Opposition Brief — Zippererer v. Raytheon Co., Inc. (No. 07-778)

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EMORY ZIPPERER,

Petitioner,

RAYTHEON COMPANY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

JAMES F. KAVANAUGH, JR.

CONSTANCE M. MCGRANE

Counsel of Record

CONN KAVANAUGH ROSENTHAL

PEISCH & FoRD, LLP

Ten Post Office Square

Boston, Massachusetts 02109

Telephone: (617) 482-8200

Counsel for Respondent

Dated: January 10, 2008

BATEMAN & SLADE, INC BOSTON, MASSACHUSETTS

QUESTIONS PRESENTED

1. Whether the First Circuit’s ruling that

the Employee Retirement Income Security Act

(“ERISA”) preempts a former employee’s state law

claims based upon an incorrect estimate of the

amount of future pension benefits conflicts with a

decision of this Court.

2: Whether the First Circuit’s ruling af-

firming the District Court’s judgment conflicts with

a decision of another United States court of appeals.

LIST OF PARTIES AND

RULE 29.6 STATEMENT

The parties named in the caption, Emory

Zipperer and Raytheon Company (“Raytheon”), were

the only parties to the proceedings before the First

Circuit Court of Appeals and the Massachusetts

District Court. Raytheon has no parent companies,

and there are no publicly-held companies that own

ten percent or more of its stock.

ill

TABLE OF CONTENTS

QUESTIONS PRESENTED

LIST OF PARTIES AND RULE 29.6

STATEMENT

STATEMENT OF THE CASE

Proceedings Below

Factual Background

REASONS FOR DENYING THE PETITION

I. THE FIRST CIRCUITS

DECISION IN THIS CASE

DOES NOT CONFLICT WITH

RELEVANT DECISIONS OF

RRO RPM esa eee tetecnna apeeeeee ae 6

THE DECISION OF THE FIRST

CIRCUIT DOES NOT

CONFLICT WITH THE

DECISION OF ANOTHER

UNITED STATES COURT OF

YF og od tS BSR ey pepe ny TER RO Epp Dr 15

CONCLUSION

TABLE OF AUTHORITIES

FEDERAL CASES:

Aetna Health Inc. v. Davila,

542 U.S. 200 (2004)

Anderson v. John Morrell & Co.,

830 F.2d 872 (8th Cir. 1987)

Carlo v. Reed Rolled Thread Die Company,

49 F.3d 790 (1st Cir. 1995)

Degnan v. Publicker Indus., Inc.,

8 ge Bee) ee |.) or 16

Dranchak v. Akzo Nobel Inc.,

88 F.3d 457 (7th Cir. 1996)

Egelhott v. Egelhott,

BSD UB. 281 CBOO DD vivcicieccccccosccoascsecces ri, ta; to

Farr v. U.S. West Communications, Inc.,

151 F.3d 908 (9th Cir. 1998),

cert. denied, 528 U.S. 1116 (2000)

Great-West Life & Annuity Insurance Company,

ER ML) RE IED vissscksasnnicdavendnsasesicakinedins 8,9

Ingersoll-Rand Co. v. McClendon,

ce Opts Vee eS BG b:.) ) BE er 12,14

Nachwalter v. Christie.

805 F.2d 956 (11th Cir. 1986)

Pilot Life Ins. Co. v. Dedeaux,

481 U.S. 41 (1987)

Shaw v. Delta Air Lines, Inc.,

463 U.S. 85 (1983)

Slice v. Sons of Norway,

978 F.2d 1045 (8th Cir. 1992)

STATE CASES:

Kessler v. Cambridge Health Alliance,

818 N.E.2d 582

(Mass. App. Ct. 2004)

FEDERAL STATUTES:

29 U.S.C. §§ 1001, et seg passim

ie SRR Ome Fo ke OS GD) Se nn edt nos 8

29 U.S.C. §1144(a)

FEDERAL RULES:

Fed. R. Civ. P. 12(c) ..........

INTRODUCTION

Respondent, Raytheon, respectfully requests

that the Court deny the Petition for Writ of

Certiorari (“Petition”) seeking review of the decision

of the First Circuit Court of Appeals. Petitioner has

failed to demonstrate any compelling reason for

granting the Petition. Specifically, the Petition

should be denied because (i) the First Circuit’s July

12, 2007 Opinion (“Opinion”) is consistent with the

relevant, settled decisions of this Court concerning

preemption and (ii) Petitioner has failed to demon-

strate any conflict with any decision of another court

of appeals on the same matter.

STATEMENT OF THE CASE

Proceedings Below

Petitioner, Emory Zipperer (“Zipperer’), filed

a complaint for negligence, equitable estoppel, and

negligent misrepresentation in the Massachusetts

Superior Court on October 15, 2003. The complaint

alleges that Raytheon’s negligence in administration

of the Raytheon Engineers & Constructors Retire-

ment Plan (“the Plan” or “the RE&C Retirement

Plan”) resulted in an incorrect estimate of retire-

ment benefits. Because the Plan is governed by

ERISA, Raytheon timely removed the case to the

United States District Court on the basis of federal

question jurisdiction. Contrary to Petitioner's asser-

tions, the parties engaged in discovery, exchanging

documents and responding to interrogatories. Peti-

tioner’s deposition was taken in the case. (Contra,

Petition for Writ of Certiorari, “Pet.” at 26, fn. 2).

On March 1, 2005, Raytheon moved for judg-

ment in its favor on the pleadings. The motion was

based upon ERISA preemption because each of the

common law claims arise from the incorrect estimate

of retirement benefits from the Plan provided by the

Pension Administrator. Count I asserts a claim for

negligence due to the incorrect estimate of peti-

tioner’s monthly retirement benefits resulting from

records kept by Raytheon. Count II for equitable es-

toppel claims that in reliance on this incorrect bene-

fit estimate Petitioner decided to retire. Count III

claims that Raytheon negligently misrepresented the

amount of his pension benefits due under the RE&C

Retirement Plan.

After argument, U.S. Magistrate Judge

Marianne B. Bowler recommended that the motion

for judgment on the pleadings be allowed. (Appendix

to Petition for Writ of Certiorari (““App.”), 14a — 28a).

Her recommendation included a caveat - Zipperer

was permitted thirty (30) days to file a motion for

leave to file an amended complaint raising one or

more causes of action under ERISA. (App., 27a).

Zipperer did not file an amended complaint. In-

stead, Zipperer filed objections to the report and rec-

ommendation.

On March 30, 2006, U.S. District Judge Mark

L. Wolf affirmed the recommendation, and allowed

the motion for judgment on the pleadings. (App.,

lla — 14a). Judge Wolf provided Zipperer with an-

other opportunity to file an amended complaint to

state a claim on which relief could be granted. (App.,

13a). Zipperer did not file an amended complaint.

The district court entered judgment for Raytheon,

and Zipperer appealed. Following argument, on July

12, 2007 the First Circuit Court of Appeals affirmed

the district court judgment. (App., la — 10a).

Factual Background

Pursuant to the standards applicable to

motions for judgment on the pleadings under Fed. R.

Civ. P. 12(c), Raytheon accepts as true the allega-

tions in Zipperer’s complaint. The following facts are

based upon the allegations.

Zipperer began working for United Engineers

& Constructors, Inc., (““UE&C”), a wholly owned sub-

sidiary of Raytheon Company (“Raytheon”), in 1972,

and began participating in its retirement plan in

1975. Raytheon Engineers & Construction (““RE&C”)

is the successor to UE&C. This dispute concerns es-

timated benefits from the RE&C Retirement Plan.

In 1990, Zipperer began working for another

Raytheon subsidiary, Raytheon Services Nevada

(“RSN”). RSN performed contract work for the

Department of Energy (“DOE”) in Nevada.

Zipperer’s service date with RSN was adjusted to re-

flect his prior service with UE&C. In 1993, after

separating from his employment at RSN, Zipperer

was rehired by RE&C, the successor to UE&C.

RE&C also credited Zipperer with his prior years of

service with UE&C for purposes of calculating his

pension benefits.

In 1995, Bechtel Nevada replaced RSN as a

contractor to the DOE, and the RSN pension trust

fund monies were transferred to the Bechtel Nevada

Employees Retirement Plan. As a result, both Bech:

tel, as the successor to RSN, and RE&C included

Zipperer’s original UE&C service time in their pen:

sion calculations. Zipperer is currently receiving a

separate pension benefit from Bechtel, which

amount includes all benefits accrued during the pe-

riods he worked for UE&C and RSN. RE&C was

sold to Washington Group International (“WGI”) on

July 7, 2000.

Allegedly based upon an estimate Zipperer re-

ceived from the RE&C Pension Administrator con:

cerning future benefits from the RE&C Retirement

Pension Plan, Zipperer retired from his employment

with WGI on September 30, 2000. More specifically,

on December 27, 1999, Zipperer addressed a Request

for Retirement Calculations for estimated retirement

benefits from the RE&C Retirement Plan to the

RE&C Pension Administrator. On February 16,

2000, the RE&C Pension Administrator provided

Zipperer with an estimate of retirement benefits of

$980.55 monthly if he chose joint and survivor an-

nuities. Based on the estimate, Zipperer and his

wife decided to retire from their respective jobs. At

the time of his retirement, Zipperer earned $107,484

annually.

In June of 2001, Zipperer was informed by the

Raytheon Benefit Center that his pension benefits

had been incorrectly overstated in the earlier esti-

mate, and that he was entitled to receive only

$400.06 per month from the RE&C Retirement Plan.

As a result, on an annual basis, Petitioner receives

approximately $7,000 less in retirement benefits

than initially estimated. According to Zipperer’s al-

legations, the earlier overstated benefit estimate re-

sulted from Raytheon’s incorrect report of Zipperer’s

benefits to be received from the RE&C Retirement

Plan. Zipperer administratively appealed the deci-

sion concerning his pension benefits, and exhausted

all internal appeal procedures regarding the decision

to pay him the correct amount of pension benefits.

The RE&C Retirement Plan 1s a pension plan

eoverned by the Employee Retirement Income

—

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

The Plan has reserved absolute discretion for inter-

preting and deciding questions under the Plan. The

Plan is administered by a Retirement Committee

which serves “at the pleasure of the Directors.” Un-

der the terms of the Plan, the Committee is to “de-

termine any and all questions arising in the applica-

tions of the provisions of the Plan in such manner

and upon such basis as the Committee shall in its

absolute discretion deem to be proper and fair and

equitable under the circumstances.” Among other

responsibilities, the Committee is to “keep appropri-

ate records of the operation of the Plan.”

Zipperer does not specifically allege that he is

entitled to additional benefits under the Plan. Put

more positively, Zipperer is receiving all the benefits

that he is entitled to under the Plan. There is no al-

legation that the decision of the Pension Administra-

tor regarding his benefits was improper under the

terms of the Plan. Instead, Zipperer alleges that

Raytheon’s failure to “properly maintain records and

information concerning his retirement plan” resulted

in the provision of incorrect data concerning his re-

tirement benefits. He alleges that the breach of this

duty to “properly maintain records” resulted in a

single incorrect estimate provided by the RE&C

Pension Administrator, which caused him and his

wife to retire. Even accepting Petitioner’s assertion

that an annual benefit difference of approximately

$7,000 motivated a different retirement decision,

any causes of action based upon the benefit estimate

fall within the scope of ERISA, and are completely

preempted because they relate to regulation of the

ERISA plan

REASONS FOR DENYING THE PETITION

THE FIRST CIRCUITS DECISION IN THIS

CASE DOES NOT CONFLICT WITH

RELEVANT DECISIONS OF THIS COURT.

The underlying First Circuit decision does not

conflict with any decision of this Court concerning

ERISA preemption. Applying the developed law, the

First Circuit appropriately affirmed the District

Court’s judgment holding that Petitioner’s claims are

preempted by ERISA. The decision is consistent

with the increasing clarity provided by this Court to

ERISA preemption jurisprudence with cases such as

Aetna Health Inc. v. Davila, 542 U.S. 200 (2004).

This Court’s decision in Aetna Hea/th did not

change the law concerning ERISA preemption as

suggested by Petitioner. Instead, this Court con-

firmed the reasoning of prior decisions concerning

preemption. More specifically, citing Pilot Life Ins.

Co. v. Dedeaux, 481 U.S. 41, at 54-56 (1987), the

Court confirmed:

“(T]he detailed provisions of §502(a) set

forth a comprehensive civil enforcement

scheme that represents a careful bal-

ancing of the need for prompt and fair

claims settlement procedures against

the public interest in encouraging the

formation of employee benefit plans.

The policy choices reflected in the inclu-

sion of certain remedies and the exclu

sion of others under the federal scheme

would be completely undermined if

ERISA-plan participants and benefici-

aries were free to obtain remedies un-

der state law that Congress rejected in

ERISA. ‘The six carefully integrated

civil enforcement provisions found in

§502(a) of the statute as finally enacted

provide strong evidence that Con-

gress did mot intend to authorize other

remedies that it simply forgot to incor-

porate expressly.’ ” Jd., at 54, 107 S.Ct.

1549 (quoting Russel/, supra, at 146,

105 S.Ct. 3085).

Therefore, any state-law cause of action

that duplicates, supplements, or sup-

plants the ERISA civil enforcement

remedy conflicts with the clear congres-

sional intent to make the ERISA rem-

edy exclusive and is therefore pre-

empted.”

Aetna Health Inc. v. Davila, 542 U.S. 200, 208-09

(2004).

Petitioner’s state law claims seek to supple-

ment ERISA’s enforcement remedies by engrafting a

duty to maintain and convey accurate employment

records in the administration of the Plan. As in

Aetna Health, Petitioner is only entitled to pension

benefits due to the terms of the ERISA-regulated

employee benefit plan, and any duty to keep accu-

rate employment records was only breached in rela-

tionship to the Plan. In essence, Petitioner seeks a

remedy for the Plan’s failure to pay the benefits

wrongly estimated prior to his retirement. Such

causes of action are superseded by ERISA because

they relate to the employee benefit plan. ERISA,

§514(a), as set forth in 29 U.S.C. §1144(a) (the pre-

emption clause).

ERISA’s civil enforcement provisions, at

Section 502(a), provide the exclusive vehicle for

Zipperer to enforce his rights under the Raytheon

pension plan. Pilot Life Ins. Co. v. Dedeaux, 481 U.S.

41, 52 (1987). Under the civil enforcement provi-

sions, a plan participant may sue to recover benefits

due, to enforce rights under the plan or to clarify

rights to future benefits. In addition, a participant

may bring suit for breach of fiduciary duty to seek

appropriate relief due to the breach of fiduciary duty.

ld. at 53. Given Petitioner’s concession that he has

no remedy under ERISA, his assertion that his

claims do not supplement any remedy provided by

ERISA is not well based. (Pet., 26).

Zipperer is receiving the appropriate level of

benefits under the Plan. Upon Raytheon’s determi-

nation that it was providing Zipperer with the wrong

level of benefits, it corrected its mistake and pro-

vided notice to Zipperer of the correct level. It also

considered and denied Zipperer’s appeal of the deci-

sion concerning his pension benefits. Accordingly, he

cannot make out a claim for benefits due under

ERISA, Section 502(a)(1)(B), 29 U.S.C.

§1132(a)(1)(B). Further, despite two opportunities to

amend his complaint, he did not assert a claim for

other relief provided under ERISA for breach of fidu-

ciary duty or any other federal common law claim.

Zipperer makes claims for compensatory

money damages which are unavailable under

ERISA. A plaintiff may only seek equitable relief,

not legal relief such as money damages, under Sec-

tion 502(a)(3) of ERISA for breach of fiduciary duty.

Great-West Life & Annuity Insurance Company, 534

U.S. 204 (2002). Claims for consequential losses,

even if framed as requests for restitution as a form of

equitable relief, are not available under Section

502(a)(3) of ERISA. Relief under ERISA’s Section

502(a)(3) is limited to traditional forms of equitable

relief. This Court has observed repeatedly that

ERISA is a “comprehensive and reticulated statute”

which was the product of a decade of congressional

study. Accordingly, the Court has been “especially

reluctant” to tamper with the statute’s enforcement

scheme by extending unauthorized remedies. J/d., at

209.

Zipperers attempt to avoid preemption

amounts tc an extension of such unauthorized reme-

dies, and seeks to supplement the remedies provided

by ERISA. His damages are based upon the admini-

stration of his pension benefits under an ERISA

plan, which resulted in him being provided with a

wrong estimate. Petitioner’s attempt to avoid pre-

emption amounts to an attempt to both add causes of

action to ERISA, and to obtain damages which are

unauthorized by ERISA. Such an attempt is fore-

closed by existing precedent, and, if permitted would

compromise the uniform regulatory regime estab-

lished by ERISA.

Contrary to Petitioner’s suggestions, Aetna

Health reiterated that ERISA’s “expansive pre-

emption provisions...are intended to ensure that

employee benefit plan regulation would be ‘exclu-

sively a federal concern.” Aetna Health, Inc. v.

Davila, 542 U.S. 200, 208 (2004) (citation omitted).

The First Circuit’s decision recognized that Peti-

tioner’s claims, if allowed, would result in different

administrative procedures in different jurisdictions,

a result that ERISA is designed to avoid. Indeed, as

in Aetna Hea/th, Petitioner is bringing suit to rectify

a denial of benefits promised under the pension plan.

Although there may be a separate legal duty, such as

the duty of ordinary care imposed by the statute in

Aetna Health, the alleged breach of legal duty he

seeks to remedy is dependent on the ERISA-

regulated Plan. As recognized by the Magistrate in

the decision below:

Regardless of the label of the state law

claims, in essence they seek extra-

contractual benefits not authorized by

the terms of the Plan. Such an end run

around the carefully crafted benefits

Raytheon chose to provide and fund

amounts to an attempt to authorize

remedies beyond those provided by the

Plan. See generally Aetna Health, Inc.

v. Davila, 124 S. Ct. at 2498-2499;

Carlo v. Reed Rolled Thread Die Com-

pany, 49 F.3d 790, 794 n.3 (1st Cir.

1995).

(App. 23a).

Petitioner’s claim that Massachusetts General

Law’s record-keeping requirements impose an inde-

pendent legal duty that permits this Court to ignore

both precedent and the limitations of ERISA is with-

out merit. While Massachusetts law provides certain

record-keeping responsibilities for employers, as

Petitioner recognizes, the recordkeeping functions at

issue in this case “as a matter of necessity, arise in

the administration of a particular pension plan.”

(Pet., 28). As in Aetna Health, where the respon-

dents unsuccessfully argued that the state law obli-

gations of the Texas Health Care Liability Act

(THCLA) were outside the scope of ERISA’s preemp-

tive sweep, any potential lability derives from the

rights and obligations established by the pension

plan. Aetna Health Inc. v. Davila, 542 U.S. 200, 213

(2004). The Petitioner recognizes that Raytheon had

“recordkeeping requirements in its pension plan.”

(Pet., 29). Raytheon’s recordkeeping requirements

relative to Petitioner’s dates of employment are at

issue only because of the Plan’s administration, re-

sulting in an incorrect estimate. Accordingly, Peti-

tioner’s claims are preempted despite the existence

of any independent duty to keep personnel records.

Further, there is no independent cause of ac-

tion for damages under Massachusetts General Law

for mistakes in personne] records. Instead, an em-

ployee is only provided with the opportunity to cor-

rect personnel records. Kessler v. Cambridge Health

Alliance, 818 N.E.2d 582, 588 (Mass. App. Ct. 2004).

Where even the state law provision which allegedly

imposes an independent legal duty concerning per-

sonnel records does not provide the remedy Peti-

tioner seeks, the argument that Petitioner may avoid

the clear limitations of ERISA is even more tenuous.

The Petitioner is entitled to pension benefits only be-

cause of the terms of the ERISA-regulated plan. Any

purported liability relating to the Massachusetts

personnel records statute derives from Raytheon’s

recordkeeping obligations in administration of the

Plan. The causes of action are dependent on the exis-

tence and administration of the ERISA-regulated

plan.

Whether analyzed under what Petitioner de-

scribes as a “textualist common sense analysis” or a

“more pragmatic field/conflict analysis,” Petitioner’s

claims are preempted by the civil enforcement reme-

dies of ERISA. In determining whcther a state stat-

ute or cause of action is preempted by ERISA, this

Court has directed evaluation of both the objectives

of the ERISA statute and the effect of the state law

on ERISA plans. £ygelhoff v. Evelhoff, 532 U.S. 141,

147 (2001). A principal goal of ERISA is to “enable

employers ‘to establish a uniform administrative

scheme which provides a set of standard procedures

to guide processing of claims and disbursement of

benefits.” Jd., at 148 (citation omitted). By estab-

lishing these standards and preempting state law,

ERISA “minimized the need for interstate employers

to administer their plans differently in each State in

which they have employees.” Shaw v. Delta Air

Lines, Inc., 463 U.S. 85, 105 (1983).

This Court has explained that the purpose of

the broad preemptive effect of Section 514(a) is:

“to ensure that plans and plan sponsors

would be subject to a uniform body of

benefits law; the goal was to minimize

the administvative and financial burden

of complying with conflicting directives

among States or between States and

the Federal Government. Otherwise,

the inefficiencies created could work to

the detriment of plan beneficiaries...

Particularly disruptive is the potential

for conflict in substantive law. It is

foreseeable that state courts, exercising

their common law powers, might de-

velop different substantive standards

applicable to the same employer con-

duct, requiring the tailoring of plans

and employer conduct to the peculiari

ties of the law of each jurisdiction.

Such an outcome is fundamentally at

odds with the goal of uniformity that

Congress sought to implement.”

Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142

(1990) (citations omitted).

The misconduct Zipperer complains of — the

failure to maintain proper records concerning his re-

tirement plan resulting in an erroneous estimate of

benefits — is intimately connected to administration

of the Plan. Zipperer complains that Raytheon did

not keep correct data relating to Zipperer’s dates of

employment in its records concerning his pension

plan. Allowing Zipperer to maintain a state cause of

action for such conduct would interfere with the goal

of uniform administration of ERISA plans because it

would impose common law record-keeping require-

ments upon the employer and Plan administrator in

addition to the statutory requirements of ERISA. It

would also directly interfere with the calculation of

benefits owed to an employee, since it is clear that

Zipperer would not assert any claims if Raytheon

paid him the incorrectly estimated amount of bene-

fits. Permitting such claims would permit Zipperer

to obtain extra-contractual benefits which are unau-

thorized by the terms of the Plan, and as such the

claims are preempted. Further, Zipperer’s claims

are preempted because the claims conflict with

ERISA’s directive that “plans be administered, and

benefits be paid, in accordance with pian docu:

ments.” Hgelhoff v. Egelhotf£ 532 U.S. 141, 150

(2001).

In Count I of his Complaint for negligence,

Zipperer claims the incorrect estimate of his monthly

retirement benefits resulted from negligence in

maintaining employment records. This negligence,

in turn, resulted in wrong information provided to

the Plan administrator for the calculation of

Zipperer’s estimated benefits under the Plan. This

claim can only be evaluated with reference to the

Plan administrator's or the employer's responsibili-

ties under ERISA to determine what records it

needed to maintain for the Plan. The claim also re-

quires reference to the Plan because the alleged mis-

representation itself concerns the amount of benefits

Zipperer would be entitled to upon retirement. Fur-

ther, the communication of information about

Zipperer’s dates of service to the Plan administrator

arose in the context of administration of the Plan.

Similarly, in Count II for equitable estoppel,

Zipperer claims that he reasonably relied upon in-

correct information concerning the amount of his

monthly pension benefits under the Plan. Again,

this claim relates directly to the ERISA Plan as the

misstatement consisted of the estimate of retiree

benefits. If a common law cause of action could exist

for the provision of an incorrect estimate, it would

conflict with an important purpose of ERISA — en-

suring that Plans are subject to a uniform body of

law regarding fiduciary responsibilities for plan ad-

ministrators and employers.

Finally, Count III for negligent misrepresen-

tation alleges that Raytheon negligently misrepre-

sented the amount of his pension benefits due under

the Plan. Analysis of this claim requires calculation

of the benefits under the Plan to determine whether

the estimate was incorrect. Further, the communi-

cation was made to Zipperer in the context of admin-

istering his benefits under the Plan. Each of these

claims is connected with the Plan and relate to ad-

ministration of the Plan.

ERISA is a comprehensive statute which pro-

vides uniform standards of conduct for employers

concerning reporting, disclosure, fiduciary responsi-

bility and administration of employee benefits plans.

Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 137

(1990). A determination that a state cause of action

could exist due to an employer’s negligence in pro-

viding information relating to Plan benefits would

engraft another duty upon the employer in its ad-

ministration of the Plan. Plan administrators and

employers would be deterred from providing any in-

formation about future benefits to employees if an

estimate, albeit erroneous, could lead to liability. In

addition, such claims would have a negative impact

on the ability of an employer such as Raytheon to

rely on the terms of the benefit plan. Such a result

would thwart the ERISA objective of promoting the

interests of all plan beneficiaries. The claims all re-

late to the Plan, and to the administration of the

Plan. As such, the plaintiffs claims are preempted

by ERISA.

iI. THE DECISION OF THE FIRST CIRCUIT

DOES NOT CONFLICT WITH THE

DECISION OF ANOTHER UNITED STATES

COURT OF APPEALS.

The First Circuit apphed established prece-

dent to hold that Zipperer’s claims are preempted,

and Petitioner cites no conflict in the United States

courts of appeals inviting review. Indeed, the law is

well-settled that state law claims based on pension

misrepresentations are preggnpted by ERISA. Peti-

tioner makes no argument*that the First Circuit’s

decision in this case conflicts with the decision of an-

other United States court of appeals on the same

matter.

As recognized in the Magistrate’s recommen:

dation, the First Circuit’s decision is consistent with

the decisions of other United States courts of appeals

finding breach of contract claims based on erroneous

statements regarding future benefits preempted.

(App., 26a) See, Dranchak v. Akzo Nobel Inc., 88

F.3d 457 (7% Cir. 1996) (state law contract claims

based on letters promising extra pension benefits

preempted); Anderson v. John Morrell & Co., 830

F.2d 872 (8 Cir. 1987)(state law claims based on

oral agreement to modify ERISA plan preempted);

see also Slice v. Sons of Norway, 978 F.2d 1045 (8th

Cir. 1992) (state law claims based on erroneous pen-

sion benefits statement preempted by ERISA); Farr

v. U.S. West Communications, Inc., 151 F.3d 908 (9t

Cir. 1998), cert. denied, 528 U.S. 1116 (2000) (recog-

nizing that this Court’s jurisprudence required pre-

emption of claims based on statements regarding tax

consequences of plan benefits, and reversing prior

decision finding no preemption); Nachwalter v.

Christie, 805 F.2d 956 (11 Cir. 1986) (ERISA pre-

empted state law estoppel claims based on oral

agreements to modify written terms of employee

benefits plan).

Further, the First Circuit’s prior opinions ap-

plying preemption analysis and addressing similar

claims brought by former employees, confirm that

Petitioner’s state law claims are preempted. Car/o v.

Reed Rolled Thread Die Co., 49 F.3d 790 (1st Cir.

1995) (state law claims based on alleged misrepre-

sentations concerning early retirement benefits pre-

empted); Degnan v. Publicker Indus., Inc., 83 F.3d

27 (1st Cir. 1996) (misrepresentation claim concern:

ing future amendments to retirement plan pre-

empted). There is no conflict in the United States

courts of appeal that is appropriate for review.

CONCLUSION

The rulings of the District Court and the First

Circuit do not conflict with either a decision of this

Court or a decision of any United States court of ap-

peals. Nor do the lower court rulings implicate an

important question of federal law that has not previ-

ously been addressed by this Court. While the

Petition provides a recitation of this Court’s deci-

sions concerning preemption, Petitioner has not

demonstrated any compelling reason for granting his

Petition. Raytheon respectfully requests that the

Petition be denied.

Respectfully submitted,

RAYTHEON COMPANY

Respondent

By its attorneys,