# Petitioners Brief — Inter-Modal Rail Employees Ass'n v. Atchison, Topeka & Santa Fe Railway Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1102

## Text

FILED
JAN 13 1997
No. 96-491

a

In The
Supreme Court of the United States

eT

October Term, 1996

INTER-MODAL RAIL EMPLOYEES ASSOCIATION,
THOMAS FRANKS, CHARLES JONES, TOMMY MARTIN,
HOYT JARRARD, and ROBERT STEIN,

Petitioners.
vs.

THE ATCHISON, TOPEKA AND SANTA FE RAILWAY
COMPANY, SANTA FE TERMINAL SERVICES, INC.,
and
IN-TERMINAL SERVICES, DIVISION OF MI-JACK
PRODUCTS, INC..

Respondents

On Writ Of Certiorari To The United States Court
Of Appeals For The Ninth Circuit

BRIEF FOR PETITIONER

Richard E. Schwartz
Lead Counsel

James E. Parrot

RICHARD SCHWARTZ

& ASSOCIATES, LTD.
Attorneys for Petitioners
393 N. Euclid Ave., Ste. 300
St. Louis, Missouri 63108
(314) 454-0022

et

QUESTION PRESENTED FOR REVIEW

Do allegations by employee-beneficiaries of a health and

welfare benefit plan that their employer's parent company
forced their employer to discharge them and to contract out

their jobs to another employer in furtherance of a conspiracy to
interfere with their right to receive health and welfare benefits,
state a cognizable cause of action under §510 of ERISA?

il
LIST OF PARTIES TO PROCEEDING

Inter-Modal Rail Employees Association, and, in the
alternative, Thomas Franks, Charles Jones, Tommy Martin,
Hoyt Jarrard, and Robert Stein, filed this action against The
Atchison, Topeka and Santa Fe Railway Company; Santa Fe
Terminal Services, Inc.; Santa Fe Pacific Corporation; and In-
Terminal Services Division of Mi-Jack Products, Inc.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW .............. i
LIST OF PARTIES TO PROCEEDING ............... il

CITATION TO LOWER
COURT OPINIONS AND ORDERS ................ I

NEE GE DEE GOUEED ccc ccccrevcescececeies 2

EES ee 5

I. THE APPLICABLE STANDARD OF REVIEW
FAVORS PETITIONER’S PLEADING ........ 11

Il. THE COURT’S PRECEDENTS ON
STATUTORY INTERPRETATION AND THE
CONSTITUTIONAL LIMITS ON A COURT
IN CONSTRUING THE INTENT OF
CONGRESS MANDATE REVERSAL OF
THE NINTH CIRCUIT’S OPINION ........... 12

IV.

IV

Contents

THE LANGUAGE OF THE STATUTE-IS
UNAMBIGUOUS AND PETITIONER’S
CLAIM IS AN UNEMBELLISHED
APPLICATION OF THE STATUTE’S PLAIN

WEED Sa Setcececcccedeccebescueeséonn

A. The Clear Language Of §510 Shows
That It Prohibits Discharges From
Employment For The Purpose Of
Interfering With Health And Welfare

ES ee ory ee ye ee eae

B. The Interpretations Of The
Congressional Intent Underlying §510
Found By Several Other Circuit Courts
Of Appeals In Construing §510

Likewise Support Reversal .............

THE COURT’S PRECEDENTS
INTERPRETING CONGRESS’
PROHIBITIONS AGAINST UNLAWFUL
EMPLOYMENT PRACTICES UNDER
OTHER STATUTES GOVERNING LABOR
AND EMPLOYMENT RELATIONS
COUNSEL REVERSAL OF THE DECISION

DIE cvivvdcccccscdvcccepecsbéuevess

Page

Vv

Contents
Page

V. THE RELIEF PROVIDED TO PETITIONER’S
MEMBERS IN THIS ACTION UNDER
ERISA FOR WRONGFUL DISCHARGE
MUST AFFORD COMPLETE RESTITUTION
TO QUALIFY AS THE “APPROPRIATE
EQUITABLE RELIEF” REQUIRED BY THE
eee er ae er eee 36

VI. THE DECISION BELOW AT ITS CRUX
DENIES ACCESS TO JUSTICE ............. 40

EY Snbeneeaeesndaudenadvsedesadecces 41

TABLE OF CITATIONS
Cases Cited:

Adcox v. Teledyne, Inc.,
21 F.3d 1381 (6th Cir.), cert. denied,
115 S.Ct. 193, 130 L.Ed.2d 126 (1995) .......... 27, 28

Albemarle Paper Co. v. Moody,
422 U.S. 405, 95 S.Ct. 2362,
EE 39

Allied Chemical Workers v. Pittsburg Plate & Glass Co.,
404 U.S. 157, 92 S.Ct. 383,
eee oi ocean deb deweas 34

vi

Contents
Page

Anderson v. Alpha Portland Indust.,
836 F.2d 1512 (8th Cir.), cert. denied,
489 U.S. 1051, 109 S.Ct. 1310,
Oy a ae Va deasetcetdeseees 20

Cannon v. Univ. of Chicago,
441 U.S. 677, 99 S.Ct. 1946,
Se EE Sab bck sade cewecccdcewsacss 34

Conkwright v. Westinghouse Elec. Corp.,
ie > fs 3 Beerrrrrrrr TTT TTT 32

Connecticut Nat. Bank v. Germain,
503 U.S. 249, 112 S.Ct. 1146,
Se IEE no nc inh beccecsccesin 13

Curtiss-Wright Corp. v. Schoonejongen,
115 S.Ct. 1223, 131 L.Ed.2d 94 (1995) ............. 20

Deeming v. American Standard, Inc.,
Sa Fae CaP GED Sich ccowdcnsccansaes 32

Dister v. Continental Group, Inc.,
oe fk RE ee er eye 11

Dole v. United Steelworkers,
494 U.S. 26, 110 S.Ct. 929,
a oe ea fide aus 12, 13

Fitzgerald v. Codex Corp.,
Be ee EE SUD oc ccccvbcendivecsocsens 31

vil

Contents

Fleming v. Ayers & Assoc.,
ee en edn cv cldecusecbabens 30

Gavalik v. Continental Can Co.,
812 F.2d 834, (3d. Cir.), cert. denied,
484 U.S. 979, 108 S.Ct. 495,
a ae wet we cauts 11,19

Golden v. Kelsey-Hayes Co.,
73 F.3d 648 (6th Cir.), cert. denied,
117 S.Ct. 49, 136 L.Ed.2d 13 (1996) ............... 20

Harsch v. Eisenberg,
956 F.2d 651 (7th Cir.), cert. denied,
506 U.S. 818, 113 S.Ct. 61,
i ek Ses wb eekues 37

Hazen Paper Co. v. Biggins,
507 U.S. 604, 113 S.Ct. 1701,
i aa SUSU knees cote eenede. 7) EPPPTTerrTerrrTreeree ey 30, 31

Shaw v. Delta Airlines, Inc.,
463 U.S. 85, 103 S.Ct. 2890,

TF ESO EROED cc ccnccecsiscccecesecss 16, 24

Stiltner v. Beretta USA Corp.,
74 F.3d 1473 (4th Cir. en banc), cert. denied,

117 S.Ct. 54, 136 L.Ed.2d 18 (1996) ............ 31, 34

Tameny v. Atlantic Richfield Co.,
27 Cal.3d 167, 175, 610 P.2d 1330,
SE EE Si Ws cus vdsnntcas <vccveds

Texas Dept. of Com. Affairs v. Burdine,
450 U.S. 248, 101 S.Ct. 1089,
SUE ¥snad cccancdissuiedasedase

a“

xi

Contents

Page

Textile Workers v. Darlington Manufacturing Co.,

380 U.S. 263, 85 S.Ct. 994,

SPT IEEE de edecdvccevsnecene

U.S. v. Lexington Mill,
232 U.S. 399, 34 S.Ct. 337,

EE Pawo Gedaecvesvsescesss

UFCW vy. Brown Group,

116 S.Ct. 1529, 134 L.Ed.2d 758 (1996) .....

United States v. Ron Pair Enterprises, Inc.,
489 U.S. 235, 109 S.Ct. 1026,
FP UNOEED pecetedéccesecudss

Varity Corp. v. Howe,
116 S.Ct. 1065,

7, 10, 12, 13, 21,

BPO Ree CP ONPTED soc cccccesceccs 25, 33, 36, 38, 40

West v. Greyhound Corp.,
813 F.2d 951 (9th Cir. 1987) ..............

West Virginia Univ. Hosp. v. Casey,
499 U.S. 83, 111 S.Ct. 1138,
PT TTT Te

xi

Contents
Page
Statutes Cited:
SRE, OD ows aina sod eeqdiactavetesseenddeeden l
Be ee EE oe Sen ee ceeKeecddenceteesesvbaenans 2
PN Mn wo 84 dad eens céadesni 1,2, 9, 15, 16, 21
29 U.S.C. §1104,
ND os '4-b od oon credo audnds be eds a 7,21, 24
29 U.S.C. §1132
ERISA §502(a)(3)(B) ............. 7, 10, 22, 31, 37, 38
29 U.S.C. §1140,
EY cnc os ek edsddetceeNak costes ees 1 ef seq.
29 U.S.C. §1144,
REE 6 Guu deeds peed cakeeewenes beueeetns 37
29 U.S.C. §158,
National Labor Relations Act §8(a) .............. 9, 34
29 U.S.C. §160,
PE Peak eoenieerendskchvessndsddeacneees 39
EE Gs es ae en Cava dev dade kaek aaa 1]

BP es EEE cn b cebu d cess vescvetdencenens 39

xiii
Contents
Page
PN ila ces geen ibdsbavic dues 11,39
ee aes 4
45 U.S.C. §§231, et seq.,
Railroad Retirement Act of 1974 ............... 3,4,7
Railroad Retirement Act of 1935 1937 .............. 7
Conf. Rep. No. 93-1280, p.330-31,
93d Cong., 2d Sess., 3 Leg. Hist. 4597 .............. 19
H. Rep. No. 93-533, p.17, 93d. Cong.,
SPs eID ccc ccecccevavccccsccces 19
H.Rep. No. 533, p.9-10, 93d Cong.,
2d Sess., reprinted in 2 Leg. Hist. 2356-75 .......... 30
S. Rep. No. 127, 93d Cong.,
Ist Sess. at p.35 (1973), reprinted in
ES he ee a 19
Senate and House Reports on ERISA, reprinted at,
1 Leg. Hist. 621 and 2 Leg. Hist. 2364 (1976) ........ 25
Senate Floor Debates,
2 Leg. Hist. 1641, 1811,
ES EE SE Re er a 19

XIV

Contents

Senate Report No. 93-127,
p.14, 93d Cong., Ist Sess.,

PR 5 RPT OTOTTT STITT Lies

Other Authorities Cited:

Federal Rules of Civil Procedure, Rule 12(b)(6) ....

Webster's New Universal Unabridged Dictionary

i I OE ot ree sul esa at,

Page

CITATION TO LOWER
COURT OPINIONS AND ORDERS

Court of Appeals: J/nter-Modal Rail Emp. Ass'n v.
Atchison, Topeka, 80 F.3d 348 (9th Cir. 1996), Case No. 93-
56400.

District Court: no citations, Central District of
California Case No. CV-92-06623-WJR.

STATEMENT OF BASIS FOR JURISDICTION

The Court of Appeals entered its decision on March 27,
1996. A timely Petition for Rehearing and Suggestion for
Hearing En Banc was filed. The Court of Appeals ordered
Defendants to respond to that Petition. On June 24, 1996, the
Court of Appeals denied the Petition and rejected the
Suggestion for Rehearing En Banc.

Petitioners believe that 28 U.S.C. §1254(1) confers on
this Court jurisdiction to review on a writ of certiorari the
judgment of the Ninth Circuit.

STATUTES INVOLVED IN THE CASE

29 U.S.C. §1002(1): The terms “employee welfare
benefit plan” and “welfare plan” mean any plan, fund, or
program ... established or is maintained for the purpose of
providing for its participants or their beneficiaries, through the
purchase of insurance or otherwise, (A) medical, surgical, or
hospital care or benefits, or benefits in the event of sickness,
accident, disability, death or unemployment, or vacation
benefits.

,
-

29 U.S.C. §1002(3): The term “employee benefit plan”
or “plan” means an employee welfare benefit plan or an
employee pension benefit plan or a plan which is both an
employee welfare benefit plan and an employee pension benefit
plan.

29 U.S.C. §1140: It shall be unlawful for any person to
discharge, fine, suspend, expel, discipline, or discriminate
against a participant or beneficiary for exercising any right to
which he is entitled under the provisions of an employee benefit
plan, this subchapter, section 1201 of this title, or the Welfare
and Pension Plans Disclosure Act, or for the purpose of
interfering with the attainment of any right to which such
participant may become entitled under the plan, this subchapter,
or the Welfare and Pension Plans Disclosure Act.

STATEMENT OF THE CASE

This case presents first a constitutional issue of access
to the Federal courts in the face of ERISA’s comprehensive,
reticulated scheme which has preempted all the relevant
California state remedies; together with the issues of the proper
construction of ERISA §510, the statute which created a Federal
right to a remedy to replace those preempted, and the proper
role of the Federal courts in statutory interpretation. Suit was
filed by Inter-Modal Rail Employees Association (“IMREA”)
in the district court under federal question jurisdiction,
28 U.S.C. §1331. IMREA is a nonprofit mutual benefit
corporation organized under California law by over 200 former
employees. Its primary purposes are concerted political
advocacy for workers’ rights and the conduct of this litigation
to advance such goals while seeking to recover lost pension and
health and welfare benefits and other damages due to its
members. IMREA holds the claims of its members pursuant to

—————

3

assignments and powers of attorney (App. 3).' Once it has
concluded the litigation IMREA is required by its by-laws and
under the assignments and powers of attorney given to
Petitioner Association by all of its members to pay over to them
all benefits recovered, less stipulated attorneys’ fees and
litigation costs incurred.

Alternatively, the board of directors of Petitioner
Association, comprised of five of these former employees,
sought to be certified as class representatives of the
Association's members in the event that any court might find it
was not a proper party (App. 4-5). The directors and all other
members of IMREA were Santa Fe Teamsters, specifically
truck drivers, crane operators and cargo handlers who were
involved in loading and unloading containers and trailers
between railcars and trucks.

IMREA’s first cause of action is under §510 of ERISA,
29 U.S.C. §1140. It alleged on behalf of its members that
Respondent Atchison, Topeka & Santa Fe Railway (hereinafter
“AT&SF” or “Santa Fe”), acting through its wholly owned
subsidiary Respondent Santa Fe Terminal Services (hereinafter
“SFTS” or collectively with AT&SF as “Respondents Santa
Fe’) and in conspiracy with Respondent In-Terminal Services
Division (hereinafter “ITS”), interfered with these employees’
rights to receive benefits under the Railroad Retirement Act
(RRA) of 1974, 45 U.S.C. §§231, et seg., and under the
Teamsters Union pension and health and welfare plans
(App. 10-13). IMREA also filed a claim on behalf of its
members for damages under the Federal Employers Liability

‘All citations to the record before the appeals court
are made as “App.” Petitioner attached its Complaint to the
petition for certiorari at Appendix IV.

4

Act (FELA), 45 U.S.C. §51, et seg. (App. 13-17). The court of
appeals remanded this claim for further consideration on its
suitability for class-action treatment.

Petitioner alleged that Respondents Santa Fe developed
a scheme whereby AT&SF withdrew its so-called “contract” to
perform inter-modal services at its Los Angeles railyard from its
wholly owned subsidiary, Respondent SFTS which had been
found to be a “railroad” employer under the RRA of 1974. In
fact, AT&SF never before had used a contract between itself as
parent and any subsidiary for performance of the inter-modal
work. Less than two months after making this “new” contract,
AT&SF canceled the contract and opened the work for
“competitive bidding.” Petitioner alleged that prior to its
members’ discharge Respondents conspired to “award” the
contract to ITS with the understanding that ITS would reduce
the amount of employee benefits payable for the railyard work
(App. 9-11).

Respondents Santa Fe thus replaced themselves with
Respondent ITS, a non-railroad employer, which then
performed the same exact inter-modal work at the Santa Fe
railyard using the same Santa Fe equipment and vehicles after
hiring former Santa Fe employees who had been terminated the
day before. Under their scheme, Respondents Santa Fe
discharged all of the subsidiary’s “railroad” employees,
including the members of IMREA. The Association alleged
that the purpose of this plan was illegal and violated ERISA
since it was formulated and implemented with the specific
intent to interfere with and deprive IMREA’s members of their
rights to receive pension benefits under the RRA of 1974 and to
receive ERISA-protected retirement and health and welfare
benefits under multi-employer plans of the Teamsters’ Union
(App. 6-13). Santa Fe’s intent to escape payment of employee
benefits, including contributions required by the Railroad

5

Retirement Board for “railroad” employees, was explicitly
documented in a sworn declaration made by the president of the
Santa Fe subsidiary (App. 59-62) (also attached to the petition
for certiorari at Appendix V).

After AT&SF and SFTS discharged Petitioner's
members for the purpose of interfering inter alia with their
rights to receive health and welfare and retirement benefits, ITS
rehired many but not all of the Santa Fe employees to do the
same work at the same place with the same equipment, but
those who remained were required to work for far lesser levels
of employment benefits (App. 9-11).

PROCEEDINGS BELOW

The district court granted Respondents’ motion to
dismiss Petitioner’s complaint under Rule 12(b)(6) against each
and every claim under §510 of ERISA for interference with the
various employee benefits (App. 28-29). No Respondent filed
an answer in the district court, and no party conducted
discovery.

The per curiam opinion of a panel of the court of
appeals first held that IMREA lacked standing to bring suit on
the ERISA and FELA claims on its members’ behalf. The court
reasoned that “to establish the individualized damages sought
in both the ERISA and FELA claims, each employee member
would have to participate in the lawsuit.” 80 F.3d 348, 350
(9th Cir.), cert. granted, 117 S.Ct. 504 (1996). This decision,
of course, was made without the benefit of the Court's
magisterial decision on associational standing, UFCW v. Brown
Group, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996), entered shortly
afterwards. The appeals court sua sponte had raised for the first
time in its opinion any issue about the associational standing of
IMREA. No Respondent had argued in the district court or at

6

the court of appeals that IMREA lacked associational standing.
Thus, Petitioner never had an opportunity to present its
constitutional views about the standing determination, i.e., that
denying IMREA associational standing infringed on the
members’ rights of free association, speech, and petition, or
about the other considerations which favored standing. This
Court did not grant certiorari to examine this issue.

The appeals court reversed the district court’s dismissal
of the §510 claim against each Defendant for conspiracy to
interfere with the employees’ Teamster pension benefits. The
Ninth Circuit found that “Plaintiffs clearly stated a claim under
section 510 of ERISA, which ‘protects plan participants from
termination motivated by an employer’s desire to prevent a
pension from vesting.”” 80 F.3d at 350-51, quoting /ngersoll-
Rand v. McClendon, 498 U.S. 133, 143, 111 S.Ct. 478,
112 L.Ed.2d 474 (1990). The Ninth Circuit also rejected
Respondent In-Terminal Services’ “argument that §510 does
not support a cause of action against a non-employer for
conspiring with an employer to interfere with ERISA-protected
benefits.” 80 F.3d at 350 n.5. No Respondent filed a cross-
petition for certiorari on either of these issues.

The Ninth Circuit did, however, uphold the dismissal of
the claims for interference with RRA pension benefits and with
Teamster welfare health insurance benefits. /d. at 351-52. The
appeals court found that, under its own decisions, claims under
§510 for interference with the right to receive health and
welfare benefits were not cognizable under ERISA since those
benefits did not vest. /d. at 351. This was the point upon which
the Court granted IMREA’s petition for certiorari. Employees,
it was rationalized, thus have no present right to receive such
benefits. /d. The panel also rationalized that an employer may
unilaterally amend or eliminate health and welfare insurance

plans. Jd The appeals court recognized that its holding

7

conflicted with decisions of the Seventh and Eleventh Circuits.
Id. at 351, n.6. Furthermore, the appeals court's opinion on this
issue failed to consider this Court’s decision in Varity Corp. v.
Howe, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996), rendered
shortly before this decision was announced. Varity upheld a
claim under §404 of ERISA, 29 U.S.C. §1104, for breach of
fiduciary duties by an employer who devised and implemented
a scheme whereby its employees would transfer their
employment to a new corporation, based on the employer's
promises that the transfer would not affect their insurance
benefits. In fact, that employer knew its new corporation would
not remain in business because it was saddled with debt. The
new corporation failed and the transferring employees lost all
their health and welfare benefits. The Court held that
§502(a)(3) of ERISA, 29 U.S.C. §1132(a)(3), authorized suits
for equitable relief by each individual affected by the breaches
of fiduciary duties. /d. at 1075-79.

In rejecting this Petitioner’s claim under ERISA for
interference with the right to receive benefits mandated by the
RRA of 1974, the Ninth Circuit held that Congress
“inadvertent[ly] fail[ed]” to include the 1974 RRA within the
exemption from regulation for any “government plan.”
Id. at 351. Congress defined “government plan” in §3(32) of
ERISA “to include any plan to which the Railroad Retirement
Act of 1935 or 1937 applies”. Thus, the appeals court's
decision conflicted squarely with the plain language of the
Statute. Petitioner argued that the lower court ignored
controlling precedents of the Court on legislative interpretation,
such as West Virginia Univ. Hosp. v. Casey, 499 U.S. 83,
111 S.Ct. 1138, 113 L.Ed.2d 68 (1991) and Massachusetts
Mutual v. Russell, 473 U.S. 134, 105 S.Ct. 3085, 87 L.Ed.2d 96
(1985). But the Court also declined to accept certiorari on this
issue.

The Court granted certiorari only on Question Number
Three raised by this Association’s petition for writ of certiorari.
The question specifically presented was,

Do allegations by employee-beneficiaries of a
health av’ welfare benefit plan that their
employer's parent company forced their
employer to discharge them and to contract out
their jobs to another employer in furtherance of
a conspiracy to interfere with their right to
receive health and welfare benefits, state a
cognizable cause of action under §510 of
ERISA?’

SUMMARY OF ARGUMENT

Petitioner Association has pleaded a cause of action
under §510 of ERISA for interference with its members’ right
to receive health and welfare benefits under an employee
benefit plan established as part of the collective bargaining
agreement (CBA) between the Teamsters Union and various
employers. Petitioner alleges that its members were wrongfully
discharged from their employment with Respondents Santa Fe
for the purpose of interfering with their right to receive health
and welfare benefits under the CBA. Under the plain language
of the statute and the persuasive Circuit court decisions, these
allegations properly state a cause of action under §510 of
ERISA.

*Although the main focus of this brief is upon the
specific language of the statute and the particulars of the
ERISA jurisprudence, Petitioner contends that this case is
fundamentally about access to the courts. See infra
Argument at VI.

9 -

The clear language of §510 of ERISA prohibits
discharges or other interferences with an employee's exercise of
any right or with the attainment of any right under an “employee
benefit plan.” Congress defined the terms plan or employee
benefit plan to include both pensions and health and welfare
plans. 29 U.S.C. §1002(3). Therefore, no basis exists in the
statutory language for the Ninth Circuit's interpretation of §510
to not protect employees from interferences with their right to
receive health and welfare benefits, as well as pension benefits.

Congress repeatedly emphasized the broad remedial
purposes of ERISA. The Ninth Circuit's interpretative
shrinking of the protections afforded by §510 not only ignores
the plain language of the statute but also contradicts Congress’
intent behind ERISA.

In Ingersoll-Rand v. McClendon this Court recognized
that an employee fired to prevent him from vesting in a pension
had a claim under §510. Employees covered by a health and
welfare plan have a present “right” to receive benefits provided
they are employed and suffer a loss covered by the plan.
Throughout the duration of their employment under the CBA
those employees have a right to make claims for health
insurance benefits. Respondents can cite to nothing in the
record to support a claim that they legally could have modified
or terminated health and welfare coverage for the members of
Petitioner Association. The other Circuits uniformly hold that
adverse employment actions which have the purpose of
interfering with the right to receive non-vested health and
welfare benefits are actionable under §510.

This Court’s cases interpreting §8(a)(3) of the National
Labor Relations Act (after which Congress modeled §510 of
ERISA) establish that employers cannot subcontract out work
for the purpose of interfering with employees’ rights to

10

collectively bargain and organize. That is, an employer may not
subcontract out work to a nonunion employer as soon as it
learns that its employees intend to unionize. Likewise,
employers like the Santa Fe Respondents cannot subcontract out
the work performed by the members of Petitioner Association
for the purpose of denying those employees benefits payable
under the CBA and federal laws (including the Railroad
Retirement Act).

Employees wrongfully discharged in violation of §510
may recover not only lost plan benefits but also back pay and
front pay. Those latter items of recovery qualify as “other
appropriate equitable relief” under §502(a)(3)(B) of ERISA.
Under all other statutes prohibiting wrongful employment
actions, Congress and this Court have recognized a right to
recover back and front pay. This Court in /ngersoll-Rand v.
McClendon stated that in a §510 action for interference with the
employee's ability to vest in his pension, the relief requested --
damages for future lost wages, mental anguish and punitive
damages -- was “well within the power of federal courts to
provide.”

The broad remedial purposes of ERISA recently
confirmed by the Court in Varity Corp. v. Howe strongly
counsel in favor of recognizing that wrongfully discharged
employees should, at the very least, recover their lost wages. A
court cannot make whole a terminated employee merely with an
award of unpaid plan benefits under §510. Such a limited view
of Congress’ remedial intent does injustice to the statute and the
employees it was intended to protect. Full restitution must be
the proper measure of damages.

At the most fundamental level this case is about the
denial of access to justice. The state-law remedies of the
Petitioner's members were stripped from them by Congress in

its enactments of §510. The Court’s preemption decisions have
confirmed that involuntary, mandatory substitution of the
Federal remedy. The per curiam decision of a panel of the
court of appeals does violence to the ancient yet still vigorous
doctrine that there exists a right to a remedy for every wrong.

ARGUMENT
1.

THE APPLICABLE STANDARD OF REVIEW
FAVORS PETITIONER’S PLEADING

The district court granted Respondents’ motion to
dismiss for failure to state a claim. The standard of review to
determine the legal adequacy of the Complaint is familiar. The
Court gives the Complaint its broadest intendment, and
construes the allegations favorably to the pleader. The Court
will not uphold a dismissal for failure to state a claim unless it
determines with certainty that plaintiff cannot prove any set of
facts to support the claim. Scheuer v. Rhodes, 416 U.S. 232,
236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The principle
question before the Court is whether Petitioner alleged a prima

facie claim for wrongful discharge under §510 of ERISA. To

reach this issue the circuit courts generally have analogized to
claims under Title VII, 42 U.S.C. §2000e-2, and the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §623.
The circuit courts have_held that “to establish a prima facie case
under ERISA §510, an employee must demonstrate
(1) prohibited employer conduct (2) taken for the purpose of
interfering (3) with the attainment of any right to which an
employee may become entitled.” Gavalik v. Continental Can
Co., 812 F.2d 834, 852 (3d. Cir.), cert. denied, 484 U.S. 979,
108 S.Ct. 495, 98 L.Ed.2d 492 (1987). See, generally, Dister v.
Continental Group, Inc., 859 F.2d 1108, 1112 (2d Cir. 1988).

12

At the pleading stage the other two steps in the Court’s three-
step analytical framework of shifting burdens and presumptions
for wrongful discharge cases, see McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973) and Texas Dept. of Com. Affairs v. Burdine, 450 U.S.
248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), are not
implicated. See, e.g., Scheuer v. Rhodes, supra.

THE COURT'S PRECEDENTS ON STATUTORY
INTERPRETATION AND THE CONSTITUTIONAL
LIMITS ON A COURT IN CONSTRUING THE INTENT
OF CONGRESS MANDATE REVERSAL OF THE
NINTH CIRCUIT’S OPINION

To resolve the question here on review, the Court must
interpret §510 of ERISA and discern the intent of Congress.
Dole v. United Steelworkers, 494 U.S. 26, 35, 110 S.Ct. 929,
108 L.Ed.2d 23 (1990). To do so, the Court begins by looking
at the language of the statute. /d., and Varity, 116 S.Ct. at 1085
(Thomas, J., dissenting) (“in every case involving construction
of a statute, the starting point is the language itself”) (internal
quotations omitted). If Congress plainly and unambiguously
has drafted a statute, the Court need look no further. United
States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240-41,
109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (“where, as here, the
statute’s language is plain, ‘the sole function of the court is to
enforce it according to its terms’”). The courts have a duty to
“give effect, if possible, to every clause and word of a statute.”
Moskal v. United States, 498 U.S. 103, 109-10, 111 S.Ct. 461,
112 L.Ed.2d 449 (1990). The Court’s cases “express a deep
reluctance to interpret a statutory provision so as to render
superfluous other provisions of the same enactment.” Pa. Dept.
of Pub. Welfare v. Davenport, 495 U.S. 552, 562, 110 S.Ct.

13

2126, 109 L.Ed.2d 588 (1990) and Varity, 116 S.Ct. at 1082
(Thomas, J., dissenting) (“courts should disfavor interpretations
of statutes that render language superfluous”).

Only if the statutory phrase is ambiguous should the
Court look beyond the statute’s language and examine the
legislative history. Ron Pair Enterprises, 489 U.S. at 242. If
the Court cannot determine Congress’ intent from the legislative
history, then the Court employs traditional rules of statutory
construction. Dole, 494 U.S. at 36.

The Court is bound to recognize and effectuate
Congress’ intent where it is clear from the words of the statute.
Courts must presume that “a legislature says in a statute what it
means and means in a statute what it says there.” Connecticut
Nat. Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146,
117 L.Ed.2d 391 (1990). Such is the case here. Congress spoke
plainly, but the opinion below turned a deaf ear to its plain

language.

The courts are not permitted to assume that Congress
inadvertently omitted a particular portion of a statute.
Massachusetts Mutual, 473 U.S. at 143 (finding the
“assumption of an inadvertent omission” in ERISA “especially
suspect”), cited in Varity, 116 S.Ct. at 1082 (Thomas, J.,
dissenting). And courts may not interfere with the language
Congress chose by supplying omitted phrases. West Virg. Univ.
Hosp., 499 U.S. at 101 (“what [respondent] asks is not a
construction of a statute, but, in effect, an enlargement of it by
the court, so that what was omitted, presumably by
inadvertence, may be included within its scope. To supply
omissions [in a statute] transcends the judicial function”)
(quoting Brandeis, J.).

14

THE LANGUAGE OF THE STATUTE IS
UNAMBIGUOUS AND PETITIONER’S CLAIM IS AN
UNEMBELLISHED APPLICATION OF THE
STATUTE’S PLAIN TERMS

Section 510 of ERISA, 29 U.S.C. §1140, reads exactly
as follows:

It shall be unlawful for any person to discharge,
fine, suspend, expel, discipline, or discriminate
against a participant or beneficiary for
exercising any right to which he is entitled under
the provisions of an employee benefit plan, this
subchapter, section 1201 of this title, or the
Welfare and Pension Plans Disclosure Act, or
for the purpose of interfering with the
attainment of any right to which such participant
may become entitled under the plan, this
subchapter, or the Welfare and Pension Plans
Disclosure Act.

29 U.S.C. §1140. In light of the Congressional definitions of
the terms “employee benefit plan” and “plan” to include health
and welfare plans, discussed infra, the conduct prohibited by
the terms of §510 seems quite obvious, or, at a minimum, not
so murky as to serve as a breeding ground for any mysteries
about intent.

Petitioner submits that its claims and those of its
members present a straightforward application of §510. By its
own terms the statute prohibits firing employees for exercising
plan rights or to prevent employees from “attain[ing]” rights
under a plan. In its Complaint, Petitioner alleges that

15

Respondents conspired to discharge its members from the
employment with Respondent SFTS for the purpose of lowering
the amount of health and welfare and retirement benefits that
they would receive. By its clear terms set out above §510 of
ERISA prohibits —

“any person” from taking various actions,
including the “discharge” of a “participant,”

either for “exercising any right under the
provision of an employee benefit plan,” or

“for the purpose of interfering with the
attainment of any right to which such participant
may become entitled under the plan.”

A. The Clear Language Of §510 Shows That It Prohibits
Discharges From Employment For The Purpose Of
Interfering With Health And Welfare Benefits

The Ninth Circuit found that despite the broad wording of
§510 it did not apply to discharging employees for the purpose
of interfering with the attainment of benefits under a health and
welfare insurance plan since those benefits are not vested.
80 F.3d at 351. The statute does not contain any such
limitation. Should it have desired to do so, Congress could
have limited §510 to interferences with benefits that had vested
or would vest, such as pension plans.’ Instead, Congress chose
to draft §510 with specific words to prohibit interferences with

*Congress defined in §3(A) of ERISA, 29 U.S.C.
§1002(2)(A), the terms “employee pension plans” and
“pension plans”.

16

any “employee benefit plan” or “plan.” Congress defined
employee benefit plan and plan to include:

an employee welfare plan or an employee pension
benefit plan or a plan which is both an employee
welfare benefit plan and an employee pension benefit
plan.

ERISA §3(3), 29 U.S.C. §1002(3). Shaw v. Delta Airlines, Inc.,
463 U.S. 85, 90, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983).* To
rationalize the Ninth Circuit’s conclusion, this Court would
have to decide to supply an “omission” into the statute. L.e., the
Court would have to legislate in the missing language limiting
interference actions to employers’ interferences with pension
benefits only. Courts do injustice to the separation of powers
set out in Articles I and III of the Constitution by impermissibly
acting as a super-legislature when supplying terms to limit the
reach or scope of a broadly worded remedial statute. This Court
has never done so. Indeed, the Court has stated that it is
“reluctant to tamper with an enforcement scheme crafted with
such evident care as the one in ERISA.” Massachusetts Mutual,
473 U.S. at 147.

Moreover, the language of §510 makes clear that Congress
intended to prohibit interferences with vested and non-vested

‘In pertinent part, Congress defined the terms
“employee welfare benefit plan” and “welfare plan” to
include “any plan, fund, or program ... established or is
maintained for the purpose of providing for its participants
or their beneficiaries, through the purchase of insurance or
otherwise, (A) medical, surgical, or hospital care or benefits,
or benefits in the event of sickness, accident, disability,
death or unemployment, or vacation benefits.” ERISA
§3(1), 29 U.S.C. §1002(1).

17

benefits. The statute first proscribes actions against a
participant or beneficiary “for exercising any right to which he
is entitled” under a plan. The plain language of that phrase
means rights which the participant presently enjoys. For
example, injured employees have a present contractual right to
make claims for health insurance benefits under their employee
welfare benefit plan. See Owens v. Storehouse, Inc., 984 F.2d
394, 398 (11th Cir. 1993) (“employer may contractually bind
itself to provide fixed medical benefits”). Likewise,
participants presently vested in a pension plan have a right to
claim pension benefits provided they meet the eligibility
requirements. By virtue of their status as employees under their
union contract up till the day of their discharge, Petitioner’s
members had the right to make hospital and other healthcare
benefits claims under the Teamsters’ health and welfare plan to
which their employer was a signatory.

Section 510 in its second clause expressly prohibits acts
undertaken “for the purpose of interfering with the attainment
of any right to which such participant may become entitled
under the plan” (emphasis added) as well as the acts prohibited
by the first clause. The highlighted portions of the second
clause permit no reasonable inference other than that the statute
prohibits interference with the attainment of future employee
benefits, particularly when read together with the first clause
which speaks of benefits in the present tense.’ Employees

‘In another context, this Court has indicated that the
word “may” means “contingency or liability, or possibility
or probability”. U.S. v. Lexington Mill, 232 U.S. 399, 411,
34 S.Ct. 337, 58 L.Ed. 658 (1914). Webster's defines the
word “become”, in one of its meanings, as “to pass from one
state to another, to enter into some state or condition, by a
change from another state or condition, or by assuming or
receiving new properties or qualities, additional matter, or a

covered by a collective bargaining agreement (“CBA”) which
has a specific termination date possess an expectancy
(contractual right) to make claims for health and welfare
benefits, at least for the duration of their employment under the
CBA, when they or their family members suffer a covered
injury. Here, the CBA would not have expired for another full
year, until March 31, 1991. Petitioner's members were
discharged on March 31, 1990. Prior to their discharge, these
employees had a future right to “attain” health and welfare
benefits, that is, to make claims under those plans if they or
their family suffered a covered injury, at least until March 31,
1991. Moreover, the Ninth Circuit's focus upon “vested”
benefits as the only ones protected, 80 F.3d at 350-51, is
patently contradicted by the plain language of the second clause
of §510 with its usage of such future-oriented words as
“attainment” and “may become entitled”.

Neither elemental logic nor the history of this legislation nor
the experience of 20-plus years of employers and employees
operating under this law permits a distinction between
discharges which prevent pension benefits from vesting and
discharges that prevent employees from making claims for
health and welfare benefits under a CBA. An employee who
does not yet qualify because of years of service and age for
vested status in his/her pension does not have a present “right”
to make a claim for pension benefits. In /ngersoll-Rand this
Court found that “[b]y its terms, §510 protects plan participants
from termination motivated by an employer’s desire to prevent
a pension from vesting.” 498 U.S. at 143. See also Hazen
Paper Co. v. Biggins, 507 U.S. 604, 612, 113 S.Ct. 1701,
123 L.Ed.2d 338 (1993) (same). As best we can discern,

new character... to come into being”. Webster's New
Universal Unabridged Dictionary p. 164 (2d ed. 1983).

19

nowhere in the legislative history of ERISA did Congress
indicate that it desired to limit the remedial scope of §510 to
interferences with the night to receive or attain pension benefits
that will vest at some date, but simultaneously to exclude future
health benefits. But our National legislature did specifically
state that §510 will prevent an employer from discharging an
employee “to interfere with attainment of vested benefits or
other rights under the bill....”. See Gavalik, 812 F.2d at 852,
n.32, citing S. Rep. No. 127, 93d Cong., Ist Sess. at p.35
(1973), reprinted in | Legislative History of the Employment
Retirement Income Security Act of 1974 (Senate Committee
Print, hereinafter “Leg. Hist.”) at 621-22, and Senate Floor
Debates, 2 Leg. Hist. at 1641 and 1811, 3 Leg. Hist. at 4745.
Chief Judge Higginbotham in Gavalik wrote that a broad
protective purpose for §510 “is supported by the legislative
history which envisions preventive, as well as corrective,
purposes of the provision.” /d at 856. Absolutely nothing in
the legislative record suggests that Congress intended the
language of §510 to permit an employer to discharge employees
who enjoyed a contractual right to obtain health and welfare
benefits for a defined period in order to force them to accept
lower levels of health and welfare benefits.° So the Ninth
Circuit’s artificial distinction between health and welfare
benefits and pensions, 80 F.3d at 350-51, is a judicially-created
anomaly at variance with the plain language of the statute and
the obvious intent of Congress.

“Senate Report No. 93-127, p.14, 93d Cong.
I st Sess., broadly states that “no person can interfere with or
discriminate against a participant with respect to rights and
privileges which such person is entitled to under the plan,
Act or the WPPDA.” | Leg. Hist. at 600. See also H. Rep.
No. 93-533, p.17, 93d. Cong., Ist Sess., 2 Leg. Hist. at 2364
and Conf. Rep. No. 93-1280, p.330-31, 93d Cong., 2d Sess.,
3 Leg. Hist. at 4597.

20

Respondents may answer that because ERISA does not
“generally” limit an employer’s ability to modify or terminate
employee health insurance benefits, see Curtiss-Wright Corp.
v. Schoonejongen, 115 S.Ct. 1223, 1228, 131 L.Ed.2d 94
(1995), an employer can fire its employees to achieve the same
result. If one were to suppose that the Ninth Circuit tacitly has
adopted the automaticity of this misleading syllogism, at least
one could discern some intellectual principle underlying its
decision. Petitioner respectfully contends that the panel’s logic
was flawed. Congress has spoken cogently and plainly to the
contrary. Petitioner recognizes that ERISA does not limit an
employer's s ability to modify or terminate employee health
insurance.’ But in light of Congress’ clear prohibition in §510
against an employer terminating its employees to achieve a
different level of health and welfare benefits, the inescapable
resolution of the seeming paradox must be that the right to
change (or even to end) benefits does not extend to the freedom

to engage in prohibited employment practices against

Curtiss-Wright does not hold that employers may
ignore contractual limitations on their ability to modify or
terminate health and welfare benefits. Indeed, some of the
circuit courts of appeal have recognized that employers and
employees, usually through union representation, may agree
that the employer cannot modify health and welfare benefits
for the duration of the CBA, thus “vesting” such benefits for
that time period. Golden v. Kelsey-Hayes Co., 73 F.3d 648,
655 (6th Cir.), cert. denied, 117 S.Ct. 49, 136 L.Ed.2d 13
(1996) and Anderson v. Alpha Portland Indust., 836 F.2d
1512, 1546-17 (8th Cir.), cert. denied, 489 U.S. 1051, 109
S.Ct. 1310, 103 L.Ed.2d 579 (1989) (noting that Congress
took a “neutral position” on the issue of welfare benefit
vesting, and that “we must determine whether ‘the parties
intended [that] retirees’ benefits would be vested and not
tied to the agreement which created them’”).

21

employees to achieve such a change. It is one thing to say an
employer can modify or terminate an employee health insurance
plan. But it would be wholly an unprincipled excursion to find
that Congress intended that employers have freedom to
terminate employees in order to achieve lower health and
welfare benefits.*

This Court has had little occasion to interpret §510.
Petitioner submits the /eitmotif must be access to the courts to
remedy unjust employment actions taken to interfere with plan
benefits. In the context of a breach of fiduciary duty claim
under §404, the Court held last term that an employer and its
controlling parent corporation violated fiduciary duties by lying
to their employees about the financial health of a new
corporation and the safety of their health insurance benefits for
the purpose of inducing the employees to transfer to the new
corporation. Varity Corp., 116 S.Ct. at 1068-69. At the time
they made those misrepresentations, the employer there knew
that the new corporation would fail and that its employees

"In Heath v. Varity Corp., 71 F.3d 256, 258 (7th Cir.
1995), the court found no real contradiction between an
employer’s freedom to modify health and welfare benefits
not contractually guaranteed for a specific term and §510's
prohibition against discharges to effectuate that end: “That
employers won a battle and secured the right to modify
plans, while employees prevailed in a different skirmish and
secured the right to qualify for benefits under existing plans,
shows no more than that each side could claim some
victories. It upsets the legislative balance to push the
outcome farther in either direction.” The circuit court held -
that an employee, already vested for future retirement
benefits, could sue under §510 for his employer having
discharged him to prevent him from obtaining eligibility for
early retirement benefits (nonvested).

22

would lose both their jobs and their health insurance benefits.
Just one year after the employer had fraudulently induced its
employees’ transfer, the new company failed and the employees
lost their health insurance benefits and jobs. /d. See also id. at
1074: “[t]o participate knowingly and significantly in deceiving
a plan’s beneficiaries in order to save the employer money at the
beneficiaries’ expense, is not to act solely in the interest of the
participants and beneficiaries”. The majority of the Justices of
this Court in Varity broadly interpreted ERISA’s remedial
section to provide wronged employees with a direct remedy
under that statute when their employer bilked them of welfare
and health benefits. The Court found that

ERISA’s basic purposes favor a reading of the third
subsection [§1132(a)(3)] that provides the plaintiffs
with a remedy. The statute itself says that it seeks “to
protect ... the interests of participants .. and .
beneficiaries ... by establishing standards of conduct,
responsibility, and obligation for fiduciaries ... and ...
providing for appropriate remedies ... and ready access
to the Federal courts”.

Id. at 1078 (emphasis added). The Court held that the
employees’ claim for individual relief existed by virtue of
§502(a)(3) of ERISA, providing for the recovery of “other
appropriate equitable relief,” 29 U.S.C. §1132(a)(3).’ But under
the circuit court’s per curiam interpretation of ERISA,
employees have no access to a Federal court to obtain a remedy

*The district court in Varity had ordered that the
employees be reinstated into the Massey Ferguson health and
welfare plan, and ordered payment of “certain monetary
relief” that was not at issue before the Court. 116 S.Ct. at
1069.

23

~__

for any wrongful interference, no matter how intentional in its
origin or malicious in its impact, with their contractual right to
receive health and welfare benefits set out ina CBA. That
conflicts with the specific intent of ERISA as interpreted by the
majority of this Court in Varity. Paradoxically, the circuit
court’s decision here also clashes with the motivating principles
of the dissenting justices in Varity who adhered to the
magisterial principles of Justice Scalia in West Virginia
University Hospitals concerning “plain language” interpretation
of Congressional intent. 116 S.Ct. at 1081-82, 1085-86
(Thomas, J., dissenting). Varity stands for the rule that
employees may sue under ERISA for wrongful interference with
the right to receive health and welfare benefits, although the
Court did not precisely address there the question presented
here. But the court of appeals held that such benefits are
beyond the reach of an ERISA §510 interference action. The
opinion below reached a perverse result as a matter of
responsible public policy, and it did so for a perverse reason
under principles of statutory construction. The circuit court’s
scanty reasoning and cavalier approach simultaneously offend
the holdings and the motivating principles of both the majority
and the dissent in Varity.

Respondents can present no principled argument for
denying access to the courts for employees who sue directly
under §510 for their wrongful discharge motivated by an intent
to interfere with their health and welfare benefits. Under the
Court’s finding in Varity employees have a claim for breach of
fiduciary duties for inducing them to transfer to a failing
company when their employers’ preordained benefits loss
occurs a year later. Here, the employer and its co-conspirators
did not even reach for the fig leaf of delaying the loss of
benefits. The point is access to justice whether the affected
employees seek to redeem the preempted state rights that would
have been available to them under common-law trust or tort

24

theories. The Varity majority found that Congress intended to
prohibit employer conduct that wrongfully interferes with the
right to receive health and welfare benefits. Petitioner submits
that in drafting §510 (“it shall be unlawful for any person to
discharge ... a participant for exercising any right ... or for the
purpose of interfering with the attainment of any right to which
such participant may become entitled under the plan’) Congress
plainly intended to more forcefully state its opposition to such
interference than in the more generally worded prohibition
against breaches of fiduciary duties in §404(a) (requiring a
fiduciary to “discharge his duties with respect to a plan solely
in the interests of the participants”).

It requires little effort to discern valid policy reasons why
Congress preferred to require that employers negotiate with
their employees (or representatives) about reductions in health
and welfare benefits (where a CBA guarantees payment of
benefits for a specific time), or simply unilaterally reduce their
workers’ benefits (if no contract guaranteeing nonmodifiable
benefits is in force), rather than to promote mass discharges or
employers resorting to termination of their employees to
achieve that result. Promoting workplace stability and job
security is such a valid policy goal. So is stability in the
personal lives of workers who labor for such benefits. So are,
most especially, the avoidance of labor unrest and labor-market
disruptions.

This Court has noted that in drafting ERISA, Congress
“repeatedly emphasized [its] purpose [was] to protect
contractually defined benefits.” Massachusetts Mutual,
473 U.S. at 148 and n.16. In Shaw, 463 U.S. at 90, this Court
described ERISA as “a comprehensive statute designed to
promote the interests of employees and their beneficiaries in
employee benefit plans.” It would hardly serve Congress’
purpose and design to permit employers — such as Respondents

25

Santa Fe — to engage in mass discharges of their employees
through sham “contracts” to force upon them lesser health and
welfare benefits than those required under an existing contract.

Central to the Court's decision in Varity was the recognition
that Congress intended ERISA to “provide both the Secretary
and participants and beneficiaries with broad remedies for
redressing or preventing violations of [ERISA].’” 116 S.Ct. at
1078, citing Senate and House Reports on ERISA, reprinted at,
1 Leg. Hist. at 621 and 2 Leg. Hist. at 2364 (1976) (emphasis
added). In Varity Justice Breyer posed magisterially rhetorical
questions focusing on why and how the Court might find, in
light of the legislative history and the language of the statute,
that Congress intended to restrict access to justice or to deny to
employees a remedy for employers’ actions that wrongfully
deprive health insurance benefits. 116 S.Ct. at 1077. The Court
resoundingly found that no such limitation existed. “We are not
aware of any ERISA-related purpose that denial of a remedy
would serve.” /d. at 1079. Even more so in this case, there can
be found no teneble ground to hold that Congress intended to
deny access to justice.

In /ngersoll-Rand the Court noted that ERISA

sets various uniform standards, including rules
concerning reporting, disclosure, and fiduciary
responsibility, for both pension and welfare plans. As
part of this closely integrated regulatory system
Congress included various safeguards to preclude abuse
and “to completely secure the rights and expectations
brought into being by this landmark reform legislation”
Prominent among these safeguards are three provisions
of particular relevance to this case: ... §510, which
proscribes interference with rights protected by ERISA.

26

498 U.S. at 137 (emphasis added, citations omitted). If the
Court had believed that §510 did not apply to interference with
health and welfare benefits it presumably would not have
employed such sweeping preemption language with any
qualification or reservation. /d. at 138-40. The Court there
appropriately could have noted the existence of such a
distinction limiting access in the statute. But the Court cited to
the broad range of its ERISA-preemption jurisprudence,
including Pilot Life v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549,
95 L.Ed.2d 39 (1987) without distinction as to type of benefits
sought. The Court in /ngersoll-Rand went on to note the
importance to Congress of §510: “Congress viewed this section
as a crucial part of ERISA because, without it, employers would
be able to circumvent the provision of promised benefits.”
498 U.S. at 143 (citations omitted).

Here Petitioner alleged that, at least through the duration of
the National Master Freight Agreement (NMFA), its members’
employer had promised to make contributions to the Teamsters
Health and Welfare Fund at certain levels (Writ Pet. App. IV at
p.26a, 419 and p.29a, 435). Petitioner further alleged that, as
part of their scheme to deprive the members of health and
welfare (and retirement benefits), Respondents conspired to
deprive them of those benefits by discharging Petitioner's
members from their employment and entering a sham contract
with Respondent ITS to hire the same employees to do the same
work at the same location with the same equipment, but at
lesser benefits levels (id at p.26a-30a)."° Thus, Petitioner

‘Although the question of legitimate reason for the
mass discharge of Petitioner's members is not before the
Court at the pleading stage, the facts that Respondent ITS

hired the employees of Respondents Santa Fe to do the same
work at the same place with the same equipment but with

27

alleged that this conspiracy was formulated and implemented
for the purpose of, and did in fact circumvent the provision of
promised benefits. Its allegations clearly fall under the intent of
§510 as expressed by Congress and this Court.

B. The Interpretations Of The Congressional Intent
Underlying §510 Found By Several Other Circuit
Courts Of Appeals In Cozxstruing §510 Likewise
Support Reversal

The Ninth Circuit appears to be the only court of appeals to
have held that a discharge for the purpose of interfering with the
right to receive what the court of appeals deemed “non-vested”
health and welfare benefits is not actionable under §510.'' The
Ninth Circuit noted that its ruling conflicted with at least two
other circuits, 80 F.3d at 350 n.6. No other circuit court of
appeal has arrogated to itself so much legislative power, nor

significantly lesser health and welfare and pension benefits
strongly suggests an illegal motive for the discharge from
employment with Respondents Santa Fe.

"Petitioner does not concede that their right to
receive health and welfare benefits was unvested. It strongly
contests the relevance of the Ninth Circuit’s “vesting”
inquiry. It contends that “vesting” in this context is an
analytically unsound method of inquiry. The evidence may
prove that SFTS and AT&SF had no right under the
applicable CBA’s to modify or terminate contributions to
the health and welfare benefits enjoyed by Petitioner. In that
event, the health and welfare benefits probably could be
considered to have vested for the term of the CBA’s. See
Adcox v. Teledyne, Inc., 2\ F.3d 1381, 1389 (6th Cir.), cert.
denied, 115 S.Ct. 193, 130 L.Ed.2d 126 (1995) (“‘under
certain circumstances,’ employee welfare plan benefits may
vest contractually”) .

28

gone as far as to wholly deny access to the Federal courts to a
major category of §510 litigants. One can read all the circuit
court decisions interpreting §510 but this one in harmony,
provided one focuses on their holdings concerning access under
aiid the intended function of §510 without addressing collateral
issues. The holding of this panel is the irredeemable anomaly
which must be overruled to expunge its potentially corrosive
effect upon the courts, not to speak of its impact upon the
general public.

The question in a §510 action is not whether the employer
has a right to modify benefits levels or wholly eliminate a health
and welfare plan. Rather, the proper inquiry must be, did the
employer discriminate against or otherwise alter the
employment relationship for the purpose of interfering with
ERISA-protected employment benefits? Thus, where a
legitimately motivated employer sells its business to an
unrelated company, or closes its plant for bona fide business
reasons, or modifies its health and welfare plan for legitimate
economic reasons with no intent to discriminate, the
prohibitions of §510 are not implicated.'?, When, however, an

'2See West v. Greyhound Corp., $13 F.2d 951 (9th
Cir. 1987) (sale of business), Adcox v. Teledyne, supra,
21 F.3d 1381 (plant closing), and Owens v. Storehouse, Inc.,
supra, 984 +. 4 394 (plan modification). The holding in
West that the seller of a business was not liable under §510
for interfering with health and welfare benefits because up
to the date of employment termination the employer had paid
all benefits claims, 813 F.2d at 955, ignores the second part
of §510, which prohibits discharges “for the purpose of
interfering with the attainment or any right to which such
participant may become entitled under the plan...” (emphasis
added). The second holding in West -- that the purchaser of
the business was free not to hire the former employees at the

eee

29

employer discharges its employees for the purpose of interfering
with health and welfare benefits, the employees may bring suit
under §510. In this case, Petitioner alleged not a plan
termination or modification, but rather that Respondents
conspired to discharge them to avoid paying health and welfare
and pension benefits at the higher level. This important
distinction is crucial to construing §510 as valid in its plain
terms within the context of a comprehensive, reticulated statute.
Access to justice in the case of the illegally motivated
conspiracy pleaded by Petitioner should be redeemed by the
Court.

In Kross v. Western Electric Co., 701 F.2d 1238 (7th Cir.
1983), the former employees brought a class action under §510
alleging that their employer discharged them “to avoid
continuing to make payment for [their] company-provided life
and medical insurance.” The employer responded that it
discharged the class members as part of a workforce reduction
due to reduced demand for its products. /d. at 1239. Finding
that insurance coverage for medical expenses incurred was a
“right” under the insurance plans, the Seventh Circuit upheld
access to the Federal courts for the employees. The Kross court
found “no support” in the case law or ERISA’s legislative
history for narrowly reading §510 so that it did not cover a
discharge for the purpose of interfering with insurance benefits:

prior level of benefits -- does not control the allegations in
this case of an illegal conspiracy between the “new
subcontractor” employer, Respondent ITS, and the
contracting company, Respondent AT&SF. No actual
statutory “conflict” is presented by the distinction between
a legitimate purchaser’s right to hire whomever it pleases
and holding liable under §510 co-conspirators motivated by
an illegal motive to reduce ERISA-protected employment
benefits guaranteed under ar existing CBA.

30

In light of the fact that ERISA is a remedial statute to be
liberally construed in favor of employee benefit fund
participants, we find no support for the district court's
conclusion that since [the employees] “[were] already ...
participant[s] in the insurance plans, [they were] not
prevented from attaining rights under the plan”.

Id. at 1242. The Kross court supported its interpretation of the
Congressional intent with a quote from a House Report which
declared that underlying ERISA was a

recognition of the necessity for a comprehensive
legislative program dealing not only with malfeasance
and maladministration in the plans, ... but also with the
broad spectrum of questions such as ... plant shut downs

Id, quoting H.Rep. No. 533, p.9-10, 93d Cong, 2d Sess.,
reprinted in 2 Leg. Hist. at 2356-75.

In Seaman v. Arvida Realty Sales, 985 F.2d 543 (1 1th Cir.),
cert. denied, 510 U.S. 916, 114 S.Ct. 308, 126 L.Ed.2d 255
(1993), the employer had first requested that the employee
convert her job status to that of an independent contractor so
that the employer could thus eliminate the cost of providing her
non-vested health insurance and contributions to a 401(k) plan.
When she refused to change her status, she was fired. That
court held that the employee stated a claim under §510 of
ERISA.” The Eleventh Circuit found that

Other circuits have upheld §510 wrongful

discharge claims where the employee alleges that the
termination was to prevent accrual and assertion of claims

unde: employee health insurance plans. Fleming v. Ayers &

31

[t}he validity of a §510 claim does not hinge upon
whether the benefits involved are vested but upon the
purpose of the discharge. ... [Section] 510 prohibits
employers from preventing an employee from taking
advantage of a plan or from applying a plan in a
discriminatory manner.

Id. at 546-47."* The Seaman court noted that although it “may
appear anoma’ous” to permit an employer to reduce or
terminate non-vested benefits while prohibiting an employment
termination to avoid paying benefits, the structure of ERISA
and its history “reveals that it is the result intended by
Congress.” /d at 546. The court reasoned that by providing
participants with the right to recover “benefits due to him under
the terms of the plan,” §502(a)(1)(B), “Congress intended for
the employer to be bound by the terms of its plan.” /d at 547.
See also Stiltner, 74 F 3d at 1484 (“Congress has determined,
by enacting ERISA §510, that once an employer elects to
include certain benefits within its employment package, it
cannot revoke them with the intent to deter employees from
asserting their rights under ERISA”).

Assoc., 948 F.2d 993, 998 (6th Cir. 1991) and Fitzgerald v.
Codex Corp., 882 F.2d 586, 589 (ist Cir. 1989).

‘“(T}he legislative history ... indicates that the
purpose of §510's anti-retaliation provision was to prevent
employers who maintain ERISA plans from using economic
leverage to intimidate participants and beneficiaries under
those plans from exercising their ERISA given rights to
enforce the plans’ terms.” Stilmer v. Beretta USA Corp.,
74 F.3d 1473, 1489 (4th Cir. en banc), cert. denied,
117 S.Ct. 54, 136 L.Ed.2d 18 (1996) (Phillips, J., concurring

and dissenting with four other judges).

32

In Deeming v. American Standard, Inc., 905 F.2d 1124,
1127 (7th Cir. 1990), the court found that an employer's
decision to officially terminate its employees at a plant closing
rather than permitting them to remain on “layoff status” and
thereby to accrue time to qualify for pension benefits, violated
§510: “It is clear from the text of the statute, however, that §510
was designed to protect the employment relationship against
actions designed to interfere with, or discriminate against, the
attainment of a pension right.” See also Heath v. Varity Corp.,
supra, 7\ F.3d 256, where the Seventh Circuit found actionable
under §510 interference with non-vested benefits (early
retirement for employees already vested in the pension plan)
through discharge from employment.

In Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231,
236 (4th Cir. 1991), the court held that §510 prohibits an

employer acting to preyent the accrual of additional benefits by
an employee already vested. That court notably and properly
rejected the vested-nonvested benefits dichotomy favored by
Respondents and the Ninth Circuit:

Surely, Congress was not limiting §510 only to those
rights which a participant acquires upon vesting, or it
easily could have referred to “vested rights”. Similarly,
the statute refers to rights to which a participant “may
become entitled”, which is to say that §5/0 permits suits
for interfering with rights not yet earned

Id. at 237 (emphasis supplied).

If Congress had enacted ERISA with any intent to exclude
from actions under §510 some or any types of interference with
the right to receive health and welfare benefits, or for that
matter any other non-vested benefits, it could have so stated so
in the comprehensive, reticulated language of the statute, or at

33

least in the legislative history. If this Court had believed that
there was any likelihood at all that health and welfare benefits
were intended by Congress to be excluded from the sweep of
§510, then it would appear only reasonable that the Court for
Ninth or Tenth Amendment reasons would not have applied its
complete preemption analysis in /ngersoll-Rand, supra,
498 U.S. at 138-40. Neither the circuit court below nor
Respondents cited any provision of the statute or its history
which compels such a narrow reading of its broad language.
Indeed, by its plain language §510 expressly prohibits
employers from discharging employees

for exercising any right to which he is entitled under the
provisions of an employee benefit plan ... or for the
purpose of interfering with the attainment of any right
to which such participant may become entitled under the
plan.

(emphasis added). The Ninth Circuit's per curiam opinion thus
conflicts with the clear language of the statute, the teachings of
Casey and Varity, and the holdings of at least six of the other
circuit courts of appeal - the First, Third, Fourth, Sixth, Seventh
and Eleventh Circuits.

IV.

THE COURT’S PRECEDENTS INTERPRETING
CONGRESS’ PROHIBITIONS AGAINST UNLAWFUL
EMPLOYMENT PRACTICES UNDER OTHER
STATUTES GOVERNING LABOR AND EMPLOYMENT
RELATIONS COUNSEL REVERSAL OF THE
DECISION BELOW

In a broader labor relations context, the Court has declared
the illegality of an employer subcontracting out parts of its work

34

Or moving its business to another location (“runaway shop’”’) for
the purpose of discriminating against its employees or
interfering with their rights to organize and collectively
bargain.’ Such otherwise arguably legal conduct becomes
illegal because of the employer’s improper motive, and such
actions violate §8(a)(1) and (3) of the National Labor Relations
Act (NLRA), 29 U.S.C. §158. See Textile Workers v.
Darlington Manufacturing Co., 380 U.S. 263, 274, 85 S.Ct.
994, 13 L.Ed.2d 827 (1965). An employer violates §8(a) of the
NLRA by unilaterally changing the terms and conditions of
employment, including health insurance benefits governed by
existing CBA’s. See Allied Chemical Workers v. Pittsburg
Plate & Glass Co., 404 U.S. 157, 159, 92 S.Ct. 383, 30 L.Ed.2d
341 (1971): It appears likely that such a concern may have
motivated Respondents Santa Fe to construct their sham
arrangement with Respondent ITS which gave rise to this case.
Finally, a successor employer (even a new owner) cannot refuse
to hire a predecessor’s employees solely because they belonged
to a union or to avoid recognition of the union. See Howard
Johnson's, Inc. v. Hotel & Rest. Employees and Bartenders
Union, 417 U.S. 249, 262 n.8, 94 S.Ct. 2236, 41 L.Ed.2d 46
(1974).

The cases cited above are all examples of how otherwise
proper actions by an employer have been declared illegal by
Congress, and found by the Court to result in liability because

'“The legislative history of ERISA §510 does make
clear, however, that the statute was modeled on §8(a\(3) of
the National Labor Relations Act (NLRA).” Stiltner,
74 F.3d at 1483 (citing 2 Legis. Hist. at 1775). The NLRA
and cases construing it thus may guide the Court in its
interpretation of §510 of ERISA. See generally Cannon v.
Univ. of Chicago, 441 U.S. 677, 694-701, 99 S.Ct. 1946,
60 L.Ed.2d 560 (1979).

35

of illegality of the underlying motivations for those employer
behaviors. The analogy of such holdings to the litigation
brought by Petitioner IMREA is virtually perfect. Indeed, this
Petitioner’s case is more compelling than one involving only an
illegal motive. Respondents Santa Fe subjected these
employees to the most drastic of personnel practices —
discharge. Respondents because of their illegal benefit-
defeating motive have chosen to engage in prohibited
employment practices against this entire group of discharged
employees in order to obtain quickly a result they might
otherwise have achieved more slowly but legally. This focus
upon an employer’s conduct and motivation pervades the
jurisprudence of labor relations. See, for example, Lingle v.
Norge Division of Magic Chef, 486 U.S. 399, 108 S.Ct. 1877,
100 L.Ed.2d 410 (1988). The specifics of this employer
conduct and motivation compel liability against the
Respondents.

Petitioner alleged that “[a}t all times relevant hereto,
defendant AT&SF exercised day-to-day management and
control over the affairs of its wholly owned subsidiary,
defendant SFTS” (Writ. App. IV at p.22a, 98). Petitioner
further alleged that its members’ nominal employer, SFTS,
“was formed for and its sole purpose was to do the loading and
unloading work” at Respondent AT&SF’s Los Angeles railyard
(id. at p.25a, 415). For two decades no contract existed between
Respondents AT&SF and SFTS to do that work. But in an
effort to “legitimize” this unlawful conspiracy a sham contract
was formed between the parent and its subsidiary. Less than
two months later, AT&SF “terminated” the SFTS contract and
opened the work for “competitive” bidding. Respondent ITS
then “underbid” SFTS by agreeing with AT&SF to substantially
reduce all employment benefits, including health and welfare

36

and retirement benefits (id. at p.27a-30a).'"° After AT&SF and
SFTS fired all the members of Petitioner Association, ITS
rehired most of them to do the same work in the same place
with the same equipment but at lower benefit levels (id at
p.28a, 429). Thus, if Petitioner can establish that AT&SF’s
contract with ITS was motivated by an intent to interfere with
ERISA-protected benefits set out in the applicable CBA’s, then
its members should be held to have stated a viable claim under
§510. In contrast, if the Court should fail to reverse here, the
Ninth Circuit opinion will create major dissonance with the
Court’s precedents mentioned herein and Congress’ overall
scheme for labor relations conducted through collective
bargaining.

V.

THE RELIEF PROVIDED TO PETITIONER’S
MEMBERS IN THIS ACTION UNDER ERISA FOR
WRONGFUL DISCHARGE MUST AFFORD
COMPLETE RESTITUTION TO QUALIFY AS THE
“APPROPRIATE EQUITABLE RELIEF” REQUIRED BY
THE STATUTE

Fairly within the scope of the question posed in the question
on which petition for certiorari was granted, and therefore
properly before the Court, Varity, 116 S.Ct. at 1070, is the issue
of the type of relief available in this action to enforce violations

"Because ITS was not a “railroad” employer, it did
not have to make contributions to the Railroad Retirement
Fund. That resulted in a savings to Respondent AT&SF of
over $6,000 per employee per year, representing the excess
amount a railroad employer contributed over a non-railroad
employer’s contributions to Social Security (Writ App. V at
p.38a-39a).

37

of §510. In /ngersoll-Rand the Court found that in light of the
broad pre-emptive force of §514 of ERISA, 29 U.S.C. §1144,
an employee wrongfully discharged for the purpose of
preventing him from attaining vested status for his pension
benefits could find his “exclusive remedy” only under §502(a)
of ERISA for violations of §510. 498 U.S. at 145. Regarding
the scope of the employee’s remedy, the Court held that

there is no basis in §502(a)’s language for limiting
ERISA actions to only those which seek “pension
benefits”. Jt is clear that the relief requested here is
well within the power of federal courts to provide.

Id. (emphasis added). The employee in that case did not seek
lost pension benefits “but [was] instead seeking future lost
wages, mental anguish and punitive damages as a result of
the wrongful discharge”. /d. at 136 (emphasis added).
Although the Court did not directly address there the issue of
available relief, its unanimous dictum persuaded many that a
wrongfully discharged employee might recover lost wages in
addition to plan benefits lost. Indeed, the availability of the six
enforcement provisions of §502(a) was central to the Court’s
finding of preemption. /d. at 143-44.

Part of this question is, did Congress mean to include front
pay or reinstatement and back pay within §502(a)(3)(B), which
allows a participant or beneficiary to bring a civil action “to
obtain other appropriate equitable relief?” The Circuits split on
this issue. Compare Schwartz v. Gregori, 45 F.3d 1017 (6th
Cir.), cert. denied, 116 §.Ct. 77, 133 L.Ed.2d 36 (1995)
(allowing recovery of front and back pay) with Harsch v.
Fisenberg, 956 F.2d 651 (7th Cir.), cert. denied, 506 U.S. 818,
113 S.Ct. 61, 121 L.Ed.2d 29 (1993). In the context of a claim
for breach of fiduciary duty against a nonfiduciary, this Court
held in Mertens v. Hewitt Associates, 508 U.S. 248, 255,

38

113 S.Ct. 2063, 124 L.Ed.2d 161 (1993), that losses resulting in
underfunding of a pension plan were compensatory damages,
the “classic form” of legal relief, and not recoverable under
§502(a)(3). Mertens did not address the issue at bar. Rather,
the Court there interpreted §502(a)(3) within the limited context
of a breach of fiduciary duty claim. Here, of course, Petitioner
has brought a claim for wrongful discharge under a different
statute of ERISA which Congress has deemed to be their
mandatory substitute for the entire panoply of their California
tort-law remedies. The four dissenting Justices in Mertens
noted that “we have elsewhere recognized the anomaly of
construing ERISA in a way that ‘would afford Jess protection to
employees and their beneficiaries than they enjoyed before
ERISA was enacted’”. 508 U.S. at 264 (White, J., dissenting).
The Mertens dissent went on to state that “[{t]he traditional
‘equitable remedies’ available to a trust beneficiary included
compensatory damages.... This included, where necessary, the
payment of a monetary award to make the victims of the breach
whole.” /d. at 266 (citations omitted).

Because §510 fundamentally prohibits discrimination in
employment status and preempts all state torts for wrongful
discharge related to pensions and benefits, it is only reasonable
that Congress intended to provide not only corresponding
Federal rights, but also analogous Federal remedies. At a
minimum lost employment damages such as back pay and front
pay (in lieu of reinstatement) are appropriate remedies along
with recovery of lost plan benefits. This Court recognized in
Varity that Congress intended ERISA to provide “broad
remedies” to redress violations of the statute. Thus, Varity
found §502(a)(3) to be a “catchall” relief provisiou that “act[{s]
as a safety net” for injured plan participants. 116 S.Ct. at 1078.
A court cannot make whole an employee wrongfully discharged
in violation of §510 by awarding only lost plan benefits. Broad
restitution for lost wages and similar losses must stand as a

39

fundamental part of the remedy for wrongful discharge or the
Federal right conferred under §510 will become a very meager
substitute for the preempted state tort claims.

This conclusion also is informed by Congress’ general
practice in every other Federal statute prohibiting employment
discrimination to provide back pay and reinstatement (or front
pay) as remedies. See, for example, Albemarle Paper Co. v.
Moody, 422 U.S. 405, 419 and n.11, 95 S.Ct. 2362, 45 L.Ed.2d
280 (1975) (interpreting §10 of the NLRA, 29 U.S.C. §160 and
Title VII, 42 U.S.C. §2000e-5(g)), the Court stated that “[wJe
can find here no intent to back away from the NLRA model or
to denigrate in any way the status of back pay relief”), and
Rodriguez v. Taylor, 569 F.2d 1231, 1242 (3d. Cir.), cert.
denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978)
(interpreting the ADEA, 29 U.S.C. §626(c)(1)).

The Sixth Circuit in Schwartz relied on this Court’s
interpretation of Mitchell v. Robert DeMario Jewelry, Inc.,
361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960), as discussed
in Local 39] v. Terry, 494 U.S. 558, 571, 110 S.Ct. 1339,
108 L.Ed.2d 519 (1990), for the rule that back pay awarded
against an employer “to restore to the plaintiff that to which she
would have enjoyed but for the employer’s illegal retaliation”
is restitutionary. 45 F.3d at 1022. The Sixth Circuit found the
“question of front pay ... more straightforward” since “[f]ront
pay is awarded only when the preferred remedy of
reinstatement, indisputably an equitable remedy, is not
appropriate or feasible.” /d. at 1023, citing cases under Title
Vil and ADEA. Respondents here can be expected to argue that
reinstatement of the members of Petitioner Association to their
former positions is inappropriate. Therefore the Court needs to
make clear to the district court that “appropriate equitable
relief’ will require making whole the victims of Respondents’
ERISA-defeating conduct.

40

- Vi.

THE DECISION BELOW AT ITS CRUX DENIES
ACCESS TO JUSTICE

The decision below is fundamentally about access to justice
and its denial. In ruling out of existence a suit under
ERISA §510 for interference with health and welfare benefits,
the Ninth Circuit has done violence not only to the intent of
Congress and to the Court’s precedents, but also to the
Constitution and our founding notion of the rule of law. See,
for example, Romer v. Evans, 116 S.Ct. 1620, 1628,
134 L.Ed.2d 855 (1996). A central principle of our
constitutional tradition is the principle that the courts remain
open on impartial terms to those who seek its assistance.

Yet the per curiam opinion by the panel below disqualified
from proceeding under §510 the entire class of persons whose
health and welfare benefits motivated their discharges while it
conferred the right to proceed upon those fired because of their
pension benefits. This classification cannot withstand any level
of scrutiny. The panel totally lost sight of the point that
Petitioner Association’s members’ remedies under state law,
see, for example, Tameny v. Atlantic Richfield Co., 27 Cal.3d
167, 175, 610 P.2d 1330, 164 Cal.Rptr. 839 (1980), were
involuntarily exchanged for a federal remedy by Congress when
it enacted ERISA. Varity, 116 S.Ct. at 1078-1079; Jngersoll-
Rand, 498 U.S. at 133.

This right to a remedy for every wrong runs through the
Court’s jurisprudence as a brilliant, redeeming strand from the
earliest days of our republic, Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 163, 2 L.Ed. 60 (1803), up till the present term,

4)

MLB. v. SL.J., No. 95-853, 65 U.S.L.W. 4035, 4040 and 4043
(U.S., Dec. 16, 1996) (Kennedy, J., concurring).

The panel below dealt with this constitutional concern in as
cavalier a fashion as it did with the related issue of associational
standing, Brown Group, 116 S.Ct. at 1536, and the other issues
present here.

CONCLUSION

Justice requires that this Court reverse the Ninth Circuit’s
crabbed interpretation of §510 of ERISA and find that the
statute prohibits interference with health and welfare benefits by
wrongful discharge from employment. The decision below
contravenes the language of the statute and Congress’ broad
remedial intent behind ERISA. Not only does it conflict with
all the other circuit courts which have addressed this issue, its
holding and rationale leave Petitioner and its members without
access to justice to enforce either their preempted state-law
rights or their ERISA-bestowed Federal rights which Congress
intended to substitute for the lost state tort remedies.

Petitioner also urges the Court to expand on its decision in
Ingersoll Rand v. McClendon to clarify that employees
wrongfully discharged in violation of §510 have a right to full
restitution, including front pay (or reinstatement) and back pay.
The case should be reversed and remanded with the mandate to
fashion broadly remedial relief to make whole the Respondents’
victims.

Respectfully submitted,

RICHARD E. SCHWARTZ
Counsel of Record

JAMES E. PARROT
RICHARD SCHWARTZ &
ASSOCIATES, LTD.
Attorneys for Petitioners

300 Euclid Hall

393 North Euclid Avenue

St. Louis, Missouri 63108-1288
(314)454-0022

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0020%3A04. Public record. Not legal advice.