# Amicus Curiae Brief — United States Steel Corp. Plan for Employee Insurance Benefits v. Musisko

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 493 U.S. 1074

## Text

No. S9- 952 , Sunceme Court, U.S.
| “| FILED
ac JAN 16 1990

Supreme Court of the United States, - 5.00.52
CLEPK

.

a

OcvTOBER TERM. 1989

UnNitep STATES STEEL CORPORATION PLAN FOR
Euployere INSURANCE BENEFITS. USX CORPORATION. as
plan sponsor: UNirep STATES STEEL AND CARNEGIE
PENSION FUND. plan administrator: and UNITED STATES
STEEL INSURANCE BENEFIT TRUST FUND,

Petitioners,
-

GLENN Musisko AND ALL OTHERS SIMILARLY SITUATED
to Glenn Musisko. and Tut HONORABLE SILVESTRI
Sivestri in his official capacity as Judge of the Court
of Common Pleas of Allegheny County. Pennsylvania.

Respondents.

On Petinion For Writ Or CERTIORARI
To Tue Unitrep States Court Or APPEALS
For Tue Tuirp Circuit

BRIEF OF AMICUS CURIAE
COLT INDUSTRIES INC IN SUPPORT OF
THE POSITION OF PETITIONERS

OYE Clonstise |

ANTHONY J. piBooNe Horus T. Herp

Corr INpestnies Eve Wirtiast Ho Powpertry. III
1) Park Avenue Patria E. Ganz

New York. New York 10022 Jones Day Reavis & Pocut
212) 9WO574 00 Grant Street

Pittsburgh. PA) 15219
(412) 394-7921

TABLE OF CONTENTS

PAGE
MOTION FOR LEAVE TO FILE BRIEF AS
FE SEES Foo ei a ee eek Ci eb awe kes'e es vi vi
INTEREST OF AMICUS CURIAE COLT
se eG raves cadeees ceoneewnes i
SU MEMELIL GO PSU MEINE cece ce ccvcccecseses 2
pe eee eee eee eee err rE eee 3

I. The Holding Of The Third Circuit Court
May Foreclose The Only Avenue For Effec-
tive Enforcement Of ERISA’s Preemption
And Jurisdictional Scheme.................. 3

A. ERISA Provides Specified Forums And
Remedies For Encompassed Claims, Con- ~
sistent With Congressional Intent To Uni-
formly And Comprehensively Regulate The
Employee Benefit Field .................... 4

B. The Lower Federal And State Courts Are
Experiencing Difficulty In The Application
Of ERISA’s Preemption And Jurisdictional
NN ro es ban eee ee ey eo 8

1. Removal Has Proven To Be An Inadequate
- Remedy For State Court Actions That Vio-
RG So cet ow Lets sas eae 8

. Nobers Graphically Demonstrates The In-
adequacy Of Removal And The Need For
Injunctive Relief As Authorized By ERISA... 12

The Anti-Injunction Act Permits Injunctive
Relief To Enforce ERISA’s Preemption And
IO ig os owe eo sek speck cues 16

ee Pe ey eer ee eT ee 20

bY

0

TABLE OF AUTHORITIES

CASES PAGE
Air-Shields, Inc. v. Fullam, No. 89-1295 (3d Cir.
Eee, 6, SOOO) cccvcvest tinsel or
Alessi v. Raybestos-Manhattan, 451 U.S. 504
(1001)... ccccencveyeentese) bee 5
Avco Corp. v. Machinists, 390 U.S. 557 (1968) ...... 11

Dependahl v. Falstaff Brewing Corp., 653 F.2d

1208. 1216 (Sth Cir.). cert. denied, 454 U.S. 968,

and cert. denied sub nom, Dependahl cv.

Kalmanovitz, 454 U.S. 1084 (1981) .............. 14
Gavalik v. Continental Can Co., 812 F.2d 834.

$60 (3d Cir.). cert. denied, 484 U.S. 979 (1987) .. 14
General Motors Corp. v. Buha, 623 F.2d 455

(Oth Cir. 19000) .. 00 oc recente 19
Gilbert v. Burlington Indus., 765 F.2d 302 (2d Cir.

1985). affd mem. sub nom. Roberts v. Burling-

ton indus.. 477 US. OBE CHGBE) : vas cee erste 19
Gravitt v. Southwestern Bell Telephone Co., 430

US. 720 CIGD) vc cccvvevcvaserenee eee §
Hansen v. Blue Cross of California, F.2d

(Sth Cis. 1908) .4 occ is eee 10. 19

Income Security Corp. v. Louisiana Oilfield Con-
tractors Ass'n, No. 88-4450 (5th Cir. Mar. 22.
1989). petition for cert. filed, 58 U.S.L.W. 3009
(U.S. June 26, 1989). Solicitor General invited
to file brief, 58 U.S.L.W. 3212

(OS. Get; & Te 6o.ssccmeenuvaee ee earee 3. 10, 19
In re Carter, 618 F.2d 1093 (5th Cir. 1980). cert.

denied sub nom. Sheet Metal Workers’ Intern.

Ass'n vt. Carter, 450 U.S. 949 (1981) ........... 11-12
In re Life Ins. Co. of North America, 857 F.2d 1190

(8th Cir, 1988) .....0.2cccccccccececceece 10. 19

Kunzi vt. Pan American World Airways, 833 F.2d
1291 (9th Cir. 1987)

CASES PAGE
Marshall v. Chase Manhattan Bank, 558 F.2d 680

es. sv ek css obec ucseccece 19
Massachusetts Mut. Life Ins. Co. v. Russell, 473

ee dee escavecics Get
McClendon v. Ingersoll-Rand Co., Tex. ;

a 15
Metropolitan Life Ins. Co. v. Taylor,

481 U.S. 58 (1987) ............. 3,5, 8, 9, 11, 14, 15
Mitchum v. Foster, 407 U.S. 225 (1972) .......... 2,17
New Orleans Public Service, Inc. v. Majoue, 802

po ek Se a.) 9,19
Nobers v. Crucible, Inc., 722 F.2d 733 (3d Cir.

eg ack bcehaancvec 13

Nobers v. Crucible, Inc., Civil No. 85-563 (W.D.
Pa.1985), affd without opinion, 787 F.2d 581

Se oe og Cag a5 ee dck awe 14
Nobers v. Crucible, Inc., 602 F. Supp. 703 (W.D.

LSE ee Ra an 14, 16
Nobers v. Crucible, Inc., 376 Pa. Super. 156, 545

A.2d 367 (1988). appeal denied, —__ Pa.

er 15, 16

Nobers v. Crucible, Inc., Civil No. 843-1984
(Ct. of Common Pleas of Beaver

ea nc ck coeseasidnee 13, 19
Pilot Life Ins. Co. v. Dedeaux, 481

EE Se ee ee
Porter v. Dicken, 328 U.S. 252 (1946)......... 2, 17, 18
Schmitt v. Insurance Co. of North America,

845 F.2d 1546 (9th Cir. 1988) .................. 12
Shaw v. Delta Air Lines, 463 U.S. 85 (1983) ........ 5

Shaw v. Westinghouse, 276 Pa. Super. 220,
Er 15

CASES PAGE
Survival Systems v. United States District Court for
the Southern District of California, 825 F.2d
1416 (9th Cir. 1987), cert. denied, 484 U.S. 1042

Roe chase ped Ned EE RON ean kt 10
Sykes v. Texas Air Corp., 834 F.2d 488, 492
SN NS hog vw aan a- np Fu A oes os vo os oe 8
Texas Employers Ins. Ass’n v. Jackson, 618 F.
Supp. 1316 (E.D. Tex. 1985) ..............000000- 1

Texas Employers’ Ins. Ass’n v. Jackson, 862
F.2d 491, (5th Cir. 1988), cert. denied,

ook ee a Be) eres 9. 11
Thermtron Products, Inc. v. Hermansdorfer,

Co te A Pk Se §. 14. 16
Whitman v. Raley’s, Inc., 886 F.2d 1177

Se ea te ee oe, 9 19

STATUTES
Section 409 of ERISA. 29 U.S.C.

(tie... eo se pa es oe Pa Die 7,11
Section 502 of ERISA. 29 U.S.C.

ee er emer yall Cia, 12
Section 502(a)(1)(B) of ERISA, 29 U.S.C.

eee ee aera 3. 6
Section 502(a)(3) of ERISA. 29 U.S.C.

ONRENR ese ce 7, 17, 18
Section 502(d)(2) of ERISA, 29 U.S.C.

Gre re ie rigivs shuts Sat 6
Section 502(e)(1) of ERISA.

DS BeOS cca She wawk cece Be ee ee
Section 510 of ERISA, 29 U.S.C.

2 Bee errors ree 6. 7, 9, 10, 11, 14, 15, 16, 17
Section 514(a) of ERISA, 29 U.S.C.

4 ee 4, 6-7, 15

STATUTES PAGE
Section 514(b)(1) of ERISA, 29 U.S.C.
5 SABIRA OED fos eae bi eee 15
Section § 301 of The Labor Management
Relations Act, 29 U.S.C. § 185............... 11, 12
660 CH ne eee 16
nuse See. eee 8
eUSC 1 eee eee
Sar 60 6. iA eee ee ll
$80 a tO eae ee 1]
Emergency Price Control Act of 1942.
Se WOE. TOD 65:4 c.wa vaccine ee pete ae ee ee 17

LEGISLATIVE HISTORY

H.R. 2, 93d Cong., Ist Sess. § 106(g) (1973), S. 4,
93d Cong., Ist Sess. § 604, both reprinted in I
Legislative History of the Employee Retire-
ment Income Security Act of 1974 (1976) ....... 6

Joint Explanatory Statement of the Committee of
Conference. 120 Cong. Rec. 29,774 (daily ed.
Aug. 22. i974). reprinted in III Legislative His-
tory of the Employee Retirement Income
Security Act of 1076 C207) |. <n 4s soo usbcaancee ee

H.R. Rep. No. 1280, 93d Cong., 2d Sess. (1974).
reprinted in UI Legislative History of the
Employee Retirement Income Security Act of
IGS 1EBTO) oo vio de ei wee webens ¥en te eee 17

vi

MOTION FOR LEAVE TO FILE BRIEF
AS AMICUS CURIAE

Colt Industries Ine (“Colt”) respectfully moves the
Court for leave to file a brief amicus curiae in support of
the position of Petitioners United States Steel Corporation
Plan for Employee Insurance Benefits, USX Corporation,
United States Steel and Carnegie Pension Fund, and
United States Steel Insurance Benefit Trust Fund.

Colt has an interest in this case because Colt is
presently litigating a case that perhaps more dramatically
demonstrates how imperative it is that injunctive relief be
available to enforce ERISA’s comprehensive and explicit
preemption and jurisdictional provisions. Colt is a party in
the action styled Nobers v. Crucible, Inc., Civil No. 843-
1984 (Ct. of Common Pleas of Beaver County. Pa.). Nobers
clearly demonstrates the egregious harm that can occur
when the lower federal courts, contrary to the Congres-
sional intent embodied in ERISA, refuse to grant injunc-
tive relief to prevent or redress violations of ERISA in the
state courts.

The Nobers plaintiffs are a group of former salaried
employees of Crucible. Inc. (“Crucible”).' who had been
promoted from previous positions in the collective bar-
gaining unit. When their plant closed. plaintiffs were laid
off, terminated, and, upon their application. granted bene-
fits applicable to salaried employees. The essence of plain-
tiffs’ claims is that they should have been discharged from
the bargaining unit, rather than being discharged from
their positions as salaried employees. so that they could
receive benefits applicable to bargaining unit employees.
Plaintiffs seek damages equivalent to bargaining unit bene-
fits. In a previous action. the federal district court found

' Crucible was a wholly-owned subsidiary of Colt at the time
the alleged claims against Colt and Crucible arose. Crucible is now

reorganized under the name Colt Industries Operating Corporation
(“CIOC™). CLOC is also a wholly-owned subsidiary of Colt.

Vil

that plaintiffs had no such right under the collective
bargaining agreement, and dismissed plaintiffs’ claim for
benefits against the trustee of the benefit plans under
ERISA. for failure to join the applicable benefit plans, and
failure to exhaust administrative remedies.

It is plain that the claims and remedies now alleged in
state court by plaintiffs against their former employer, and
the employer's sole shareholder, are substantively encom-
passed by § 510 of ERISA, 29 U.S.C. § 1140, which prohibits
activity undertaken “for the purpose of interfering with
the attainment of any right to which such participant may
become entitled under [an ERISA] plan”. This is precisely
what plaintiffs allege. Their claims are thus subject to the
exclusive jurisdiction of the federal courts under
§ 502(e)(1) of ERISA, 29 U.S.C. § 1132(e) (1).

However. defendants have been stymied in their ef-
forts to compel the exercise of the exclusive jurisdiction of
the federal courts. As discussed in the attached brief
amicus curiae, defendants have twice removed to federal
court, and now, for the second time, interested persons are
seeking an injunction against the state court proceedings.
Colt wishes in the attached brief amicus curiae to bring
before the Court its experience in seeking to enforce the
clear mandate of ERISA for exclusive jurisdiction of such
claims in the federal courts and the exclusive application
of ERISA as the substantive law of decision, in order to
make clear the significant implications of Musisko.

Colt seeks to demonstrate that the implications of
Musisko extend far beyond its facts, and that complex,
idiosyneratie. and unnecessary problems now being cre-
ated in Nobers and in a number of other actions in this
area, including, inter alia. Income Security Corp. v. Louisi-
ana Oilfield Contractors Ass'n, No. 88-4450 (5th Cir. Mar.
22. 1989). petition for cert. filed, 58 U.S.L.W. 3009 (U.S.
June 26, 1989), Solicitor General invited to file brief, 58
U.S.L.W. 3212 (U.S. Oct. 2, 1989). will be very difficult to
resolve unless injunctive relief. which provides an avenue

Vill

for substantive appellate review as well as enforcement, is
available to effectuate ERISA’s comprehensive scheme of
preemption and jurisdiction in cases such as Nobers. If
Musisko is correct and it is impossible to obtain injunctive
relief under ERISA against state court actions that violate
ERISA, then an ERISA-covered employee benefit plan and
its sponsor (such as Celt’s former subsidiary, Crucible),
can be left entirely helpless to enforce the ERISA require-
ment of exclusive jurisdiction of the federal courts and
exclusive substantive application of ERISA—a result so
clearly contrary to Congressional intent as to demonstrate
the error of Musisko.

Undersigned counsel for Celt has attempted to obtain
consent to the filing of this brief pursuant to Supreme
Court Rule 37.2. Counsel for Petitioners have given such
consent but counsel for Respondents have indicated that
they do not consent. Counsel for Respondents have in-
formed Colt that the principal basis of their refusal is their
belief that the facts of Nobers argue even more strongly
that injunctive relief ought to be available than the facts of
Musisko, since the claims in Nobers are subject to exclusive
federal jurisdiction under ERISA.

ix

WHEREFORE, Colt moves this Court to allow the filing
the “Brief Of Amicus Curiae Colt Industries, Inc. In Sup-
port Of The Position Of Petitioners United States Steel
Corporation Plan For Employee Insurance Benefits, USX
Corporation, United States Steel and Carnegie Pension
Fund. and United States Steel Insurance Benefit Trust
Fund”, which is submitted herein with the requisite num-
ber of printed copies.

Respectfully submitted,

Ho.uis T. HuRD

WILLIAM H. PowpDer ty, III
PauLA E. GANZ

JoNes Day Reavis & POGUE
500 Grant Street
Pittsburgh, PA 15219

Counsel for Amicus Curiae,
Colt Industries Inc

Of Counsel:

ANTHONY J. DIBUONO

CoLT INDUSTRIES INC

430 Park Avenue

New York, New York 10022

No. 89-952

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

UNITED STATES STEEL CORPORATION PLAN FOR
EMPLOYEE INSURANCE BENEFITS, USX CORPORATION, as
plan sponsor; UNITED STATES STEEL AND CARNEGIE
PENSION FuND, plan administrator; and UNiTeD STATES
STEEL INSURANCE BENEFIT TRUST FUND,

Petitioners,
Vv.

GLENN MusiskO AND ALL OTHERS SIMILARLY SITUATED
to Glenn Musisko, and THE HONORABLE SILVESTRI
SiLvesTRi in his official capacity as Judge of the Court
of Common Pleas of Allegheny County, Pennsylvania,

Respondents.

ON PETITION For Writ Or CERTIORARI
To THe UNITED STATES CouRT OF APPEALS
For THE THIRD CIRCUIT

BRIEF OF AMICUS CURIAE
COLT INDUSTRIES INC IN SUPPORT OF
THE POSITION OF PETITIONERS

Interest of Amicus Curiae Colt Industries Inc

The interest of Amicus Curiae Colt Industries Ine
(“Colt”) is described in the preceding Motion For Leave
To File Brief As Amicus Curiae.

wwe

SUMMARY OF ARGUMENT

In actions involving benefit plans to which ERISA
applies, or persons making claims pertaining to such bene-
fit plans. ERISA provides that specified parties are empow-
ered to bring specified claims against specified persons in
specified forums. ERISA preempts all substantive state
laws encompassed in its boundaries, and contains a very
precise structure for the prosecution of preempted claims.
Congressional intent to create aauniform body of federal
law is clearly embodied in ERISA.

The lower courts are experiencing great difficulty in
the application of these fundamental ERISA principles.
There are repeated examples of supposed state law claims.
substantively preempted by ERISA. which are neverthe-
less forced into state courts to be adjudicated under non-
existent state law. because the lower federal courts have
incorrectly remanded for lack of jurisdiction and/or im-
provident removal. an error not readily subject to review.
Injunctive relief againstunauthorized state court proceed-
ings is not only permissible in this context under the Anti-
Injunction Act, 28 U.S.C. § 2283, as well as the holding of
this Court in Porter v. Dicken, 328 U.S. 252 (1946) (cited in
Mitchum v. Foster, 407 U.S. 225, 235 n.17 (1972)). but must
be available to give effect to ERISA’s comprehensive pre-
emption and enforcement scheme and assist the resolution
of these difficult issues.

The ERISA-preempted claim in Musisko is subject to
the concurrent jurisdiction of the state courts under
§ 502(e) (1) of ERISA. 29 U.S.C. § 1132(e) (1), but must be
asserted against the plan consistent with ERISA’s enforce-
ment provisions. Injunctive relief must be available to
ensure that ERISA is properly applied in Musisko.

The problem comes into sharper focus when consid-

ered in the context of claims which are subject to the
exclusive jurisdiction of the federal courts under ERISA.
With the exception of claims for benefits which are autho-

3

rized under § 502(a)(1)(B) of ERISA, 29 U-S.C.
§ 1132(a)(1)(B), all claims preempted by ERISA
are subject to the exclusive jurisdiction of the federal
courts by virtue of § 502(e)(1) of ERISA, 29 U.S.C.
§ 1132(e)(1). Although removal is theoretically available.
it has not in practice proven to be an effective solution, in
part because of the unreviewability of erroneous orders of
remand, and in part because the lower federal courts
continue to apply the well-pleaded complaint doctrine
despite the holdings of this Court in Metropolitan Life Ins.
Co. v. Taylor, 481 U.S. 58, 66 (1987) and Pilot Life Ins. Co. v.
Dedeaux, 481 U.S. 41 (1987). Problems can only multiply if
the only effective avenue for enforcing ERISA’s preemp-
tion and jurisdictional scheme is foreclosed due to errone-
ous analyses such as those contained in Musisko, and in
Income Security Corp. v. Louisiana Oilfield Contractors
Ass'n, No. 88-4450 (5th Cir. Mar. 22, 1989). petition for cert.
filed, 58 U.S.L.W. 3009 (U.S. June 26, 1989), Solicitor
General invited to file brief, 58 U.S.L.W. 3212 (U.S. Oct. 2,
1989).

Certiorari must be granted to resolve the issue
presented in Musisko, provide guidance to the courts, and
provide an avenue for effective enforcement of ERISA’s
scheme of preemption and jurisdiction.

ARGUMENT

I. The Holding Of The Third Circuit Court May Fore-
close The Only Avenue For Effective Enforcement Of
ERISA’s Preemption And Jurisdictional Scheme

This brief amicus curiae is filed to make the Court
aware of the wide ramifications of the decision in Musisko,
which go far beyond the factual situation presented there.
While the error of the court below in Musisko can be
demonstrated on the facts of that case, as petitioners have
done in their petition for a writ of certiorari, the error can
be seen even more clearly and more startlingly in cases
such as the Nobers litigation, described more fully below,

4

to which Colt is a party. It is therefore of benefit to the
Court in its consideration of Musisko to appreciate how
seriously the decision below hamstrings all those who
sponsor and administer ERISA-covered employee benefit
plans and permits egregious violations of ERISA to go
unredressed.

While Musisko involves a cause of action under ERISA
of which the state and federal courts have concurrent
jurisdiction (namely, a claim for benefits by a plan partici-
pant). Nobers involves a cause of action under ERISA of
which the federal courts have exclusive jurisdiction. If
Musisko is correct and it is impossible to obtain injunctive
relief under ERISA against state court actions that violate
ERISA. then an ERISA-covered employee benefit plan and
its sponsor (such as Colt’s former subsidiary, Crucible. Inc.
(“Crucible”) ). can be left entirely helpless to enforce the
ERISA requirement of exclusive jurisdiction of the federal
courts and exclusive substantive application of ERISA—a
result so clearly contrary to Congressional intent as to
demonstrate the error of Musisko.

A. ERISA PROvIDES SPECIFIED FORUMS AND REMEDIES
For ENCOMPASSED CLAIMS, CONSISTENT WITH CON.
GRESSIONAL INTENT TO UNIFORMLY AND COMPREHEN.
SIVELY REGULATE THE EMPLOYEE BENEFIT FIELD

Section 514(a) of ERISA. 29 U.S.C. § 1144(a). pro-
vides that ERISA “shall supersede any and all State laws”.
Congress intended to provide a uniform body of law in this
area.' ERISA’s preemptive force has been repeatedly rec-

It should be stressed that with the narrow exceptions speci-
fied in the bill. the substantive and enforcement provisions of
the conference substitute are intended to preempt the field
for Federal regulations. thus eliminating the threat of con-
flicting or inconsistent State and local regulation of employee
benefit plans. This principle is intended to apply in its
broadest sense to all actions of State or local governments. or

5

ognized by this Court.” The substantive provisions of
ERISA dictate the nature of the state remedies preempted
by it.’

As to jurisdiction to entertain claims preempted by
ERISA, § 502(e)(1) of ERISA, 29 U.S.C. § 1132(e) (1), is
lucid and specific. It provides (emphasis added):

Except for actions under subsection (a) (1) (B) of
this section [authorizing claims by participants and
beneficiaries to recover benefits from ERISA plans},
the district courts of the United States shall have
exclusive jurisdiction of civil actions under this sub-
chapter 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
subsection (a)(1)(B) of this section.

ERISA’s jurisdictional scheme was carefully crafted by
Congress.’ The federal courts have original jurisdiction

any instrumentality thereof, which have the force or effect of
law.

Joint Explanatory Statement of the Committee of Conference. 120
Cong. Rec. 29.774, 29.933 (daily ed. Aug. 22. 1974), reprinted in II]
Legislative History of the Employee Retirement Income Security
Act of 1974. at 4745-46 (1976) |“Legislative History”.

a Metropolitan Life Ins. Co. v. Taylor, 451 U.S. 58. 66 (1987):
Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41. 45-46 (1987): Massachu-
setts Mutual Life Ins. Co. v. Russell, 473 U.S. 134. 146 (1985): Shaw cv.
Delta Air Lines, 463 U.S. 85. 98 (1983): Alessi v. Raybestos-Manhat-
tan, 451 U.S. 504. 523 (1981).

’The difficulties apparent in this area arise in part because,
unlike many other federal statutes. ERISA preempts, and to some
extent co-exists with. certain well-rooted traditional causes of
action.

' The legislative history of ERISA confirms the careful manner
in which this jurisdictional scheme was devised. In early legislative
drafts. state and federal courts were granted concurrent jurisdic-
tion over all civil actions brought by a participant or beneficiary.

6

over all ERISA claims, including claims for benefits. The
state courts have concurrent jurisdiction, only of claims for
benefits. A claim within the ambit of ERISA, other than a
direct claim for benefits, may be heard only in federal
court.

The distinction is of critical importance. Claims for
benefits, over which the state courts have concurrent
jurisdiction, may only be asserted against, and under the
terms of, an ERISA plan. ERISA § 502(a) (1) (B). 29 U.S.C.
§ 1132(a)(1)(B). ERISA plans are the only entities with
liability for benefits due under their terms. ERISA
§ 502(d)(2). 29 U.S.C. § 1132(d)(2). Benefits promised
under the terms of an ERISA plan do not create direct
employer liability.

Claims substantively encompassed by § 510 of ERISA,
29 U.S.C. § 1140 are among the most significant of those

E.g., H.R. 2. 93d Cong.. Ist Sess. § 106(g) (1973). S. 4. 93d Cong.. Ist
Sess. § 604. both reprinted in I Legislative History. at 34. 184.
Subsequent amendments sharply limited the jurisdiction of state
courts to actions involving direct claims for benefits. ERISA
§ 502(e)(1). 29 U.S.C. § 1132(e)(1). The Joint Explanatory State-
ment of the Committee of Conference elucidates:

In addition to being able to request the Secretary of Labor
to bring suit on their behalf in cases where benefits are denied
in violation of the act [i.e.. in violation of § 510 of ERISA].
individual participants and beneficiaries will also be able to
bring suit in Federal court in such instances. as well as to
obtain redress of fiduciary violations. In addition. participants
and beneficiaries may bring suit to recover benefits denied
contrary to the terms of their plan. and where such claims by
participants or beneficiaries do not involve application of the
substantive requirements of this legislation. they may be
brought in either State or Federal courts of competent
jurisdiction.

120 Cong. Rec. 29,774. 29.933 (daily ed. Aug. 22. 1974). reprinted in
III Legislative History. ot 4745.

» Though § 510 and other substantive provisions dictate the
substantive nature of preemption, § 514(a) of ERISA, 29 U.S.C.

7
over which the federal courts are to exercise exclusive
jurisdiction.° Section 510 prohibits activity undertaken
“for the purpose of interfering with the attainment of any
right to which such participant may become entitled
under [an ERISA] plan”. A supposed state law claim
which seeks damages equivalent to benefits, based on an
alleged wrongful act by an employer or plan sponsor
designed to interfere with rights to receive benefits, is
encompassed by § 510; any and all applicable state laws are
preempted. Although damages resulting from claims en-
compassed by § 510 may be equivalent to benefits denied
as a result of the wrongful act, these claims are fundamen-
tally different from direct claims for benefits with respect
to (1) the legal theory of liability and recovery; (2) the
identity of the liable, or potentially liable, parties;’ and
(3) the concurrent versus exclusive jurisdiction of the
federal courts under ERISA.

While § 502(e)(1) of ERISA, 29 U.S.C. § 1132(e) (1),
provides the jurisdictional authority to entertain claims
based on ERISA, and other provisions of ERISA provide
the substantive basis for claims, it is § 502(a), 29 U.S.C.
§ 1132(a), that outlines the array of permissible civil
enforcement actions. Claims that are substantively encom-
passed by § 510, for example, may be asserted through the
civil enforcement provision of § 502(a)(3), 29 U.S.C.
§ 1132(a)(3), only in the federal courts as provided by
§ 502(e) (1), 29 U.S.C. § 1132(e) (1).

§ 1144(a). is of course the vehicle through which substantive claims
are preempted.

° Other claims subject to exclusive federal jurisdiction include
those encompassed by § 409 of ERISA, 29 U.S.C. § 1109. See
Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134 (1985)
(holding that § 409 does not authorize private claim against em-
ployer for improper or untimely processing of benefit claims).

‘Thus, the fundamental problem in Musisko is that the claims
were not asserted against the proper party as dictated by ERISA,
nor was the proper law applied.

ERISA’s preemption, enforcement. and jurisdictional
provisions are meaningless without an avenue for effec-
tively ensuring their application. As the following discus-
sion reveals, the injunctive relief requested by petitioners
provides such an avenue.

B. THE LOWER FEDERAL AND STATE COURTS ARE EXPER-
IENCING DIFFICULTY IN THE APPLICATION OF ERISA’s
PREEMPTION AND JURISDICTIONAL SCHEME

‘1. Removal Has Proven To Be An Inadequate Remedy For
State Court Actions That Violate ERISA

A visceral first reaction is that the possibility of re-
moval to federal court should serve to adequately enforce
ERISA. Sadly. experience has proven otherwise. Regard-
less of error, a remand to state court is not reviewable on
appeal. 28 U.S.C. § 1447(d). Review by petition for writ of
mandamus is sharply circumscribed. See Gravitt v. South-
western Bell Telephone Co., 430 U.S. 723 (1977): Thermtron
Products, Inc. v. Hermansdorfer, 423. U.S. 336 (1976).
Where the district court cites improvident removal or lack
of jurisdiction as grounds for remand. mandamus relief is
ordinarily unavailable:

|A]fter Thermtron reviewability of § 1447 remands
turns on what the district court says it is doing. If the
court says it is remanding for lack of jurisdiction. the
decision—even if flagrantly wrong—is completely un-
reviewable. If the court says something else. review is
available. In other words, reviewability turns on in-
cantation, and the district court has absolute discre-
tion to permit or to deny review of its order.”

Sykes v. Texas Air Corp., 834 F.2d 488. 492 (5th Cir. 1987).
See also Air-Shields, Inc. v. Fullam, No. 89-1295 (3d Cir.
Dec. 7. 1989). This Court's direction to the district courts
in Metropolitan Life, 481 U.S. at 66-67. to conduct a mean-
ingful substantive analysis if ERISA preemption is the basis

9

of removal’ cannot be effectively enforced, because re-
mands for lack of jurisdiction are not reviewable.

A review of the case law in this area swiftly reveals
widespread problems. Federal district courts have on a
number of occasions refused to accept jurisdiction over
properly removed ERISA claims, remanding them instead
to state courts which often lack jurisdiction to entertain
them. Federal appellate courts have, in turn, refused ap-
pellate review.

In New Orleans Public Service, Inc. v. Majoue, 802 F.2d
166 (5th Cir. 1986), for example, the Fifth Circuit Court
considered an appeal of the district court’s refusal to
enjoin a state court proceeding which was allegedly sub-
stantively encompassed by § 510 of ERISA. The Fifth
Circuit Court decreed that the action seeking injunctive
relief was, in effect. an impermissible attempt to obtain
review of the district court’s previous order remanding the
action to state court. 802 F.2d at 167. As such, the Fifth
Circuit Court held that the district court lacked jurisdic-
tion to entertain the claim for injunctive relief. °

Indeed. despite the clear guidance of this Court in
Metropolitan Life, 181 U.S. at 66-67, and Pilot Life, 481 U.S.
41. claims preempted by ERISA, even those subject to
exclusive federal jurisdiction, have nevertheless been re-
manded to state court for lack of jurisdiction. Whitman v.
Raley’s, Inc., 886 F.2d 1177, 1179 (9th Cir. 1989), involved a
claim against a former employer for “‘tortious refusal to

* This requirement is especially important for claims subject to
exclusive federal jurisdiction under ERISA.

* Requests for injunctive relief and petitions for mandamus do,
as a practical matter, represent two potential responses to the same
fundamental problem: that of compelling the courts to recognize
and give effect to the preeminence of ERISA. Although removal is
generally less disruptive of state court proceedings, injunctive
relief must also be available, as it would provide a more certain
avenue of appellate review.

J

10

pay benefits”. Such a claim must be encompassed by § 510
of ERISA, and was accordingly removed to federal court.
However, the district court remanded for lack of jurisdic-
tion, simultaneously noting its own uncertainty and certi-
fying a question of law for appellate review. The Ninth
Circuit Court. after discussing the doctrine of “complete
preemption’, dismissed the appeal on the grounds that
orders remanding actions for lack of jurisdiction are unre-
viewable under Thermtron. 886 F.2d at 1181-82. Thus,
defendant was compelled to return to state court with no
avenue for appeal.'”

Income Security Corp. v. Louisiana Oilfield Contractors
Ass’n, No. $8-4450 (5th Cir. Mar. 22, 1989). petition for cert.
filed, 58 U.S.L.W. 3009 (U.S. June 26, 1989), Solicitor
General invited to file brief, 58 U.S.L.W. 3212 (U.S. Oct. 2.
1989), bears consideration. There. the district court
granted an injunction against state court proceedings after
finding that the action was subject to exclusive federal
jurisdiction under ERISA. The Fifth Circuit Court pe-
remptorily vacated, holding that injunctive relief is un-
available even though a claim is subject to exclusive
federal jurisdiction.'' Though the claim in Income Security
Corp. may not be preempted by ERISA and therefore may

See alse Hansen v. Blue Cross of California, ~—— F.2d
(9th Cir. 1989) (refusing to entertain petition for writ of mandamus
of district court order remanding action on grounds that complaint
was not facially preempted by ERISA): but see In re Life Ins. Co. of
North America, 857 F.2d 1190 (Sth Cir. 1988) (granting mandamus
review of remand of “pendent” state claim preempted by ERISA):
Survival Systems v. United States District Court for the Southern
District of California, 825 F.2d 1416 (9th Cir. 1987). cert. denied, 484
U.S. 1042 (1988) (denying petition for writ of mandamus after
conducting substantive analysis of whether pendent state law claim
was preempted by ERISA).

'' The Fifth Circuit Court based its holding on its previous
decision in Texas Employers Ins. Ass’n v. Jackson, 862 F.2d 491 (5th
Cir. 1988). cert. denied, 109 S.Ct. 1932 (1989).

11

not be subject to exclusive federal jurisdiction so that an
injunction is unjustified on the merits,'* the rationale of
the Fifth Circuit Court—a blanket proscription of injunc-
tions—is not the proper solution.”

'? Income Security Corp. involved claims brought in state court
against a Mr. Felton, who had been retained by an ERISA plan to
act as its actuary, and who had also processed claims for the plan,
subject to the approval of the plan’s trustees. See Respondents’
Brief in Opposition to the Petition for Certiorari in Income Security
Corp., at 3, 16. Mr. Felton argued successfully in the district court
that he was a fiduciary under the provisions of ERISA, and that the
claims against him were therefore preempted by ERISA and subject
to the exclusive jurisdiction of the federal courts. Actions against
fiduciaries are indeed encompassed by § 409 of ERISA, 29 U.S.C.
§ 1109, and subject to exclusive federal jurisdiction. But people
who provide actuarial and claims-processing services to an ERISA
plan are not necessarily ERISA fiduciaries; they may lack the
discretionary authority to earn the title of “fiduciary”. The plan
may indeed bring claims against them in state court: such state law
claims are not preempted by ERISA.

'S Similar problems have arisen under the federal labor stat-
utes. This Court has held that ERISA’s preemptive scope is so broad
as to be singularly equivalent to that of federal labor laws. See
Metropolitan Life, 481 U.S. at 66 (actions brought under ERISA
§ 502(a) fall under rule established in Aveo Corp. v. Machinists, 390
U.S. 557 (1968) for actions preempted by § 301 of the LMRA, 29
U.S.C. § 185). Texas Employers Ins. Ass’n v. Jackson, 618 F. Supp.
1316 (E.D. Tex. 1985), involved an action for declaratory and
injunctive relief against a state court action preempted by the
Longshore and Harbor Workers’ Compensation Act (“LHWCA”).
Like claims under § 510 of ERISA, 29 U.S.C. § 1140, claims under
the LHWCA are subject to the exclusive jurisdiction of the federal
courts. See 33 U.S.C. §§ 918 & 921(d). The district court accordingly
issued an injunction against the state court proceedings. The Fifth
Circuit Court reversed, holding that the Anti-Injunction Act barred
such injunctive relief. Texas Employers’ Ins. Ass’n v. Jackson, 862
F.2d 491, 504 (5th Cir. 1988). cert. denied, 109 S. Ct. 1932 (1989).

Review of remand orders has also been an issue in the labor
law area. See In re Carter, 618 F.2d 1093 (5th Cir. 1980), cert. denied
sub nom., Sheet Metal Workers’ Intern. Ass’n, AFL-CIO v. Carter, 450

12

2. Nobers Graphically Demonstrates The Inadequacy Of
Removal And The Need For Injunctive Relief As Autho-
rized By ERISA

Nobers v. Crucible, Inc., Civil No. 843-1984 (Ct. of
Common Pleas of Beaver County, Pa.), is illustrative of the
tangled web confronting defendants.'' The Nobers plain-
tiffs are former salaried employees of defendant Crucible
who were laid off and terminated from their employment
as a result of a plant closing. Each of the Nobers plaintiffs
had been promoted to salaried positions from previous
positions in the collective bargaining unit. Upon termina-
tion, plaintiffs received benefits applicable to salaried
employees.

In 1982. the Nobers plaintiffs filed an action in federal
court, based on § 301 of The Labor Management Relations
Act (“LMRA”’), 29 U.S.C. § 185, as well as § 502 of ERISA.
In their LMRA claims, plaintiffs alleged that the collective
bargaining agreement granted them a right to be returned

U.S. 949 (1981) (enforcing exclusive jurisdiction under § 301 of the
LMRA): Kunzi v. Pan American World Airways, 833 F.2d 1291 (9th
Cir. 1987) (Railway Labor Act).

' Schmitt v. Insurance Co. of North America, $45 F.2d 1546 (9th
Cir. 1988). demonstrates an additional difficulty that plagues de-
fendants in state court actions preempted by ERISA: that of inad-
vertently acquiescing to state court proceedings. There. defendant
was obliged to participate in pre-trial proceedings before it became
evident that so-called “Doe” co-defendants were non-existent.
clearing the way fer defendant to remove to federal court. See 845
F.2d at 1548. Defendant removed the following day. 845 F.2d at
1547. The district court remanded to state court on the grounds that
removal was improvident. and that defendant had waived its right
to removai by participating in the state court action. 845 F.2d at
1548. The Ninth Circuit Court held that the district court's order
was “not reviewable by appeal or otherwise”. $45 F.2d at 1551.
Thus. a defendant in a state court action preempted by ERISA is
compelled to resist the jurisdiction of the state courts at every turn,
or risk being deemed to have “waived” the issues of ERISA
preemption and exclusive federal jurisdiction.

13

by Crucible to, and be terminated from, the bargaining
unit rather than be laid-off and ultimately terminated as
salaried employees, and that Crucible’s failure to exercise
its power to return plaintiffs to the bargaining unit had
prevented them from attaining eligibility to obtain benefits
applicable to bargaining unit employees. The plaintiffs
claimed the union had not properly represented them. The
complaint contained an apparent state law claim for dam-
ages against Colt, the sole shareholder of Crucible. The
court granted summary judgment on the LMRA claims,’
finding that plaintiffs had no right to return to the bargain-
ing unit under the collective bargaining agreement, nor
were such rights created by any alleged “past practice”.
The Third Circuit Court affirmed without opinion. Nobers
v. Crucible, Inc., 722 F.2d 733 (3d Cir. 1983).

On June 28, 1984, plaintiffs filed an action in the Court
of Common Pleas of Beaver County, Pennsylvania against
Crucible and Colt, Crucible’s sole shareholder, asserting
claims for breach of, and interference with. express and
implied contracts of employment. Nobers v. Crucible, Inc.,
Civil No. 843-1984 (Ct. of Common Pleas of Beaver
County, Pa.). According to plaintiffs, these alleged con-
tracts entitled them to be singled out from other salaried
employees by reason of their prior membership in the
bargaining unit, and returned to, and terminated from, the
bargaining unit rather than being terminated as salaried
employees. Plaintiffs sought relief in the form of damages
equivalent to unemployment, pension, and insurance ben-
efits applicable to bargaining unit employees. Plaintiffs
made no claim for lost wages, in tacit acknowledgment
that the sole consequence of the wrong allegedly suffered
was its alleged effect on benefit eligibility.

' The district court dismissed plaintiffs’ ERISA claim for fail-
ure to join applicable benefits plans, and failure to exhaust adminis-
trative remedies. Plaintiffs did not appeal the dismissal.

14

It could not be plainer that plaintiffs’ claims against
their former employer, and the employer's sole share-
holder. are encompassed by § 510 of ERISA, 29 U.S.C.
§ 1140. Section 510 specifically encompasses claims
for interference with rights to obtain benefits. See
Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208, 1216
(Sth Cir.). cert. denied, 454 U.S. 968, and cert. denied sub
nom, Dependahl v. Kalmanovitz, 454 U.S. 1084 (1981): see
also Gavalik v. Continental Can Co., 812 F.2d 834, 860 (3d
Cir.). cert. denied, 484 U.S. 979 (1987). Not only does § 510
provide the exclusive remedy for plaintiffs’ claims, but
Congress has mandated that the federal courts are to
exercise exclusive jurisdiction over claims encompassed by

§ 510. ERISA § 502(e)(1). 29 U.S.C. § 1132(e) (1).

Within 30 days of receipt of the complaint. defendants
removed to federal court. On plaintiffs’ motion, the district
court. notwithstanding defendants’ demonstration of the
applicability of § 510. remanded the action on the grounds
that ERISA preemption was not established by the “face of
the complaint”. Nobers v. Crucible, Inc., 602 F. Supp. 703.
708 (W.D. Pa. 1985). There existed at that time a split of
authority on the issue of whether supposed state law
claims not explicitly invoking ERISA could be removed to
federal court. See Metropolitan Life, 481 U.S. at 62 n.2. The
remand was not subject to appellate review. See Therm-
tron, 423 U.S. 336.

After remand. defendants requested an injunction
from the district court. an approach suggested by the
district court in its decision remanding the action. See
Nobers, 602 F. Supp. at 708-09. Injunctive relief was de-
nied. Nobers v. Crucible, Inc., Civil No. 85-563 (W.D. Pa.
1985). aff'd without opinion, 787 F.2d 581 (3d Cir. 1986)
(holding. largely on a facial review of the complaint. that
defendants had failed to make a “strong and unequivocal
showing” of relitigation).

15

This Court's decisions in Metropolitan Life and Pilot
Life followed."° On defendants’ motion, the Court of Com-
mon Pleas dismissed the action on the grounds that it is
preempted by ERISA. On appeal, the Superior Court of
Pennsylvania ignored Metropolitan Life and Pilot Life, in-
stead relying on Shaw v. Westinghouse, 276 Pa. Super. 220,
419 A.2d 175 (1980)."" to hold that plaintiffs’ claims are not
preempted by ERISA even though the relief sought is to
obtain damages equivalent to benefits. Nobers v. Crucible,
Inc., 376 Pa. Super. 156, 545 A.2d 367 (1988). The Superior
Court would thus create a state law cause of action analo-
gous in effect and operation to § 510 of ERISA. See also
McClendon v. Ingersoll-Rand Co., Tex. ___., 779 S.W.
2d 69 (1989) (creating state law cause of action analogous
to § 510). Congress clearly intended to preempt any such
state law causes of action. Nevertheless, the Supreme
Court of Pennsylvania denied review. Pa. , 559
A.2d 39 (1989). The action was thus returned to the Court
of Common Pleas with implicit instructions to do the
impossible: assert jurisdiction and apply state law to claims
which are subject to exclusive federal jurisdiction and
preempted by federal law.

Within 30 days of return to the Court of Common
Pleas. defendants filed a renewed notice of removal. The
district court granted plaintiffs’ motion to remand the
action. on the grounds that the renewed notice was filed

These decisions unequivocally establish that the “face of the
complaint” analysis applied by the district court to remand, as well
as to deny injunctive relief, is inappropriate in the context of
ERISA preemption.

Because the alleged breach of contract at issue in Shaw
occurred in 1972, ERISA was inapplicable to Shaw. See ERISA
§ 514(a) & (b)(1), 29 U.S.C. § 1144(a) & (b) (1).

16

more than 30 days after Metropolitan Life and Pilot Life
issued.”

Thus. defendants are caught between a federal district
court and a state appellate court, both refusing to give
effect to ERISA’s broad preemptive scope. Although both
the district court and the Superior Court have recognized
that plaintiffs’ claims against at least Colt are in the nature
of § 510 claims.” neither one is willing to give effect to
ERISA preemption and concommitant exclusive federal
jurisdiction. Defendants’ dilemma illustrates that there
must be some avenue for ensuring that ERISA is applied.
and that the exclusive jurisdiction of the federal courts is
protected. Exclusive jurisdiction is a Congressional man-
date. not to be ignored. a

C. THe ANTI-INJUNCTION ACT Permits INJUNCTIVE Re-
Lier To ENrorce ERISA’s PREEMPTION AND JURISDIC
TIONAL SCHEME

In its opinion in Musisko, the Third Circuit Court held
that the injunction issued by the district court did not fall
within the statutory exceptions of the Anti-Injunction Act.
28 U.S.C. § 2283. These exceptions permit an injunction of
state court proceedings if expressly authorized by Con-

"In using the issuance of this Court's decisions as a bench-
mark for the commencement of a 30-day period for removal. the
district court imposed its own extra-statutory requirement. See 25
U.S.C. § 1446(b). Hence. defendants shall file a petition for writ of
mandamus to seek relief from the district court's order of remand.
See Thermtron, 423 U.S. 336. Furthermore. the salaried benefit plans
have now filed a second complaint for injunctive relief. the deter-
mination of which may turn on this Court's resolution of the Third
Circuit Court's opinion in Musisko

" See Nobers, 602 F. Supp. at 707 (plaintiffs’ only colorable
claim against Colt is*a tort action ... possibly for inducing breach
of contract or interference with contractual relations): Nobers, 545
A.2d at 369 (claim against Colt is “for tortious interference of the
plaintiffs’ contract with .. . Colt’s subsidiary”).

17

gress, or necessary in aid of the federal court's jurisdiction,
or necessary to protect or effectuate the federal court's
judgment. Significantly, the test is disjunctive. Equally
significant, certain ERISA preempted actions for which
injunctive relief has been denied meet all three of the
articulated criteria.

With respect to the first prong of the Anti-Injunction
Act test. this Court has noted that “‘a federal law need not
expressly authorize an injunction of a state court proceed-
ing in order to qualify as an_-exception”. Mitchum v. Foster,
407 U.S. 225, 237 (1972). ERISA’s provisions for preemp-
tion and jurisdiction, and the underlying Congressional
intent to broadly preempt and regulate this field implicitly
yet clearly authorize injunctions of state court proceed-
ings. More explicit guidance is unnecessary. Indeed, in
Porter v. Dicken, 328 U.S. 252 (1946) (cited in Mitchum, 407
U.S. at 235 n.17)), this Court held that a statute granting
authority to enjoin acts violating or threatening a violation
of the statute was sufficiently broad to authorize injunc-
tions of state court proceedings. The statute, the Emer-
gency Price Control Act of 1942, 56 Stat. 33, provided:

Whenever in the judgment of the Administrator any
person has engaged or is about to engage in any acts
or practices which constitute or will constitute a
violation of any provision of section 4 of this Act, he
may make application to the appropriate court for an
order enjoining such acts or practices.

Similarly. § 502(a)(3) of ERISA, 29 U.S.C.
§ 1132(a) (3). provides that a civil action may be brought:
by a participant, beneficiary, or fiduciary (A) to en-
join any act or practice which violates any provision
of this subchapter” or the terms of the plan, or (B) to

” The term “subchapter” in § 502(a)(3) encompasses all of
Title I of ERISA, see H.R. Rep. No. 1280, 93d Cong., 2d Sess., at 75
(1974). reprinted in Il Legislative History, at 4350, and therefore
includes such substantive provisions as § 510, 29 U.S.C. § 1140.

18
.
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.

Certainly, § 502(a)(3). when viewed in the overall
context of ERISA. is sufficiently broad to authorize injunc-
tive relief on behalf of an ERISA fiduciary who is seeking
to enforce ERISA’s preemptive and jurisdictional provi-
sions. just as the Price Administrator was authorized by
the Emergency Price Control Act to seek injunctive relief
in federal court.”' Fiduciaries must be able to apply to
federal court to enjoin state court proceedings which
threaten the integrity of ERISA.

The second prong of § 2283 recognizes that federal
courts must be able to exercise injunctive powers in aid of
their jurisdiction. State court jurisdiction under ERISA is
of a very limited and specific nature: it is confined to
claims for benefits properly asserted against an ERISA
plan. The state court in Musisko exceeded the authority
extended to it under ERISA, and thus the decision of the
Third Circuit Court must be reversed to give effect to the
Congressional intent embodied in ERISA’s comprehensive
preemption and jurisdictional scheme. This issue is even
more sharply focused for claims of which the federal
courts are granted exclusive jurisdiction by § 502(e) (1) of

ERISA, 29 U.S.C. § 1132(e) (1).

Indeed. § 510 itself contains a statement that it may be enforced
through § 502. 29 U.S.C. § 1132.

*! This Court reasoned in Porter, 328 U.S. at 252. that:

{Section| 205 authorizes the Price Administrator to bring
injunction proceedings to enforce the Act in either state or
federal courts. and this authority is broad enough to justify an
injunction to restrain state court evictions .... Since the
provisions of the Price Control Act. enacted long after [the
Anti-Injunction Act]. do not compel the Administrator to go
into the state courts but leave him free to seek relief in the
federal courts. he was not barred by [the Anti-Injunction Act|
from seeking an injunction to restrain an unlawful eviction.

19

Yet the Third Circuit Court in Musisko, and the Fifth
Circuit Court in Income Security Corp.” and Majoue,
have held that injunctive relief is unavailable to pro-
tect federal jurisdiction of claims preempted by
ERISA.” These blanket prohibitions are not only incor-
rect, but they are in conflict with Gilbert v. Burlington
Indus., 765 F.2d 320 (2d Cir. 1985); affd mem sub nom.
Roberts v. Burlington Indus., 477 U.S. 901 (1986); General
Motors Corp. v. Buha, 623 F.2d 455 (6th Cir. 1980); Mar-
shall v. Chase Manhattan Bank,558 F.2d 680 (2d Cir. 1977).

Finally, under the third prong of the Anti-Injunction
Act test, the federal courts have injunctive power to
protect or effectuate their judgments. This concern is
implicated in Nobers. Civil No. 843-1984 (Ct. of Common
Pleas of Beaver County, Pa.). The Nobers plaintiffs began
their journey with a claim for benefits, which was dis-
missed by the district court. Defendants have argued in
the district court, the Third Circuit Court, and the state
courts, that the subsequent action filed in the Court of
Common Pleas is merely a relitigation of the claim for
benefits dismissed by the district court. The district court
itself indicated, in its first opinion remanding the action,

~ The Solicitor General. in his brief filed in response to this
Court's invitation in Income Security Corp., argued that injunctive
relief should not be available. no doubt because the claims in that
case are not preempted by ERISA in the first instance, and cannot
implicate such crucial issues as the exclusive jurisdiction of the
federal courts. It is clear that injunctive relief is entirely inappro-
priate if the state court action is not preempted by ERISA, as
appears to be the case in Income Security Corp.

~The Ninth Circuit Court in Whitman, 886 F.2d 1177, and
Hansen, F.2d. ___. has steadfastly refused to grant mandamus
relief for actions erroneously remanded to state court, despite
ERISA preemption. But see In re Life Ins. Co. of North America, 857
F.2d 1190 (Sth Cir. 1988).

9 * * * * * * , .
“In the same initial action, plaintiffs’ claims under the LMRA
were denied on a motion for summary judgment.

/

th anteater eaiaeme

20

that res judicata might constitute a bar to plaintiffs’ claims.
Nevertheless. the district court subsequently applied a
“face of the complaint” analysis to deny injunctive relief.

The sound and well-known principles underlying the
doctrine of res judicata are of heightened importance.
because of the broad preemption and specific jurisdic-
tional provisions set forth in ERISA. As amicus curiae has
demonstrated. these ERISA provisions are meaningless
unless injunctive relief is available.

CONCLUSION

For the reasons stated above, the Court should grant
Petitioners petition for writ of certiorari and reverse the
decision of the court below.

Respectfully submitted.

Hous T. HurpD

WILLIAM H. PowDERLy. III
PAULA E. GANZ

Jones Day Reavis & POGUE
500 Grant Street
Pittsburgh. PA 15219

Counsel for Amicus Curiae.
Colt Industries Inc

Of Counsel:

ANTHONY J. DIBUONO

COLT INDUSTRIES INC

1430 Park Avenue

New York. New York 10022

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0773%3A3. Public record. Not legal advice.