Petition — Pressroom Unions-Printers League Income Security Fund v. Continental Assurance Co.
Supreme Court brief1983
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ED
Supreme Court of the United States
October Term, 1983
PRESSROOM UNIONS-PRINTERS LEAGUE
INCOME SECURITY FUND,
Petitioner,
against
CONTINENTAL ASSURANCE CO., a Member of the C.N.A.
Group, RESERVE LIFE INSURANCE CoO., and its wholly owned
subsidiary AMERICAN PROGRESSIVE LIFE & HEALTH INSUR-
ANCE COMPANY OF NEW YORK, GEORGE S. KRIEGLER, BEN-
JAMIN A. KRIEGLER, LABOR SECURITY PROGRAMS, INC., and
RAYMOND M. KRIEGLER deceased, by John Doe, Mary Moe
and Roe Corp. 1-10, the true names of the preceding defendants
being presently unknown to plaintiff, the foregoing fictitious
names intending to designate the executors, administrators, trust-
ees, successors in interest and heirs-at-law of the said Raymond
M. Kriegler, deceased.
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
NOEL ARNOLD LEVIN*
101 Park Avenue
New York, N. Y. 10178
(212) 309-6130
MARK EDWARD BROSSMAN
101 Park Avenue
New York, N. Y. 10178
Of Counsel:
MORGAN, LEwis & BOCKIUS
*Counsel of Record
ge 7
IN THE iets. 2
i
QUESTIONS PRESENTED
1. Whether an employee benefit plan may maintain an action
for breach ci uduciary responsibility under the Employee Retire-
ment Income Security Act of 1974, as amended, 29 U.S.C. §1001
et. seq.?
2. Whether a federal court has subject matter jurisdiction
over a suit by an employee benefit plan pursuant to Section 502 of
the Employee Retirement Income Security Act of 1974, as
amended, 29 U.S.C. §1132?
ii
PARTIES TO THE PROCEEDING
Petitioner Pressroom Unions-Printers League Income Security
Fund respectfully prays that a Writ of Certiorari issue to review
the judgment of the United States Court of Appeals for the
Second Circuit; petition for rehearing denied on April 7, 1983.
Respondents are Continental Assurance Co., Reserve Life Insur-
ance Co., American Progressive Life & Health Insurance Com-
pany of New York, George S. Kriegler, Benjamin A. Kriegler,
Labor Security Programs, Inc., and Raymond M. Kriegler,
deceased, by John Doe, Mary Moe and Roe Corp. 1-10, the true
names of the preceding defendants being presently unknown to
Petitioner, the foregoing ficticious names intending to designate
the executors, administrators, trustees, successors in interest and
heirs-at-law of the said Raymond M. Kriegler, deceased.
TABLE OF CONTENTS
Statement of the Questions Presented ...........cccccccseeeereees
ES UTES I ince cecsdipeceivstcessenssonecebeanentspninns
SR A ID air sssinnccuticsnenndans hencbhhinkndiiecionionaenbatiaes
Pe I oslinn uc tcntesninsierenaciceaphicseaivqueinecnsoaodedan
I Sr NOD TI oi iciticscccsnssosendensescstosbssicternanee
IIE ic ah a casai eh ocees bpenbasatecctanedasgnreesiaineninnts
Statutory Provisions Involved ..........:ccccccsccessseeseerseeeeeeses
IE Or I ait a sith thceceasisctincessancivetntibencencttens
Reasons for Granting the Wit .............ccsssssssscersessessseees
OE REE E Eicetcade en eae teen ORI Ae
B. The Second Circuit’s Decision That Sections
502(a) and (e) of ERISA Set Forth Exclusive
Grants of Standing and Jurisdiction Confiicts
With Decisions of the Courts of Appeals for the
Third, Seventh and Ninth Circuits ..................
C. The Court Below Erroneously Construed the
Plain Language of Sections 502(d) and (a) of
SIE sacicedscdibinssbercptiedepseudisocenpiaspetenkenasbiauns
D. An Employee Benefit Fund Must Be Permitted
to Sue as an Entity Under ERISA to Protect
Participants and Beneficiaries ...........:ccccceseeees
II chi suiclcesccehaiesaaciconassusladinsapiteaniatihionamennies
Appendix:
Opinion of the Court of Appeals .........:cscscsrserseeseeeeees
Order of the Court of Appeals Denying Rehearing, April
Ay, BORE: ebeiajasiactks cecipaentabenephathiaadheaaitcleigaagpearhncncsentd
Opinion of the District Court ........ccccccsseecseeseeeeeeseeseees
Opinion of the District Court, August 2, 1982 .........0
Letter from Clerk of the Court of Appeals rejecting re-
I I hadi ccc tileteiccticiessnectentonntiniacnining
PAGE
1]
16
19
21
la
18a
2la
30a
45a
iv
TABLE OF AUTHORITIES
PAGE
Cases:
Alessi v. Raybestos-Manhattan Inc., 451 U.S. 504
a sas i csnsllpamsanboolabedbens 18
Amalgamated Industrial Union Local 44-A Health and
Welfare Fund v. Webb and Killacky, Slip Opinion
(N.D. Ill. E. Div. March 24, 1983) ..........ccsssrsssesssees 15
Associated Builders & Contractors v. Carpenters Vaca-
tion and Holiday Trust Fund for Northern California,
PR ee Be CU Is REDD veverececesnsesvepsotncsonnesnsies 12
Barlow v. Collins, 397 U.S. 159 (1970) c.ccecccecceseeeeeeeee 15
Buccino, Seide and Hasslinger v. Continental Assurance
Ca OE Gig CRF Ga. Bose MIG Eo) cnrcscccssccsevncssseseees 19 n.10
Data Processing Service Organization v. Camp, 397 U.S.
Be I ee abd dics tas ieaniensinsepeumnesnaseonesieabitoenns 11, 12, 15, 16
Farmers and Merchants Bank v. Federal Reserve Bank,
Be NG IT III san cctensecnonensticipusedcactaserivecssecniiehwens 18
Fentron Industries, Inc. v. National Shopmen Pension
Fund, 674 F.2d 1300 (9th Cir. 1982) ..... 11, 12, 13, 14, 15
Kross v. Western Electric, 701 F.2d 1238 (7th Cir. 1983) 18
Nachman vy. Pension Benefit Guaranty Corp., 446 US.
ERECTOR, SERRE ay ee ne 17, 18
NLRB v. Amax Coal Co., 453 U.S. 322 (1981) .......... 20
Peoria Union Stock Yards Retirement Plan v. Penn Mu-
tual Life Insurance Co., 698 F. 2d 320 (7th Cir. 1983),
reh'g denied Fed. Sec. L. Rep. (CCH) 999,162 ....... 13
Pressroom Unions-Printers League Income Security
Fund v. Continental Assurance Co. et al., 700 F.2d 889
6 RY SB | Beri een 2, 10, 13 n.5, 14, 15, 16, 17, 18
Stone & Webster Engineering Corp. v. Ilsley, 690 F.2d
Fe EAN TIED ctachaliraletnasnickehverbidsAeececsnvelinvattivevnste 14
Textile Workers Union v. Lincoln Mills of Alabama, 353
SEI CU CMINIIE TD acicstinsaihidevietipiitsincspoesbcsonmssitenineasicsichndiosis 18 n.7
PAGE
OS. ¥. Trrkette, 452 U.S. S76 (1981) .....cccrccccscccccccoese 18
United States Steel Corp. v. Pennsylvania Human Rel.
Comm., 669 F.2d 124 (3rd Cir. 1982) on. eee 13
Statutory Provisions:
Subchapter I of the Employee Retirement Income Secur-
a ea aad insdniceeaenbebieeatitensemeubesinne 17, 18
Section 2 of the Employee Retirement Income Security
IT UT. SE IE cheescesseccrencesesnescesensecsies 18
Section 2(a) of the Employee Retirement Income Securi-
ty Act of 1974, 29 U.S.C. § 1001 (a) we. 11 n.4, 18 1.8
Section 3(3) of the Employee Retirement Income Securi-
ty Act of 1974, 29 U.S.C. § 1002(3) ou... eeeeseees 7 n.1
Section 301(b) of the Labor Management Relations Act
of 1947, as amended, 29 U.S.C. § 185 (b) .......ee. 18 n.7
Section 302(c) of the Labor Management Relations Act
of 1947, as amended, 29 U.S.C. § 186(C) wees 7,8
Section 404(a)(1) of the Employee Retirement Income
Security Act of 1974, 29 U.S.C. § 1104(a)(1) ........ 17
Section 404(a)(1)(A) of the Employee Retirement In-
come Security Act of 1974, 29 USC.
EE Se 8
Section 404(a)(1)(A) (ii) of the Employee Retirement
Income Security Act of 1974, 29 USC.
| EEE TE TO 20
Section 406(b)(1) of the Employee Retirement Income
Security Act of 1974, 29 U.S.C. § 1106(b)(1) ........ 8
Section 406(b)(2) of the Employee Retirement Income
Security Act of 1974, 29 U.S.C. § 1106(b)(2) ........ 8
Section 409(a) of the Employee Retirement Income Se-
curity Act of 1974, 29 U.S.C. § 1109(a) we 8
Section 502 of the Employee Retirement Income Security
Ast OF 1974, 29 U.S.C. § L132 ..cccrccrccccccercoccssseoss 2-7, 12, 14
Section 502(a) of the Employee Retirement Income Se-
curity Act of 1974, 29 U.S.C. § 1132(a) .......... 2-3, 13, 15,
16, 18
vi
PAGE
Section 502(d) of the Employee Retirement Income Se-
curity Act of 1974, 29 U.S.C. § 1132(d) ..... 4, 8, 9, 10, 14,
15, 17, 18, 19
Section 502(d)(1) of the Employee Retirement licome
Security Act of 1974, 29 U.S.C. § 1132(d)(1) .... 4, 16, 18
Section 502(e) of the Employee Retirement Income Se-
curity Act of 1974, 29 U.S.C. § 1132(e) ........... 4-5, 15, 16
Section 502(e)(1) of the Employee Retirement Income
Security Act of 1974, 29 U.S.C. § 1132(e)(1) 4, 7,8
BI IS cs ccndsasendichssetiesnegvoctssnestenesinigntrseassente 2
i ls csieasienshghangnsseucalebinibhsntinatins 7
Miscellaneous:
H.R. Rep. No. 93-533, 93d Cong., 2d Sess. 257 (1974) 18
Model Code of Professional Responsibility EC 5-18
NS Siliaiia tT dactsenhacescceaigiieilapmadeariesonncesesieienansceiiicninien 20
IN THE
Supreme Court of the United States
October Term, 1983
No.
PRESSROOM UNIONS-PRINTERS LEAGUE INCOME
SECURITY FUND,
Petitioner,
-against-
CONTINENTAL ASSURANCE CO., a Member of the C.N.A.
Group, RESERVE LIFE INSURANCE CoO., and its wholly owned
subsidiary AMERICAN PROGRESSIVE LIFE & HEALTH INSUR-
ANCE COMPANY OF NEW YORK, GEORGE S. KRIEGLER, BEN-
JAMIN A. KRIEGLER, LABOR SECURITY PROGRAMS, INC., and
RAYMOND M. KRIEGLER, deceased, by John Doe, Mary Moe
and Roe Corp. 1-10, the true names of the preceding defendants
being presently unknown to plaintiff, the foregoing fictitious
names intending to designate the executors, administrators, trust-
ees, successors in interest and heirs-at-law of the said Raymond
M. Kriegler, deceased,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT
The Petitioner, Pressroom Unions-Printers League Income
Security Fund (the “Fund”), hereby requests the issuance of an
order granting certiorari to review the judgment and opinion of
the United States Court of Appeals for the Second Circuit
entered in this proceeding on February 18, 1983, Petition for
Rehearing denied on April 7, 1983.
2
CITATION OF OPINIONS BELOW
The opinion of the Court of Appeals for the Second Circuit has
been reported at 700 F.2d 889 (2d Cir. 1983) and at 4 E.B.C.
(BNA) 1112 and is included within the Appendix for Petitioner
submitted herein, commencing at page la. The Opinions and
Orders of the United States District Court for the Southern
District of New York have been unofficially reported at 3 E.B.C.
(BNA) 1946 and 3 E.B.C. (BNA) 1949 and appear in the
Appendix for Petitioner, commencing at page 21a. The Order of
the Court of Appeals for the Second Circuit denying rehearing
has not been reported and appears in the Appendix for Petitioner
commencing at page 18a.
JURISDICTION
The judgment of the Court of Appeals was filed on February
18, 1983 (Appendix for Petitioner at page la) and an order
denying the petition for rehearing, except on certain limited
grounds, was filed on April 7, 1983 (Appendix for Petitioner at
page 18a). The jurisdiction of this Court is invoked under 28
U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
Employee Retirement Income Security of 1974, as amended
(“ERISA”), Section 502, 29 U.S.C. Section 1132:
(a) A civil action may be brought—
(1) by a participant or beneficiary—
(A) for the relief provided for in subsection (c) 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,
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 1109 of this
title;
3
(3) by a participant, beneficiary, or fiduciary (A) to
enjoin any act or practice which violates any provision of this
subchapter or the terms of the plan, or (B) to obtain other
appropriate equitable relief (i) to redress such violations or
(ii) to enforce any provisions of this subchapter 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 1025(c) of
this title;
(5) except as otherwise provided in subsection (b) of this
section, by the Secretary (A) to enjoin any act or practice
which violates any provision of this subchapter, or (B) to
obtain other appropriate equitable relief (i) to redress such
violation or (ii) to enforce any provision of this subchapter;
or
(6) by the Secretary to collect any civil penalty under
subsection (i) of this section.
(b)(1) In the case of a plan which is qualified under section
401(a), 403(a), or 405(a) of Title 26 (or with respect to which
an application to so qualify has been filed and has not been finally
determined) the Secretary may exercise his authority under sub-
enforcement of, parts 2 and 3 of this subtitle (relatingZo partici-
pation, vesting, and funding), only if—
section (a)(5) of this section with respect toa na or the
a@
(A) requested by the Secretary of the Treasury, or
(B) one or more ‘participants, beneficiaries, or
fiduciaries, of such plan request in writing (in such man- ~
ner as the Secretary shall prescribe by regulation) that he
exercise such authority on their behalf. In the case of
such a request under this paragraph he may exercise such
authority only if he determines that such violation affects,
or such enforcement is necessary to protect, claims of
participants or beneficiaries to benefits under the plan.
(2) The Secretary shall not initiate an action to enforce
section 1145 of this title.
4
(c) Any administrator who fails or refuses to comply with a
request for any information which such administrator is required
by this subchapter to furnish to a participant or beneficiary
(unless such failure or refusal results from matters reasonably
beyond the control of the administrator) by mailing the material
requested to the last known address of the requesting participant
or beneficiary within 30 days after such request may in the court’s
discretion be personally liable to such participant or beneficiary in
the amount of up to $100 a day from the date of such failure or
refusal, and the court may in its discretion order such other relief
as it deems proper.
(d)(1) An employee benefit plan may sue or be sued under
this subchapter as an entity. Service of summons, subpoena, or
other legal process of a court upon a trustee or an administrator of
an employee benefit plan in his capacity as such shall constitute
service upon the employee benefit plan. In a case where a plan
has not designated in the summary plan description of the plan an
individual as agent for the service of legal process, service upon
the Secretary shall constitute such service. The Secretary, not
later than 15 days after receipt of service under the preceding
sentence, shall notify the administrator or any trustee of the plan
of receipt of such service.
(2) Any money judgment under this subchapter against
an employee 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 subchapter.
(e)(1) Except for actions under subsection (a) (1) (B) of this
section, the district courts of the United States shall have exclu-
sive jurisdiction of civil actions under this subchapter brought by
the Secretary or by a participant, beneficiary, or fiduciary. State
courts of competent jurisdiction and district courts of the United
States shall have concurrent jurisdiction of actions under subsec-
tion (a)(1)(B) of this section.
5
(2) Where an action under this subchapter is brought in a
district court of the United States, it may be brought in the
district where the plan is administered, where the breach took
place, or where a defendant resides or may be found, and process
may be served in any other district where a defendant resides or
may be found.
(f) The district courts of the United States shall have jurisdic-
tion, without respect to the amount in controversy or the citizen-
ship of the parties, to grant the relief provided for in subsection
(a) of this section in any action.
(g)(1) In any action under this subchapter (other than an
action described in paragraph (2)) by a participant, beneficiary,
or fiduciary, the court in its discretion may allow a reasonable
attorney's fee and costs of action to either party.
(2) In any action under this subchapter by a fiduciary for or
on behalf of a plan to enforce section 1145 of this title in which a
judgment in favor of the plan is awarded, the court shall award
the plan—
(A) the unpaid contributions,
(B) interest on the unpaid contributions,
(C) an amount equal to the greater of—
(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
percentage as may be permitted under Federal or State
law) of the amount determined by the court under sub-
paragraph (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.
6
For purposes of this paragraph, interest on unpaid contributions
shall be determined by using the rate provided under the plan, or,
if none, the rate prescribed under section 6621 of Title 26.
(h) A copy of the complaint in any action under this sub-
chapter by a participant, beneficiary, or fiduciary (other than an
action brought by one or more participants or beneficiaries under
subsection (a)(1)(B) of this section which is solely for the pur-
pose of recovering benefits due such participants under the terms
of the plan) shall be served upon the Secretary and the Secretary
of the Treasury by certified mail. Either Secretary shall have the
right in his discretion to intervene in any action, except that the
Secretary of the Treasury may not intervene in any action under
part 4 of this subtitle. If the Secretary brings an action under
subsection (a) of this section on behalf of a participant or benefi-
ciary, he shall notify the Secretary of the Treasury.
(i) In the case of a transaction prohibited by section 1106 of
this title by a party in interest with respect to a plan to which this
part applies, the Secretary may assess a civil penalty against such
party in interest. The amount of such penalty may not exceed 5
percent of the amount involved (as defined in section 4975(f) (4)
of Title 26); 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 Title
26) within 90 days after notice from the Secretary (or such
longer period as the Secretary may permit), such penalty may be
in an amount not more than 100 percent of the amount involved.
This subsection shall not apply to a transaction with respect to a
plan described in section 4975(e)(1) of Title 26.
(j) In all civil actions under this subchapter, attorneys
appointed by the Secretary may represent the Secretary (except
as provided in section 518(a) of title 28), but all such litigation
shall be subject to the direction and control of the Attorney
General.
(k) Suits by an administrator, fiduciary, participant, or benefi-
ciary of an employee benefit plan to review a final order of the
7
Secretary, to restrain the Secretary from taking any action con-
trary to the provisions of this Act, or to compel him to take action
required under this subchapter, may be brought in the district
court of the United States for the district where the plan has its
principal office, or in the United States District Court for the
District of Columbia.
STATEMENT OF THE CASE
The Court of Appeals’ decision involves the significant federal
questions of whether an “employee benefit plan” has standing to
bring an action for breach of fiduciary responsibility under
ERISA and whether a federal court has subject matter jurisdic-
tion over such suits.' It is an issue of first impression of important
questions of federal law which have not been, but should be,
settled by this Court. Further, as discussed infra, there is a split
of authority in the Circuit Courts of Appeals.
This action was commenced on January 29, 1982, by Petitioner
Pressroom Unions-Printers League Income Security Fund. The
jurisdiction of the District Court was invoked pursuant to, inter
alia, ERISA § 502(e)(1), 29 U.S.C. § 1132(e)(1) and 29
U.S.C. § 308(g).
The Fund is established and operated in accordance with Sec-
tion 302(c) of the Labor Management Relations Act of 1947, as
amended, (“LMRA”), 29 U.S.C. § 186(c). The F.sed was cre-
ated in 1971 through collective bargaining negotiations between
the Printers League of Metropolitan New York and New York
Printing Pressmen’s & Offset Workers Union Local No. 51, to
provide life insurance and mutual fund benefits to its partici-
pants.’ The Fund is maintained by employer contributions made
pursuant to collectively bargained agreements negotiated
between the respective local unions and the employer members of
; Kons benefit plan” is defined in ERISA § 3(3), 29 U.S.C.
2. In May 1975, errs represented by New York Press Assist-
ants and Offset Workers Union No. 23, I.P.P. & A.U. of N.A. were
added. In May 1976, employees represented by Paper Handlers and
Sheet Straighteners Union No. 1, I.P.P. & A.U. of N.A. Were added,
however they withdrew in May 1979.
8
the Printers League. As required under LMRA § 302(c), the
Fund is managed by a board of trustees comprised of an equal
number of employer-appointed and union-appointed members.
The Fund presently has approximately 1700 participants.
The Fund alleges that between July, 1971, and July, 1980, the
defendants, insurance companies who had underwritten all of the
life insurance for the Fund, together with various administrators
and fiduciaries with respect to the Fund, conspired to, and did
perpetuate a fraudulent scheme to extract millions of dollars in
exorbitant insurance premiums, commissions and fees from the
Fund. The action alleges that the defendants defrauded the
Fund and breached their fiduciary duties to the Fund, in violation
of ERISA §§ 404(a)(1)(A), 406(b)(1) and 406(b)(2), 29
U.S.C. §§ 1104(a)(1)(A), 1106(b)(1), and 1106(b)(2), and
seeks recovery of losses pursuant to ERISA § 409(a), 29 U.S.C.
§ 1109(a); in addition, damages for common law fraud and
unjust enrichment are sought.
On April 16, 1982, co-defendants George S. Kriegler, Benja-
min A. Kriegler, Raymond M. Kriegler, and Reserve Life Insur-
ance Company and American Progressive Life and Health
Insurance Company moved to dismiss on the ground that ERISA
§ 502(e)(1) does not grant subject matter jurisdiction over
claims asserted by an employee benefit fund, and/or such fund
lacks standing to bring ERISA claims.
On June 3, 1982, Judge William C. Connor of the District
Court for the Southern District of New York granted defendants’
Motion to Dismiss the Complaint. The court held that only the
Secretary of Labor, participants, beneficiaries and fiduciaries, as
defined in ERISA, have standing to prosecute a civil action under
ERISA, and that the jurisdiction of the district courts is limited
to actions brought by such parties. Further, Judge Connor held
that § 502(d) of ERISA, providing that an employee benefit plan
may sue or be sued as a entity, only addresses the legal capacity of
the Fund to sue or to be sued as an entity, and not jurisdiction or
9
standing. Thus, the court dismissed the Fund’s ERISA claims
for lack of subject matter jurisdiction. The court also denied the
Fund’s motion to amend the complaint to add a proper plaintiff.
On June 11, 1982, the Fund petitioned for reargument of only
so much of the Opinion and Order as denied it leave to amend the
complaint to substitute individual plan participants and/or trust-
ees as plaintiffs. On August 2, 1982, Judge Connor issued a
supplemental! order denying the Fund’s motion on the grounds
that, since the court lacked jurisdiction over the action, it did not
have subject matter jurisdiction to permit an “amendment” sub-
stituting other plaintiffs and thus retroactively giving the court
jurisdiction.
The Fund appealed Judge Connor’s decisions to the United
States Court of Appeals for the Second Circuit. In an Opinion
by the Honorable Irving R. Kaufman, to which the Honorable
William H. Timbers and the Honorable Jon O. Newman con-
curred, the court affirmed Judge Connor’s decisions. The Court
of Appeals held that the Secretary of Labor, participants, benefi-
ciaries, or fiduciaries have the exclusive right of suing under
ERISA. The Court of Appeals further held that § 502(d) does
not permit funds to bring actions under ERISA; it only allows
funds to bring suits in other situations where there would properly
be jurisdiction. Further, because the district court lacked subject
matter jurisdiction, it properly denied the request to amend the
complaint.
The Fund petitioned for a rehearing which was denied by an
order dated April 7, 1983.’
3. The Court of os for the Second Circuit did amend its Feb-
ruary 19, 1983, Order by noting in a footnote that the district court had
papery exercised its discretion to grant or deny a motion to amend to
add a party which would _— the case within the district court's
jurisdiction. Petitioner respectfully submits that this Court consider
this issue as a necessary adjunct to the issue of whether the Fund can sue
under ERISA.
10
REASONS FOR GRANTING THE WRIT
A. Introduction.
This case is of first impression of important questions of federal
law and involves issues of enormous public importance over which
the Court of Appeals for the Second Circuit is in conflict with the
Court of Appeals for the Seventh, Ninth, and arguably Third
Circuits: the questions presented are whether an employee bene-
fit plan has standing to sue for violations of ERISA and whether a
federal court has subject matter jurisdiction over such suits. If
the decision of the Court of Appeals below is permitted to stand, a
great inequity and irony will result: employee benefit plans will be
prevented from bringing actions to enforce ERISA.
The Opinion of the Court of Appeals below restrictively con-
strued the specific language of ERISA. In finding that a clear
legislative mandate was necessary in order to confer jurisdiction
over actions brought by employee benefit plans, the Court of
Appeals narrowly interpreted Section 502(d). However,
ERISA is a remedial statute which should be construed liberally.
In addition, the Court of Appeals noted that the language of
Section 502(d) makes this case “both unique and difficult.” 700
F.2d at 892. The Court of Appeals analyzed Section 502(d) and
concluded that the section does not imply that funds may bring
action under ERISA; rather it merely authorizes suits to be
brought by funds in situations where there would be jurisdiction.
As an example the Court of Appeals noted that a fund could
pursue a state law contract claim in its own name. Thus, by an
overly technical construction of the statute, the Court of Appeals
below reached the untenable result that funds may bring contract
actions, but not actions to enforce ERISA.
Accordingly, this Court should review the decision of the Sec-
ond Circuit and, upon review, reverse that decision.
1]
B. The Second Circuit’s Decision That Sections 502(a)
and (e) of ERISA Set Forth Exclusive Grants of Stand-
ing and Jurisdiction Conflicts With Decisions of the
Courts of Appeals for the Third, Seventh, and Ninth
Circuits
In Fentron Industries, Inc. vy. National Shopmen Pension
Fund, 674 F.2d 1300 (9th Cir. 1982), a contributing employer
brought an action against a pension fund alleging violations of
ERISA. The Court of Appeals for the Ninth Circuit held that
the company had standing to sue under ERISA. In reaching this
result, the Circuit Court applied this Court’s holding in Data
Processing Service Organization v. Camp, 397 U.S. 150 (1970)
to determine that the company had standing to sue under ERISA.
The Court of Appeals in Fentron held that in order for the com-
pany to have standing it must: (1) suffer an injury in fact; (2) fall
arguably within the zone of interests protected by the statute
allegedly violated; and (3) show that the statute itself does not
preclude the suit.
Applying this test the Court of Appeals found that the com-
pany’s injuries were specific and personal and that the fund’s
actions threatened direct injury to the employer. Further, the
Court of Appeals referred to Section 2(a) of ERISA, 29 U.S.C.
§ 1001 (a);* in holding that the company’s injuries fell within the
zone of interests that Congress intended to protect when it
enacted ERISA.
4. Act Sec. 2. (a) The Congress finds that the growth in size, scope,
and numbers of employee benefit plans in recent years has been rapid
and substantial; that the operational scope and economic impact of such
plans is increasingly interstate; that the continued well-being and secur-
ity of millions of employees and their dependents are directly affected by
these plans; that they are affected with a national public interest; that
they have sprees £0 Sapartons factor affecting the stability of employ-
ment and the development of industrial relations; that they
have become an important factor in commerce because of the interstate
character of their activities, and of the activities of their participants,
and the em , employee organizations, and other entities by which
they are established or maintained; that a large volume of the activities
of such plans is carried on by means of the mails and instrumentalities of
interstate commerce; that owing to the lack of employee information
and adequate safeguards concerning their operation, it is desirable in the
12
Finally, the Court of Appeals reviewed Section 502 of ERISA
and held that Congress, in enacting ERISA, did not intend to
prohibit employers from suing to enforce its provisions. The
Ninth Circuit Court of Appeals noted that Section 502 empowers
four classes of persons to bring civil actions to enforce ERISA:
(1) the Secretary of Labor; (2) participants; (3) beneficiaries;
and (4) fiduciaries. However, the Court of Appeals held that the
omission of employers was insignificant. Further, the Court of
Appeals noted that “[t] here is nothing in the legislative history to
suggest either that the list of parties empowered to sue under this
section is exclusive or that Congress intentionally omitted
employers.” 674 F.2d at 1305. See also Associated Builders &
Contractors v. Carpenters Vacation and Holiday Trust Fund for
Northern California, 700 F.2d 1269, 1278 (9th Cir. 1983).
Thus all requirements of the Data Processing Service test were
met: there was an injury in fact; ERISA was designed to protect
such interests; and ERISA did not preclude the suit. The test is
met with equal clarity in the instant case.
Surely if a Circuit Court reads the Act to extend to employ-
ers—which are not specifically enumerated in the law, it is proper
to read the law as also covering a fund. The employer, in effect,
represents the interests of one business unit. A fund typically
represents the interests of hundreds or thousands of individuals,
i.e., the participants and beneficiaries of the plan. In this case
interests of employees and their beneficiaries, and to provide for the
general welfare and the free flow of commerce, that disclosure be made
and safeguards be provided with respect to the establishment, operation,
and administration of such plans; that they substantially affect the
revenues of the United States because they are afforded preferential
Federal tax treatment; that despite the enormous growth in such plans
many employees with long years of employment are losing anticipated
retirement benefits owing to the lack of vesting provisions in such plans;
that owing to the inadequacy of current minimum standards, the sound-
ness and stability of plans with to adequate funds to on pe nel
ised benefits may be endangered; t come eye ae tion of plans
before requisite funds have been accumulated, em and their
i have been deprived of anticipated ; and that it is
therefore desirable in the interests of employees and their beneficiaries,
for the protection of the revenue of the United States, and to provide for
the free flow of commerce, that minimum standards be assur-
ing the equitable character of such plans and their financial soundness.
13
some 1700 individuals are covered by the Fund. When this is
fairly viewed it is clear that the effect on an individual covered
employee is multiplied by the effect on that individual's family.
Thus clearly thousands of people are represented by this Fund as
participants or direct or indirect beneficiaries. Moreover, most
of these individuals do not have the economic means or sophistica-
tion to commence their own legal actions and this is precisely one
of the reasons a multiemployer trust fund is established. The
Fund, itself, has fiduciary responsibility for these individuals.
The rationale applied by the Court of Appeals in Fentron Indus-
tries, Inc. is the correct rationale and applies with even greater
force and logic in the instant case.
The Court of Appeals for the Seventh Circuit, in Peoria Union
Stock Yards Retirement Plan v. Penn Mutual Life Insurance
Co., 698 F.2d 320 (7th Cir. 1983), reh’g denied, Fed. Sec. L.
Rep. (CCH) 199,162, stated without discussion, that a pension
plan had standing to complain of a breach of fiduciary obligations
under ERISA, citing to Section 502(a). Jd. at 326. See also
United States Steel Corp. v. Pennsylvania Human Rel. Comm.,
669 F.2d 124 (3d Cir. 1982) in which the Court of Appeals for
the Third Circuit stated:
“ERISA is a major and very elaborate legislative enter-
prise intended to secure employee entitiements of immense
economic value. We think that, if Congress had intended
to debar an ‘employer’ from assuming the powers—and,
more important, the manifold burdens and potential liabil-
ities—of a ‘fiduciary’ with respect to an employee benefit
plan, that intention would have been explicitly and unam-
biguously embodied in the statute.”
In the instant case, the Court of Appeals below erroneously
rejected the analysis by the Ninth Circuit in Fentron. The Court
of Appeals stated:
5. Petitioner below did not argue that a fund can be a beneficiary,
participant, or fiduciary as those terms are defined by ERISA. The
Court of Appeals below noted that it found it difficult to imagine a
situation in which a fund could fulfill one of these roles.” 700 F.2d at
893 (footnote 8). Petitioner respectfully requests that the Court exer-
cise its discretion to consider this issue.
14
In our view, the Fentron court applied an inappropriate
standard in resolving this issue. We focus not on whether
the legislative history reveals that Congress intended to
prevent actions by employers or other parties, but instead
on whether there is any indication that the legislature
intended to grant subject matter jurisdiction over suits by
employers, funds, or other parties not listed in
§ 1132(e)(1). Asthe Ninth Circuit noted, ERISA’s leg-
islative history is silent on both of these questions, see, e.g.,
H.R. Conf. Rep. No. 1280, 93rd Cong. 2d Sess., reprinted
in [1974] U.S. Code Cong. & Ad. News 5038, 5109
(1974), and we therefore conclude that absent such
expression, § 1132(e)(1) should be viewed as an exclusive
jurisdictional grant. (emphasis in original). 700 F.2d at
892.
Further, the Court of Appeals for the Second Circuit cited its own
decision in Stone & Webster Engineering Corp. v. Ilsley, 690
F.2d 323 (2d Cir. 1982), to reject the Ninth Circuit’s holding
that an employer may bring suit under ERISA.
The Court of Appeals below analyzed Section 502 and stated
that the provision of Section 502(d) providing that a fund “may
sue or be sued under this subchapter as an entity” was “troubling
only upon first blush.” 700 F.2d at 893. The Court of Appeals
held that subsection (d) only established the right of employee
benefit plans to sue and be sued like corporations and other legal
entities; “otherwise a pension plan would not be a legally cogniza-
ble body.” 700 F.2d at 893. The Court concluded:
Affording plans the power to sue does not, however,
imply that they may bring actions under ERISA; it merely
authorizes suits to be brought by funds in other situations
where there would properly be jurisdiction. For example,
if a fund became involved in a contract dispute, and
wished to pursue a state law contract claim, § 1132(d)(1)
would allow the fund to bring such an action in its own
name. 700 F.2d at 893.
This conclusion is patently absurd. The Court is, in effect,
saying in minor actions the Fund can sue in its name, but in major
matters such as to enforce ERISA and protect the interests of the
15
participants and beneficiaries of the Fund, it cannot. Such a
distinction is irrational. The Fund must protect beneficiaries and
participants in every way possible and must have recourse to the
federal courts to do this and to enforce ERISA.
Further, the Court of Appeals below rejected the reasoning of
the Seventh and Ninth Circuits that Section 502(a) and (e) did
not foreclose the possibility of parties other than the Secretary of
Labor, participants, beneficiaries, and fiduciaries, bringing
actions under ERISA. The Court of Appeals for the Second
Circuit, in dicta, stated:
It is more probable that Congress’s use of the words “or
sue as an entity” in § 1132(d)(1) were not considered in
the context of standing or jurisdiction. This interpreta-
tion is both more plausible than the Fund’s view, and, as
we have noted, resolves the superficial ambiguity between
§ 1132(d)(1) and the standing and jurisdictional provi-
sions. 700 F.2d at 893.
See also Amalgamated Industrial Union Local 44-A Health and
Welfare Fund v. Webb and Killacky, Slip Opinion, (N.D. Ill. E.
Div. March 24, 1983).
The reasoning of the Court of Appeals for the Second Circuit is
erroneous and illogical. The Court’s decision resolves the
“uncertainty” generated by the specific language of Section
502(d) by creating a ridiculous dichotomy: an employee benefit
plan may sue to pursue a state law contract claim, but may not
sue to enforce the fiduciary provisions of ERISA.
Further, the Court of Appeals rejection of the Ninth Circuit’s
reasoning in Fentron constitutes a rejection of this Court’s rea-
soning in Data Processing Service, upon which the Ninth Circuit
relied. Petitioner respectfully submits that the mode of analysis
set forth by the Court in Data Processing Service be applied to
the case at bar. The Fund has suffered an injury in fact, the
fraud perpetrated against the Fund falls within the zone of inter-
ests protected by ERISA, and ERISA does not preclude this suit.
See also Barlow v. Collins, 397 U.S. 159 (1970).
16
Based upon the reasons set forth above, this Court should grant
the instant Petition for a Writ of Certiorari in order to resolve the
direct conflict among the Courts of Appeals on an issue of sub-
stantial public importance. The Court of Appeals for the Second
Circuit below has held, in conflict with other Courts of Appeals,
that the provisions of Section 502(a) and (e) of ERISA concern-
ing standing and jurisdiction are exclusive. In so holding, the
Court of Appeals below erroneously construed the specific provi-
sions of ERISA, and rejected the Court’s analysis in Data
Processing Service.
If allowed to stand, the decision of the Court of Appeals may
result in the dismissal of numerous pending actions in federal
courts brought by employee benefit plans under ERISA. This
would produce the anomalous result of denying benefits to plan
participants and beneficiaries. The case at bar is a perfect exam-
ple of such a tragedy. The Fund brought an action under ERISA
for damages alleging a breach by fiduciaries of the Fund. Spe-
cifically the Fund has alleged that insurance companies and other
related fiduciaries defrauded the Fund by charging excessive pre-
miums, fees and commissions. If not permitted to maintain this
action, the ultimate losers will be the participants and benefi-
ciaries covered by the Fund who will not receive the benefit of the
monies allegedly defrauded.
C. The Court Below Erroneously Construed the Plain
Language of Sections 502(d) and (a) of ERISA
As discussed supra, the Court of Appeals for the Second Cir-
cuit held that § 502(d)(1) “only establishes the right of plans
created by ERISA to sue and be sued like corporations and other
legal entities.” 700 F.2d at 893. However, the Court concluded
that affording plans the power to sue does not imply that they may
bring actions under ERISA. This construction, however, ignores
the plain meaning of Section 502(d)(1) which states, inter alia,
17
“[a]n employee benefit plan may sue or be sued under this sub-
chapter as an entity.” (emphasis added). “Under this sub-
chapter” refers to Subchapter I of ERISA, under which this suit
was brought.
ERISA is a complex, remedial and comprehensive federal stat-
ute divided into four subchapters which regulate nearly every
aspect of the establishment, operation, and management of
employee pension and welfare benefit plans in the private sector.
The subchapter of ERISA which is of particular relevance to this
Petition for a Writ of Certiorari is Subchapter I, constituting the
“labor provisions” of ERISA. Subchapter I concerns “protection
of employee benefit rights” and contains provisions concerning
reporting and disclosure; participation and vesting; funding;
fiduciary responsibility; and administration and enforcement.
See Nachman v. Pension Benefit Guaranty Corp., 446 U.S. 359,
361 atn.1. Pursuant to Section 404(a)(1) of ERISA, 29 U.S.C.
§ 1104(a)(1), a fiduciary is obliged to act “solely in the interest
of” and for the “exclusive purpose of providing benefits to” plan
participants and beneficiaries; and also to discharge his duties
with sufficient “care, skill, prudence, and diligence.” The action
in this case was brought by the Fund, under Subchapter I, against
various fiduciaries of the Fund, alleging breach of the fiduciary
provisions of Subchapter I.
The Court of Appeals below reasoned that § 502(d) permits
suits “in other situations where there would properly be jurisdic-
tion”, for example, the Fund may pursue a state law contract
claim. 700 F.2d at 893.° This reasoning ignores the specific and
plain meaning of § 502(d) which allows an employee benefit plan
to sue under Subchapter I of ERISA as an entity. In determin-
ing the scope of a statute, a court must begin with the language of
6. While the Court of Appeals below affirmed the District Court's
a it did so utilizing a different analysis. The District Court held
that:
“Section ae addresses neither jurisdiction nor standing, but
rather the - capacity of a fund to sue or to be sued as an
entity. In other words, if a fund was also a participant, benefici-
ary or fiduciary so that it had standing to sue under Section
502(a), 502(d) makes it clear that it could sue as an entity.”
18
the statute. U. S. v. Turkette, 452 U. S. 576, 586 (1981).
Section 502(d)(1) clearly permits suits by employee benefit
plans under Subchapter I of ERISA. Congress would not have
adopted such broad language had it intended that Section 502(d)
be read as narrowly as the Second Circuit in this case has con-
strued it.’
In addition, the Second Circuit stated that “[t] here is no doubt
that this section [§ 502(d)] authorizes suits against a fund.”
700 F.2d at 892. Thus the Court of Appeals below tortured the
language of Section 502(d) to permit employee benefit plans to
be sued under ERISA, but not to sue.
Further, Section 502(a) states that a “civil action may be
brought” by the enumerated parties therein. It does not state
that a civil action shall be brought by only the parties named
therein. It is axiomatic that where the words “shall” and “may”
are used in the same statute or regulation, “shall” is usually
interpreted to impose a mandatory obligation and “may” is usu-
ally interpreted to grant discretion. See Farmers and Merchants
Bank vy. Federal Reserve Bank, 262 U. S. 649, 662-63 (1923)
(Brandeis, J.). Therefore, the Court of Appeals below should
have utilized its discretion to permit the Fund to bring this action.
Finally, ERISA is a remedial statute which should be con-
strued liberally. See, e.g., Kross v. Western Electric, 701 F.2d
1238 (7th Cir. 1983); H. R. Rep. No. 93-533, 93d Cong., 2d
Sess. 257 (1974). The broad purposes and policies underlying
the statute are described in Section 2 of ERISA." The decision
by the Court of Appeals below constitutes an overly technical
construction of remedial legislation and should be overruled. As
discussed by this Court in Nachman, supra, and Alessi v. Raybes-
tos-Manhattan, Inc., 45\ U.S. 504, at 510 (1981), “ERISA isa
comprehensive and reticulated statute” in which Congress sought
7. Cf. Section 301(b) of the Labor Management Relations Act of
1947, 29 U.S.C. § 185(b), which states, inter alia, in language almost
identical to section 502(d), that “[a]ny such labor nization may
sue or be sued as an entity.” See also Textile Workers Union v. Lincoln
Mills of Alabama, 353 U.S. 448 (1957), construing this language.
8. Section 2(a) is set forth in full at footnote 4, supra.
19
to ensure that workers receive the benefits promised to them.
The decision by the Court of Appeals below will frustrate this
laudable congressional goal.
Finally, the practical impact of the Court of Appeals for the
Second Circuit’s decision must not be ignored. Numerous cases
may presently be pending whereby funds have sued as entities
under ERISA.’ The dismissal of these actions may cause great
hardship on funds which have sued in their own names relying on
the clear language of Section 502(d)."°
D. An Employee Benefit Fund Must Be Permitted to Sue as
an Entity Under ERISA to Protect Participants and
Beneficiaries
If the Court of Appeals for the Second Circuit’s decision is
permitted to stand, only the Secretary of Labor, participants,
beneficiaries, or fiduciaries can bring actions to enforce ERISA.
However, the Secretary of Labor, participants and beneficiaries
typically have no knowledge, and lack the means to obtain infor-
mation concerning any fraudulent scheme perpetuated against a
fund. Only fiduciaries, to wit, the trustees, might have the requi-
site knowledge to bring suit. However, trustees may have various
practical reasons for not bringing an action like this in their own
name. Thus, to allow the Second Circuit's opinion to stand could
disenfranchise millions of unprotected participants and benefi-
ciaries. The facts of this case illustrate the inequity of this
approach. Here the participants may have been defrauded and if
the Second Circuit's view is adopted they may have no recourse
since there is a serious issue as to whether the statute of limita-
tions has expired. Viewed in this light, the Second Circuit's
decision becomes manifestly unjust.
9. While it is impossible to ascertain the exact number of cases
ing, the a” pniing Petitioner have received numerous
uiries concerning below from attorneys, + ‘occa
nee SS wat the United States Departmeni of
"io After the decision by the District Court below, a second action
ot be t 1982 by two trustees and a parti t entitled
Hassli v. Continental Assurance Co. et. al. (82
Civ. cn 3590 SDNY) estan, tnpuner, cane te Saeed ty Tee
Statute of limitations.
20
An employee benefit fund under ERISA and its trustees are, in
a sense, inseparable. A fund operates through trustees, and the
trustees operate the fund. See NLRB v. Amax Coal Co., 453 U.
S. 322, 334 (1981). Infact this action is really brought on
behalf of the Fund as an entity. The trustees lack the personal
financial resources to support a lawsuit of this magnitude; the
Fund pays all fees and costs of litigation. See ERISA
404(a)(1)(A)(ii). The Fund office contains all records per-
taining to the action, and the Fund staff are knowledgeable con-
cerning the issue at suit. Thus to require a fiduciary to bring an
action as opposed to the Fund as an entity has no basis in law or
fact.
Further, assuming arguendo that a substantive distinction
exists between trustees of a fund governed by ERISA, and the
fund itself as an entity, who protects the interest of the fund in
litigation? For example, a lawyer retained by a corporation or
similar entity owes his allegiance to the entity, and not to a
stockholder, director, officer, employee, representative, or other
person connected with the entity. See Model Code of Profes-
sional Responsibility EC 5-18 (1979). Ifa fund as an entity is
not permitted to bring actions under ERISA, and such actions are
thus brought by the trustees of the fund, who represents the fund
if the trustees have differing interests? A fund must have stand-
ing to sue under ERISA in order to protect the participants and
beneficiaries of the fund if a conflict interests exists with respect
to the trustees.
Here the Court of Appeals is exalting form over substance. Its
reading of the statute is wrong. Moreover, it would perpetuate a
substantial injustice. In the history of the development of law in
the United States there has rarely been a situation like this where
the wording of a caption on a complaint, or a technical title of a
suit, has been allowed to perpetrate material injustice and judicial
disenfranchisement.
The Court of Appeals below frustrates the very purpose of
ERISA which is to protect participants and beneficiaries. The
21
decision below damages participants and beneficiaries and the
tortured reading of the law clearly circumvents and frustrates the
intent of Congress.
The United States Supreme Court is the final opportunity that
these participants have to gain at least a chance at a final redress.
All they seek is an opportunity for a day in court and a fair
hearing. This should not be barred by pyramiding technicalities
to allow the statute of limitations to potentially block such an
opportunity. We fervently urge that they should not be denied
and we pray for relief.
CONCLUSION
For the foregoing reasons, Petitioner respectfully requests that
a Writ of Certiorari be issued to review the judgment of the Court
of Appeals for the Second Circuit in this case.
Respectfully submitted,
NOEL ARNOLD LEVIN
101 Park Avenue
New York, N. Y. 10178
MARK EDWARD BROSSMAN
101 Park Avenue
New York, N. Y. 10178
Of Counsel:
MORGAN, LEwis & BOCKIUS
APPENDIX
UNITED STATES COURT OF APPEALS
For the Second Circuit
No. 704 August Term, 1982
(Argued January 6, 1983 Decided February 18, 1983)
Docket No. 82-7631
PRFSSROOM UNIONS- PRINTERS LEAGUE
INCOME SECURITY FUIID,
Plaintiff-Appellant,
-against-
CONTINENTAL ASSURANCE CO., a Member of the
C.N.A. Group, RESERVE LIFE INSURANCE CO., and
its wholly owned subsidiary AMERICAN PROGRESSIVE :
LIFE & HEALTH INSURANCE COMPANY OF NEW YORK, \
GEORGE S. KRIEGLER, BENJA’ IN A. KRIEGLER, LABOR
SECURITY PROGRAMS, INC., and RAYMOND HM. aint wi
deceased, by John Doe, Mary Moe and Roe Corp. 1-10,
the true names of the preceding defendants being
rere pes unknown to plaintiff, the foregoing
ictitious names intending to designate the
executors, administrators, trustees, successors
in interest and heirs-at-law of the said Raymond
'. Kriegler, deceased,
Defendants-Appellees.
Before: KAUFMAN, TIMBERS and NFWMAN, Circuit Judges.
Appeal by the plaintiff from a judgment entered on
an order of the United States District Court for the
Southern District of New York, William C. Conner, Judge,
dismissing its complaint for lack of subject matter juris-
diction.
Affirmed.
2a
JOSEPH P. HOEY, Mineola, New York
(Suozzi English & Cianciullo, P.C.,
Stephen C. Glasser, of Counsel), for
the Plaintiff-Appellant.
VINCENT R. FITZPATRICK, JR., New York,
New York (White & Case, Dwight A.
Healy, Richard A. Horsch; Hughes &
Hill, H. Robert Powell, Dallas, Texas,
gt Counsel), for the Defendants-
ellees, Reserve Life Insurance Co.
oa American Progressive Life and
Health Insurance Company of New York.
ROBERT S. COHEN, New York, New York
(Lans, Feinberg & Cohen, Deborah E.
Lans, of Counsel), for che Defendants-
Appellees, George S. Kriegler,
Benjamin A. Kriepler and Raymond M.
Kriepler (deceased).
3a
KAUFMAN, Circuit Judge:
In the last decade, Congress has enacted nearly one
hundred statutes pranting additional jurisdiction to the
federal courts. Areas as diverse as environmental law and
child custody have been brought within the purview of the
federal judiciary. Fxercising this new jurisdiction, however,
requires us not only to adjudicate complex disputes, but also
to define the limits of our exnanded authority. The instant
action, brought pursuant to the Employee Retirement Income
Security Act of 1974, 29 U.S.C. §§ 1001-1461, provides one
such occasion. We are called upon today to determine, as a
matter of first impression, whether a pension fund may assert
a federal cause of action under the provisions of that
important employee benefits statute.
:
The Pressroom Unions - Printers League Income Secur-
ity Fund ("the Fund") was established in May 1971 to provide
life insurance and mutual fund benefits to members of the New
York Printing Pressmen's & Offset Workers Union, Local 51. In
later years members of two other unions were allowed to parti-
cipate in the Fund pursuant to their collective bargaining
apreerents.!/ The Fund currently has approximately 1,700
4a
participants and is financed by contributions from the employ-
ers of the union members. Its management functions are vested
in a Koard of Directors whose membership consists of union and
employer representatives in equal numbers.
The Fund contends that during the period from
July 1, 1971 through June 30, 1980 it was the victim of a
fraudulent schene engineered by appellees George S. Kriegler,
Benjamin A. Kriegler and Raymond M. Kriegler, deceased.
("Krieglers") The gravamen of this charge is that George and
Raymond Krierler were officers and stockholders of Labor
Security Programs, Inc. ("LSP"), a consulting firm engaged by
the Fund, and they allegedly caused LSP to enter into insur-
ance contracts at exorbitant rates. Allocation and assignment
of such contracts purportedly depended upon the results of a
competitive bidding process, but the Krieplers allegedly
circumvented this procedure and gave appellees Continental
Assurance Co. ("Continental") ard Reserve Life Insurance Co.
("Reserve") the exclusive right to sell insurance to the
Fund. 2/
The Fund's complaint alleges that the insurance con-
tracts resulted in excessive prenium payments to the insurers
and extravapant fees to the Krieglers. The Fund further
Sa
contends that appellees concealed the fraudulent nature of the
insurance contracts from the Board of Directors by providing
misleading statements and reports. The Krieglers, it is
claimed, perpetuated this fraud by providing false assurances
to the Board and by misrepresenting the nature of the con-
tracts entered into and the process through which the insurers
were selected,
In January 1982 the Fund filed suit in the Southern
District of New York asserting that appellees breached their
fiduciary duties, and seeking declaratory relief as well as
compensatory and punitive damages. Jurisdiction was said to
be based upon the relevant provisions of the Employee Retire-
ment Income Security Act, 29 U.S.C. § 1132(e) ("ERISA") and
the Welfare and Pension Plans Disclosure Act, 29 U.S.C.
§$ 308(g) ("WPPDA").3/ The defendants moved to dismiss the
action pursuant to Fed. R. Civ. P. 12(b)(1) for lack of
subject matter jurisdiction, claiming that neither statute
afforded the Fund a cause of action cognizable in federal
court. The district judge pranted the defendants’ motion and
dismissed the complaint on June 3, 1982. He also denied the
Fund's request to amend its complaint. Subsequently the Fund
noved for reconsideration of the district court's order, and
sought to substitute individual plan participants as plain-
6a
tiffs. Judge Conner denied this request ,“/ and the Fund now
appeals from the judpnent entered on his order and from the
supplemental order denyinp its motion for reconsideration.>/
II
The jurisdictional provisions of ERISA do not on
their face authorize a pension fund to assert a cause of
action. 29 U.S.C. § 1132(e)(1) gives the district courts
“exclusive jurisdiction of civil actions under this subchapter
brought bv the Secretary [of Labor] or by a participant,
beneficiary or fiduciary." Similarly, § 1132(a), the Act's
provision dealing with standing, states that the Secretary or
a "participant, beneficiary or fiduciary" may bring an action
for civil enforcement of the Act's fiduciary and other
provisions.
The Fund does not contend that it may be viewed as
one of the parties specifically authorized to file suit under
these provisions; rather, it claims that these sections are not
exclusive and do not foreclose the possibility of other parties
suing under the Act. In support of this assertion, the Fund
argues that § 1132(d)(1), which states that "[a]n emplovee
benefit plan may sue or be sued under this subchapter as an
entity," contemplates the existence of a cause of action which
7a
a pension fund may assert, and therefore necessarily inplies
that federal jurisdiction would exist for such suits.
Ic is beyond dispute that only Congress is empowered
to grant and extend the subject matter jurisdiction of the
federal judiciary, and that courts are not to infer a grant of
jurisdiction absent a clear legislative mandate. Rice v.
Railroad Co., 66 U.S. ‘1 Black) 358, 374 (1861); Dalehite v.
United States, 346 U.S. 15, 30-31 (1953); see also Middlesex
County Sewerage Authority v. National Sea Clammers Assoc., 453
U.S. 1, 13-18 (1981). We therefore decline to construe
§ 1132(d)(1) as sub silentio conferring jurisdiction over
actions brought by parties other than those specified in
§$ 1132(e) (1).
We have previously held that an employer, also not
named in ERISA‘'s jurisdictional provisions, may not bring suit
under the Act. See Stone & Webster Engineering Corp. v.
Ilslevy, 690 F.2d 323, 326 (2d Cir. 1982). While this does
not, of course, resolve the instant dispute, it does undercut
the Fund's reliance on Fentron Industries, Inc. v. National
Shopmen Pension Fund, 674 F.2d 1300 (9th Cir. 1982)
("Fentron"). In Fentron the court held that an employer could
bring an action pursuant to ERISA. Although neither § 1132(a)
nor § 1122(e) (1) specifically authorizes suits by employers,
the court observed "[t]here is nothing in the legislative
history to suggest... that the list of parties empowered to
sue under this section is exclusive. . .." Fentron, supra,
674 F.2d at 1305.°/
In our view, the Fentron court applied an inappro-
priate standard in resolving this issue. We focus not on
whether the legislative history reveals that Congress intended
to prevent actions by employers or other parties, but instead
on whether there is any indication that the legislature
intended to grant subject matter jurisdiction over suits by
employers, funds, or other parties not listed in § 1132(e)(1).
As the Ninth Circuit noted, ERISA's legislative history is
silent on both of these questions, see, e.g., H.R. Conf. Rep.
No. 1280, 93rd Cong. 2d Sess., reprinted in [1974] U.S. Code
Cong. & Ad. News 5938, 5109 (1974), and we therefore conclude
that absent such expression, § 1132(e)(1) should be viewed as
an exclusive jurisdictional prant.’/
What makes the instant case both unique and diffi-
cult is the lanpuape of § 1132(d)(1) which provides that a
fund "may sue or be sued under this subchapter as an entity."
There is no doubt that this section authorizes suits apainst
9a
a fund. The difficulty arises with those portions of the
section which authorize a fund to bring an action. The
uncertainty generated by this language, however, is troubling
only upon first blush. More careful analysis demonstrates
that § 1132(d)(1) is not inconsistent with the specific and
exclusive prant of subject matter jurisdiction contained in
§ 1132(e)(1). Subsection (d)(1) is captioned "status of
employee benefit plan as entity," and only establishes the
right of plans created by ERISA to sue and be sued like
corporations and other legal entities. Without such a
provision a pension plan would not be a legally cognizable
body. See, e.p., Coverdell v. tlid-South Farm Equipment
Assoc., 335 F.2d 9, 12-13 (6th Cir. 1964). Affording plans
the power to sue does not, however, imply that they may bring
actions under ERISA; it merely authorizes suits to be brought
by funds ir other situations where there would properly be
jurisdiction. 8, For example, if a fund became involved in a
contract dispute, and wished to pursue a state law contract
claim, § 1132(d)(1) would allow the fund to bring such an
action in its own name.
The Fund would have us accept the arpument that the
carefully drafted provisions extending federal jurisdiction
and standing to pension plan participants, beneficiaries and
10a
fiduciaries were incomplete, and that those sections do not
foreclose the possibility of actions brought by other parties.
In light of the frequent references in the Act and its legis-
lative history to “participants, beneficiaries and fiduci-
aries,” see, e.g., 29 U.S.C. § 1132(h); H.R. Rep. No. 533,
93rd Cong., 2d Sess., reprinted in [1974] U.S. Code Cong. &
Ad. News 4655 (1974), this conclusion is untenable. It is
more probable that Congress's use of the words “or sue as an
entity" in § 1132(d)(1) were not considered in the context of
standing or jurisdiction. This interpretation is both more
plausible than the Fund's view, and, as we have noted,
resolves the superficial ambiguity between § 1132(d)(1) and
the standing and jurisdictional provisions.
Accordingly, we hold that the district court was
without subject matter jurisdiction over the Fund's complaint
and Judge Conner properly dismissed the action.
Ill
The Fund further contends that the district court
erred in denying its motion for leave to amend the complaint
and substitute plan participants as plaintiffs.
lla
The longstanding and clear rule is that "if juris-
diction is lackinp at the commencement of [a] suit, it cannot
be aided by the intervention of a [plaintiff] with a suffi-
cient claim." Pianta v. H.M. Reich Co., 77 F.2d 888, 890 (2d
Cir. 1935); see also United States ex rel. Rudick v. Laird,
412 F.2d 16 (2d Cir.), cert. denied, 396 U.S. 918 (1969).
The Fund attempts to escape this doctrine by relying on 28
U.S.C. § 1653 which provides that "defective allegations of
jurisdiction may be anended, upon terms in the trial or
appellate courts."
While we have previously noted that § 1653 should be
broadly construed to avoid dismissals of actions on technical
grounds, John Birch Society v. National Rroadcasting Co., 377
F.2d 194, 198-99 (2d Cir. 1967), we have never allowed that
provision to create jurisdiction retroactively where none
existed. Section 1653 allows "amendment only of defective
allegations of jurisdiction; it does not provide a remedy for
defective jursidiction itself." Field v. Volkswagenwerk AG,
626 F.2d 293, 306 (3rd Cir. 1980) (emphasis in original). In
this case the Fund seeks not to remedy inadequate jurisdic-
tional allegations, but rather to substitute a new action over
which there is jurisdiction for one where it did not exist.
Accordingly, Judge Conner properly denied the Fund's motion to
l2a
amend its complaint pursuant to that provision.?/
The Fund's reliance on Rheingold Breweries Pension
Plan v. PepsiCo, Inc., 2 Empl. Ben. Case. 2406 (S.D.N.Y.
1981), is also misplaced. In Rheingold Judpe Stewart per-
mitted amendment after holding that the plaintiff fund had no
Standing to sue under § 1132(a). The court, however, never
reached the more fundamental issue of whether there was sub-
ject matter jurisdiction over such an action. Moreover, the
Rheinpold opinion, filed before the Fund's suit was commenced,
should have put the Fund in this case on notice that it would
have difficulty in pressing its claims under its own name.
Fven if the district court had the authority to consider the
propriety of the amendment request, therefore, it could have
properly denied the motion in its discretion. See Cox v.
Livingston, 407 F.2d 392 (2d Cir. 1968) (motions to amend pur-
suant to § 1653 are addressed to the court's discretion). If
the Fund was aware of Judge Stewart's ruling, it has advanced
no reason for its original failure to name alternative plain-
tiffs in the event that Judpe Conner followed Rheingold and
refused to allow the Fund to sue in its own name. In the
event that the Fund was uraware of the Rheingold case, it
cannot now assert that it detrimentally relied on that portion
l3a
of the opinion where the court allowed the plaintiff to amend
its complaint.
‘Accordingly, we find Judge Conner properly concluded
that there was no subject matter jurisdiction to hear the
claims asserted and he correctly granted appellees’ motion to
dismiss. Because it was without jurisdiction, the judge
appropriately denied the request to amend the complaint. The
judpment and supplemental order of the district court are
affirmed.
l4a
FOOTNOTES
iV Beginning in tay 1975 members of the New York Press
Assistants and Offset Workers Union, Local 23 became partici-
pants in the Fund, and in May 1976 coverage was extended to
employees represented by the Paper Handlers and Sheet
Straighteners, Local |.
2/ Continental underwrote the life insurance contracts
for plan participants from 1971 until July 1979. Thereafter
Continental's rights and oblipations were assumed by Reserve
which became the successor in interest to the former corpora-
tion upon its dissolution. Reserve, a Texas corporation not
licensed to do business in New York State, transacted its
affairs in New York through its wholly-owned subsidiary,
American Progressive Life & Health Corporation.
3/ The WPPDA antedated and was repealed by ERISA. The
relevant section of ERISA, however, provided that the WPPDA
"shall continue to apply to any conduct and events which
15a
occurred before [ERISA's] effective date, [January 1, 1975]."
29 U.S.C. $8 1031(a) (1), 1164.
4/ In its motion for reconsideration, the Fund, for the
first time, identified those persons it sought to substitute
as plaintiffs. These individuals have since filed a separate
action in the United States District Court for the Southern
District of New York, Buccino v. Continental Assurance Co.,
No. 82 Civ. 5530. The parties have represented, however, that
there are potential statute of limitations problems which may
preclude a full decision on the merits in that action.
5/ The Fund does not challenge the district court's
finding that there was no jurisdiction under the WPPDA.
6/ The Fund mistakenly relies on United States Steel
Corp. v. Pennsylvania Human Relations Commission, 669 F.2d 124
(3rd Cir. 1982), in support of its claim that § 1132(a) is not
exclusive. The court in United States Steel did not imply
that the specific standing provision of § 1132(a) was not
exclusive, but held only that on the facts of that case the
l6a
plaintiff employer could be viewed as a plan fiduciary and
therefore have standing as a fiduciary under the Act. Id. at
126-28.
af Since the plaintiff has not claimed subject matter
jurisdiction under 28 U.S.C. § 1331 (1976) in its complaint
nor in its papers submitted to this Court, we express no views
on the possible relevance of that statute. See Monell v.
Department of Social Services, 532 F.2d 259, 260 n.1 (2d Cir.
1976), rev'd on other grounds, 436 U.S. 658 (1978).
8/ The district judge indicated that in some circun-
stances a fund might be a participant, beneficiary or fiduci-
ary, in which case it would be able to assert a cause of
action in its own name. In the district court's view this
possibility resolved the ambipuity between § 1132(e)(1) and
$ 1132(d) (1). We find it difficult to imagine a situation in
which a fund could fulfill one of these roles. See 29 U.S.C.
§ 1002(7), (8), (21) (definitions of “participant,” "benefici-
ary," and "fiduciary"). Wwe do not, however, believe it is
necessary to accept the district court's view to reconcile the
apparently contradictory provisions.
17a
9/ Appellant also clains that the district court was
foreclosed from dismissing its complaint pursuant to Fed. R.
Civ. P. 17(a). That rule in relevant part states, "No action
shall be dismissed on the ground that it is not prosecuted in
the name of the real party in interest until a reasonable time
has been allowed . .. [for] joinder or substitution of the
real party in interest." This arpument, however, ignores the
fact that the action was not dismissed for failure to name the
real party in interest, but rather because the district court
had no jurisdiction over the suit. Rule 17(a) does not, of
course, expand the jurisdiction of the federal judiciary. See
Fed. R. Civ. P. &2.
[4]
United States Court of Appeals
SECOND CIRCUIT
#82-7631
PRESSROOM UNIONS~-PRINTERS
LEAGUE INCOME SECURITY FUND,
Plaintiff-Appellant
Vv.
CONTINENTAL ASSURANCE CO.,
et al.,
De fendants-Appel lee
rere’ ore “oe ae ser —_
OPINION
KAUFMAN, GER AYIGR Co.
19a
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
At a stated Terin of the United States Court of
Appeals for the Second Circuit, held at the United States
Courthouse in the City of New York, on the. 7th day
of April, one thousand nine hundred and eighty-three.
Present: HONORABLE IRVING R. KAUFMAN
HONORABLE WILLIAM H. TIMBERS
HONORABLE JON O. NEWMAN,
Circuit Judges,
PRESSROOM UNIONS=-PRINTERS LEAGUE INCOME
SECURITY FUND,
Plaintiff-Appellant,
¥. 82-7631
CONTINENTAL ASSURANCE CO., a Member of
the C.N.A. Group, RESERVE LIFE INSURANCE
co., and its wholly owned subsidiary
AMERICAN PROGRESSIVE LIFE & HEALTH
INSURANCE COMPANY OF NEW YORK, GEORGE S.
KRIEGLER, BENJAMIN A. KRIEGLER, LABOR
SECURITY PROGRAMS, INC., and RAYMOND M.
KRIEGLER, deceased, by Joe Doe, Mary Moe
and Roe Corp. 1-10, the true names of
the preceding defendants being presently un-
known to plaintiff, the foregoing fictitious
names intending to designate the executors,
administrators, trustees, successors in
interest and heirs-at-law of the said
Raymond M. Kriegler, deceased,
Defendants-Appellees.
ee ee ee ce ee ee eee ee ee ee ee ee ee ee See oe ee ee ee ee ee ee ee x
Upon consideration of appellant's petition for re-
hearing, it is hereby ORDERED that the opinion filed February 18,
1983, is amended in the following respects:
20a
Docket No. 82-7631
Page Two
1. Page 1888, lines 13-16 - “Subsection (d)(1) is
captioned "status of employee benefit plan as entity." and
only establishes the right of plans created by ERISA to sue
and be sued like corporations and other legal entities." is
hereby amended to read "Subsection (d)(1) only establishes
the right of employee benefit plans created by ERISA to sue
and be sued like corporations and other legal entities.”
2. Page 1890, Footnote 9 - The following paragraph is
hereby added as the first paragraph in Footnote 9.
"Though we have previously recognized that an
amendment adding a party that brings the case within a
district court's jurisdiction can be granted, Hackner
v. Guaranty Trust Co., 117 F.2d 95 (2d Cir.), cert.
denied, 31 U.S. 559 (1941), such an amendment, where
new service is required, does not relate back to the
original suit, id. at 99, and would be a new action,
id.; York v. Guaranty Trust Co., 143 F.2d 503, 518
(2a Cir. 1944) (construing Hackner), rev'd on other
rounds, 326 U.S. 99 (1945). In such circumstances,
the district court has discretion whether to permit
the "amendment," cf. National Maritime Union v. Curran,
87 F. Supp. 423, 426 (S.D.N.Y. 1949), and Judge Conner
properly exercised his discretion to deny the motion
to amend after noting that possible statute of limita-
tions defenses distinguished this case from Hackner,
where no such obstacles appeared.”
3. The petition for rehearing is otherwise denied.
_
;
ae ay:
IRVING R. KAUFMAN///
7S, of omni
a
WILLIAM H. TIMBERS
Circuit Judges
2la
OPINION AND ORDER DATED JUNE 3, 1982 (Pages 65a~-73a).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PRESSROOM UNIONS - PRINTERS LEAGUE
INCOME SECURITY FUND,
: 82 Civ. 578
Plaintiff, (WCC)
- against -
CONTINENTAL ASSURANCE CO., a Member of the aap OAnER
C.N.A. Group, RESERVE LIFE INSURANCE CO., : ey
and its wheliy owned subsidiary AMERICAN
PROGRESSIVE LIFE & HEALTH INSURANCE
COMPANY OF NEW YORK, GEORGE S. KRIEGLER,
BENJAMIN A. KRIEGLER, LABOR SECURITY
PROGRAMS, INC., and RAYMOND M. KRIEGLER,
deceased, by John Doe, Mary Moe and Roe
Corp. 1-10, the true names of the pre-
ceding defendants being presently unknown
to plaintiff, the foregoing fictitious names
intending to designate the executors,
administrators, trustees, successors in
interest and heirs-at-law of the said
Raymond M. Kriegler, deceased, ~
Defendants.
APPEARANCES:
SU0OZZI, ENGLISH & CIANCIULLI, P.C.
Attorneys for Plaintiff
1505 Kellum Place
Mineola, New York 11501
JOSEPH P. HOEY, ESO.,
ROBERT M. ARCHER, ESQ.,
ROWALD E. SOMMER, ESQ.,
STEPHEN C. GLASSER, ESQ.,
Of Counsel
22a
WHITE & CASE, ESQS.
Attorneys for Defendants Reserve
Life Insurance Company and
American Progressive Life and
Health Insurance Company of
New York
14 Wall Street
New York, New York 10005
VINCENT R. FITZPATRICK, JR., ESQ.,
DWIGHT A. HEALY, ESQ.,
Of Counsel
H. ROBERT POWELL, ESQ.,
EUGENE ZEMP DUBOSE, ESQ.,
HUGHES & HILL, ESQS.
1000 Mercantile Dallas Building
Dallas, Texas 75201
Of Counsel
LANS FEINBERG & COKEN, ESQS.
Attorneys for Defendants George S
Kriegler, Benjamin A. Kriegler
_ and Raymond M. Kriegler
555 Madison Avenue
New York, New York 10022
ROBERT STEPHAN COHEN, ESQ.,
DEBORAH E. LANS, ESQ.,
Of Counsel
23a
CONNER, D. J.:
This action purportedly arises uncer the Employee
Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C.
§ 1001, et secg., and the Welfare and Pension Plans Disclosure
Act ("WPPDA"), 29 U.S.C. § 301, et sec., as well as under
certain statutes and the comzon law of the State of New York.
Jurisdiction over the State law claims is alleged to be based
upon principles of pendent jurisdiction. Presently before the
Court are the motions of various defendants to dismiss the
amended complaint for lack of jurisdiction over the subject
Matter, Rule 12(b)(1), F.R.Civ.P. For the reasons which follow,
the motions are granted.
Plaintiff Pressroom Unions-?rinters Leegue Income
Security Fund (the "Fund") is identified in the amended com-
plaint as an employee income security fund within the meaning
of Section 3(1) of ERISA, 29 U.S.C. § 1002(1), and an employee
benefit plan subject to the provisions,of ERISA pursuant to
Section 4(a) of ERISA, 29 U.S.C. § 1003(a).
Defendant Continental Assurance Co. ("Continental")
is alleged to have underwritten the Fund's life insurance from
July 1, 1971 through July 1, 1979. Defendants Reserve Life
Insurance Co. ("Reserve") and its wholly-owned subsidiary
American Progressive Life & Health Insurance Company of New York
("Progressive") are alleged to have’ acquired the rights and obli-
gations of Continental as underwriters of the Fund's life in-
Surance during the period subsequent to July 1, 1979.
-3-
24a
‘Defendants George S. Kriegler, Raymond M.
Kriegler, deceased, and Benjamin A. Kriegler are identified
as having been administrators and/or fiduciaries of the Fund.
Defendant Labor Securities Programs, Inc. ("LSP") is a corpo-
ration owned and managed at least in part by George Kriegler
and Raymond Kriegler.
As to the claims arising under federal law, it is
essentially alleged that each of the defencants engaged in a
fraudulent scheme directed against the Fund in violation of
each defendant's fiduciary obligations under ERISA.
Section 502(a) of ERISA, 29 U.S.C. § 1132(a), specifies
the Secretary of Labor, perticipants, beneficiaries and
fiduciaries as those persons who have standing to prosecute a
civil action under ERISA. In turn, Section 502(e) of ERISA,
29 U.S.C. § 1132(e), limits the jurisdiction of United States
district courts to civil actions brought by the Secretary of
Labor, participants, beneficiaries or fiduciaries.
It is not disputed that the Fund is not the Secretary
of Labor, a participant, a beneficiary or a fiduciary as those
terms are defined in ERISA. Accordingly, it is manifest both
that this Court lacks subject matter jurisdiction over the
Fund's ERISA claims and that the Fund lacks standing to prose-
cute such claims. This Court has previously so held in
‘Rheingold Breweries Pension Plan v. Pepsico. Inc, No. 81 Civ.
1561 (S.D.N.¥. November 17, 1981)(Stewart, J.). See also
25a
Mechanical Construction Corp. v. Benedict, No. 76 Civ. 5426
(S.D.N.Y¥. March 16, 1978)(Conner, J.); Hibernia Bank v.
International Brotherhood of Teamsters, 411 F. Supp. 478,
488-89 (N.D.Cal. 1976). 2/
The Fund's reliance on Section 502(¢) of ERISA, 29
U.S.C. § 1132(d),is misvlaced. That section provides that
an employee benefit plan may sue or be sued as an entity,
and further provides for service upon and enforcement of
judgments against such plans. Section 502(d) addresses neither
jurisdiction nor standing, but rather the legal capacity of a
fund to sue or be sued as an entity. In other words, if a
fund wes eo a participant, beneficiary or fiduciary so that
it had standing to sue under Section 502(a), 502(d) makes it
clear that it could sue as an entity.
Accordingly, the Fund's ERISA claims against each of
the empress must be dismissed for lack of subject matter
jurisdiction.
The Fund also seeks to predicate subject matter juris-
Giction upon Section 9(g) of WPPDA, 29 U.S.C. § 308(g), although
the amended complaint nowhere alleges that any of the alleged
conduct of defendants violated any provision of WPPDA. In any
event, it is plain that the Fund lacks standing to prosecute
any claim under WPPDA. The only private right of action
available under WPPDA is one brought by a participant or
beneficiary to recover $50 per day from any plan administrator
7
26a
who fails to sake certain requested publications. As the
Fund is not a participant or a beneficiary, it lacks
standing to prosecute any action under WPPDA.
Accordingly, the Fund's WPPDA claics, if any,
3/
against each of the defendants must be dismissed.
In view of the dismissal of the purported federal
law claims, the exercise of pendent jurisdiction over the
Fund's state law claims would be inappropriate. United Mine
Workers v. Gibbs, 383 U.S. 715 (1966). Acscor2ingly, the
amended complaint is dismissed, without prejudice to the
prosecution.of any state law claims in a court of competent
4/
jurisdiction.
SO ORDERED.
a? d ge — ct Judge
Dated: New York, New York
June 3, 1982
27a
FOOTNOTES
In a recent decision, Fentron Industries, Inc. v.
Nationai Shopmen Pension Fund, 674 F.2d
1399 (9th Cir. April 21, 1982), the Ninth
Circuit permitted an employer to bring suit under
ERISA notwithstanding the fact that the employer
did not fit within the definition of any of those
authorized to bring suit by Section 502(a). The
court first found that the employer had suffered
an injury in fact and that such injury fell within
the zone of interests protected by ERISA. After
thus concluding that the employer had standing in
the constitutional sense, the court then directed
its inquiry to whether the statute itself pre-
cluded the suit, and specifically the fact that
enployers qua employers are not among those author-
ized to bring suit under Section 502(a). In this
regard, the court merely concluded:
"The omission of employers from 29 U.S.C.
§ 1132 is not significant in this regard. There
is nothing in the legislative history to suggest
either that the list of parties empowered to sue
under this section is exclusive or that Congress
intentionally omitted employers" (footnote and
citations omitted). Id. at 1305.
The court's reasoning is not persuasive. As the
court recognized, the existence of standing in the
constitutional sense is not a sufficient basis for
maintenance of a statutory cause of action in the
face of a statutory prohibition. Here Congress,
by Section 502(a), has specified those who may
bring suit under the statute. If unspecified
others may also bring suit, then Section 502(a)
is meaningless. Manifestly a statutory provision
should not be interpreted in such a manner as to
render it meaningless. Yet the Fentron court
reaches such a result, and does so on the basis of
legislative history which is admittedly silent on
the question of the exclusivity of Section 502(a).
Furthermore, the Fentron. court ignores Section 502(e),
which limits federal.court jurisdiction to the
actions specified in Section 502(a). Congress could
hardly have more clearly’specified that this Court's
jurisdiction is limited exclusively to actions
brought by those authorized to sue under Section 502(a)
28a
Although only Reserve, Progressive, George Kriegler,
Benjamin Kriegler and Raymond Kriegler have moved
to dismiss, Continental has raised this defense in
ts Answer, and in any event the absence of subject
matter jurisdiction prevents this Court from entertain-
ing the ERISA claims as to any defencant. See Rule
12(h) (3), F.R.Civ.P.
Again although not all defendants have moved to dismiss,
this defense appears in the Answer of Continental, the
Fund's lack of standing plainly precludes its prose-
cution of any WPPDA claim against any defendant, and
the Fund has had notice and the opportunity to be heard
on this issue in connection with this motion. According-
ly, no sound reason appears why the Court's ruling as
to the WPPDA claims should not be made applicable to
all defendants.
It should also be noted that WPPDA, which wes repealed
by 29 U.S.C. § 1031(a)(1) except as to conduct and
events occurring prior to January 1, 1975, cannot apply
to Reserve and Progressive, whose alleged transgressions
all post-date July 1, 1979.
The Fund hes requested that, in the event the motions
of defendants are granted, it be given leave to amend
the complaint to name a proper plaintiff. The request
is denied. Since the Fund has no claim over which this
Court has subject matter jurisdiction, the Fund cannot
be a proper plaintiff in this action.
Plainly what the Fund envisions is a substitution of
another plaintiff for itself. Such an amendment would
involve not merely the correction of a misnomer as to
the peeoy plaintiff, but rather a substitution of an
unrelated party to prosecute the action. Moreover, the
Fund has not identified such a party or indicated that
any pucty ts willing to be -#o substituted. Slice this
Court lacks jurisdiction over the Fund's claims, 1 can
sie
29a
hardly retain jurisdiction while the Fund searches
for a substitute plaintiff. Prior to the dismissal
of this action, a proper plaintiff might have moved
to intervene, but no such application has been made.
-¢c-
30a
OPINION AND ORDER DATED AUGUST 2, 1982 (Pages 90a-1l04a).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PRESSROOM UNIONS - PRINTERS LEAGUE
INCOME SECURITY FUND,
82 Civ. 578
Plaintiff, (WCC)
- against -
CONTINENTAL ASSURANCE CO., a Member of che 0b Rhos
C.N.A. Group, RESERVE LIFE INSURANCE CO., : en
and its wholly owned subsidiary AMERICAN
PROGRESSIVE LIFE & HEALTH INSURANCE
COMPANY OF NEW YORK, GEORGE S. KRIEGLER,
BENJAMIN A. KRIEGLER, LABOR SECURITY
PROGRAMS, INC., and RAYMOND M. KRIEGLER,
deceased, by John Doe, Mary Moe and Roe
Corp. 1-10, the true names of the pre-
ceding defendants being presently unknown
to plainciff, the foregoing fictitious names
intending to designate the executors,
administrators, trustees, successors in
interest and heirs-at-law of the said
Raymond M. Kriegler, deceased,
Defendants.
APPEARANCES
S$UOZZI, ENGLISH & CIANCIULLI, P.C.
Attorneys for Plaintiff
1505 Kellum Place
Mineola, New York 11501
JOSEPH P. HOEY, ESO.,
BRIAN MICHAEL SELTZER, ESQ.
Nf Counsel
JOHN B. FOLEY, ESQ.,
JOSEPH P. ALTMAN, JR., ESQ.,
Of Counsel
3la
McCORMICK DUNNE & FOLEY, ESQS.
Attorneys for Defendant
Continental Assurance Co.
71 Broacway
New York, New York 10006
WHITE & CASE, ESQS.
Attorneys for Defendants
Reserve Life Insurannce Company,
American Progressive Life &
Health Insurance Company of N.Y.
14 Wall Streec
New York, New York 10005
VINCENT R. FITZPATRICK, JR., ESQ.,
DWIGHT A. HEALY, ESQ.,
Of Counsel
H, ROBERT POWELL, ESQ.,
EUGENE ZEMP DUBOSE, ESQ.,
UGHES & HILL, ESQS.
1000 Mercantile Dallas Building
Dallas, Texas 75201
Of Counsel |
ROBERT STEPHAN COHEN, ESQ.,
DEBORAH E. LANS, ESQ.,
Of Counsel
oSe
LANS FEINBERG & COHEN, ESQS.
Attorneys for Defendants George
S. Kriegler, Benjamin A. Kriegler
and Raymond M. Kriegler
555 Madison Avenue
New York, New York 10022
32a
CONNER, D. J.:
By Opinion and Order dated June 3, 1982, familiarity
with which is presumed, this Court granted defendants’
motions to dismiss for lack of jurisdiction over the subject
matter, Rule 12(b)(1), F.R.Civ.P. The crux of the Court's
June 3 ruling was that plainciff Pressroom Unions-Printers
League Income Security Fund (the Fund") is not within those
categories of persons authorized to bring suit under Section
592(a) of the Empioyee Retirenens Ticume Security Act of 1374 ("ERISA"),
29 U.S.C. § 1132(a), and thus that the Fund's claims do not
fall within this Court's subject matter jurisdiction as defined
by Section 502(e) of ERISA, 29 U.S.C. § 1132(e). The Court
also denied the Fund's application for leave to ‘'amend" the
complaint to "name a proper plainciff" in the event the Court
ruled as it did in granting defendants' motions.
Presently before the Court is the motion of the Fund
to alter or amend the judgment of dismissal pursuant to Rule
59(e), F.R.Civ.P. For purposes of this motion, the Fund seeks
only reconsideration of that portion of the Court's June 3
ruling which denied the Fund's request to "amend"’ the complaint
after its dismissal in order to "name a proper plainciff."' For
the reasons that follow, the Fund's motion is denied.
33a
In originally denying the Fund's application to
amend, the Court wrote:
The Fund has requested that, in the event the
motions of defendants are granted, it be given
leave to amend the complaint to name a proper
lainciff. The request is denied. Since the
und has no claim over which this Court has sub-
ject matter jurisdiction, the Fund cannot be a
proper plaintiff in this action.
Plainly what the Fund envisions is a substi-
tution of another plaintiff for itself. Such
an amendment would involve not merely the
correction of a misnomer as to the proper plain-
tiff, but rather a substitution of an unrelated
arty to prosecute the action. Moreover, the
und has not idencified such a party or indicated
that any party is willing to be so substituted.
Since this Court lacks jurisdiction over the Func's.
claims, I can hardly retain jurisdiction while the
Fund searches for a substitute plaintiff. Prior
to the dismissal of this action, a proper plaincifé
might have moved to intervene, but no such appli-
cation has been made.
In an apparent effort to “cure” what it perceived to be the
defect in its original application, the Fund has submitted
affidavits indicating the willingness of at least one parti-
cipant and beneficiary of the Fund to be substituted as a
plaintiff in chis action. It may be assumed that the proposed
substituted plainciff or plainciffs are "proper plainciffs”
pursuant to Section 502(a) of ERISA and thus that this Court
would have subject matter jurisdiction over such an action
pugsuant co Section 502(e) of ERISA. Nevertheless, the Fund's
motion must be denied.
34a
Nothing in the Court's June 3 Opinion and Order
inhibits in any way the ability of any party enumerated in
Section 502(a) to bring an action within this Court's subject
matter jurisdiction as specified by Section 502(e). Instead,
however, the Fund seeks to resurrect an action over which the
Court does not, and never did, have subject matter jurisdictios
in order to file a purported “amendment” substituting other
plaintiffs for itself and thus retroactively converting the
action into one over which this Court hes jurisdiction. Both
teason and precedent dictate that the Courc is without power
to grant the relief sought by the Fund.
Ie is axiomatic that, as a court of circumscribed
jurisdiction, this Court's power is limited to those actions
which Congress has specified to be within its jurisdicrion. "If
a court lacks jurisdiction over an action, it lacks the power
to act with respect to that action.” Rudick v. Laird,412 F.2d
16, 20 (2d Ciz.), cert. denied, 396 U.S. 918 (1969). Thus,
as defendants persuasively contend, where as here the Court lacks
jurisdiction over the action, it lacks the power to act on a
1
motion such as that made by the Fund.”
Several court decisions in analogous circumstances
Support defendants’ position. Thus, for example, in Pianta
v. H. M. Reich Co., 77 F.2d 888 (2d Cir. 1935), a creditor
with a claim for less than che jurisdiccicnal amount sccessar’
o-
$e ; 24 : 5 oh ‘ ae : - - . :
SPESSLCL IGN SOSSRE SNS 21ESOCAST ENS 32 2 Leet ve
35a
for the debtor corporation. The receivers who had been
appointed sought to remedy the jurisdictional defect nunc
pro tunc by obtaining an order of the districc court directing
the intervention of a creditor whose claim exceeded the juris-
dictional amount. The Court of Appeals reversed that order
and directed dismissal of the claim:
We think the district judge has no power
to enter such an order. The right to inter-
vene presupposes an action duly brought, and
if jurisdiction is lacking at the commencement
of the suit, it cannot be aided by the inter-
vention of a creditor witn a sufficient claim.
Id. at 890.
In Interstate Commerce Commission v. Southern Railwav
Co., 380 F. Supp. 386 (M.D.Ga. 1974), aff'd in relevant part,
543 F.2d 534 (Sth Cir. 1976), the court found that the ICC
did not have statutory authority to maintain the action; the
statute provided that such suits must be brought by or against
the United States. In dismissing the action, the court held
that its conclusion could not be affected by motions of
interested persons to intervene and to name the United States
as a party, reasoning that
it is elementary that jurisdictional defects in
the original complaint cannot be remedied by the
papers of intervenors, nor can authority to bring
a suit be bestowed by intervenors on an original
plainciff where no such authority existed prior to
intervention.
36a
,
Given the presence of a fatal defect in
the ICC's complaint, it is, of course, plain
that the complaint must be dismissed, and from
this it follows that there remains no action in
which Nashville Milling Company and Mr. Lee may
intervene.
Id. at 394-95.
In Jacobs v. District Director of Internal Revenue,
217 F. Supp. 104 (S.D.N.Y. 1963), the court found that it was
without jurisdiction as the suit was barred by the doctrine
of sovereign immunity. The United States sought to intervene
in an "attempt to give the court the jurisdiction it now lacks."
Id.at 106. The courc denied the motion to intervene, ruling
that such intervention "cannot be granted as there is present
no jurisdictional foundation upon which the court may act." Id.
In Oster v. Rubinstein, 136 F. Supp. 733 (S.D.N.Y. 1955),
the court found an absence of diversity of citizenship between
the plaintiffs and the original defendant. The plaintiffs,
however, had substituted the original defendant's executors
as defendants, and there did exist diversity of citizenship
between the plaintiffs and the substituted defendants. The
court nevertheless dismissed the action for lack of subject
matter jurisdiction, ruling that "jurisdiction may not be
conferred upon the court by means of a substitution of parties."
2
Id. at 734.
37a
And in Schmoll Fils, Inc. v. The Fernelen, 85
F. Supp. 578 (S.D.N.¥. 1949), where the court found diversity
of citizenship jurisdiction lacking, the court refused to
allow the intervention of a United States corporation as a
party plaintiff. Although the presence in the suit of the
proposed intervenor would have been sufficient to establish
federal jurisdiction, the court concluded that
{iJntervention may not be allowed for that
purpose. An existing suit within the Court's
jurisdiction is a prerequisite to intervention.
Intervention cannot give life to a lawsuit
which does not actually exist, nor can it create
jurisdiction where no jurisdiction exists.
Id. at 579.
See also, Tumer v. First Wisconsin Mortgage Trust, 454 F. Supp
899, 913 (E.D.Wise. 1978)("a plainciff who cannot maintain her
own complaint has no right to amend it pursuant to Rule 15
of the Federal Rules of Civil Procedure to bring in other
parties who will thereafter remain as parties when the complaint
is dismissed as to the original plaintiff"); Schwartz v. The
Olympic, Inc., 74 F. Supp. 800, 801 (D.Del. 1947) ("Plainriff
also seeks to amend his complaint to bring in other parties
plaintiff. If he cannot maintain his own complaint, he has
no right to amend it").
In the face of these arguments and authorities, the
Furs has offered five contentions in susnort of its position,
erssades she Court co @icer its orisinal ruling
38a
The Fund places primary reliance upon 28 U.S.C. § 1653,
which provides:
Defective allegations of jurisdiction
may be amended, upon terms, in the trial
or appellate courts.
However, the plain language of Section 1653, as well as the
cases interpreting it, indicate that Section 1653 is limited
to permit amencment of forzal pleading deficiencies only, and
doés not permit the retroactive creation of jurisdiction by
substaictive amencrents. See, e.¢., Church of Scientoloev v.
3/
United States, 499 F. Supp. 1085, 1088 (D.Colo. 1980).~” Thus,
for example, amendment has been permitted under Section 1653
to alter the theory of subject matter jurisdiction existing at
the time the action was commenced, see, e.g., Corporaction
Venezolana de Fomento v. Vintero Sales Cor>., 477 F. Supp. 615,
618 (S.D.N.Y. 1979), modified on other grounds, 629 F.2d 786
(2d Cir. 1980), cert. denied, 449 U.S. 1080 (1981); Miller v.
Davis, 507 F.2d 308, 311 (6th Cir. 1974), or to correct de-
fective allegations as to jurisdictional amount, see, e.g.,
Schlesinger v.§ Councilman, 420 U.S. 738, 744 n.9 (1975); Cox
v. Livingston, 407 F.2d 392 (2d Cir. 1969). On the other hand,
amendment under Section 1653 has been denied where the amend-
ment seeks to add a distinct cause of action not pleaded in the
original complaint. Brennan v. University of Kansas. 451 F 2d
74
1287, 1269 (10ch Cir. 1972)
39a
In the instant case, the jurisdictional "defect" in
the Fund's complaint is not one merely of form but rather
one of substance. The Fund does not have any claims against
defendants within the subject matter jurisdiction of this
Court, and there is no formal amencment of the pleadings
that can alter that fact. What the Fund seeks is not to
correct a mere technical error in its own pleading in order
that it may continue its action against defendants, but
rather, by the purported device of an “amendsent," to pernit
a different sarty or parties cc presecute the action. Ne
precedent for such a result has been cited by the Fund or
discovered by the Court. But cf., Field v. Volkswaeenwerk
AG, 626 F.2d 293, 306 (3d Cir. 1980) (suggesting in dictum
that in an action for wrongful death on behalf of the deceased's
estate, the substitution of one administratrix for another may
be permitted under certain circumstances pursuant to Section
1653). Im my view, the Fund's attempt to bootstrap substitute
plaintiffs into an action which this Court's jurisdictional
limitations do not permit the Fund itself to maintain is not
an attempt to cure a mere technical error of pleading but is
rather an attempt to effect a substantive modification of an
action over which the court otherwise lacks subject matter
jurisdiction, and is thus not permissible under Section 1653.
The Fund's other four arguments may be treated summarily
In connection with the cismissal of she F.nd's state law clains
sides che orineiples of saise? “{ir¢ (o.ccr8 ._ Giddss. 383 U.S.
-10-
40a
715 (1966), the Coure noted that such dismissal was without
prejudice to the prosecution of such state law claims in a
court of competent jurisdiction. The Fund contends that, in
so ruling, the Court “overlooked or misapprehended" the
“principle of law" that the district courts of the United States
have exclusive jurisdiction over the relevant ERISA claims
which constitute the “vast majority" of the Fund's claims.
The Fund is wrong. By this Court's June 3 Opinion and Order,
it has been determined, subject to the Fund's right of appeal,
that the Fund has no ERISA claims against defendants. Other
parties may have claims under ERISA against defendants, dut
nothing in this Court's June 3 ruling creates any juris-
dictional bar to the prosecution of such claims.
The Fund further argues that its "default" is excusable
because of its reliance on Rheingold Breweries Pension Plan v.
_Pepsico, Inc., 81 Civ. 1561 (S.D.N.Y. November 17, 1981), in
which Judge Stewart of this Court, after ruling that an employee
benefit sien could not maintain an action under Section 502(a)
of ERISA, granted leave ae DOenESee to amend its complaint
to name a proper plaintiff.” In that case, however, Judge
Stewart treated the issue solely as one of standing under
Section 502(a) and did not address the question of subject
matter jurisdiction under Section 502(e), and thus did not
consider whether there was a jurisdictional bar to the granting
af leave to amend. In anv event, there ‘1 245 “ecuictasie™ exceo-
te ‘naLttiny ef “hie “%
ties na tbe sheds
Sudject matter jurisciccion. =
4la
The Fund's final two arguments appear for the first
time in its reply memorandus. First, the Fund argues that
the requirements of subject matter jurisdiction and standing
are legally distinct; that the Court's June 3 ruling was in
reality a ruling that the Fund lacked standing to prosecute
this action; that the action should thus have been dismissed
under Rule 12(b)(6), F.R.Civ.P., for failure to state a claim
and not under Rule 12(b)(1), F.R.Civ.P., for lack of subject
matter jurisdiction; and that as a consequence the Court does
have subject matter jurisdiction to entertain and grant the
Fund's motion to amend. The Fund's argument ignores the rele-
vant statutory provisions of ERISA. While it is true that the
constitutional requirements for standing are distinct from the
question of subject matter jurisdiction, Congress has created
additicnal statutory standing requirements in Section 502(a)
and, in Section 502(e), incorporated those requirements as
prerequisites to the exercise of subject matter jurisdiction.
Thus, under the statutory scheme, the Court properly dismissed
the action for lack of subject matter jurisdiction, which itself
is a prerequisite to the Court's consideration of any motion to
dismiss for failure to state a claim.
Finally, the Fund relies upon Rule 17(a), F.R.Civ.P.,
which proscribes the dismissal of any action on the ground
that it is noc prosecuted in che name of the real party in
incereat wisthouc alluwing an opportunic: far subscicucics
ai2-
42a
the real party in interest. The Fund's reliance is misplaced;
this action was dismissed for lack of subject matter juris-
diction and not for failure of prosecution in the name of the
real party in interest. That it might also have been dismissed
under Rule 17(a) after an opportunity for substitution hardly
means that this “opportunity” is extended to cases such as the
instant case where the court lacks subject matter jurisdiction.
Plainly Rule 17(a) does not purport to expand the subject matter
jurisdiction of the federal courts, and the rule is thus
irrelevant to the Court's June 3 decision and che instant motion.
For these reasons, the Fund's motion to alter or amend
the judgment is denied.
SO ORDERED.
Dated: New York, New York
August 2, 1982
«1%
43a
FOOTNOTES
Defendants concede, as they must, that an
apparent exception to this principle is the line
of cases permitting the aoe of nondiverse
parties who are not indispensable in order to
preserve diversity jurisdiction; i.e., in order
to satisfy the requirement of "complete" diversity
first enunciated in Strawbridge v. Curtiss, 7 U.S.
(3 Cranch 267 (1806). The rationale of these de-
cisions appears to be that the cause of action among
the diverse parties is conceptually distinct, and
the deletion of unnecessary parties in order to ;
“preserve” or “retain'' diversity jurisdiction over thi
separable portion of the lawsuit is thus vernissible. See, e.g.,
Horn v. Lockhart, 84 U.S. (17 Wall.) 570 (18 );
Kerr v. Compagnie De Ultramar, 250 F.2d 860 (2d Cir.
1958); Karakatsanis v. Conquestador Cia. Nav., S.A.,
247 F. Supp. 423 (S.D.N.Y. 1965). The justification
for this approach may perhaps be found in the fact
that the requirement of "complete" diversity, in
contrast to federal jurisdiction generally, is not
of constitutional dimension. Owen Equipment & Erec-
tion Co. v. Mroger, 437 U.S. 365, 373 n.13 (1978);
State Farm Fire & Casualty Co. v. Tashire, 386 U.S.
523, 530-31 (1966). In any evenc, this line of
cases appears to be sui generis and to have no impli-
cation for circumstances such as exist here, where
the Court lacks jurisdiction over every "portion"
of the case, and what the proposed amendment would
accomplish is not the "dropping" of an unnecessary
party in order to "preserve'’ jurisdiction, but rather
the complete substitution of a new plaintiff or plain-
tiffs in order to create retroactively jurisdiction
where none had existed before.
The court in Oster distinguished Hackner v. Guaranty
Trust Co., 117 F.2d 95 (2d Cir. 1941), in which the
court permitted a new plaintiff to prosecute an action
in which the original plainciffs' claims failed to
satisfy che hayley amount requirement. A
reading of the Hackner opinion, however, reveals that
the court permitred chac resulc solely because, as a
erage icr. TASSer, eCeausring the seu _siainsift te
womense @ sew accion woulé evensually tring che 73rk tes
!
44a
to the same position they occupied in the existing
lawsuic. In light of the Second Circuit's prior
opnion in Pianta,77 F.2d 888 it does not appear
that the Hackner result should apply where, as here,
there are possible statute of limitations defenses
which the plaintiff seeks to avoid w 4 resurrecting
a case over which the court lacks subject matter
jurisdicrion.
As detailed in the Memorandum of Law of Defendants
Reserve Life Insurance Co. and American Progressive
Life and Health Insurance Company of New York, the
legislative history of Section 1653 and its pre-
decessor statute also indicates that the purpose of
Section 1653 is to avoid the nonsuit of a plainciff
which could have but did not include the proper alle-
gations of jurisdiction in the complaint, rather than
permitting substantive modifications of an action over
which the court lacks subject matter jurisdiction.
The Fund's claim of reliance on Rhe ingore is most
surprising, since that decision shou ave put the
Fund on notice that it could not maintain this action.
ape
45a
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
At a stated term of the United States Court of Appeals, in and
for the Second Circuit, held at the United States Courthouse, in the
City of New York, on the twenty-second day of April, one thousand
nine hundred and eighty-three.
PRESSROOM UNIONS~PRINTERS LEAGUE INCOME
SECURITY FUND,
APR 2 21983
G os
Plaintiff-Appellant,
v.
CONTINENTAL ASSURANCE CO., et al.,
Defendants-Appellees.
A petition for rehearing containing a suggestion that the
action be reheard in banc having been filed herein by counsel] for
the plaintiff-appellant, Pressroom Unions-Printers League Income
Security Fund, and the panel that heard the appeal having denicd
said petition in an order filed on April 7, 1983,
Ic is further noted that the suggestion for rehearing in
banc has been transmitted to the judges of the court in regular
active service and to any other judge on the panel that heard the
appeal and that no such judge has requested that a vote be taken
thereon.
A. Daniel Fusaro, Clerk
by
Chief Deputy Clerk
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.