaorities CiTep

STATUTES AND RULES

Page

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§ 205(g) (3), 29 U.S.C. ¢ 1055(g) (3B) ..2...--ccccceceeeeeseneneeee 15

§ 206(d) (1), 29 U.S.C. § L056 (d) (1) 0... eeeeeseeeeeeceeees 2,17

§ 404(a) (1), 29 U.S.C. § 1104 (a) (1) -.2..---eeeeeneeeseeeeeeeees 2,18

a Se Ue RI recap ecctipeco nen nhcnnensepsnsncnatanssoneng 2,9

§ 502(a) (1) (B), 29 U.S.C. § 1132(a)(1)(B) -........ 7.10, 19

§ 502(a) (3), 29 U.S.C. § 1132 (a) (B) .........---ce-ccceceseeeeeeee 6, 20

§ 502(e) (1), 29 U.S.C. $11B2(e) (1) .....--.esecneceeeseeneneees 20

§ 502(g), 20 U.S.C. § 1182 (g) ..........2..c0ceccopecscvcereeees 5, 6,7, 18

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OG CT STII si iiiccscsicescinscecseneisisnnpcanensnsnccnnnccinnesene 2

§ 514(c) (1), 29 U.S.C. § 1144(€) (1) -2..---.2.eeeeeeeeseseeeeeeees 20

§$ 3022(a), 29 U.S.C. § 1222 (a) .............cscsccccsrecscersseesrerees 2

Labor-Management Relations Act, § 302(¢)(5), 29

EM MIO aiticarssncsiiitinsesdanbesninnnddiediscnstonssenasenahonin’ 2

National Labor Relations Act:

NE i ON IN aes cenonsreqhansilininasaberahndieaneticans 2

RD ie i ental neon 2

In the Supreme Court

OF THE

United States

Ocroser Term, 1982

Boarp or Trusters or Carrenters Pension Trust Funp

¥OR NORTHERN CALIFORNIA,

Petitioner,

VS.

Toni Reyes, Rauexw Reyes, Superior Court

OF THE STaTE OF CALIFORNIA, IN AND FOR

THE County or Mercep, Grorce C. Barrer,

as Judge of said Court and Micuar, Hennessey,

as Sheriff of the City and County of San Francisco,

Respondents.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

Petitioner Board of Trustees of the Carpenters Pension

Trust Fund for Northern California respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Ninth Circuit entered in the above-entitled proceeding on

September 23, 1982.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 688

F.2d 671 and is printed in Appendix A. The order of the

Court denying a rehearing is printed in Appendix B. The

judgment and Order of the United States District Court for

the Northern District of California is printed in Appen-

dix C.

JURISDICTION

The opinion of the Court of Appeals was filed and

entered on September 23, 1982, and its order denying peti-

tioner’s timely petition for a rehearing was filed and

entered on March 9, 1983. This Court has jurisdiction pur-

suant to 4 1254(1) of Title 28 of the United States Code.

STATUTES INVOLVED

This case involves §§ 3(7), 3(8), 205, 206(d)(1), 404(a)

(1), 502, 503, 514 and 3022(a) of the Employee Retirement

Income Security Act, 29 U.S.C. §§ 1002(7), (8), 1055,

1056(d)(1), 1104(a)(1), 1132, 1133, 1144 and 1222(a),

§ 302(c)(5) of the Labor Managemext Relations Act, 29

U.S.C. § 186(c) (5), and §§ 4351, 4363, 4363.1, 4363.2 and

4370 of the California Civil Code. These statutes are

printed in Appendix D.

STATEMENT OF THE CASE

Petitioner Board of Trustees of the Carpenters Pension

Trust Fund for Northern California (“Fund”) is the

named fiduciary of an employee pension benefit plan

(“Plan”) covered by the Employee Retirement Income

Security Act, 29 U.S.C. § 1001 et seg. (“ERISA”). The

Plan was established by a Trust Agreement negotiated

through collective bargaining pursuant to the National

Labor Relations Act, 29 U.S.C. §151 et seq., between

employers and the Carpenters Unions in the 46 Counties

of Northern California and was created and is presently

existing in conformance with Section 302(c)(5) of the

Labor-Management Relations Act of 1947, 29 U.S.C. § 186

The Plan, as revised to conform with ERISA effective

September 1, 1976, defines a “Participant” in the Plan as

“a Pensioner, or an Employee who meets the requirements

for participation in the Plan as set forth in Article 2, or

a former Employee who has acquired a right to a Pension

under this Plan and has Separated from Covered Employ-

ment” (Plan, Section 1.19, App. E, p. E-1).? An “Employee”

is defined as “any Employee of an Individual Employer

who performs one or more hours of work covered by any

of the Collective Bargaining Agreements” and employees

of certain labor organizations or other entities “with re-

spect to whose work contributions are made to the Fund”

(Plan, Section 1.11, App. E, p. E-1). The term “Spouse”

is defined as a person to whom a Participant or Pensioner

is legally married (Plan, Section 1.24, App. E, p .E-1).

Article 2 of the Plan provides that an “Employee who

works in Covered Employment shall become a Participant

as soon as he has performed at least 300 hours of Work

in Covered Employment during any Calendar Year” (Plan,

Section 2.02, App. E, p. E-2),

Section 10.12 of the Plan provides as follows (App. E,

p. E-2):

Section 10.12. Non-Assignment of Benefits. Each

Participant, Pensioner or Beneficiary under the Plan

is hereby restrained from selling, transferring, antici-

pating, assigning, alienating, hypothecating or other-

wise disposing of his pension, prospective pension or

any other right or interest under the Plan, and the

Board of Trustees shall not recognize, or be required

to recognize, any such sale, transfer, anticipation,

assignment, alienation, hypothecation or other dispo-

sition. Any such pension, prospective pension, right

or interest shall not be subject in any manner to volun-

tary transfer or transfer by operation of law or other-

wise, and shall be exempt from the claims of creditors

or other claimants and from all orders, decrees, gar-

nishments, executions or other legal or equitable pro-

*The Summary Plan Description of the Pension Plan was in-

cluded in the record below as Exhibit 1 to CR 5. The pertinent

sections of the Plan are printed in Appendix E.

cess or proceeding to the fullest extent permissible by

law.

The right of a Spouse of any Participant or Pen-

sioner shall be limited to a community property share

of the pension actually received by a Pensioner, after

such receipt, and to rights as the designated Bene-

ficiary of a Participant or Pensioner, or other rights

expressly provided in this Plan and no pension, pro-

spective pension, right or interest of a Participant or

Pensioner shall be subject to any order, decree, execu-

tion or other legal or equitable process or proceeding

for the benefit of such Spouse directed to the Fund.”

On June 26, 1980, petitioner commenced this action in

the federal district court against respondent Toni Reyes

(“Toni”), as the principal defendant, to enjoin enforce-

ment of (1) and order of the California superior court

directing payment out of the Fund of an award of attor-

ney’s fees to Toni and (2) a writ of execution levied

against the pension benefit account of the Fund under a

judgment of the superior court against the Fund awarding

Toni $8026 as her community property share of pension

benefits payable by the Fund to defendant Ralph Reyes

(“Ralph”). The action also sought a judgment adjudging

and declaring the fiduciary duties of petitioner under

ERISA and § 303 of the Consumer Credit Protection Act,

15 U.S.C. § 1673, with respect to the claims of Toni and

Ralph.

The judgment for $8026 was entered in a marriage dis-

solution proceeding brought by Toni against Ralph under

the California Family Law Aét (Cal. Civ. Code § 4000 et

seq.) to which the Fund had been joined as a party claim-

ant pursuant to rules adopted by the California Judicial

Council under that Act (Cal. Civ. Code § 4001; Cal. Rules

*Throughout this petition emphasis is added unless otherwise

noted.

of Court, Rule 1250 et seq.). The Fund appealed from the

judgment to the California Court of Appeal, and Toni

thereupon moved in the superior court for an order requir-

ing the Fund and/or Ralph to pay her attorney’s fees

and costs in defending the appeal. The motion was denied

and Toni appealed to the California Court of Appeal from

the order of denial.

On the Fund’s appeal, the Court affirmed the judgment

in an unpublished opinion in 5 Civil No. 3575 reiying on

the reasoning in In re Marriage of Campa (1979) 89 Cal.

App.3d 113, 152 Cal.Rptr. 362, app. dism., (1980) 444 U.S.

1028, 100 S.Ct. 696. On Toni’s appeal, the Court affirmed

the order denying the motion for attorney’s fees and costs

in a published opinion, In re Marriage of Reyes (1979) 97

Cal.App.3d 879, 159 Cal.Rptr. 84, in which it dismissed

Toni’s contention, raised for the first time on oral argu-

ment, that she was entitled to attorney's fees under ERISA

§ 502(g), 29 U.S.C. §1132(g), on the grounds that the

contention had been waived and:

“In any event, section 1132, subdivision g, expressly

authorizes an award of attorney’s fees only to a par-

ticipant, beneficiary, or fiduciary. Appellant [Toni]

has failed to establish that she falls within one of the

categories of parties entitled to attorney’s fees under

this section.”

(97 Cal.App.3d at p. 880, 159 Cal.Rptr. at p. 86).

After the remittiturs on the appeals had been filed in

the superior court, petitioner commenced deducting $220,

the amount awarded to Toni by the judgment, from Ralph’s

monthly pension benefit and paying such amount to Toni

under protest, and with an express reservation of all of

the Fund’s rights. It refused, however, to pay her the

amount awarded with respect to pension benefits already

paid to Ralph, totalling $8026, and which Ralph had failed

to remit to her.

Also after the filing of the remittiturs, Toni again moved

in the superior court for an award against the Fund for

attorney’s fees incurred by her in defending against the

Fund’s appeal. The court granted her motion on the ground

that Toni was a “beneficiary” within the meaning of

ERISA § 502(g), 29 U.S.C. § 1132(g), “by reason, at least

of this Court’s order, and its affirmance on appeal,” and

gave the Fund leave to conduct reasonable discovery prior

to a hearing to determine the amount of the fees,

The Fund petitioned for a peremptory writ from the

California Court of Appeal restraining further action to

award Toni attorney’s fees against the Fund. Toni, on her

part, levied execution against the Fund’s pension benefit

account to enforce the judgment for $8026. Petitioner there-

upon filed this action, invoking the jurisdiction of the fed-

eral district court under ERISA § 502(a)(3), 29 U.S.C.

§ 1132(a)(3), 29 U.S.C. § 2201 and, as to the execution,

Section 303 of the Consumer Credit Protection Act, 15

U.S.C. § 1673.

The Fund’s petition for a peremptory writ from the

California Court of Appeal was denied, and after a hearing

on the amount of the fees, Toni was awarded $8500, The

superior court also denied the Fund’s claim of exemption

from the execution levied against its pension benefit

account. The Fund appealed to the California Court of

Appeal from both orders of the superior court.

The federal district court granted a preliminary injune-

tion restraining enforcement of both the order allowing

attorney’s fees and the writ of execution, but after the

decisions of the United States Court of Appeals for the

Ninth Circuit in Carpenters Pension Trust for Southern

California v. Kronschnabel (1980) 632 F.2d 745, cert. den.

(1981) 453 U.S. 922, 101 S.C. 3159, and Stone v. Stone

(1980) 632 F.2d 740, cert. den. (1981) 453 U.S. 922, 101

S.Ct. 3158, the district court dissolved the preliminary

injunction and entered a judgment and order on Toni’s

motion dismissing petitioner’s complaint without prejudice

as to certain enumerated issues and adjudging, among

other things, that “[p]ursuant to Stone... Toni... is

a participant pursuant to Section 502(g) of ERISA, 29

U.S.C. § 1132(g), and therefore is entitled to attorney’s

fees in this action against the Carpenters Pension Trust

Fund for Northern California” (App. C, p. C-3).

A timely appeal was taken to the Court of Appeals for

the Ninth Circuit, and petitioner suggested that the appeal

be heard initially en bane in view of the fact that the

appeal required reconsideration of that Court’s holdings

in Kronschnabel and Stone in the light of the decisions of

this Court in Alessi v. Raybestos Manhattan, Inc. (1981)

451 U.S. 504, 101 S.Ct. 1895, McCarty v. McCarty (1981)

453 U.S. 210, 101 S.Ct. 2728, and Ridgway v. Ridgway

(1981) 454 U.S. 46, 102 S.Ct. 49.

The suggestion of an en banc hearing was not accepted

and the appeal was heard by a panel of the Court. The

panel affirmed the summary judgment of the district court

in Board of Trustees of Carpenters Pension Trust Fund

for Northern California v. Reyes (1982) 688 F.2d 671,

ruling as follows:

(1) Petitioner’s claim that “ISRISA acts to preempt

community property interests” was barred by the doctrine

of res judicata since petitioner had not sought timely

review by this Court of the judgment of the California

Court of Appeal in 5 Civil No. 3575 (App. A, pp. A-4-5).

(2) Because none of the decisions of this Court cited

by petitioner addressed “whether ERISA acts to preempt

state community property law” the panel was compelled

by this Court’s decision in Campa to hold that attorney’s

fees were properly awarded by the district court to Toni

as a participant within the meaning of ERISA 4 502

(a)(1)(B), 29 U.S.C, § 11382(a)(1)(B) (App. A, p. A-8),

(3) The principles of federalisin recognized in Younger

v. Harris (1971) 401 U.S. 37, 91 S.Ct. 756, limited the

power of the district court to enjoin enforcement of the

California court’s award of attorney’s fees to Toni pur-

suant to ERISA. “The state court, without interference

by process of this court, should determine the rights of

the parties in the case before it, including the effect to

be given to the instant case” (App. A, p. A-9).

In connection with ruling (2) the panel said (App. A

at p. A-8):

‘*We are cognizant of the fact that there are many

questions, not yet resolved by the Supreme Court

which result from the interplay between the law of

community property and the provisions of ERISA.

Review of these important issues by the United States

Supreme Court would greatly assist fund adminis-

traitors in meeting their responsibilities. See, e.¢.,

United States v. Ross ........ [iP Sanaa , 102 S.Ct. 2157,

2162, 72 L. Ed. 2d 572 (1982).”

Petitioner petitioned for a rehearing and suggested the

appropriateness of a rehearing en banc. As one of the

situations justifying the rehearing, petitioner cited the

apparent conflict between the decision of the panel and

the decision of the Court in Franchise Tax Board of the

State of California v. Construction Laborers Vacation

Trust for Southern California (1982) 679 F.2d 1307, which

conflict was not addressed in the panel’s opinion.

The panel denied the petition and rejected the suggestion

that the rehearing be en banc, saying (Appendix B, pp.

B-1-2) :

“The cases cited by petitioner, Franchise Tax Board

of the Siate of California v. Construction Laborers

Vacation Trust for Southern California, 679 F.2d 1307

(9th Cir. 1982) and Alessi v. Raybestos-Manhattan,

Inc., 451 U.S. 504 (1981) are inapposite. Neither case

deals with an attempt by the state to apply community

property law to pension funds, As pointed out in the

Reyes opinion, we are bound by the summary dis-

missal of Jn re Marriage of Campa, 444 U.S, 1028

(1980). See Stone v. Stone, 632 F.2d 740, 742 (9th

Cir. 1980); Carpenters Pension Trust v. Kronschna-

bel, 632 F.2d 745, 748 (9th Cir. 1980). Petitioner's

arguments based on Alessi should be addressed to

the Supreme Court, not this court.’’

REASONS FOR GRANTING THE WRIT

The principal reason for granting the writ is simply

stated. The Court of Appeals below decided a federal

question in conflict with applicable decisions of this Court,

The Court of Appeals did so apologetically. It said that

there were important issues resulting from the interplay

hetween the law of community property and the provisions

of ERISA which were unresolved, but that since none of

the cases raising those issues addressed whether ERISA

acts to preempt state community property law, it was

compelled to follow the interpretation in Stone and Kron-

schnabel of this Court’s summary action in Campa (App.

A, p. A-8). It coneluded, in denying the petition for a

rehearing, that petitioner’s arguments based on the deci-

sion of this Court in Alessi, “should be addressed to the

Supreme Court, not this court” (App. B, p. B-2),

The conflict between the decision of the Court of Appeals

in Reyes and the decision of this Court in Alessi is direct

and total. The Court of Appeals held that Toni was a

participant in petitioner’s Plan for the purpose of claim-

ing an award of an attorney’s fee under ERISA § 502,

29 U.S.C. § 1132, in connection with an action purportedly

brought by her “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” (ERISA § 502(a)(1)(B), 29 U.S.C.

§ 1182(a)(1)(B)). The terms of petitioner’s Plan, how-

ever, make clear that Toni is not a participant in the Plan

and is not entitled to rights under the Plan as a participant.

It is likewise clear that her action against the Plan was

a proceeding under a state law, the Family Law Act (Cal.

Civ. Code 44000 et seq.), in which she asserted rights

under the state community property law which intruded

upon and contravened the terms of the Plan.

This Court decided in Alessi that ERISA does not per-

mit such an intrusion of state law upon the terms of an

employee benefit plan covered by that Act. It said (451

U.S. at pp. 525-526, 101 S.Ct. at p, 1907):

“Where, as here, the pension plans emerge from

collective bargaining, the additional federal interest

in precluding state interfereace with labor-manage-

ment negotiations calls for the preemption of state

efforts to regulate pension terms, See ZJeamsters v,

Oliver, 358 U.S. 283, 296, 79 S.Ct. 297, 304 3 L.Ed.2d

812 (1959)... . As a subject of collective bargaining,

pension terms themselves become expressions of fed-

eral law, requiring preemption of intrusive state law.”

The fact that Alessi addressed “the issue of whether

ERISA preempted state law prohibiting offset of workers’

compensation awards” rather than “whether ERISA acts

to preempt state community property law” (App. A, p.

A-8) does not make its holding “inapposite” (App. B, p.

B-1) to the issue in Reyes. As this Court said in Ridgway

v. Ridgway (1981) 454 U.S. 461, at pp. 54-55, 102 S.Ct.

49, at pp. 54-55:

“Notwithstanding the limited application of federal

law in the field of domestic relations generally . . .

{t]he relative importance to the State of its own law

is not material when there is a conflict with a valid

federal law, for the framers of our Constitution pro-

vided that the federal law must prevail. . . . .«nd,

specifically, a state divorce decree, like other law gov-

erning the economic aspects of domestic relations,

must give way to clearly conflicting federal enact-

ments.”

The conflict between Alessi and the Ninth Circuit's

interpretation of this Court’s summary action in Campa

is likewise clear. In Campa the California Court of Appeal

expressly rejected the consideration which this Court found

to be persuasive in Alessi, saying (89 Cal. App. 3d at

pp. 126-127, 152 Cal.Rptr. at pp. 369-370) :

“The Fund next maintains that section 1144 of

ERISA affirms the principle that provisions of collee-

tive bargaining agreements negotiated under the

aegis of the National Labor Relations Act generally

supersede conflicting state law. (K.g., Teamsters

Union v, Oliver (1959) 358 U.S. 283 [3 L.Ed. 312,

79 S.Ct. 297]). The pension plan here purports to

prohibit the nonemployee spouse from obtaining any

order or other process against the Fund. This pro-

vision, the Fund urges, must prevail over contrary

California law.

“This argument is untenable in the light of Malone

v. White Motor Co., supra 4385 U.S. 497 [98 S.Ct.

ph) a ag

In Alessi this Court said concerning Malone (451 U.S.

at p. 526, n, 23, 101 S.Ct. at p. 1907, n. 23):

‘*There, because Congress preserved a state role in

pension regulation before ERISA, the plurality created

an exception to the general rule preempting state regu-

lation of collective bargaining. [Citation] This excep-

tion no longer applies, however, now that ERISA,

with express preemptive intent, has eliminated state

regulations of most pension plans.’’

The decision of the Court of Appeals does “ ‘major

damage’” to “‘clear and substantial’” federal interests

protected by ERISA (see Ridgway v. Ridgway, supra,

454 U.S. at p. 54, 102 S.Ct. at p. 54). One of the key

provisions of ERISA is that a fiduciary of a covered plan

“shall discharge his duties with respect to the plan solely

in the interests of the participants and beneficiaries and

(A) for the exclusive purpose of (i) providing benefits

to participants and their beneficiaries; and... (D) in

accordance with the documents and instruments governing

the plan insofar as such documents and instruments are

consistent with the provisions of this title or title IV.”

The decision of the Court of Appeals requires that peti-

tioner, the fiduciary of an ERISA plan, must recognize

and treat a person as a participant of the plan who does

not qualify as a participant under the terms of the plan

and must pay such person an attorney's fee ordered by a

state domestic relations court in a proceeding under state

law to recover benefits to which such person was not en-

titled under the terms of the plan. Such a requirement vio-

lates one of the basic principles which underlie the fidu-

ciary responsibility provisions of ERISA, namely, “that

[principle] requiring the trustees to act only in accordance

with the terms of the trust” (see Sinai Hosp. of Baltimore

v. Nat, Ben. Fund (4th C.A, 1982) 697 F.2d 562, 566), and

it cannot be permitted to stand without seriously compro-

mising that principle.

The decision below is particularly destructive of the

fiduciary responsibility provisions of ERISA because of

the nature of the proceedings to which it applies.

The Fund administered by petitioner was joined as a

party to Toni’s proceeding to dissolve her marriage to

Ralph in accordance with California’s joinder practice,

which in 1977 was codified in the Civil Code (Cal. Stats.

1977, ¢, 860, p. 2599). Under this practice no order or judg-

ment in a marriage dissolution proceeding is enforceable

against an employee pension benefit plan unless the plan

has been joined as a party to the proceeding (Civ. Code,

§ 4351). The joinder is accomplished by an order entered

by the court clerk, followed by a pleading of the party re-

questing joinder “setting forth the party’s claim against

the plan and the nature of the relief sought” and by service

of summons on the plan. (Civ. Code § 4363.1(a)). To avoid

entry of its default, the plan must file a notice of appear-

ance in the proceeding (Civ. Code, § 4363.1(¢)). If a notice

of appearance is filed, the plan must be served with any

order which affects the plan or which affects any interest

the participant employee or his spouse may have or claim

under the plan (Civ. Code § 4363.2(d)). Within 30 days

after service of the order, the plan may file a motion to set

aside or modify “those provisions of the order affecting

it,” and if such a motion is filed, “the provisions shall not

become effective until the court has resolved the motion”

(tbid).

At the hearing on the motion, “any party may present

further evidence on any issue relating to the rights of the

parties under the employee pension benefit plan or the ex-

tent of the parties’ community or quasi-community prop-

erty interest in the plan” and the court must take account

of such evidence in its findings of fact and conclusions of

law (Civ. Code § 4363.2(e)). During the pendency of the

proceedings, “the court may order any party, except a gov-

ernmental agency, to pay such amount as may be reason-

ably necessary for the cost of maintaining or defending

the proceedings and for attorneys’ fees” including fees and

costs “for legal services rendered or costs incurred prior,

as well as subsequent, to the commencement of the pro-

ceeding”, provided that “[a]ny order for a party who is not

the husband or wife of another party to the proceeding to

pay attorneys’ fees or costs shall be limited to an amount

reasonably necessary to maintain or defend the action on

the issues relating to that party” (Civ. Code § 4370(a)).

Not every participant in petitioner’s Plan qualifies for a

pension under the terms of the Plan and where the applica-

tion of a participant involved in a marriage dissolution pro-

ceeding is denied, the Fund must actively defend not only

against the claim of the divorcing or divorced spouse, but

also against the claim of the participant. Otherwise, evi-

dence presented by the principal contending parties on an

issue “relating to the rights of the paxties under the em-

ployee pension benefit plan” (which evidence might well be

self-serving or even collusive) could result in findings of

fact adverse to the Fund and to the other participants and

beneficiaries of the Plan to whom petitioner owes fiduciary

obligations (see Thurber v. Western Conference of Team-

sters Pension Plan (9th C.A. 1976) 542 F.2d 1106, 1109;

Wilson v. Board of Trustees (9th C.A. 1977) 564 F.2d 1299,

1302). Ironically, in any such contest the participant would

be required to exhaust his administrative remedies under

the Plan before pursuing his claim in court (ERISA § 503,

290 U.S.C. § 1133; Amato v. Bernard (9th C.A. 1980) 618

F.2d 559, 566), whereas, under the holding of the California

Court of Appeal in Campa, his ex-spouse would not (89 Cal.

App.3d at pp. 119-120, 152 Cal.Rptr. at pp. 364-365).

Petitioner must be concerned not only with the rights

and interests of participants and beneficiaries of the Plan

generally, but also with the federally created. rights and

interests under the Plan of beneficiaries specifically desig- —

nated by ERISA; namely, the surviving spouses of de-

ceased participants.

ERISA § 205(a), 29 U.S.C. § 1055(a), requires a pension

plan that provides for the payment of benefits in the form

of an annuity, to provide for the payment of such benefits

in a form having the effect of a qualified joint and survivor

annuity. A “qualified joint and survivor annuity” is defined

as “an annuity for the life of the participant with a sur-

vivor annuity for the life of his spouse which is not less

than one-half of, or greater than, the amount of the annuity

payable during the joint lives of the participant and his

spouse and which is the actuarial equivalent of a single an-

nuity for the life of the participant” (ERISA § 205(g) (3),

29 U.S.C. § 1055(g)(3)). ERISA § 205(d), 29 U.S.C.

§ 1055(d), provides that a plan “shall not be treated as not

satisfying the requirements of this section solely because

the spouse of the participant is not entitled to receive a

survivor annuity ... unless the participant and his spouse

have been married throughout the 1-year period ending on

the date of such participant’s death.” ERISA § 205(e), 29

U.S.C. § 1055(e), requires that a participant be given the

option, after having received an explanation of the terms

and conditions of the annuity and the effect of the exercise

of such option, “not to take such joint and survivor an-

nuity.” ERISA § 205(h), permits the plan to take into ac-

count in any equitable fashion any increased costs result-

ing from providing joint and survivor annuity benefits.

Petitioner’s Plan provides an optional qualified joint and

survivor annuity in the form of a “Husband and Wife Pen-

sion” (Plan, App. E, pp. E-3-7). As permitted by ERISA

and implementing regulations, the monthly benefit payable

during his lifetime to a Pensioner who elects the Husband

and Wife Pension is actuarially reduced to compensate for

the increased cost of providing the survivorship feature

(Plan, § 7.04).

The Plan provides that a Husband and Wife Pension

shall not become effective for a Pensioner if the Pensioner

and his Spouse had not been lawfully married to each other

throughout the year before his pension payments began

and that the Pension shall not become effective for a Par-

ticipant, other than a Pensioner, if the Participant and his

Spouse were not lawfully married to each other throughout

the year preceding the Participant’s death (Plan, § 7.05

(a)(1) and (2)). The Plan also provides that the monthly

amount of the Husband and Wife Pension, once it has be-

come payable, shall not be increased if the marriage of the

Pensioner and the Spouse is subsequently legally termi-

nated (Plan, § 7.06).

Under the statutory scheme mandated by ERISA

§ 205(a), 29 U.S.C. § 1055(a), there is an inherent conflict

between the interests of the divorcing or divorced spouse

of a participant and the interests of the surviving spouse

of the participant. The divorcing or divorced spouse is in-

terested in having the participant elect the form of pension

which will provide him with the highest available benefit,

since the amount of her share of the benefit normally if

not always increases with the amount of the benefit. On the

other hand, it is generally in the interest of the surviving

spouse to have the participant elect the joint and survivor

annuity, for while the monthly benefit during the partici-

pant’s lifetime is actuarially reduced, she is assured of the

continued payment to her of one-half of the benefit after his

death.

The community property law, as interpreted and applied

by the California courts, has almost invariably favored the

interests of the divorcing or divorced spouse of a partici-

pant over the interests of his surviving spouse. For ex-

ample, in Jn re Marriage of Lionberger (1979) 97 Cal.App.

3d 56, 158 Cal.Rptr. 535, cert. den. (1980) 446 U.S. 951, 100

S.Ct. 2917, the court held that in order to protect the in-

terests of his divorcing spouse, a participant in an ERISA

plan could be ordered not to elect a joint and survivor an-

nuity and the trustees of the plan could be directed to pay

benefits to the participant only in a form other than a joint

annuity. In In re Marriage of Gillmore (1981) 29 Cal.3d

418, 174 Cal.Rptr. 493, the Court held that a plan partici-

pant who was eligible for retirement under his plan could

be ordered to pay his divorcing spouse a community prop-

erty share of the pension for which he would have been en-

titled if he had elected to retire, even though the partici-

pant was in his early 50s and was not required by the plan

to retire until he reached age 70. And in Gunn v. United Air

Lines, Inc, (1982) 138 Cal.App.3d 765, 188 Cal.Rptr. 302,

the court held that the divorcing spouse of a plan partici-

pant could deprive the surviving spouse of the participant

of any interest in the participant's pension through a con-

tract with the participant requiring that he designate their

children as beneficiaries of the death benefits payable under

the plan.

Much more can be said, and was said in the courts below,

about “the interplay between the law of community prop-

erty and the provisions of ERISA” (App. A, p. A-8). It is

apparent, however, from what has already been said that

the “unresolved issues” referred by the Court of Appeals

to this Court for review are important and are of grave

concern to fund administrators such as petitioner. By rea-

son of the joinder procedure described above, the Fund has

been joined as a party claimant to more than two hundred

marriage dissolution proceedings in superior courts

throughout California and the number of such joinders is

increasing every week.

Orders issued in these proceedings and served on the

Fund may violate California law; for example, by failing

to give the participant employee credit for his separate

property entitlement in a disability pension (see In re Mar-

riage of Stenquist (1978) 21 Cal.3d 779, 788). Or they may

violate ERISA or other federal law; for example, by

awarding to the spouse more than a community property

share of the pension benefit and thereby offending ERISA’s

anti-alienation provision (ERISA § 206(d)(1), 29 U.S.C.

§ 1056(d)(1)); or by impairing the rights of a surviving

spouse under the joint and survivor annuity mandated by

ERISA (ERISA § 205, 29 U.S.C. § 1055) ; or by subjecting

a greater percentage of the participant’s pension share to

a support order than is permitted by the Consumer Credit

Protection Act (see 15 U.S.C. § 1673(b)(3)). Nevertheless,

the petitioner is inhibited if not prevented from effectively

challenging the orders by the holding in Stone, reaffirmed

by the court below, that a divorcing spouse or ex-spouse

is a “participant” in the Fund and therefore is as much a

beneficiary of the fiduciary duties imposed upon trustees

by ERISA § 404(a) (1), 29 U.S.C. § 1104(a) (1), as the em-

ployee and his surviving spouse, and by the holding of the

Merced County superior court and the courts below that

she is entitled to an award of an attorney’s fee against the

Fund under ERISA § 502(g).

This Court is giving plenary consideration in Kramarsky

v. Delta Air Lines, Inc., No. 81-1578, to the questions as to

whether ERISA preempts provisions of the New York

Human Rights Law prescribing the terms and conditions

of ERISA-covered welfare plans by prohibiting the denial

of employee disability benefits based on pregnancy and pro-

visions of the New York Disability Benefits Law which re-

quire employers to provide certain minimum disability

benefits of pregnant employees. The Court is also giving

plenary consideration in Franchise Tax Board of the State

of California v. Construction Laborers Vacation Trust for

Southern California, No. 82-695, to the question whether

ERISA preempts the California Revenue and Taxation

Code insofar as it permits state authorities to levy upon

an ERISA-covered employee welfare benefit plan to satisfy

the state income tax liabilities of some of the plan’s par-

ticipants.

The questions presented in this case are more important

and far reaching, in terms of their effect upon ERISA and

the employee benefit plans, fiduciaries, participants and

beneficiaries covered by ERISA, than the questions pre-

sented in the Kramarsky and Franchise Tax Board cases.

In view of the position of the court below that it is com-

pelled to follow Campa until this Court informs it in a case

involving state community property law that Campa is no

longer binding, it is imperative that this Court grant

plenary review in order to terminate, as soon as possible,

the intolerable situation for fund administrators created

by the refusal of that court to give critical consideration

to the effect of Alessi upon this Court’s summary action in

Campa.

We submit that in such review this Court should not be

foreclosed by the doctrine of res judicata from giving

plenary consideration to the question whether ERISA pre-

empts state community property law as it relates to the

payment of benefits by an employee pension benefit plan

covered by ERISA. It is true that this issue was decided

adversely to petitioner by the California Court of Appeal

on the initial appeal in Reyes, in reliance upon the reason-

ing of the California court in Campa, and that petitioner

did not seek timely review of this decision through petition

for writ of certiorari to this Court.‘ The Reyes court, how-

ever, did not interpret Campa as compelling the conclusion

that Toni was a participant in the Plan within the meaning

of ERISA § 502(a)(1)(B), and ruled to the contrary that

Toni was not a participant, beneficiary or fiduciary of the

Plan (97 Cal.App.3d 876, 880, 159 Cal.Rptr. 84, 86). The

order awarding Toni an attorney’s fee as a beneficiary of

‘Petitioner's petition for a hearing by the California Supreme

Court was denied on December 13, 1979. This Court’s order dis-

missing the appeal in Campa for want of a substantial federal ques-

tion was entered on January 14, 1980. 444 U.S. 1028, 100 S.Ct. 696.

In view of the Reyes court’s interpretation of the Campa decision

noted in the text, and since the remaining issues in Reyes were

identical to those in Campa, petitioner concluded that an appeal

or petition for writ of certiorari addressed to this Court would be

futile.

the Plan was issued by the superior court after the remitti-

turs from the appellate court had been filed in the superior

court, and no principle of res judicata protects the validity

of that order from plenary review. We point out, further,

that state court decisions come within the broad sweep of

ERISA preemption and that no distinction is made between

the decisions of trial courts and those of appellate courts

(ERISA § 514(¢) (1), 29 U.S.C. § 1144(e)(1)).

The Court’s plenary review should also extend to the

following :

(1) The holding of the court below that petitioner’s ac-

tion under ERISA § 502(a)(3), 29 U.S.C. § 1132(a) (3), to

enjoin the initiation or continuation of any proceedings in

the state court to enforce the award of attorney’s fees runs

afoul of the principles of federalism recognized in Younger

v. Harris (1971) 401 U.S. 37, 91 S.Ct. 756.

ERISA gives the federal district courts exclusive juris-

diction over such actions (ERISA § 502(e)(1), 29 U.S.C.

§ 1132(e)(1)) and the authority and responsibility of the

federal courts to protect such jurisdiction by enjoining the

prosecution of state court actions is clear (see General

Motors Corp. v. Buha (6th C.A. 1980) 623 F.2d 455, 458-

459; Marshall v. Chase Manhattan Bank (2d C.A. 1977)

558 F.2d 680, 682; Cartledge v. Miller (S.D. N.Y. 1978)

457 F.Supp. 1146, 1151-1153).

(2) In the event that the principles of federalism do

apply, the failure of the court below to direct the district

court to retain jurisdiction over the federal issues until

the state issue leading to abstention is resolved.

Where a federal court invokes the principle of federalism

recognized in Younger, the court should not dismiss the

action outright but should retain jurisdiction over the fed-

eral issues until the state issue leading to abstention is re-

solved (Railroad Commission v. Pullman (1941) 312 U.S.

496, 501, 61 S.Ct. 643, 646; White, J., dissenting in Ftlin v.

Robb (1982) ...... US. ......, 102 S.Ct. 3496, 3498; L.H. v.

Jamison (9th C.A. 1981) 643 F.2d 1352, 1356).

CONCLUSION

For the foregoing reasons, the petition for a writ of cer-

tiorari should be granted in order that this Court may give

plenary consideration to the many questions resulting from

the interplay between the law of community property and

the provisions of ERISA and that petitioner and other

fund administrators may receive the guidance they so

sorely need in meeting their responsibilities.

Respectfully submitted,

San Francisco, California

April 14, 1983.

Tuomas KE. Stanton, Jr.

COUNSEL OF RECORD

Victor J. Van Bourne

Counsel for Petitioner

Van Bourse, ALLEN,

Wernserc & Rocer

Jounson & StanTON

Of Counsel

A-l

Appendix A

BOARD OF TRUSTEES OF CARPENTERS PENSION

TRUST FUND FOR NORTHERN CALIFORNIA, An

Employee Pension Benefit Plan, Plaintiff-Appellant,

Toni REYES, Ralph Reyes, Superior Court of the State of

California In and For the County of Merced, George C.

Barrett, As Judge of Said Court, and Michael Hennes-

sey, As Sheriff of the City and County of San Francisco,

Defendants-A ppellees.

No. 81-4353.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted May 13, 1982.

Decided Sept. 23, 1982.

Appeal from the United States District Court for the

Northern District of California.

Before SWYGERT*, KENNEDY, ALARCON, Circuit

Judges.

ALARCON, Circuit Judge:

The Board of Trustees of Carpenters Pension Trust

Fund for Northern California [the Fund] filed an action in

the district court below against Toni Reyes [Toni] pursu-

ant to the Employment Retirement Income Security Act

[ERISA], 29 U.S.C. §§ 1001-1381 and 28 U.S.C. § 2201

(declaratory judgment). The district court granted Toni’s

*Hon. Luther M. Swygert, Senior United States Circuit Judge

for the Seventh Circuit, sitting by designation.

A-2

motion for summary judgment against the Fund on May

29, 1982 and awarded her $3,296.00 in attorneys’ fees in

connection with the Fund's federal action, The Fund has

appealed to this court.

I. FACTS

In 1976, Toni instituted dissolution proceedings against

her husband Ralph Reyes [Ralph] in the superior court for

the county of Merced. Shortly thereafter, the Fund was

joined as a party to that action pursuant to the California

family law joinder statute. See Cal. Civ, Code §§ 4363.1-3."

The superior court entered a decree of dissolution and

ordered the Fund to pay Toni’s community property share

of the payments for Ralph directly to her. After judgment

was entered, Toni moved for attorney's fees and the trial

court denied her motion.

The Fund appealed from the judgment to the California

Court of Appeal. The appellate court affirmed the trial

court. In re Marriage of Reyes, 5 Civil No. 3575 (Cal, Ct.

App. Oct. 18, 1979).

Toni appealed from the denial of her motion for attor-

ney’s fees to the California Court of Appeal. The court held

that Toni’s claim for attorney’s fees under ERISA, 29

U.S.C. § 1132(g) was (1) waived by her failure to raise the

claim until oral argument; and (2) inappropriate because

she failed to establish that she was a “ ‘participant, benefi-

ciary, or fiduciary’” as required by the statute. Jn re Mar-

riage of Reyes, 97 Cal.App.3d 876, 880, 159 Cal.Rptr. 84,

Toni joined the Fund pursuant to Cal, Civ. Code § 4351. This

statute was subsequently amended by Cal. Civ. Code §§ 4363,.1-3

which deleted the prior requirement that a judicial order be ob-

tained for joinder.

A-3

86 (1979) (quoting 29 U.S.C. § 1132(g)). The court affirmed

the denial of her motion for attorney's fees. Id.

In March, 1980, Toni moved in the trial court for an

award of attorney's fees against the und pursuant to

ERISA, 29 U.S.C, § 1182(g@) for fees incurred in her de-

fense against the Fund's appeal in 5 Civil No, 3575, The

court concluded that the award of attorney's fees would be

proper under ERISA and granted Toni leave to conduct

discovery to determine the reasonableness of fees, The

Fund petitioned for a peremptory writ from the California

Court of Appeal to restrain Toni from any further action

in seeking attorney's fees. The appellate court denied the

petition. Carpenters Pension Trust Fund v, Superior

Court, 5 Civil No, 5725 (Cal, Ct. App. July 26, 1980), The

trial court ordered the Fund to pay Toni $8,500 as an

award for attorney’s fees. The Fund has appealed this

order and the case is currently pending before the Califor-

nia Court of Appeal. Carpenters Pension Trust Fund v.

Reyes, 5 Civil No. 5725.

On June 26, 1980, the Fund filed the action in the matter

sub judice seeking, inter alia, to enjoin the enforcement of

the state court order awarding Toni attorney's fees and to

enjoin “defendants, and each of them, and their respective

agents, successors, employees, attorneys and those acting in

concert with them, from continuing or initiating any pro-

ceedings to enforce an award of attorney's fees to defen-

dant Toni Reyes against the Fund... .”

The Fund has raised two issues on appeal. First, it claims

that ERISA acts to preempt state community property law

as it relates to pension distribution. Second, it claims that

Toni may not properly be awarded attorney's fees pursu-

A-4

ant to ERISA, 29 U.S.C. § 1132(g¢). We need not reach the

merits of the first issue, however, because we find that the

Fund is barred from raising it by the doctrine of res

judicata.

II. PREEMPTION ISSUE IS BARRED BY

DOCTRINE OF RES JUDICATA

The doctrine of res judicata provides that when there is

a final judgment on the merits, further claims by the

parties or their privies based upon the same cause of action

are barred. American Triticale Inc, v. NYTCO Services,

Inc., 664 F.2d 1136, 1146 (9th Cir. 1981). The doctrine of

res judicata will prevent federal litigation of a federal con-

stitutional claim that was or might have been raised in a

state action that has come to final judgment. Gallagher v.

Frye, 631 F.2d 127, 129 (9th Cir. 1980) (citing Scoggin v.

Schrunk, 522 F.2d 436, 437 (9th Cir. 1975), cert. denied, 423

U.S. 1066, 96 S.Ct. 807, 46 L.Ed.2d 657 (1976)). The Fund

previously claimed, in the dissolution proceeding filed by

Toni, that ERISA acts to preempt community property in-

terests. In re Marriage of Reyes, 5 Civil No. 3575, The Cali-

fornia appellate court held that there was no preemption

by ERISA:

In re Marriage of Campa [89 Cal.App.3d 1138, 152 Cal.

Rptr. 362] . . . involved precisely the same issues. The

same pension fund and the sam counsel appeared for

the Fund as in the case at bench, The court in Campa,

after a thorough and well reasoned analysis of those

issues resolved all of them against the Fund [finding

that community property laws were not preempted by

ERISA]. We adopt the reasoning of the court in

Campa to dispose of the issues in this case.

Td ‘at 3.

A-5

At oral argument, the Fund confirmed that it did not

seek timely review of this state court judgment through

petition for writ of certiorari. Cf. Vorbeck v. Whaley, 620

F.2d 191, 193 (8th Cir. 1980) (appellant barred by res judi-

cata where he presented constitutional claims in state court

but failed to seek review of state court judgment through

petition for writ of certiorari), Thus, there was a final

judgment in the state court action involving the Fund and

Toni. The claim is barred by the doctrine of res judicata.

Il. ATTORNEY'S FEES

The Fund contends that Toni may not properly be

awarded attorney's fees pursuant to ERISA, 29 U.S.C.

§ 1132(g). The Fund has appealed from the award of $3,296

to Toni for attorney’s fees in connection with the instant

matter. The Fund also seeks to enjoin Toni, inter alia, from

either continuing or initiating any proceedings to enforce

an award of attorney's fees against the Fund to Toni.

We first address the issue of whether attorney's fees may

properly be awarded under ERISA to Toni in connection

with the matter sub judice. ERISA provides that in any

action pursuant to ERISA, “by a participant, beneficiary,

or fiduciary, the court in its discretion may allow a reason-

able attorney’s fee and costs of action to either party.” 29

U.S.C, § 1132(g). The district court found that the award

of attorney’s fees to Toni was proper under this court’s

decision in Stone v. Stone, 632 F.2d 740 (9th Cir. 1980),

cert, denied, 453 U.S, 922, 101 S.Ct. 3158, 69 L.Ed.2d 1004

(1981).

A-6

In Stone, we held that a nonemployee ex-spouse such as

Toni, was a participant within the meaning of ERISA,

29 U.S.C. § 1132(a)(1)(B). This statute provides:

(a) A civil action may be brought—

(1) bya participant or beneficiary—

(B) 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. ...

Id.

This conclusion was based upon the Supreme Court’s sum-

mary dismissal of the appeal in In re Marriage of Campa,

444 U.S. 1028, 100 S.Ct. 696, 62 L.d.2d 664 (1980), for

want of a federal question, see Stone v. Stone, 632 F.2d at

742. The effect of the court’s summary dismissal of /n re

Marriage of Campa, 89 Cal.App.3d 113, 152 Cal.Rptr. 362

(1979), acted as a decision on the merits that is controlling

on lower federal courts. See Carpenters Pension Trust v.

Kronschnabel, 632 F.2d 745, 748 (1980) (citing, inter alia,

Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 2289,

45 L.Ed.2d 223 (1975)). Thus, the summary dismissal

established that ERISA does not preempt a state’s com-

munity property law as it relates to the payment of pension

fund benefits. See Kronschnabel, 632 F.2d at 748. We con-

cluded in Stone, that if ERISA permits the transfer of an

employee’s pension benefit rights to an ex-spouse pursuant

to state community property law, then it impliedly autho-

rizes an ex-spouse to enforce these rights p.rsuant to 29

A-7.

U.S.C. § 1132(a)(1)(B). See 632 F.2d at 743.* It follows

from Stone that if the nonemployee ex-spouse is able to

enforce his or her rights as a participant, he or she is

permitted as a participant seeking to enforce these rights,

the award of attorney’s fees under 29 U.S.C. § 1132(g).

The Fund seeks to cast doubt on the validity of the

rationale upon which Stone and Aronschnabel are based

because of the reliance placed on Campa. The Fund argues

that we are bound by the Supreme Court’s summary dis-

missal in Campa only until “ ‘doctrinal levelopments indi-

cate otherwise.’” Hicks v. Miranda, 422 U.S. at 344, 95

S.Ct. at 2289 (quoting Port Authority Bondholders Pro-

tective Committee v. Port of New York Authority, 387 F.2d

259, 263 n. 3 (2d Cir. 1967)); see also Hawaiian Telephone

Co. v. Hawaii Dept. of Labor & Indus. Relations, 614 F.2d

1197, 1198 (9th Cir.) (per curiam), cert. denied, 446 U.S.

984, 100 S.Ct. 2695, 64 L.Ed.2d 840 (1980).

Recent Supreme Court cases such as Ridgway v. Ridg-

way, 454 U.S. 46, 102 S.Ct. 49, 70 L.Ed.2d 39 (1981),

McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69

L.Ed.2d 589 (1981), and Alessi v. Raybestos-Manhattan,

Inc., 451 U.S. 504, 101 S.Ct. 1895, 68 L.led.2d 402 (1981)

are, according to the Fund, doctrinal developments indi-

cating that the ERISA does preempt community property

*Stone specifically referred to the right of a nonemployee ex-

spouse to have access to the federal courts. 632 F.2d at 743. In

Stone, the action had been removed to the district court and thus,

the sole issue before the court was whether it had jurisdiction, Id. at

742. ERISA, 29 U.S.C. § 1132(e)(1) provides for concurrent state

and federal jurisdiction for claims brought pursuant to 29 U.S.C.

§ 1132(a)(1)(B). Therefore, under Stone the nonenmloyce ex-

spouse has access to both state and federal courts.

A-8

law as it relates to pension funds. None of these cases,

however, presents the issue of whether a state’s commu-

nity property law is preempted by ERISA. Two of the

cases address the issue of whether state community prop-

erty laws are preempted by other federal statutes:

Ridgway involved the preemption of state community

property laws by the Servicemen’s Group Life Insurance

Act of 1965, 38 U.S.C. $¢ 765-779; McCarty involved the

issue of whether state community property laws are pre-

empted by federal law concerning military non-disability

retirement pay, 101 S.Ct. at 2730. Alessi on the other hand,

involves ERISA but not state community property law.

101 S.Ct. at 1898 (court addressed issue of whether ERISA

preempted state law prohibiting offset of workers’ com-

pensation awards). Because these cases do not address

whether ERISA acts to preempt state community property

law we are compelled to follow Campa. We hold that attor-

ney’s fees may properly be awarded in the matter before

us pursuant to ERISA, 29 U.S.C. § 1132(g).

We are cognizant of the fact that there are many ques-

tions, yet unresolved by the Supreme Court which result

from the interplay between the law of community property

and the provisions of ERISA. Review of these important

issues by the United States Supreme Court would greatly

assist fund administrators in meeting their responsibilities.

See, e.g., United States v. Ross, ........ Sf Sees i cdabedied , 102

S.Ct. 2157, 2162, 72 L.Ed.2d.572 (1982).

The Fund also seeks to enjoin the initiation or contin-

uation of any proceedings in the state court to enforce an

award to Toni of attorney’s fees against the Fund. In so

A-9

doing, however, the Fund runs afoul of the principles of

federalism recognized in Younger v. Harris, 401 U.S. 37,

91 S.Ct. 756, 27 L.Ed.2d 669 (1971).

Younger and the line of cases that have followed limit

the power of a federal court to enjoin state judicial pro-

ceedings. Fair Assessment in Real Estate Association, Inc.

v. McNary, 454 U.S. 100, 111-113, 102 S.Ct. 177, 184, 70

L.Ed.2d 271 (1981); L.H. v. Jamieson, 643 F.2d 1351, 1352

(9th Cir. 1981). This court has held that abstention is

appropriate where, inter alia: (1) the plaintiffs seek to

enjoin the continuation of a state proceeding; and (2) the

basis for federal relief could have been raised as a com-

plete or partial defense during the normal course of the

ongoing state proceeding Jd. at 1352-53. Where these char-

acteristics are present the exercise of restraint by the

federal court is compelling. 7d. at 1353-54.

The appeal by the Fund from the award of attorney’s

fees to Toni pursuant to ERISA is still pending in the

California appellate courts. Carpenters Pension Trust

Fund v. Reyes, 5 Civil No. 5725. The state court, without

interference by process of this court, should determine the

rights of the parties in the case before it, including the

effect to be given to the instant case. See Jamieson, 643

F.2d at 1353-54.

IV. CONCLUSION

This matter is remanded to the district court to conduct

an evidentiary hearing to determine the amount of reason-

able attorney’s fees incurred by Toni in responding to this

appeal. The summary judgment of the district court is

AFFIRMED.

B-1.

Appendix B

United States Court of Appeals

For the Ninth Cireuit

No. 81-4353

Board of Trustees of Carpenters Pension Trust Fund for

Northern California, an Employee Pension Benefit Plan,

Plaintiff-Appellant,

vs.

Toni Reyes, Ralph Reyes, Superior Court of the State of

California, in and for the County of Merced, George C.

Barrett, as Judge of said Court, and Michael Hennessey,

as Sheriff of the City and County of San Francisco,

Defendants-Appellees.

Filed Mar. 9, 1983

ORDER

Before: SWYGERT,* KENNEDY and ALARCON, Cir-

cuit Judges

The Panel as constituted above has voted to deny the

petition for rehearing and to reject the suggestion for

rehearing en banc.

The cases cited by petitioner, Franchise Tax Board of

the State of California v. Construction Laborers Vacation

Trust for Southern California, 679 F.2d 1307 (9th Cir.

1982) and Alessi v. Raybestos-Manhattan, Inc., 451 U.S.

504 (1981) are inapposite. Neither case deals with an at-

tempt by the state to apply community property law to

pension funds. As pointed out in the Reyes opinion, we

are bound by the summary dismissal of In re Marriage of

Campa, 444 U.S. 1028 (1980). See Stone v. Stone, 632 F.2d

740, 742 (9th Cir. 1980); Carpenters Pension Trust v.

Kronschnabel, 632 F.2d 745, 748 (9th Cir. 1980). Petition-

er’s arguments based on Alessi should be addressed to the

Supreme Court, not this court.

The petition for rehearing is denied and the suggestion

for rehearing en banc is rejected.

C-1

Appendix C

United States District Court

Northern District of California

C 80-2746 SAW

Board of Trustees of Carpenters Pension Trust Fund for

Northern California, an employee pension benefit plan,

Plaintiff,

vs.

Toni Reyes, et al.,

Defendants.

[Filed May 27, 1981]

JUDGMENT AND ORDER

The motion of defendant Toni Reyes for summary judg-

ment having come on regularly for hearing on this 21st day

of May, 1981, the court having heretofore dissolved the

preliminary injunction issued herein on September 17,

1980, and having considered the arguments and anthorities

presented by counsel and having determined that there is

no issue of genuixe fact and that defendant Toni Reyes is

entitled to judgment as a matter of law to the extent

hereinafter provided,

IT IS HEREBY ORDERED, ADJUDGED AND DE.

CREED that:

1. Under the law as declared for the Ninth Circuit by

the United States Court of Appeals in Stone v. Stone, 632

F.2d 740, and Carpenters Pension Trust Fund for Southern

California v. Kronschnabel, 632 F.2d 745, defendant Toni

Reyes is entitled to receive the payments of $220.00 per

C22

month currently being deducted from the pension benefits

due to defendant Ralph Reyes and being paid by plaintiff

directly to her, and the deduction and payment of such

monthly amount is not a breach of plaintiff’s fiduciary

duties and responsibilities under the Employee Retire-

ment Income Security Act, 29 U.S.C. § 1001 et seq., com-

monly known as ERISA.

2. Plaintiff shal! make said deductions from the pension

benefits due to defendant Ralph Reyes and pay said

monthly amounts to defendant Toni Reyes so long as

defendant Ralph Reyes is entitled to pension benefits

under the Pension Plan administered by plaintiff and

unless and until the making of such deductions and pay-

ments is no longer permitted by law.

3. The remaining issues presented in plaintiff's com-

plaint for injunctive and declaratory relief are either pres-

ently being litigated before the Court of Appeal of the

State of California, Fifth Appellate District, or affect de-

fendant Ralph Reyes, who has not been served and has not

appeared in this action. Therefore, said complaint is dis-

missed without prejudice as to the following issues:

(a) The issucs as to the jurisdiction of the defendant

Superior Court to award attorneys fees to defendant Toni

Reyes against the Carpenters Pension Trust Fund for

Northern California.

(b) The issue as to the validity and enforceability of

the levy of execution on the money deposited by the Fund

in its pension benefit account.

coup and recover the amount of any benefits paid to de-

(ate bs ual a arti aa re

C-3

fendant Toni Reyes from payments due or thereafter be-

coming due to defendant Ralph Reyes.

(d) The issue as to the applicability of Section 303 of

the Consumer Credit Protection Act, 15 U.S.C. § 1673, to

the Fund’s deductions from the pension benefits due to

defendant Ralph Reyes.

4. Pursuant to Stone, cited supra, defendant Toni Reyes

is a participant pursuant to Section 502(g) of ERISA, 29

U.S.C. § 1132(g), and therefore is entitled to attorneys’ fees

in this action against the Carpenters Pension Trust Fund

for Northern California. Defendant Toni Reyes is hereby

awarded $3,296.00 for attorneys’ fees and her costs of suit,

the latter to be claimed and taxed in conformity with stat-

ute and the Local Rules of this Court. Counsel for defen-

dant Toni Reyes is enjoined from receiving any fee for

services herein in excess of that amount from said defen-

dant. The amount allowed is to be obtained exclusively

from the Carpenters Pension Trust Fund for Northern

California.

IT IS HEREBY ORDERED that plaintiff's time for

appeal of this judgment is hereby extended to and including

July 8, 1981 and execution of the award for attorneys’

fees is stayed until that date.

Dated: May 27, 1981

/s/ STANLEY A. WEIGEL

Judge

D-1

Appendix D

Relevant Sections of Employee Retirement Income

Security Act, Labor-Management Relations Act,

and California Civil Code

Section 3 of the Employee Retirement Income Security

Act of 1974, 29 U.S.C. § 1002, provides in pertinent part:

(7) The term “participant” means any employee or for-

mer employee of an employer, or any member or former

member of an employee organization, who is or may

hecome eligible to receive a benefit of any type from an

employee benefit plan which covers employees of such

employer or members of such organization, or whose bene-

ficiaries may be eligible to receive any such benefit.

(8) The term “beneficiary” means a person designated

by a participant, or by the terms of an employee benefit

plan, who is or may become entitled to a benefit thereunder.

Section 205 of the Employee Retirement Income Secu-

rity Act of 1974, 29 U.S.C. § 1055, provides:

(a) If a pension plan provides for the payment of bene-

fits in the form of an annuity, such plan shall provide for

the payment of annuity benefits in a form having the effect

of a qualified joint and survivor annuity.

(b) In the case of a plan which provides for the pay-

ment of benefits before the normal retirement age as

detined in section 3(24), the plan is not required to pro-

vide for the payment of annuity benefits in a form having

the effect of a qualified joint and survivor annuity during

the period beginning on the date on which the employee

D-2

enters into the plan as a participant and ending on the

later of—

(1) the date the employee reaches the earliest retire-

ment age, or

(2) the first day of the 120th month beginning before

the date on which the employee reaches normal retirement

age.

(c)(1) A plan deseribed in subsection (b) does not meet

the requirements of subsection (a) unless, under the plan,

a participant has a reasonable period in which he may

elect the qualified joint and survivor annuity form with

respect to the period beginning on the date on which the

period described in subsection (b) ends and ending on the

date on which he reaches normal retirement age if he con-

tinues his employment during that period.

(2) A plan does not meet the requirements of this sub-

section unless, in the case of such election, the payments

under the survivor annuity are not less than the payments

which would have been made under the joint annuity to

which the participant would have been entitled if he had

made an election under this subsection immediately prior

to his retirement and if his retirement had oceurred on the

date immediately preceding the date of his death and

within the period within which an election can be made.

(d) A plan shall not be treated as not satisfying the

requirements of this section solely because the spouse of

the participant is not entitled to receive a survivor annu-

ity (whether or not an election has been made under sub-

section (¢)) unless the participant and his spouse have

been married throughout the l-year period ending on the

date of such participant’s death.

D-3

(e) A plan shall not be treated as satisfying the require-

ments of this section unless, under the plan, each partici-

pant has a reasonable period (as prescribed by the Secre-

tary of the Treasury by regulations) before the annuity

starting date during which he may elect in writing (after

having received a written explanation of the terms and

conditions of the joint and survivor annuity and the effect

of an election under this subsection) not to take such

joint and survivor annuity.

(f) A plan shall not be treated as not satisfying the

requirements of this section solely because, under the plan

there is a provision that any election under subsection (c)

or (e), and any revocation of any such election, does not

become effective (or ceases to be effective) if the par-

ticipant dies within a period (not in excess of 2 years)

beginning on the date of such election or revocation, as

the case may be. The preceding sentence does not apply

unless the plan provision described in the preceding sen-

tence also provides that such an election or revocation will

be given effect in any case in which—

(1) the participant dies from accidental causes,

(2) a failure to give effect to the election or revocation

would deprive the participant’s survivor of a survivor

annuity, and

(3) such election or revocation is made before such

accident occurred.

(g) For purposes of this section:

(1) The term “annuity starting date” means the first

day of the first period for which an amount is received as

an annuity (whether by reason of retirement or by reason

of disability).

D-4

(2) The term “earliest retirement age” means the earli-

est date on which, under the plan, the participant could

elect to receive retirement benefits.

(3) The term “qualified joint and survivor annuity”

means an annuity for the life of the participant with a sur-

vivor annuity for the life of his spouse which is not less

than one-half of, or greater than, the amount of the annuity

payable during the joint lives of the participant and his

spouse and which is the actuarial equivalent of a single

annuity for the life of the participant.

(h) For the purpose of this section, a plan may take into

account in any equitable fashion (as defined by the Secre-

tary of the Treasury) any increased costs resulting from

providing joint and survivor annuity benefits under an

election made under subsection (c¢).

(i) This section shall apply only if—

(1) The annuity starting date did not occur before the

effective date of this section, and

(2) the participant was an active participant in the plan

on or after such effective date.

Section 206(d)(1) of the Employee Retirement Income

Security Act of 1974, 29 U.S.C. § 1056(d) (1), provides:

(d)(1) Each pension plan shall provide that benefits

provided under the plan may not be assigned or alienated.

Section 404(a)(1}) of the Employee Retirement Income

Security Act of 1974, 29 U.S.C. § 1104(a) (1), provides:

(a)(1) Subject to sections 403(c) and (d), 4042, and

4044, a fiduciary shall discharge his duties with respect toa

D-5

plan solely in the interest of the participants and benefi-

ciaries and—

(A) for the exclusive purpose of:

(i) providing benefits to participants and their benefi-

ciaries; and

(ii) defraying reasonable expenses of administering the

plan;

(B) with the care, skill, prudence, and diligence under

the circumstances then prevailing that a prudent man act-

ing in a like capacity and familiar with such matters would

use in the conduct of an enterprise of a like character and

with like aims;

minimize the risk of large losses, unless under the cireum-

stances it is clearly prudent not to do so; and

(D) in accordance with the documents and instruments

governing the plan insofar as such documents and instru-

ments are consistent with the provisions of this title or

Title IV.

Section 502 of the Employee Retirement Income Secu-

rity Act of 1974, 29 U.S.C. § 1132, provides:

(a) A civil action may be brought—

(1) by a participant or beneficiary—-

(A) for the relief provided for in subsection (¢) of this

section, or

(B) to recover benefits due to him under the terms of

his plan, to enforce his rights under the terms of the plan,

D-6

or to clarify his rights to future benefits under the terms of

the plan;

(2) by the Secretary, or by a participant, beneficiary or

fiduciary for appropriate relief under section 409;

(3) by a participant, beneficiary, or fiduciary, (A) to

enjoin any act or practice which violates any provision of

this title or the terms of the plan, or (B) to obtain other

appropriate equitable relief (i) to redress such violations

or (ii) to enforce any provisions of this title or the terms

of the plan;

(4) by the Secretary, or by a participant, or beneficiary

for appropriate relief in the case of a violation of 105(c) ;

(5) except as otherwise provided in subsection (b), by

the Secretary (A) to enjoin any act or practice which vio-

lates any provision of this title, or (B) to obtain other

appropriate equitable relief (i) to redress such violation

or (ii) to enforce any provision of this title; or

(6) by the Secretary to collect any civil penalty under

subsection (i).

(b) In the case of a plan which is qualified under section

401(a), 403(a), or 405(a) of the Internal Revenue Code of

1954, (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) 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—

(1)(A) requested by the Secretary of the Treasury, or

D-7

(B) one or more participants, beneficiaries, or fiduci-

aries, of such plan, request in writing (in such manner as

the Secretary shall prescribe by regulation) that he exer-

cise such authority on their behalf. In the case of such a

request under this paragraph he may exercise such author-

ity 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.

(2) The Secretary shall not initiate an action to enforce

section 515.

with a request for any information which such administra-

tor is required by this title to furnish to a participant or

beneficiary (unless such failure or refusal results from mat-

ters 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 person-

ally liable to such participant or beneficiary in the amount

of up to $100 a day from the date of such failure or re-

fusal, and the court may in its discretion order such other

relief as it deems proper.

(d)(1) An employee benefit plan may sue or be sued

under this title as an entity. Service of summons, subpena,

or other legal process of a court upon a trustee or an ad-

ministrator 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

D-8

days after receipt of service under the preceding sen-

tence, shall notify the administrator or any trustee of the

plan of receipt of such service.

(2) Any money judgment under this title against an em-

ployee benefit plan shall be enforceable only against the

plan as an entity and shall not be enforceable against any

other person unless liability against such person is estab-

lished in his individual capacity under this title.

(e)(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 title

brought by the Secretary or by a participant, beneficiary,

or fiduciary. State courts of competent jurisdiction and dis-

trict courts of the United States shall have concurrent

jurisdiction of actions under subsection (a)(1)(B) of this

section.

(2) Where an action under this title is brought in a dis-

trict 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) 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 pro-

vided for in subsection (a) of this section in any action.

(z)(1) In any action under this title (other than an

action described in paragraph (2)) by a participant, bene-

ficiary, or fiduciary, the court in its discretion may allow a

reasonable attorney's fee and costs of action to either party.

D-9

(2) In any action under this title by a fiduciary for or on

behalf of a plan to enforce section 515 in which a judgment

in favor of the plan is awarded, the court shall award the

plan—

(A) the unpaid contributions,

(B) interest on the unpaid contributions,

(i) interest on the unpaid contributions, or

(ii) liquidated damages provided for under the plan in

an amount not in excess of 20 percent (or such higher per-

centage as may be permitted under Federal or State law)

of the amount determined by the court ander subparagraph

(A),

(D) reasonable attorney’s fees and costs of the action, to

be paid by the defendant, and

(E) such other legal or equitable relief as the court

deems appropriate. For purposes of this paragraph, in-

terest on unpaid contributions shall be determined by using

the rate provided under the plan, or, if none, the rate pre-

scribed under section 6621 of the Interna! Revenue Code of

1954.

(h) A copy of the complaint in any action under this

title by a participant, beneficiary, or fiduciary (other than

an action brought by one or more participants or benefi-

ciaries under subsection (a)(1)(B) 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. Kither

Secretary shall have the right in his discretion to inter-

D-10

vene 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 sub-

section (a) on behalf of a participant or beneficiary, he

shall notify the Secretary of the Treasury.

(i) In the case of a transaction prohibited by section

406 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 (as

defined in section 4975(f) (4) of the Internal Revenue Code

of 1954) ; except that if the transaction is not corrected (in

such manner as the Secretary shall prescribe by regulation,

which regulations shall be consistent with section

4975(f) (5) of such Code) 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 such Code.

(j) In all civil actions under this title, attorneys ap-

pointed by the Secretary may represent the Secretary

(except as provided in section 518(a) of title 28, United

States Code), but all such litigation shall be subject to the

direction and control of the Attorney General.

(k) 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 tak-

ing any action contrary to the provisions of this Act, or to

compel him to take action required under this title, may

be brought in the district court of the United States for

D-11

the district where the plan has its principal office, or in the

United States District Court for the District of Columbia.

Section 503 of the Employee Retirement Income Secu-

rity Act of 1974, 29 U.S.C. § 1133, provides:

“Tn accordance with regulations of the Secretary, every

employee benefit plan shall—

(1) provide adequate notice in writing to any partici-

pant or beneficiary whose claim for benefits under the plan

has been denied, setting forth the specific reasons for such

denial, written in a manner calculated to be understood by

the participant, and

(2) afford a reasonable opportunity to a participant

whose claim for benefits has been denied for a full and

fair review by the the appropriate named fiduciary of the

decision denying the claim.

Section 514 of the Employee Retirement Income Security

Act of 1974, 29 U.S.C. § 1144, provides:

(a) Except as provided in subsection (b) of this section,

the provisions of this title and title [V shall supersede any

and all State Laws insofar as they may now or hereafter

relate to any employee benefit plan described in section

4(a) and not exempt under section 4(b). This section shall

take effect on January 1, 1975.

(b)(1) This section shall not apply with respect to any

cause of action which arose, or any act or omission which

occurred, before January 1, 1975.

(2)(A) Exeept as provided in subparagraph (B), noth-

ing in this title shall be construed to exempt or relieve any

person from any law of any State which regulates insur-

ance, banking or securities.

D-12.

(B) Neither an employee benefit plan described in sec-

tion 4(a), which is not exempt under section 4(b) (other

than a plan established primarily for the purpose of pro-

viding death benefits), nor any trust established under

such a plan, shall be deemed to be an insurance company

or other insurer, bank, trust company, or investment com-

pany or to be engaged in the business of insurance or

banking for purposes of any law of any State purporting

to regulate insurance companies, insurance contracts,

banks, trust companies, or investment companies.

(3) Nothing in this section shall be construed to pro-

hibit use by the Secretary of services or facilities of a

State agency as permitted under section 506 of this Act.

(4) Subsection (a) shall not apply to any generally

applicable criminal law of a state.

(5)(A) Except as provided in subparagraph (B), sub-

section (a) shall not apply to the Hawaii Prepaid Health

Care Act. (Haw. Rev. Stat. §§ 393-1 through 393-51).

(B) Nothing in subparagraph (A) shall be construed to

exempt from subsection (a)—

(i) any State tax lew relating to employee benefit

plans, or

(ii) Any amendment of the Hawaii Prepaid Health Care

Act enacted after September 2, 1974, to the extent it pro-

vides for more than the effective administration of such

Act as in effect on such date.

of this subtitle, and the preceding sections of this part to

the extent they govern matters which are governed by the

D-13

provisions of such parts 1 and 4, shall supersede the

Hawaii Prepaid Health Care Act (as in effect on or after

the date of the enactment of this paragraph), but the Sec-

retary may enter into cooperative arrangements under this

paragraph and section 506 with officials of the State of

Hawaii to assist them in effectuating the policies of provi-

sions of such Act which are superseded by such parts.

(1) The term “State Law” includes all laws, decisions,

rules, regulations, or other State action having the effect

of law, of any State. A law of the United States applicable

only to the District of Columbia shall be treated as a

State law rather than a law of the United States.

(2) The term “State” includes a State, any political

subdivisions thereof, or any agency or instrumentality of

either, which purports to regulate, directly or indirectly,

the terms and conditions of employee benefit plans covered

by this title.

(d) Nothing in this title shall be construed to alter,

amend, modify, invalidate, impair, or supersede any law of

the United States (except as provided in sections 111 and

507(b) or any rule or regulations issued under any such

law.

Section 3022(a) of the Employee Retirement Income

Security Act of 1974, 29 U.S.C. § 1222(a), provides:

Act See. 3022. (a) The Joint Pension Task Force shall,

within 24 months after the date of enactment of this Act,

make a full study and review of—

(1) the effect of the requirements of section 411 of the

Internal Revenue Code of 1954 and of section 203 of this

D-14

Act to determine the extent of discrimination, if any,

among employees in various age groups resulting from the

application of such requirements ;

(2) means of providing for the portability of pension

rights among different pension plans;

(3) the appropriate treatment under title IV of this

Act (relating to termination insurance) of plans established

and maintained by small employers;

(4) the effects and desirability of the Federal preemp-

tion of State and local law with respect to matters relating

to pension and similar plans; and

(5) such other matter as any of the committees referred

to in section 3021 may refer to it.

Section 302(c)(5) of the Labor Management Rilaiions

Act, 29 U.8.C. § 186(c) (5), provides:

“(e) The provisions of this section shall not be appli-

cable * * * (5) with respect to money or other thing of value

paid to a trust fund established by such representative, for

the sole and exclusive benefit of the employees of such em-

ployer, and their families and dependents (or of such

employees, families, and dependents jointly with the em-

ployees of other employers making similar payments, and

their families and dependents): Provided, That (A) such

payments are held in trust for the purpose of paying,

either from principal or income or both, for the benefit of

employees, their families and dependents, for medical or

hospital care, pensions on retirement or death of employ-

ees, compensation for injuries or illness resulting from

occupational activity or insurance to provide any of the

foregoing, or. unemployment benefits or life insurance,

D-15

disability and sickness insurance, or accident insurance;

(B) the detailed basis on which such payments are to be

made is specified in a written agreement with the employer,

and employees and employers are equally represented in

the administration of such fund, together with such neutral

persons as the representatives of the employers and the

representatives of employees may agree upon and in the

event the employer and employee groups deadlock on

the administration of such fund and there are no neutral

persons empowered to break such deadlock, such agreement

provides that the two groups shall agree on an impartial

umpire to decide such dispute, or in event of their failure

to agree within a reasonable length of time, an impartial

umpire to decide such dispute shall, on petition of either

group, be appointed by the district court of the United

States for the district where the trust fund has its prin-

cipal office, and shall also contain provisions for an annual

audit of the trust fund, a statement of the results of which

shall be available for inspection by interested persons at

the principal office of the trust fund and at such other

places as may be designated in such written agreement;

and (C) such payments as are intended to be used for the

purpose of providing pensions or annuities for employees

are made to a separate trust which provides that the funds

held therein cannot be used for any purpose other than

paying such pensions or annuities.”

California Civil Code Section 4351 provides:

In proceedings under this part, the superior court has

jurisdiction to inquire into and render such judgments and

make such orders as are appropriate concerning the status

of the marriage, the custody and support of minor children

D-16

of the marriage, the support of either party, the settlement

of the property rights of the parties and the award of at-

torney’s fees and costs; provided, however, no such order

or judgment shall be enforceable against an employee pen-

sion benefit plan unless the plan has been joined as a party

to the proceeding.

California Civil Code Section 4363 provides:

The court may order that a person who claims an inter-

est in a proceeding under this part be joined as a party to

the proceeding in accordance with rules adopted by the

Judicial Council pursuant to Section 4001; however, an

employee pension benefit plan shall be joined as a party to

a proceeding under this part only in accordance with the

provisions of Section 4363.1.

California Civil Code Section 4363.1 provides:

(a) Upon written application by a party to a proceeding

under this part, the clerk shall enter an order joining as a

party to the proceeding any employee pension benefit plan

in which either party to the proceeding claims an interest

which is or may be subject to disposition by the court. Upon

entry of the order, the party requesting joinder shall file an

appropriate pleading setting forth the party’s claim against

the plan and the nature of the relief sought. A copy of

such pleading, a copy of the joinder request, a copy of the

summons and a blank copy of a notice of appearance in

form and content approved by the Judicial Council shall

be served upon the employee pension benefit plan in the

same manner as service of papers generally. Service of the

summons upon a trustee or administrator of the employee

pension benefit plan in his capacity as such, or upon any

D-17

agent designated by the plan for service of process in his

capacity as such, shall constitute service upon the em-

ployee pension benefit plan. To facilitate service, the em-

ployee spouse shall furnish within 30 days after written

request the name, title and address of the plan’s trustee,

administrator, or agent for service of process, to the non-

employee spouse. If necessary, the employee shall obtain

the information from the plan.

(b) A notice of appearance shall be filed and served by

the employee pension benefit plan upon the party request-

ing joinder within 30 days of the date of the service upon

the employee pension benefit plan of a copy of the joinder

request and summons. Notwithstanding any contrary pro-

vision of law, the employee pension benefit plan shall not

be required to pay any fee to the clerk of the court as a

condition to filing such notice of appearance or any sub-

sequent paper in the proceeding.

and no notice of appearance, notice of motion to quash

service of summons pursuant to Section 418.10 of the Code

of Civil Procedure, or notice of the filing of a petition for

writ of mandate as provided in such section, has been filed

with the clerk of the court within the time specified in the

summons or such further time as may be allowed, the

clerk, upon written application of the party requesting

joinder, shall enter the default of the employee pension

benefit plan in accordance with Chapter 2 (commencing

with Section 585) of Title 8 of Part 2 of the Code of Civil

Procedure.

D-18

California Civil Code Section 4363.2 provides:

(a) The provisions of this section shall govern any pro-

ceeding in which an employee pension benefit plan has been

joined as a party. To the extent not in conflict with this

section and except as otherwise provided by rules adopted

by the Judicial Council pursuant to Section 4001, all pro-

visions of law applicable to civil actions generally shall

apply regardless of nomenclature to the portion of such

proceeding as to which the plan has been joined as a party

if they would otherwise apply to such proceeding without

reference to this section.

(b) The employee pension benefit plan may, but need

not, file an appropriate responsive pleading with its notice

of appearance. If it does not, then all statements of fact

and requests for relief contained in any pleading served

on the plan shall be deemed controverted by the plan’s

notice of appearance.

(ec) Either party or their representatives may notify the

plan of any proposed property settlement as it concerns

the plan prior to the interlocutory hearing. If so notified,

the plan may stipulate to the proposed settlement or ad-

vise the representative that it will contest the proposed

settlement.

(d) The employee pension benefit plan shall not be re-

quired to, but may, appear at any hearing in the proceed-

ing. For purposes of the Code of Civil Procedure, the plan

shall be considered a party appearing at the trial with

respect to any hearing at which the interest of the parties

in the plan is an issue before the court. Those provisions

of any order entered at or as a result of a hearing not at-

tended by the plan (whether or not the plan received no-

D-19.

tice of the hearing) which affect the plan or which affect

any interest either the petitioner or respondent may have

or claim under the plan, shall not become effective until 30

days after the order has been served upon the employee

pension benefit plan; provided, however, that the plan may

waive all or any portion of the 30-day period. If within

the 30-day period, the plan files in the proceeding a motion

to set aside or modify those provisions of the order affect-

ing it, such provisions shall not become effective until the

court has resolved the motion.

If the provisions of the order affecting the plan are

modified or set aside, the court, on motion by either party,

may set aside or modify other provisions of the order re-

lated to or affected by the provisions affecting the em-

ployee pension benefit plan.

(e) At any hearing on a motion to set aside or modify

an order pursuant to subdivision (d), any party may pre-

sent further evidence on any issue relating to the rights

of the parties under the employee pension benefit plan or

the extent of the parties’ community or quasi-community

property interest in the plan. Any findings of fact or con-

clusions of law made by the court with respect to the order

which is the subject of the motion shall take account of

such evidence.

California Civil Code Section 4370 provides:

(a) During the pendency of any proceeding under this

part, the court may order any party, except a governmen-

tal entity, to pay such amount as may be reasonably neces-

sary for the cost of maintaining or defending the proceed-

ing and for attorneys’ fees and from time to time and be-

fore entry of judgment, the court may augment or modify

the original award for costs and attorneys’ fees as may be

aad

D-20

reasonably necessary for the prosecution or defense of the

proceeding or any proceeding relating thereto, including

after any appeal has been concluded. In respect to services

rendered or costs incurred after the entry of judgment, the

court may award such costs and attorneys’ fees as may be

reasonably necessary to maintain or defend any subsequent

proceeding, and may augment or modify any award so

made, including after any appeal has been concluded. At-

torneys’ fees and costs within the provisions of this sub-

division may be awarded for legal services rendered or

costs incurred prior, as well as subsequent, to the com-

mencement of the proceeding. Any order for a party who

is not the husband or wife of another party to the pro-

ceeding to pay attorneys’ fees or costs shall be limited to

an amount reasonably necessary to maintain or defend the

action on the issues relating to that party.

(b) During the pendency of any proceeding under this

part, an application for a temporary order making, aug-

menting, or modifying an award of attorneys’ fees or costs

or both shall be made by motion on notice or by an order

to show cause, except that it may be made without notice

by an oral motion in open court:

(1) At the time of the hearing of the cause on the merits;

(2) At any time prior to entry of judgment against a

party whose default has been entered pursuant to Section

585 or 586 of the Code of Civil Procedure.

good cause to the contrary, the court, upon determining

an ability to pay, shall award reasonable attorneys’ fees

to a custodial parent in any action to enforce an existing

order for child support.

K-1

APPENDIX E

Extracts from Exhibit I

To Memorandum of Points and Authorities in Support

of Plaintiff's Application for Temporary

Restraining Order and Preliminary Injunction

(CR 5, U.S. Ct. of App., Ninth Cir., No. 81-4353)

Summary Plan Description

of Pension Plan for Carpenters Pension

Trust Fund for Northern California

B-2

Section 1.11. “Employee” means an Employee as de-

fined in Section 4 of Article 1 of the Trust Agreement.

“Section 4 of Article 1, Trust Agreement. The term

“Employee” means any Employee of an Individual Em-

ployer who performs one or more hours of work covered

by any of the Collective Bargaining Agreements. The term

“Employee” shall also include employees of Local Unions

and District Councils, and employees of labor councils or

other labor organizations with which a Local Union or Dis-

trict Council is affiliated, or of any corporation, trust or

other entity described in Section 3, with respect to whose

work contributions are made to the Fund pursuant to regu-

lations adopted by the Board of Trustees; provided the

inclusion of any of said employees is not a violation of any

existing law or regulation, and provided further that the

term “employee” as used in this section shall exclude cleri-

cal employees and employees covered by collective bargain-

ing agreements with any such entity other than a Collective

Bargaining Agreement.”

Section 1.19. “Participant” means a Pensioner, or an

Employee who meets the requirements for participation in

the Plan as set forth in Article 2, or a former Employee

who has acquired a right to a Pension under this Plan and

has Separated from Covered Employment. A “Vested Par-

ticipant” is an Employee who has achieved Vested Status

in accordance with the provisions of Section 6.07.

Section 1.24. “Spouse” means a person to whom a Par-

ticipant or Pensioner is legally married.

Section 2.02. Participation. An Employee who works in

Covered Employment shall become a Participant as soon as

he has performed at least 300 Hours of Work in Covered

E-3

Employment during any Calendar Year. The 300 hour re-

quirement may be completed by Continuous Non-Covered

Employment.

ARTICLE 7. HUSBAND-AND-WIFE PENSION

Section 7.01. Effective Date. The provisions of this Ar-

ticle do not apply:

a. toa Pensioner, the Effective Date of whose Pension

was before September 1, 1976; or

b. toa Vested Participant who dies before his Pension

Effective Date and who had a Separation from Covered

Employment before January 1, 1976, unless he subsequently

returned to Covered Employment and earned 3/12 of Fu-

ture Service Pension Credit.

Seciion 7.02. Husband-and-Wife Pension after Retire-

ment. The Husband and Wife Pension provides a lifetime

pension for a married Pensioner, plus a lifetime pension

for his surviving Spouse, starting after the death of the

Pensioner.

When a Husband-and-Wife Pension is in effect, the

amount of the Pensioner’s monthly benefit is reduced in

accordance with the provisions of Section 7.04, from the full

amount otherwise payable. The monthly amount payable

to the surviving Spouse of a deceased Pensioner who re-

ceived a Husband-and-Wife Pension is one-half the monthly

pension amount paid to the Pensioner.

a. Upon Retirement.

(1) A pension shall be paid in the form of a Husband-

and-Wife Pension to a married Participant who(a) is at

least age 55 on the Effective date of his Pension or, (b) is

eligible for a Service Pension, unless the Participant files

with the Board, in writing, a timely rejection of that form

of pension.

(2) A married Participant may reject the Husband-and-

Wife Pension (or revoke a previous rejection) at any time

before the first pension payment is made to the Participant,

or ‘within such further period as may be required by law

or regulation.

b. Continuation of Husband-and-Wife Pension Form.

The monthly amount of the Husband-and-Wife Pension,

once it has become payable, shall not be increased if the

marriage of the Pensioner and his Spouse is subsequently

legally terminated or if the Spouse predeceases the Pen-

sioner.

Section 7.03. Husband-and-Wife Pension before Retire-

ment. In the event of death before retirement, the Hus-

band-and-Wife Pension provides a lifetime pension to the

Participant’s surviving Spouse, under the circumstances

described in this Section, subject to the conditions in

Section 7.05.

“If payable, the monthly amount payable to the surviving

Spouse of an eligible Participant is one-half the amount of

a Husband-and-Wife Pension, determined as if the pension

had been effective on the day before the Participant died,

in accordance with the provisions of Section 7.04.

a. After Normal Retirement Age, but before Retire-

ment. If a married Participant who has attained Normal

Retirement Age dies at a time when he was eligible for a

pension, but before pension payments commenced, a Hus-

band-and-Wife Pension shall be paid to his surviving

Spouse.

E-5

b. Before Normal Retirement Age and before Retire-

ment. A Husband-and-Wife Pension will be payable to the

surviving Spouse of a Participant younger than the Normal

Retirement Age, except as provided in the following para-

graph, if he dies after attainment of age 55, but before

the Effective Date of his Pension and if at the time of his

death he was eligible for a Pension.

A Husband-and-Wife Pension will not be payable to the

surviving Spouse of a Vested Participant who last Sepa-

rated from Covered Employment before age 55 and who

had not earned 3/12 of Future Service Pension Credit

after that age.

Section 7.04. Adjustment of Pension Amount. When a

Husband-and-Wife Pension becomes effective, the amount

of the Retired Employee’s monthly pension shall be reduced

in accordance with a formula or formulas adopted by the

Board based on the principles of overall actuarial equiv-

alence and equitable adjustment for the cost «* such an-

nuities. A formula or formulas adopted by the Board may

be made applicable by it from year to year, that is, the

amount of reduction from the full single-life pension on

account of the Husband-and-Wife Pension may be fixed in

accordance with the adopted formula or formulas for:

a. any such pension, the effective date of which falls

within the year, and

b. any election (or failure to reject) such pension which

is exercised by the Employee within the year as his final

choice.

However, the formula is not otherwise in any respect to

be deemed a vested right of any Employee nor part of his

E-6

acerued benefit, and is subject to change by the Board for

pensions commencing later or for elections (or rejections

or revocations of either) which the Employee has the

option to make later.

Section 7.05. Additional Conditions.

a. Husband-and-Wife Pension shall not be effective

ander any of the following circumstances:

(1) The Pensioner and the Spouse had not been lawfully

married to each other throughout the year before his

pension payments began.

(2) The Participant (other than a Pensioner) and his

Spouse were not lawfully married to each other through-

out the year preceding the Participant’s death.

(3) The Spouse died before the Participant’s pension

began.

(4) The marriage of the Participant and his Spouse was

legally terminated before the Participant’s pension began.

b. The Board shall be entitled to rely on the written

representation last filed by the Participant before his pen-

sion payments commenced as to whether or not he was

married at such time and if married, as to when such

marriage occurred. If a Participant represented to the

Board in writing that he was not married or that he had

not been legally married throughout the year before his

pension payments began, no person shall be entitled to

benefits under this Article on the grounds that she was, in

fact, his Spouse, or if his Spouse, was in fact legally

married to him throughout the year before his pension

payments began.

K-7

Any payment made in good faith pursuant to any

written statement of a Participant or beneficiary shall

discharge all obligations of the Board of Trustees to the

extent of such payments. No Husband-and-Wife Pension

shall be payable to an individual claiming to be the lawful

Spouse of a Participant unless written proof has been filed

of such status with the Board prior to the month following

the making of the first pension payment.

ce. Any election or revocation may not be made after pay-

ment of the pension has commenced, or 90 days after the

Participant has been notified of the effect on his pension of

the election or rejection of the Husband-and-Wife Pension,

whichever is the later date.

Section 7.06. Continuation of Husband-and-Wife Pen-

sion Form. The monthly amount of the Husband-and-

Wife Pension, once it has become payable, shall not be

increased if the marriage of the Pensioner and the Spouse

is subsequently legally terminated or if the Spouse pre-

deceases the Pensioner.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.