# Petition for Writ of Certiorari — Colt Industries Operating Corp. Informal Plan for Plant Shutdown Benefits for Salaried Employees v. Henglein

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 1036

## Text

9 & Lep er =

NoFFi¢e OF THE CLERK
Oo.

In THE

Supreme Court of the Anited States

OcToBER TERM 1994

Cot INDUSTRIES OPERATING CORPORATION INFORMAL PLAN For
PLANT SHUTDOWN BENEFITS For SALARIED EMPLOYEES,

Petitioner,
v.
GEORGE W. HENGLEIN, ET AL.,
Respondents.

ON PETITION For Writ Or CERTIORARI
To THE UNITED StaTEsS Court Or APPEALS
For THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Of Counsel: *WILLIAM H. Powpber Ly, III
ANTHONY J. diBUONO ~ JONES, Day, Reavis & PoGuE
Co tec INDUSTRIES INC 500 Grant Street

430 Park Avenue Pittsburgh, PA 15219

New York, NY 10022 (412) 391-3939

(212) 940-0574
RoBert A. Mason
JONES, Day, Reavis & POGUE
303 Peachtree Street, N.E.
Atlanta, GA 30308
(404) 521-3939

*Counsel of Record

QUESTION PRESENTED FOR REVIEW

Where operative acts and events occurring before ERISA's
effective date evidenced extinguishment or nonexistence of any cir-
cumstances that could have given rise to the existence of an
employee benefit plan as defined by ERISA, whether the Third
Circuit's mandate directing that ERISA be applied to those pre-
ERISA acts and events so as to estabiish both an ERISA plan and
federal jurisdiction contravenes the Congressional limitation on
federal jurisdiction set forth in ERISA § 514(b)(1), which requires
that ERISA "shall not apply with respect to any . . . act or omission
which occurred before January 1, 1975?"

a

LIST OF PARTIES

Petitioner (Defendant/Appellee below) is a putative
employee benefit plan. The putative Petitioner plan is: Colt

Industries Operating Corporation Informal Plan For Plant
Shutdown Benefits For Salaried Employees.

Respondents (Plaintiffs/Appellants below) are one hundred
and sixty-three individuals: George W. HENGLEIN, L.C.
Albacker, R.B. Andrews, R.L. Appeldorn, R.H. Ashenbaugh, A.L.
Austin, J.W. Bagosi, J.D. Balser, A. Barrasso, J.O. Bauer, E.E. Best,
H.W. Bigleman, C.R. Blazier, J.P. Bressanelli, G.D. Brown, F.C.
Buchholz, E.C. Calvin, R.R. Campbell, P.D. Castellano, J.L.
Cerasi, E. Chapman, S. Christy, T.M. Costello, C.A. Dauka, A.J.
Decosta, M.G. Degrande, A.S. Diccio, A.P. Dimarzio, C.J.
Dimarzio, R.J. Dougherty, M. Druga, E.P. Erath, E.P. Fahnert, H.
Farrington, M. Ferlaino, R.D. Feydo, E.R. Finger, J.N. Flara, N.E.
Frederick, J.P. Frenn, R.E. Fronko, L.L. Gibbs, W.L. Gleason, L.E.
Gordon, R.W. Gott, J.E. Grimm, P.E. Grubbs, E.R. Guerra, A.J.
Gulutz, J.T. Haaf, J.D. Hamacher, Jr., P.J. Hannon, R.M. Hansen,
M.I. Harpham, D.H. Heldman, J.K. Hile, R.S. Hogsett, R.T.
Hopper, H.M. Howell, W.M. Hyams, J.M. Janke, C.L. Jobe, Jr.,
K.H. Johns, R.O. Johnson, Jr., E.T. Jones, R. Kao, D.P. Kerr, Jr.,
P.A. Keys, R.W. Knallay, E.E. Knapek, W.J. Kofalt, S.W. Kohler, T.
Kominitsky, T.R. Krupa, P.R. Kullen, J.R. Kundick, W. Lake, D.F.
Laneve, T.T. Lehmann, R.H. Lewis, R.A. Lippert, W.R. Livingston,
J.H. Lutton, A.J. Lynn, D.B. McClain, J.L. McKain, P.F. McNicol,
E.L. Marsh, F.S. Matsukas, H.J. Mercer, A.R. Middleton, M.
Mitrovich, M.A. Molchan, R.A. Montgomery, R.T. Morelli, A.N.
Morrison, H. Mraunac, M.R. Muckian, C.W. Murray, III, C.J.
Muers, L.V. Nagle, D.A. Nobers, J.A. Nuzzo, E. Ordich, W.H. Orr,
T.H. Parsons, A.J. Pasko, Jr., H.S. Pease, III, G.J. Pescion, G.V.
Peterson, J.J. Popp, G.P. Porto, G. Postich, D.E. Powell, R.W.

| | |

Prentice, J.V. Presutti, W.C. Price, L.E. Raykovics, T.R. Reed, J. W.
Reider, J.J. Rose, A.J. Rosepiier, C.S. Russell, K.E. Sanders, M.A.
Sarver, P.K. Schake, J.W. Scholtz, A.H. Sheline, M.L. Sherry, F.R.
Shuss, W.W. Simpson, A.E. Six, J.E. Smith, E.H. Spaziani, W.H.
Stephens, C.D. Strosnider, J.F. Suffoletta, H.L. Taylor, K.E.
Thomas, F.S. Thornberry, Jr., J.R. Tice, D.A. Townley, R. Trbovich,
R.T. Turner, H.B. Van Fossen, R.R. Vlah, A. Vranes, S. Vranes,
D.W. Ware, K.G. Wassman, Jr., G.T. Weekley, E.M. Werries, Jr.,
D.L. Westfall, J.A. Whithead, R.J. Whitten, C.K. Wildman, T.
Williams, Jr., T.H. Wills, Jr., A.J. Yanni, L.H. Young, Jr., R.C.
Young, H.F. Yute, W.I. Zazwirsky.

av

LIST OF PARENT COMPANIES AND
NON-WHOLLY OWNED SUBSIDIARIES

The stock of Coltec Industries Inc has been publiciy traded
since March 25, 1992. Garlock Inc is a wholly owned subsidiary
of Coltec Industries Inc. Garlock Inc has four subsidiaries that are
not wholly owned: Garlock Bearings Inc, Garlock de Mexico, S.A.,
Louis Mulas Sucs., S.A., and Garlock Pty. Ltd. Minority interests
in each of these four subsidiaries are privately held by foreign
investors.

Coltec Industries Inc is the successor of Colt Industries Inc.
Prior to December 31, 1982, Crucible Inc was a wholly owned sub-
sidiary of Colt Industries Inc. Certain former operations of
Crucible Inc are now held by Crucible Materials Corp, a nonpublic

company that is not affiliated with Coltec Industries Inc.

READ? vee, Cra

TABLE OF CONTENTS

ye Ge yk Ek er rr re

STATEMENT OF JURISDICTION. ..............-.-.

RELEVANT STATUTORY AUTHORITIES..........

STATEere) OF Trae CASE 26.6 csc c cc eeccccees

| PPC ET PTET CEES ET ETO ELI TLE

Agpetiate DOGwiO 2... ccc cc ccc ce rececesss

REASONS FOR GRANTING THE WRIT ...........

I.

THE THIRD CIRCUIT COURT OF APPEAL'S MAN-
DATE THAT THE DISTRICT COURT APPLY COM-
MON LAW STANDARDS TO BE ADOPTED BY
THE COURTS AS FEDERAL COMMON LAW
DEVELOPED UNDER ERISA TO CONDUCT AND
EVENTS THAT OCCURRED BEFORE THE ENACT-
MENT OF ERISA IS IN DIRECT CONFLICT WITH
THE UNITED STATES CONSTITUTION, ITS OWN
DECISIONS, THAT OF OTHER CIRCUITS AND
THE MANDATE OF CONGRESS EVIDENCED BY
THE UNAMBIGUOUS LANGUAGE OF ERISA. ...

THE THIRD CIRCUIT HAS ERRONEOUSLY
CONCLUDED THAT JURISDICTION OF THE
SUBJECT MATTER PROPERLY LIES IN A
FEDERAL COURT BY PLEADING A CAUSE OF
ACTION UNDER ERISA AND THAT THE
DETERMINATION OF THE EXISTENCE OF A
PLAN INVOLVES A FINDING ON THE MERITS OF
PLAINTIFFS CLAIM .. 2... cc cccccccnccvcesess

14

15

17

B. THE ERRONEOUS RETROACTIVE APPLICATION
OF DILLINGHAM BY THE THIRD CIRCUIT CREATES
SUBJECT MATTER JURISDICTION WHEN SUCH
JURISDICTION WOULD NOT OTHERWISE EXIST. . 20

C. TO ESTABLISH SUBJECT MATTER JURISDICTION
UNDER SECTION 502(e) OF ERISA THE THIRD
CIRCUIT HAS APPLIED POST-ERISA LAW
SELECTIVELY TO PRE-ERISA ACTS OR
OMISSIONS THROUGH ITS ERRONEOUS
CONSTRUCTION OF ERISA SECTION 514(b) AND
ITS APPLICATION OF THAT SECTION TO THE
EXISTENCE OF A PLAN UNDER ERISA SECTION
502(a)(1(B) IN DIRECT CONFLICT WITH THE
CLEAR LANGUAGE OF THE STATUTE AND WITH
ITS OWN PREVIOUS DECISION AND DECISIONS
OF OTHER CIRCUITS. ...........000cceeeeeees 24

°° SRaROEe

oe re 29

TABLE OF AUTHORITIES

CASES Page

Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504 (1981) .. . . 15,16
Anderson v. John Morreli & Co., 830 F.2d 872 -

JOG ae u anal Cc bdus aved 00 kee oh0 600 vee ee 8
Boyle v. Governor's Veterans Outreach & Assistance Ctr.
TPT PEE ET TTT CUT TT TTT ere 19
Brown v. Ampco-Pittsburgh, 876 F.2d 546 (6th Cir. 1989)....... 1]
Clark v. Tarrant County, 798 F.2d 736 (Sth Cir. 1986).......... 19
Colt Indus. Inc. v. Frenn, No. 86-2642

CO oct cae eh thc kk st baesecvecnnes 7,8,27
Coward v. Colgate-Palmolive Co., 686 F.2d 1230

(7th Cir. 1982), cert. denied, 460 U.S. 1070 (1983)............ 22
District of Columbia v. Greater Washington Bd. of Trade,

co re rer rr 26
Donovan v. Dillingham, 688 F.2d 1367

GL Sasa b awh Ch o50.05 50 00'sva dees 9,13,20,21
Florida v. Long, 487 U.S. 223 (1988). ....... 2... cece cee eees 15
Frank v. Colt Indus. Inc., 910 F.2d 90 (3d Cir. 1990). ........... 9
Harris v. Arkansas Book Company, 794 F.2d 358
eek ee Runh hs ok Catene bene es wie 19

Henglein v. Colt Indus. Operating Corporation
Informal Plan For Plant Shutdown Benefits,
No. 94-3074 (3d Cir. Sept. 26, 1994) ............. 14,15,20,24,28

Henglein v. Colt Indus. Operating Corp. Informal
Plan For Plant Shutdown Benefits, No. 86-2021
gE 13,14,27,28

Henglein v. Colt Indus. Operating Corp. Informal
Plan For Plant shutdown Benejus, No. 93-3219
os BE GR eee 13,24,28

Vail

Page

Henglein v. Colt Indus. Operating Corp. Informal
Plan For Plant Shutdown Benefits, No. 86-2021
Coe Hh EE Oe I ke F608 os cee evaccdveees 11,12,27,28

Henglein v. Informal Plan for Plant
Shutdown Benefits, 974 F.2d 391
oot Go) Pere rer rer Tee 10,11,18,19,21,24,25,26,28

Henglein v. Colt Indus. Operating Corp.
Informal Plan For Plant Shutdown Benefits,

No. 86-2021 (W.D. Pa. April 30, 1991)................ 8,9,22,28
Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990) ........ 26
Ins. Corp. of Ireland v. Compagnie des

Bauxites de Guinee, 456 U.S. 694 (1982). ........ 26. eee eee 17
Jameson v. Bethelehem Steel Corp. Pension Plan,

po ETT Tey LTTE CIEE 18,23
Janzen v. Goos, 302 F.2d 421 (8th Cir. 1962)................. 19
KVOS, Inc. v. Associated Press, 299 U.S. 269 (1936). .......... 19

Lamontagne v. Pension Plan of the United Wire,
Metal & Machine Pension Fund, 869 F-2d 153 (2d Cir.),

CE, Se a I Fo eo cee eseeecessanecsacns 22
Lame u Doetiae S50 UD. TI (IGS). <5 oc a scvesccsasecccscss 19
Landro v. Glendenning Motorways, Inc., 625 F.2d 1344

Rae SE 6 Svc en wie Fonds Cas eUNEdhsaeedenseeueewss 23
McNutt v. General Motors Acceptance Corp.,

Fe es WI av oa enc awe Kee cenes bendcekeeetacens 19
Menhorn v. Firestone Tire & Rubber Co.,

Fae ah bv he dS es Ni cdwedaevesetens 22
Metropolitan Life Ins. Co. v. Taylor,

Se I ahve den anne sbi b ener avccewsnaxageews 26
Morosetti v. Louisiana Land and Exploration Co.,
errr TTL e TTT Tees 8

Nachman Corp. v. Pension Benefit Guaranty Corp.,
BIS UD. FIP 0 cc can ncn sdedavnndieevisersisnavaas 15

+ ne eeteneattmess aan.

Page
Nationwide Mutual Ins. Co. v. Darden,

ee Re Be. re er errr eer 15,16,22
Odom v. Slavik, 703 F.2d 212 (6th Cir. 1983) .........-...-.. 19
Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987)............ 26
Quinn v. Country Club Soda Co., Inc., 639 F.2d 838

fo Beer errr Tree Tee eT TET ee 22,28
Rodriguez v. MEBA Pension Trust, 872 F.2d 69

(4th Cir.), cert. denied, 493 U.S. 872 (1989). .......-.062505- 23
Schake v. Colt Indus. Inc., 791 F.2d 920 (3d Cir. 1986) ......... 6
Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983). ..........+-- 26

Stevens v. Employer-Teamsters Joint Council
No. 84 Pension Fund, 979 F.2d 444 (6th Cir. 1992) ...... 22,23,24

Taggart Corp. v. Life & Health Benefits Administration,
617 F.2d 1208 (Sth Cir. 1980), cert. denied,
oS srr Tr rrr rrr TT Ter Tee eee e eee 21

Tanzillo v. Local Union 617, Int'l Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of

America, 769 F.2d 140 (3d Cir. 1985)... .......6 2-2 eee ee ees 23
Thompson v. Gaskill, 315 U.S. 442 (1942) ..........---0 005: 19
Trentacosta v. Frontier Pacific Aircraft Industries

BEF Fie Be NG TIF ca vce icecenccectveeweaens 19
Union Pac R.R. Co. v. Laramie Stock Yards Co.,

po Pere eee LCL EE 24
United States v. Security Indus. Bank,

pe PY Pere ere OEE eee Tee 24
Wheeler v. Hurdman, 825 F.2d 257 (10th Cir.)

cart. Ganiad, 464.5. SOG (19B7). «0. cc ccc crc ccccewess 19

Woodfork v. Marine Cooks & Stewards Union,
cooky Te Lee >) nee en ae 23

STATUTES

Page
SRA Section Sil), ZF USA. § GMA) .6 cc cccicccccccesececs 20
ERinA Section Sz), 29 U.S.C. § 1G) own ccc cece scvecvuseves 15
ERISA Section 3(2)(A), 29 U.S.C. § 1002(2MA) ................ 2,4
ERESA Section 363), 29 USA. § TD) «oc cic es wctecccuvere’s 20
pi ae. Bt OY ik > Sa 23,24,25
ERISA Section 502(aX(1)(B), 29 U.S.C. § 1132(aX1)(B). . . . 2,3,19,24,25
ERISA Section S32 (ce), 29 U.S.C. § 1ISHe) .. 0.2 ccc vececes 20,23,24
ERISA Section 502(e)(1), 29 U.S.C. § 1132(e)(1)..... 2.2.2 ee eee ye
ERISA Section 514, 29 U.S.C. § 1144 ............... 21,23,24,25,28
ERISA Section 514(a), 29 U.S.C. § 1144(a)................. 3,15,25
ERISA Section 514(b), 29 U.S.C. § 1144(b)........... 15,16,17,24,25
ERISA Section 514(b)(1), 29 U.S.C. § 1144(b(1) .. 2... ee eee 3,23
ee es NG oh Coke ea eRe ahha hekdesaeenee ren y

OTHER AUTHORITIES

Corbin on Contracts § 145, at 627 (1963). .............22085. ya |
Ree err ree errr re rer erry rr TT 6
Pe i ee I eh oor Se head Vek ck xeeaenenes eee 6
we Be | Peer rer er ree errr Tee rey ce 8,10
, 8 ee G0 ee err eer rrr rrr ss 8,11,13
Friedenthal, Kane & Miller, Civil Procedure § 2.2
ee ae er rer Terr rrr er rer 18
Restatement (Second) of Contracts § 2 (1982). ................ 27
ee I a ck head dc do ok S need Oh eee 17
0 Ss, Se OE Ge Bik vin oo se cc wnanecaueees 17

Williston on Contracts § 1:2 at 10-11 (1959)... ............... 27

IN THE

Supreme Court of the Wnited States

OCTOBER TERM 1994

COLT INDUSTRIES OPERATING CORPORATION
INFORMAL PLAN FOR PLANT SHUTDOWN
BENEFITS FOR SALARIED EMPLOYEES,

Petitioner,

GEORGE W. HENGLEIN, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

THE OPINION BELOW

This petition for writ of certiorari is from a judgment of the
Court of Appeals for the Third Circuit, entered September 26, 1994,
in Henglein v. Colt Industries Operation Corporation Informal Plan,
reprinted in Petitioner's Appendix at 2 [hereinafter "App."], reh'g
denied, November 4, 1994. [App. at 1.] The Third Circuit judgment
was entered in an appeal of an unreported order of the United States
District Court for the Western District of Pennsylvania. [App. at 22.]

a iia eel te

STATEMENT OF JURISDICTION

ihe Court has jurisdiction to review the Third Circuit's
order by writ of certiorari pursuant to 28 U.S.C. § 1254(1). The
district court below was alleged to have jurisdiction pursuant
to §§ 502(a)(1)(B) and (e)(l) of the Employee Retirement
Income Security Act of 1974, Pub. L. No. 93-406, 88 Stat. 891
(codified at 29 U.S.C.§ 1132(a(1)(B) and (e\1) [hereinafter "ERISA"].
Certiorari is appropriate because this case raises a critical issue con-
cerning the authority of a federal court to establish the subject mat-
ter of jurisdiction through retroactive application of the provisions
of ERISA to events and acts finally concluded, under the then
applicable state law, prior to the enactment of ERISA on
September 2, 1994, and because the actions as described and man-
dated by the Third Circuit place it in conflict with all other circuits,
decisions of its own circuit, the Constitution of the United States
and authorization of Congress contained in ERISA as to the juris-
diction of the federal courts.

RELEVANT STATUTORY AUTHORITIES
ERISA Section 3(2)(A) (Definitions): |

(2)(A) Except as provided in subparagraph (B), the terms |
"employee pension benefit plan" and "pension plan" mean any plan,
fund, or program which was heretofore or is hereafter established or
maintained by an employer or by an employee organization, or by
both, to the extent that by its express terms or as a result of sur-
rounding circumstances such plan, fund, or program--

(i) provides retirement income to employees, or
(ii) results in a deferral of income by employees for periods
extending to the termination of covered employment or
beyond, regardless of the method of calculating the contri-
butions made to the plan, the method of calculating the
benefits under the plan or the method of distributing bene-
fits from the plan.

| |

ERISA Section 502(a)(1)(B) (Civil Enforcement):

(a) Persons empowered to bring a civil action
A civil action may be brought--
(1) by a participant or beneficiary--

(B) to recover benefits due to him under the terms of his
plan, to enforce his rights under the terms of the plan, or to clarify
his rights to future benefits under the terms of the plan [.]

ERISA Section 502(e)(1) (Civil Enforcement):
(e) Jurisdiction

(1) Except for actions under subsection (a)(1)(B) of this
section, the district courts of the United States shall have exclusive
jurisdiction of civil actions under this subchapter brought by the
Secretary or by a participant, beneficiary, or fiduciary. State courts
of competent jurisdiction and district courts of the United States
shall have concurrent jurisdiction of actions under subsection
(a)(1)(B) of this section.

ERISA Section 514(a) and (b)(1) (Other Laws):
(a) Superscdure; effective date

Except as provided in subsection (b) of this section, the
provisions of this title and title IV shall supersede any and all State
laws insofar as they may now or hereafter relate to any employee
benefit plan described in section 4(a) [29 USCS § 1003(a)] and not
exempt under section 4(b) [29 USCS § 1003(b)]. This section shall
take effect on January 1, 1975.

(b) Construction and application

(1) This section shall not apply with respect to any cause
of action which arose, or any act or omission which occurred,
before January 1, 1975.

STATEMENT OF THE CASE
Background

The individual plaintiffs are former salaried, non-union
employees ("Plaintiffs") whose employment was terminated, in most
cases, as a result of the closing by Crucible Inc ("Crucible") of part of
its steel producing operations, namely those located at Midland,
Pennsylvania ("Midland Plant"), in 1982. Plaintiffs claim that in 1982
(and today), an employee benefit plan in the nature of a supplemental
"informal" pension plan existed that provides plant "shutdown" bene-
fits to all salaried employees of Crucible and its successors affected by
a shutdown. The central issue is whether the Plaintiffs have proved
that an employee benefit plan, within th meaning of ERISA
§ (3)(2)(A), existed in 1982 when Plaintiffs' employment terminated,
thereby providing the district court with jurisdiction to proceed and
adjudicate Plaintiffs' claims in this action.

Following the closing of the Midland Plant, a majority of the
present Plaintiffs filed a lawsuit in assumpsit in the Court of Common
Pleas of Allegheny County, Pennsylvania, against Crucible and its sole
shareholder, Colt Industries Inc ("Colt"), claiming that Crucible and
Colt breached alleged contractual obligations to pay severance benefits
in the form of a supplemental pension. Schake v. Colt Indus. Inc., No.
83-14048 (C.P. Allegheny County). The alleged supplemental pension
was based on an employment policy originated by Crucible in 1962
and revised in 1968 and 1969, which according to the complaint gave
rise to an express and/or implied contract to provide the benefits
spelled out in those policies. The claims also relied upon state law the-
ories of estoppel and detrimental reliance.

The Schake complaint also contained a claim for additional
benefits allegedly due under the provision of an employee benefit plan

‘Such a finding would impose on Plaintiffs' former employer an unaccepted
obligation to provide benefits not only to the Plaintiffs, but to all salaried employ-
ees regardless of where physically employed. Unlike individual contracts,
employee benefit plans today are required to cover large classes of employees.

* Citations are to the relevant sections of ERISA. The Table of Authorities con-
tains parallel citations to the United States Code.

, :

covered by ERISA that allegedly was created as a result of alleged
oral statements by Crucible's management to the effect that salaried
employee benefits would be "as good as" those provided to those
employees within the collective bargaining unit at the Midland Plant.

On October 6, 1983, Colt and Crucible removed the state court
action to federal court. Plaintiffs filed a motion to remand, which was
denied. Thereafter, in 1985, the district court entered summary judgment
in favor of both Crucible, plaintiffs' former employer, and Colt, Crucible's
parent. The district court held that the plaintiffs only had benefit rights
under the published formal pension plan for salaried employees of
Crucible, all previous plans having been eliminated prior to plaintiffs
having fulfilled the eligibility conditions thereunder. In essence, the dis-
trict court held that in 1972, when Crucible's Board of Directors took
action to rescind the policy set forth in the 1962 statement, as modified in
1968 and 1969, no employee had any rights under the policy that could
be exercised immediately or within a reasonable time of the Board of
Directors’ action. Therefore, no rights were impaired or denied by the
Board of Directors’ action rescinding the policy, and the elimination of the
policy was effective.

Plaintiffs appealed the district court's entry of summary judg-
ment. On appeal, plaintiffs ceased to argue the state law contract
claims and instead argued that the 1962, 1968 and 1969 policy state-
ments created an employee benefit plan within the meaning of ERISA
under which plaintiffs were claiming benefits. Plaintiffs urged the
court to apply state law contract and estoppel principles under the guise
of federal common law of ERISA and to hold that under the state law
of unilateral contract (adopted as federal common law) an "offer"
existed to provide the benefits claimed by plaintiffs, which "offer"
thereafter became an employee benefit plan after the effective date of
ERISA. [See App. at 517.] According to plaintiffs, the district court
had entered summary judgment improperly because there existed a
genuine dispute of material fact as to the existence of an ERISA plan.

* There is no dispute today, nor was there ever any dispute, as to the existence
of the formal pension plan.

Crucible and Colt denied both the existence of any unilat-
eral offer or contract and the existence of a benefit plan in 1982.
In support, Crucible and Colt pointed to the resolution of
Crucible's Board of Directors in 1972 eliminating the policy set
forth in the 1962 statement, as modified in 1968 and 1969.

On appeal, the Third Circuit first held that because plain-
tiffs alleged they were entitled to benefits under an ERISA plan,
the district court had subject matter jurisdiction. Schake v. Colt
Indus. Inc., 791 F.2d 920 (3d Cir. 1986) (table; text of opinion
unpublished). [See App. at 517.] The Third Circuit indicated that
the existence of an employee benefit plan is an essential element
of a claim for benefits under ERISA. Since no ERISA plan was
named as a defendant, however, the Third Circuit held that the
action should be dismissed, rather than granting summary judg-
ment, stating in footnote 2 of its opinion:

We need not engage in the abstruse dialogue over
whether our dismissal is for want of subject matter juris-
diction, Fed. Rul. Civ. Proc. 12(b)(1) or failure to state a
claim upon which relief can be claimed, Fed. Rul. Civ,
Proc. 12(b)(6) for the result is the same under our analysis.

Following the mandated dismissal in Schake, Plaintiffs
commenced the instant action, bringing suit against the purported
benefit plans that the plaintiffs in Schake claimed arose by reason
of state law unilateral contract and estoppel principles. Plaintiffs
designated as putative defendants the Colt Industries Operating
Corporation. Informal Plan for Plan Shutdown Benefits for
Salaried Employees (the "Informal Plan") and the Colt Industries
Operating Corporation Plan for Maintaining Benefits for Salaried
Employees in Parity with Benefits Granted to Union Represented

“The reason for the entry of summary judgment by the district court was not
because the proper party was not named, but because the proper party against
which to assert a claim for benefits (ie.,an ERISA plan) did not exist. The
"abstruse" distinction between Fed. Rul. Civ. Proc. 12(b)(1) and 12(b)(6) was not
irrelevant to the district court's holding.

Hiern erential

Employees (the "Parity Plan"). Henglein v. Colt Indus. Operating
Corp. Informal Plan for Plant Shutdown Benefits for Salaried
Employees, No. 86-2021 (W.D. Pa.) (“Henglein”).

The sole basis for Plaintiffs' claim that the Informal Plan
existed is that under state law before the effective date of ERISA,
Crucible was estopped to deny the existence of the alleged class offer,
alleged to have been contained in the 1962, 1968 and 1969 policy
documents, and therefore, an ERISA plan was created as a matter of
law upon ERISA's effective date, January 1, 1975. Plaintiffs further
claimed that the action taken by the Board of Directors of Crucible in
1972 terminating the alleged "offer" was ineffective because Plaintiffs
were not notified.

The basis for Plaintiff's Parity Plan claim is reliance, ie., the
employer repeatedly told employees promoted from the union ranks (a
relatively small percentage of the total salaried work force) that their ben-
efits would be "as good as" the benefits provided to union employees.

Plaintiffs also based their claims on an internal published cor-
porate policy statement of Colt (not Crucible, the ernployer) to all of
its subsidiaries, which indicated that Colt would maintain a good level
of employee benefits consistent with general industry-wide practices,
company means and sound business judgments. [See App. at 146.]

Coltec Industries Inc (“Coltec”), as putative "administrator" of
the alleged Informal Plan and Parity Plax, moved to stay Henglein and
concurrently filed an action for declaratory judgment seeking a decla-
ration that neither of these alleged employee benefit plans existed.
Colt Indus. Inc. v. Frenn, No. 86-2642 (W.D. Pa.) (“Frenn”). The dis-
trict court stayed Henglein and proceeded to adjudicate the declarato-
ry judgment issues in Frenn.

In Frenn, the district court granted summary judgment declar-
ing that the Parity Plan did not exist as a matter of law. Colt Indus. Inc.
v. Frenn, No. 86-2642 (W.D. Pa. Nov. 30, 1988) [App. at 515-16.] The
district court reasoned that the alleged statements such as "as good as"
or "just as if you had a union contract" are not evidence of an employ-
ee benefit plan under ERISA. Frenn at 21-22. [App. at 531-32.] The

* "Star-paging” is used in the appendix to indicate pagination of source documents.

district court based its reasoning upon the holding of the Eighth Circuit
in Anderson v. John Morrell & Co., 830 F.2d 872 (8th Cir. 1987), that
even under ERISA, "there must be a specific, if not written, expression
of the employer's intent to be bound." Frenn at 21. [App. at 532.] The
Frenn defendants did not appeal the holding that the Parity Plan did not
exist. [See App. at 500.]

As to the Informal Plan, the district court in Frenn refused to
grant declaratory relief, indicating that a genuine issue of material fact
existed as to whether the Informal Plan existed in 1982. Frenn at 26.
[App. at 535.] The court held that the defendants (Plaintiffs here) might
be able to establish the existence of an ERISA plan through evidence
thai an obligation (promise) of Crucible existed at the time ERISA
became effective, and that Crucible intended to continue such promise
after ERISA became effective in the form of an employee benefit _
Frenn at 19-20. [App. at 530-31.]

In light of its holding in Frenn with regard to the Informal Plan,
the district court lifted the stay in Henglein and proceeded to take evi-
dence as to the existence of the Informal Plan. The district court dis-
missed Counts II and III of the Henglein complaint, which alleged
claims under the Parity Plan and claims for punitive damages and fraud.
Henglein v. Colt Indus. Operating Corp. Informal Plan for Plant
Shutdown Benefits for Salaried Employees, No. 86-2021 (W.D. Pa.
May 25, 1989). [App. at 511-12.]

The district court heard 11 days of testimony. At the conclu-
sion of Plaintiffs' case, Petitioner moved for involuntary dismissal under
Federal Rules of Civil Procedure Rule (“Rule”) 41(b) (now Rule 52(c)).
The district court ordered dismissal, holding (as it did in Schake) that no
Informal Plan existed in 1982. Henglein v. Colt Indus. Operating Corp.
Informal Plan for Plant Shutdown Benefits for Salaried Employees, No.
86-2021 (W.D. Pa. April 30, 1991) ("Henglein 1"). [App. at 510.]

The district court reasoned that in order to prove an ERISA
plan existed in 1982, Plaintiffs would have to prove that a valid
state law offer for benefits existed at the time ERISA became effec-
tive. Henglein 1 at 4. [App. at 507.] Citing Morosetti v. Louisiana
Land and Exploration Co., 564 A.2d 151 (Pa. 1989), the district

court held that the 1969 version of the policy document allegedly
comprising the Informal Plan had no legal effect or significance under
the laws of Pennsylvania. Jd. [App. at 507-8.] According to the dis-
trict court, Plaintiffs lacked sufficient knowledge as a whole concern-
ing the terms of the alleged "offer" embodied in the 1969 version of
the policy. Id. [App. at 507.]’ The district court also held that the
absolute discretion retained by the employer in the application proce-
dures of those documents’ whether or not to offer and establish a con-
tract rendered any alleged offer or promise illusory. Henglein 1 at 4-
5. [App. at 507-08.] Finally, the district court held that the Informal
Plan cannot be forced upon the employer after the passage of ERISA
based upon any form of the parity argument, since the Parity Plan
claims had been dismissed. Henglein 1 at 7-8. [App. at 510.]

For completeness, the district court also held, based on the
reasoning of the Eleventh Circuit opinion in Donovan v. Dillingham,
688 F.2d 1367 (11th Cir. 1982), that the Informal Plan did not exist
after the effective date of ERISA. Henglein 1 at 5-6. [App. at 508-09. ]
The district court reasoned that the same unlimited discretion retained
by the employer in the 1969 version of the policy, that was essential-
ly the same as prior versions of the document, which barred the cre-
ation of an offer before ERISA, also barred showing the existence of
an "employee benefit plan" after the effective date of ERISA. /d. The
district court held that under Dillingham, a reasonable person could
not identify the intended beneficiaries or eligibility criteria. Jd. at 6.
[App. at 509.] The district court further reasoned that the intent of the
employer was expressed in writing in the form of the 1972 Crucible
Board of Directors resolution terminating the policy as set forth in the
1962, 1968 and 1969 documents. Jd. Citing Frank v. Colt Indus. Inc.,
910 F.2d 90 (3d Cir. 1990), the district court held that Crucible's
actions, being in writing and specifically referring to the policy, ful-
filled the requirements for an effective termination of an "employee
benefit plan." /d.

* The district court held that knowledge of the terms of the offer are essential
to establish a basis of estoppel, indeed, the existence of a valid offer.
See App. at 118-22, 126-29, 132-35.

10

In granting the Rule 41(b) motion, however, the district court
concluded that it never had jurisdiction to hear the case and suggested
that Plaintiffs file a state court action. Henglein 1 at 8. [App. at 510.]

On cross appeals, the Third Circuit affirmed the district court's
dismissal of Counts II and III of Plaintiffs' complaint (Parity Plan and
punitive damages), but vacated the district court's order as to the nonex-
istence in 1982 of the Informal Plan. Henglein v. Informal Plan for
Plant Shutdown Benefits, 974 F.2d 391, 402 (3d Cir. 1992) ("Henglein
I") [App. at 483, 500.] The Third Circuit reversed the district court's
conclusion that it never had subject matier jurisdiction to hear the
case. Henglein I at 395, 397-398. [App. at 487, 491-93.]

In vacating the district court's holding that the Informal
Plan did not exist, the Third Circuit purported to adopt the princi-
ples of Dillingham, but stated that the district court construed the
Dillingham test too narrowly. Henglein I at 401. [App. at 498.] The
Third Circuit stated that in making a determination whether an
ERISA plan exists, Dillingham requires a court to look at all state-
ments, documents, actions, etc., of the employer occurring over the
working life of the employee -- both before and after the ERISA's
effective date. Henglein I at 399-401. [App. at 496-98.] The test,
according to the Third Circuit, is what the employees believed and
what they knew of related "plan" documents, such as union plans.
Henglein I at 400. [App. at 498.] Under the Third Circuit's appli-
cation of Dillingham, oral representations made by a knowledge-
able and authorized management employee of the company may
be evidence of an employee benefit plan, especially if a represen-
tation incorporates by reference the terms of a document or other
plan, so long as the oral statements do not contradict the terms of
a written plan. Jd. [App. at 498.] Thus, according to the Third
Circuit, under ERISA an employee benefit plan in effect may be
established and be held to be maintained solely based upon an
employee's claim of reliance.

Finaily, the Third Circuit stated that the district court
improperly emphasized the employees’ lack of knowledge of the
terms of the 1968 and 1969 programs. The Third Circuit stated that

1]

"ERISA does not require that a beneficiary have any knowledge of
a written plan's terms and our jurisprudence has not imposed that
requirement either," citing Brown v. Ampco-Pittsburgh, 876 F.2d
546 (6th Cir. 1989). Henglein I at 401. [App. at 499.] Thus, accord-
ing to the Third Circuit, when the existence of an employee benefit
plan is challenged, the plaintiff need only allege that the employer
at some time made a representation regarding the provision of an
employee benefit to show that an employee benefit plan exists.

Having set forth the type of evidence Plaintiffs would have
to present to establish the representations and the existence of an
ERISA plan, the Third Circuit remanded the case with an invitation
for Plaintiffs to put in more evidence. Henglein I at 402. [App. at
500.] Plaintiffs elected not to submit additiouai evidence. [App. at
57.] Petitioner renewed its motion under Rule 52(c) (Motion for
Judgment on Partial Findings). The district court granted the
motion and entered judgment on behalf of Petitioner. Henglein v.
Colt Indus. Operating Corp. Informal Plan for Plant Shutdown
Benefits for Salaried Employees, No 86-2021 (W.D. Pa.
April 30, 1993) ("Henglein 2"). [App. at 42-45.] In extensive find-
ings of fact and conclusions of law, the district court reviewed the
testimony of each participant who testified. This review was based
upon all testimony whether admissible or not. See Henglein 2 at
77-84. [See App. at 110-16.]

The district court set out three simple elements for
Plaintiffs to meet their claims: (1) there must be an employee ben-
efit plan and its terms must be discernable; (2) Plaintiffs must
demonstrate that they are participants or employees who had rights
to be participants; and (3) that Plaintiffs, as participants, had rights
to benefits. Henglein 2 at 2. [App. at 53.]

The district court began its analysis of these elements with
the fact that Plaintiffs attached the 1962, 1968 and 1969 documents
to their complaint and claimed that these documents formed the plan
that was the foundation of their claim, ie. the Informal Plan.
Henglein 2 at 10-11. [App. at 59-60.] Based on the evidence, the
district court concluded that prior to the action of the Board of

12

Directors in 1972 terminating the policy embodied in these docu-
ments, the policy was operated strictly in accordance with the dis-
cretionary selection and approval procedures set forth in the docu-
ments . Henglein 2 at 15. [App. at 63.] Thus, there was no out-
standing offer, no promise and no rights in any existing employee to
receive benefits under the terms of those documents. Henglein 2 at 14.
[App. at 62-63.] The district court held the action of the Board of
Directors to be a valid corporate act cutting off any future power in the
corporation to create future obligations under the rescinded policy.
Henglein 2 at 12. [App. at 61.] The district court thus held that absent
the employer being estopped from asserting the fact of the termination,
the termination was absolute, complete and effective. Id.

Focusing on the wording of the Henglein I remand and
specifically the Third Circuit's mandate, the district court viewed the
issue as "whether the Informal Plan continued in effect after it was
rescinded by Crucible's Board of Directors." Henglein 2 at 22. [App.
at 69.] Consistent with this statement, the district court applied the
Pennsylvania law of contracts to events that occurred before ERISA's
effective date. Henglein 2 at 45. [App. at 85.] The district court noted
that with the holding as to the Parity Plan, the reliance evidence that
purported to establish a mandatory correlation between the benefits
negotiated by the union and those established by the employer for its
non-bargaining unit salaried employees was irrelevant for the purpos-
es of establishing the existence of the Informal Plan. Henglein 2 at 22-
27. [App. at 68-72.]

Based on its findings of fact and conclusions of law, the dis-
trict court held that no promise or offer existed when ERISA became
effective to which ERISA could be applied. Henglein 2 at 55. [App.
at 92-93.] The court reviewed Plaintiffs' evidence regarding events
occurring after ERISA's effective date and concluded this evidence
did not meet any of the criteria spelled out in Dillingham. Henglein 2
at 32. [App. at 76.] The district court found as a matter of law that if

“These procedures are reproduced and discussed in detail in Henglein 2 at 88-
92, 97-99, 103-105. [App. at 118-22, 126-29, 132-35.]

13

an employee had asked a "knowledgeable and authorized manage-
ment employee of the company" about the Informal Plan, the employ-
ee would have been informed that no Informal Plan existed. Henglein
2 at 34. [App. at 77.]

The district court thus granted Petitioner's Rule 52(c) motion.
On appeal, the Third Circuit again vacated and remanded, holding
that the district court failed to apply the law properly. Henglein v. Colt
Industries Operating Corporation Informal Plan for Plant Shutdown
Benefits for Salaried Employees, No. 93-3219 (3d Cir. Jan. 13, 1994)
("Henglein II"). Henglein II at 9. [App. at 41.] The Third Circuit
did not find any error as to the factual findings of the district court.

In Henglein II, the Third Circuit directed the district court
to re-examine the Plaintiffs' claims not under state law but under
ERISA, which refers to the "surrounding circumstances" to deter-
mine whether an employee benefit plan exists at the time benefits
are denied. Henglein II at 3-4, citing Donovan v. Dillingham, 688
F.2d at 1373. [App. at 36-37.] According to the Third Circuit, the
district court erred in continuing to apply state law principles to
pre-ERISA events. Henglein II at 5-6. [App. at 37-38.] The Third
Circuit reiterated that participants do not have to have knowledge
of the terms of an ERISA plan to be entitled to benefits thereunder.
Henglein II at 6. [App. at 38-39.]

On remand, the district court again entered judgment in
favor of Petitioner based on Rule 52(c), “conclud{ing] that
Plaintiffs have failed in their case in chief to meet their burden of
proving the existence in 1982 of an employee benefit plan in
accord with the provisions of ERISA.” Henglein v. Colt Indus.
Operating Corp. Informal Plan for Plant Shutdown Benefits for
Salaried Employees, No. 86-2021 (W.D. Pa. Feb. 10, 1994)
("Henglein 3"). [App. at 22.]

In its opinion, the district court applied Dillingham and
held that the ability of the employer to select with whom it would

"The district court also quoted from its first Henglein opinion dismissing
Plaintiffs’ claims for lack of subject matter jurisdiction. Henglein 3 at 9-11. [App.
at 30-31.]

i4

contract and to whom it would pay benefits among employees-at-will
would not allow a reasonable person to identify the intended beneficia-
ry. Henglein 3 at 2-3. [App. at 25.] The district court found no dispute
as to the action of Crucible's Board of Directors in 1972 terminating the
Informal Plan. Henglein 3 at 3. [App. at 25.] The district court con-
cluded that although the rescission may not have been effective under
State law (if other elements of estoppel were proved), the rescission nev-
ertheless unambiguously evidenced the sponsor's intent not to maintain
the alleged Informal Plan after the effective date of ERISA.” Id.

The district court found that during the ten year hiatus from the
time of the rescission until the filing of the lawsuit claiming benefits
(which "straddled" the passage of ERISA), there was no evidence that
the employer in any way ever referred to the Informal Plan, ever award-
ed benefits under the Informal Plan, ever funded the Informal Plan, or
ever misled anyone as to the existence of the Informal Plan. Henglein 3
at 7- 9. [App. at 28-30.] Plaintiffs appealed the district court's judgment.

Appellate Decision

For a third time, the Third Circuit vacated and remanded.
Henglein v. Colt Industries Operating Corporation Informal Plan for
Plant Shutdown Benefits for Salaried Employees, No. 94-3074 (3d Cir.
Sept. 26, 1994), reh'g denied, (November 4, 1994) ("Henglein III").
Henglein III at 3. [App. at 6.] In referring to the 1968 and 1969 docu-
ments, the Third Circuit held that even if total and absolute discretion
existed in the employer, the 1968 and 1969 policy documents under
Dillingham would constitute an employee benefit plan. Henglein III at
7. [App. at 9.] The Third Circuit reasoned - that the district court’s
analysis was unduly narrow because it only considered events after
1975, whereas the Dillingham analysis must include all events.
Henglein III at 9-10. [App. at 10-11.] See discussion of Dillingham
infra at 20-24.

"The district court noted that the fact that the alleged Informal Plan would vio-
late every pension requirement of Title I, Parts 2, 3 and 4 of ERISA, was evidence
that the employer did not intend to maintain the alleged Informal Plan. Henglein 3

at 9. [App. at 30.]

15

The Third Circuit's mandate in Henglein III directs the district
court to apply ERISA's definition of an "employee benefit plan" to doc-
uments that were operative in 1962 through 1972 and indisputably
rescinded by the employer in 1972, before ERISA became effective.
Henglein III at 19. [App. at 18.] The Third Circuit's analysis requires that
once a Claim for benefits is made after ERISA's effective date, the feder-
al courts have jurisdiction to apply and interpret all events under the law
of ERISA, even if the underlying events occurred before ERISA's effec-
tive date and the effect of such an interpretation is to impermissibly
expand the court's subject matter jurisdiction over the claim.

REASONS FOR GRANTING THE WRIT

The Third Circuit's opinion contravenes two of the most fun-
damental tenets of ERISA. The first tenet is that ERISA does not
require any employer to establish or maintain an employee benefit
plan. Rather, ERISA only regulates employee benefit plans once
they are established or maintained by an employer on or after
ERISA's effective date. Alessi v. Raybestos-Manhattan, Inc., 451
U.S. 504 (1981). See ERISA §§ 3(1) and (2); Nachman Corp. v.
Pension Benefit Guaranty Corp., 446 U.S. 359 (1980). As a corol-
lary to this tenet, this Court in Nationwide Mutual Ins. Co. v. Darden,
112 S. Ct. 1344, 1350 (1992), indicated that principles of "reliance"
cannot be used to establish rights to benefits under ERISA, because
"[a]jny such approach would severely compromise the capacity of
companies like Nationwide to figure out who their 'employees' are
and what, by extension, their pension-fund obligations will be."

The second fundamental tenet of ERISA is twofold:
(1) ERISA broadly preempts state laws (ERISA § 514(a)); and
(2) ERISA's standards (including preemption) may not be applied
retroactively. ERISA § 514(b) ("[section 514] shall not apply with
respect to any cause of action which arose, or any act or omission
which occurred, before January 1, 1975 +

"Although this Court has addressed ERISA preemption on numerous occa-
sions, this Court has never held that ERISA preemption applies retroactively.
Indeed, this Court has held that as a general rule, federal statutes and case law aris-
ing thereunder are not to be applied retroactively. Florida v. Long, 487 U.S. 223
(1988)construing Title VII of the Civil Rights Act).

16

The facts of this case and the Third Circuit's mandate with
respect thereto illustrate the very concerns addressed in Alessi,
Darden and ERISA § 514(b). The employer instituted an informal
policy and procedure 12 years prior to the passage of ERISA
whereby the employer might agree to enter into individual con-
tracts with selected employees to provide supplemental pension-
type benefits. In 1972, the employer's Board of Directors duly
rescinded the informal policy by resolution. Thereafter, the
employer made no public reference to the former policy. In 1982,
ten years after the policy was eliminated, former employees sued
for benefits that would have been paid under the terminated policy
only if the employees had been selected and approved by the
employer for those benefits.

The Third Circuit has directed the district court to apply the
Dillingham test, as interpreted by the Third Circuit, to events
occurring before ERISA became effective. This direction is noth-
ing less than a mandate to do what ERISA § 514(b) expressly pro-
hibits: apply ERISA's provisions and the law developed thereunder
to events that occurred and were concluded before ERISA became
effective. Moreover, the Third Circuit has espoused Plaintiffs' view
and has directed the district court to conduct a reliance-focused
inquiry into the "expectations" of Plaintiffs in applying the "sur-
rounding circumstances" test of Dillingham to determine whether
the informal policy existed as an ERISA "plan" in 1982.

Thus, under the Third Circuit's approach, the federal courts
have the power under ERISA to reestablish and redefine as an
ERISA "plan" any pre-ERISA discretionary employee benefit policy
based solely upon principles of reliance, notwithstanding that such
policy may have been validly terminated as a matter of state law
before ERISA became effective. This approach would impose upon
unwilling employers the burdens and obligations of maintaining an
ERISA plan, in clear contravention of the principles expressed by
this Court in Alessi and Darden, and creates potential corporate lia-
bilities that are incapable of current calculation.

More important, since the existence of an ERISA "plan" is
essential to federal court jurisdiction to adjudicate claims for ERISA

17

plan benefits, the Third Circuit's approach effectively holds that the
federal courts have the power to create their own subject matter juris-
diction under ERISA. This approach blatantly violates the principles
set forth in ERISA § 514(b) as well as Article II] of the Constitution.
The federal courts simply do not have the power to "bootstrap" their
own jurisdiction by creating ERISA "plans" based on principles of
reliance where the employer indisputably did not intend to establish or
maintain an ERISA plan.

In light of the magnitude of the Third Circuit's errors and the
jurisdictional consequences of its mandate, this Court should grant
the writ of certiorari for this action cannot be permitted to proceed.

I. THE THIRD CIRCUIT COURT OF APPEAL'S MANDATE
THAT THE DISTRICT COURT APPLY COMMON LAW
STANDARDS TO BE ADOPTED BY THE COURTS AS FED-
ERAL COMMON LAW DEVELOPED UNDER ERISA TO
CONDUCT AND EVENTS THAT OCCURRED BEFORE
THE ENACTMENT OF ERISA IS IN DIRECT CONFLICT
WITH THE UNITED STATES CONSTITUTION, ITS OWN
DECISIONS, THAT OF OTHER CIRCUITS AND THE MAN-
DATE OF CONGRESS EVIDENCED BY THE UNAMBIGU-
OUS LANGUAGE OF ERISA

A. THE THIRD CIRCUIT HAS ERRONEOUSLY
CONCLUDED THAT JURISDICTION OF THE
SUBJECT MATTER PROPERLY LIES IN A FEDERAL
COURT BY PLEADING A CAUSE OF ACTION UNDER
ERISA AND THAT THE DETERMINATION OF THE
EXISTENCE OF A PLAN INVOLVES A FINDING ON
THE MERITS OF PLAINTIFFS' CLAIM

A judgment rendered without subject matter jurisdiction is a
nullity and violates Article 3, Section 2, Clause 1 of the United States
Constitution. See e.g., Ins. Corp. of Ireland v. Compagnie des
Bauxites de Guinee, 456 U.S. 694, 701-02 (1982). Jurisdiction is
found only through a specific grant of the Constitution or through an act
of Congress authorized under the Constitution. It is axiomatic that "the
jurisdiction of the federal courts is limited and should be narrowly con-

18

strued." Friedenthal, Kane & Miller, Civil Procedure § 2.2 at 13
(2d ed. 1993). The Third Circuit is mandating the district court to ren-
der such a judgment because, in its view, the conclusion that a plan
exists is "related to the viability of the claim, but not to the district
court's jurisdiction. Thus, although the district court labeled its judg-
ment as a dismissal entered for lack of subject matter jurisdiction, the
judgment was clearly on the merits . . .". Henglein I, 974 F.2d at 398.
[App. at 492.] The Third Circuit appears not to acknowledge that a
judgment that the basis for subject matter jurisdiction does not exist can
also involve a determination on the merits of the claim.

The Third Circuit may be confusing a court's jurisdiction to
determine whether or not subject matter jurisdiction exists with a
proceeding to adjudicate a case on the basis of the merits of a plain-
tiffs claim. The proof required to determine subject matter juris-
diction may be applicable to both determinations, but the determi-
nations must be made independently and strictly in order.

The Third Circuit relied on its reasoning with respect to fed-
eral jurisdiction in its holding in Jameson v. Bethlehem Steel Corp.
Pension Plan, 765 F.2d 49 (3d Cir. 1985). Henglein I, 974 F.2d at 398.
[App. at 493.] The court in Jameson held that a federal court has sub-
ject matter jurisdiction if a claim for benefits was denied after January
1, 1975. 765 F.2d at 51. Jameson, however, did not stand for the
proposition that an alleged post-1974 denial of benefits was the only
element necessary to sustain subject matter jurisdiction.

The Henglein I panel appears to have been confused by the
Jameson panel labelling the "act or omission exception" as a choice of
law provision, Jameson, 765 F.2d at 51, and the cause of action excep-
tion as "jurisdictional," id. Those labels work as long as other essen-
tial elements of jurisdiction are indisputably present (i.e., participants
and a plan). When another essential jurisdictional element is missing
(which was not the case in Jameson), the acts or omissions limitation
becomes a "jurisdictional" clause unrelated to a later determination of
the claim and the court must make an independent inquiry into the
existence of the jurisdictional element if jurisdiction is disputed in the
responsive pleadings. This Court long has recognized that “if a plain-
tiffs allegations of jurisdictional facts are challenged by the defendant,
the plaintiff bears the burden of supporting the allegations by compe-

19

tent proof.” Janzen v. Goos, 302 F.2d 421, 424 (8th Cir. 1962)
(Blackmun, J.) quoting Thompson v. Gaskill, 315 U.S. 442, 446 (1942)
and citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178,
189 (1936); KVOS, Inc. v. Associated Press, 299 U.S. 269, 278 (1936).
Speaking for this Court Justice Douglas wrote, "[w]e only hold that the
District Court has jurisdiction to determine its jurisdiction by pro-
ceeding to a decision on the merits." Land v. Dollar, 330 U.S. 731,
739 (1947). Judgment rendered on such a basis is nevertheless a judg-
ment that subject matter jurisdiction does or does not exist in fact and
carries with it the attendant constitutional and statutory consequences
of impermissibly expanding or contracting the scope of a federal
court's jurisdiction.

The Third Circuit would avoid further inquiry into the propriety
of subject matter jurisdiction by holding that an entity essential to both
subject matter jurisdiction and the substantive merits of a plaintiff's claim
does not deprive the court of jurisdiction simply because the entity does
not exist. The plaintiff need only plead that the entity exists in his com-
plaint. Now the law in the Third Circuit is that "[w]e disagree with any
statement . . . that the absence of a plan deprives the court of subject
matter jurisdiction," Henglein I, 974 F.2d at 398, [App. at 493], to hear
a claim under ERISA § 502(a)(1)(B) for benefits under a "plan." The
Third Circuit appears to hold that the absence of an essential element
to a plaintiff's claim goes to the viability of his claim, but not juris-
diction.” Id. at 398. [App. at 492.] As explained, it can be both.

” Should there be any doubt that this is the law of the Third Circuit, see Boyle v.
Governor's Veterans Outreach & Assistance Ctr., 925 F.2d 71 (3d Cir. 1991). There,
the Third Circuit held "that the [42 U.S.C. § 1983] requirement of state action was not
jurisdictional, but rather integral to the merits of the claim." 974 F.2d at 397, citing
Boyle, 925 F.2d at 74. [App. at 492.]

'S Contra, Trentacosta v. Frontier Pac. Aircraft Indus., 813 F.2d 1553 (9th Cir.
1987) ("“employer" goes to both viability of Jones Act claim and subject matter juris-
diction); Wheeler v. Hrurdman, 825 F.2d 257, 258 (10th Cir.) cert. denied, 484 U.S. 986
(1987) ("employer" for purposes Title VII); Harris v. Arkansas Book Company, 794
F.2d 358, 360 (8th Cir. 1986) ("the existence of a plan is a prerequisite to jurisdiction
under ERISA"); Clark v. Tarrant County, 798 F.2d 736, 742 (Sth Cir. 1986) (determi-
nation of "employer" for purposes of subject matter jurisdiction Title VII); Odom v.
Slavik, 703 F.2d 212, 216 (6th Cir. 1983) (existence of a "security is determinative of
both the jurisdictional issue and the merits of the claim).

20

Here, after eleven days of trial, plaintiffs failed in their bur-
den to prove the existence of a plan for purposes of establishing the
ERISA § 502(e) jurisdiction of the court. Sucha finding, although
on the merits of the evidence presented, is nevertheless a finding
that subject matter jurisdiction does not exist. To say that the find-
ing has nothing to do with subject matter jurisdiction because it was
based on the merits impermissibly expands the scope of subject
matter jurisdiction in violation of the United States Constitution
and ERISA.

B. THE ERRONEOUS RETROACTIVE APPLICATION OF
DILLINGHAM BY THE THIRD CIRCUIT CREATES
SUBJECT MATTER JURISDICTION WHEN SUCH
JURISDICTION WOULD NOT OTHERWISE EXIST

Because the existence of a plan as defined under ERISA § 3(3)
is absolutely essential to a finding that the district court has subject
matter jurisdiction to adjudicate plaintiffs' claims under ERISA (which
Petitioner has vigorously denied in all pleadings), the failure to prop-
erly apply Dillingham only to events and acts occurring after 1974 cre-
ates subject matter jurisdiction where none would otherwise exist.

Dillingham is a case applying the requirements of ERISA
§ 3(1) to determine the existence of an "employee welfare benefit
plan" by conducting an analysis of "surrounding circumstances" to
determine if a reasonable person could ascertain intended benefits,
intended beneficiaries, a funding source and claims procedures to
determine the existence of a plan. 688 F.2d at 1372. In
Dillingham, the Eleventh Circuit examined certain facts and cir-
cumstances (all of which applied to entities that admittedly were in
existence after the effective date of ERISA) to determine that
employee welfare benefit plans existed. Based on an analysis of

‘“ This was admitted by the Third Circuit in Henglein III. "Our problem is that
the record before us is insufficient for us to apply the Dillingham criteria." Henglein
III at 22. [App. at 20.]

'SDillingham was an appeal from a district court finding that the court had no
subject matter jurisdiction because no plan existed. 688 F.2d at 1370.

21

facts and events occurring after the effective of ERISA, the court
determined that ERISA "plans" existed, it thus determined that sub-
ject matter jurisdiction existed. Jd. at 1370. A finding of no plan
would result in dismissal for lack of subject matter jurisdiction.” To
apply Dillingham to any communications, notices, board resolu-
tions or verbal comments made before 1975 violates ERISA's man-
date not to apply ERISA to acts or omissions that occurred prior to
January 1, 1975. Nevertheless, the Third Circuit noted that in this
case "those surrounding circumstances include the company's his-
tory of representations -- a history that straddles the enactment of
ERISA."" Henglein I, 974 F.2d at 399. [App. at 494.]

In fact, the Third Circuit instructions to the district court on
how to apply Dillingham after 1974 are incorrect. Dillingham spec-
ified an objective approach to ascertaining intended benefits and
beneficiaries. 688 F.2d at 1370. The Third Circuit has instructed
the district court to consider such post-1974 reliance-oriented fac-
tors as "whether the plan was properly published," Henglein III
at 11, [App. at 12,] "reasonable beliefs of the employees," id. at 12,
[App. at 12,] "employees. . .relied on [the plan's] continuance until.
. 1982," id. at 14, [App. at 14,] "the employees may have reason-
ably believed the plan to be in effect," id. at 79. [App. at 18.] Such
an approach does not square with the Dillingham inquiry as to
whether a reasonable person could ascertain intended benefits (i.e.,
not simply "believe" them into being). Reliance-oriented
approaches to determining pension benefits are inappropriate.

In the situation of whether "lack of notice" of events before
ERISA should apply to allow a court to exercise jurisdiction after the
effective date of ERISA, the Sixth Circuit feared that such an
approach would "obscure, at least to some degree, a clear reading of
[§ 514 of ERISA] by introducing a judicial gloss implicating notice,

"E.g., see generally Taggart Corp. v. Life & Health Benefits Admin., 617 F.2d
1208 (Sth Cir. 1980), cert. denied, 450 U.S. 1030 (1981)

"The record shows that the only representation made by any Colt salaried
employee after 1975 may have been vague statements to those who were former-
ly in the bargaining unit that their benefits would be "equal to or better than" union
benefits. Henglein 2 at 65-74. [App. at 99-108.]}

22

reliance, and other equitable considerations. Such considerations
have no place in the determination of whether a federal court has the
subject matter jurisdiction to consider a claim under ERISA." Stevens
v. Employer-Teamsters Joint Council No. 84 Pension Fund, 979 F.2d
444, 454 (6th Cir. 1992). The use of reliance in the pension benefit
area also was recently criticized by Justice Souter of this Court:

Moreover, any enquiry into 'reliance,' whatever it might
entail, could apparently lead to different results for claimants
holding identical jobs and enrolled in identical plans. . . .

Any such approach would severely compromise the
capacity of companies. . .to figure out what their pension-
fund obligations will be.

Nationwide, 112 S. Ct. at 1350.

The Henglein I approach that the denial of a benefit after
1975 alone gives rise to federal jurisdiction presupposes that the
denial of a claim after 1975 is the only essential element to a juris-
dictional finding, and that other jurisdictional elements, the exis-
tence of which are very tenuous under a proper application of
Dillingham, may be established under a clearly erroneous applica-
tion of federal law developed after the effective date of ERISA in
order to confirm its previously assumed jurisdiction (i.e., the exis-
tence of a plan under Dillingham).

In fact, in five of the circuit courts of appeal, even when the
essential element of the existence of a plan is admitted, the con-
centration of all or most probative facts relevant to a determination
of an ERISA claim to a time antedating ERISA is enough to deny
subject matter jurisdiction. See Stevens, 979 F.2d 444; Lamontagne
v. Pension Plan of the United Wire, Metal & Machine Pension
Fund, 869 F.2d 153 (2nd Cir.), cert. denied, 493 U.S. 818 (1989);
Menhorn v. Firestone Tire & Rubber Co., 738 F.2d 1496 (9th Cir.
1984); Coward v. Colgate-Palmolive Co., 686 F.2d 1230 (7th Cir.
1982), cert. denied, 460 U.S. 1070 (1983); Quinn v. Country Club
Soda Co., Inc, 639 F.2d 838 (1st Cir. 1981).

23

The opposite view in this ongoing debate (and in which
this Court has thus far declined to intervene) is that the post-ERISA
denial of a benefit is both the "act or omission" that is subject to
ERISA and the event by which the court marks the accrual of the
cause of action. See, Rodriguez v. MEBA Pension Trust, 872 F.2d
69 (4th Cir.), cert. denied, 493 U.S. 872 (1989); Tanzillo v. Local
Union 617, Int'l Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, 769 F.2d 140 (3d Cir.
1985); Jameson, 765 F.2d 49; Woodfork v. Marine Cooks &
Stewards Union, 642 F.2d 966 (Sth Cir. 1981); Landro v.
Glendenning Motorways, Inc., 625 F.2d 1344 (8th Cir. 1980). Of
these cases taking an expansive view of ERISA preemption, it is
important to note that the existence of subject matter of jurisdiction
(plans) was not at issue (as it is in the instant case) and the only rel-
evant jurisdictional inquiry was with respect to when the act or
omission occurred that defined the terms of the plan.

One line of cases says that the cause of action exception of
ERISA § 514(b)(1) informs a court as to the existence of jurisdiction
and the act or omission exception may or may not call for the appli-
cation of pre-ERISA law (the "choice of law" provision in Jameson
terminology). The other line of cases says that both exceptions have
relevance to a determination of jurisdiction (the scope of jurisdiction
under § 502 is "coterminous" with preemption under § 514, Stevens,
979 F.2d at 450). Both lines are applying the two § 514 limitations
on ERISA's statutory grant of jurisdiction under § 502(e).

Regardless of whether either a cause of action or an act or
omission prior to the effective date of ERISA removes subject mat-
ter jurisdiction from the federal courts, petitioners believe that the
act or omission exception of § 514 applies to proof of the existence
of the elements necessary to support subject matter jurisdiction
under § 502 and that the reasoning of the "narrow view of preemp-

"In the case of Jameson it would be more accurate to szy that particular
panel of the Third Circuit would have applied state law to pre-ERISA acts
because the other Third Circuit cases reach a different result. See Tanzilio, 769
F.2d 140 and see generally the entire Henglein line of opinions before this Court.

EE

24

tion" cases is apposite. The Court of Appeals for the Sixth Circuit
aptly compared the two sections. Stevens, 979 F.2d at 449-50. That
court observed that § 502 "gives plan participants the right to bring
suit against plans and establishes federal court jurisdiction over
ERISA actions; however, it does not speak to the scope of ERISA
jurisdiction." /d. at 450. The court goes on:

We find guidance in another section of the statute, how-
ever, concerning the scope of ERISA jurisdiction: the sec-
tion addressing ERISA preemption. This provision man-
dates that with two notable exceptions, ERISA, and not
state law, governs actions brought by plan participants .. . .

Although the statute does not say so explicitly, we conclude
logically, we think, that the language of [§ 514], establishing
the scope of ERISA preemption, also establishes the scope of
ERISA jurisdiction.

Id.

C. TO ESTABLISH SUBJECT MATTER JURISDICTION
UNDER SECTION 502(e) OF ERISA THE THIRD
CIRCUIT HAS APPLIED POST-ERISA LAW
SELECTIVELY TO PRE-ERISA ACTS OR OMISSIONS
THROUGH ITS ERRONEOUS CONSTRUCTION OF
ERISA SECTION 514(b) AND ITS APPLICATION OF
THAT SECTION TO THE EXISTENCE OF A PLAN
UNDER ERISA SECTION 502(a)(1)(B) IN DIRECT
CONFLICT WITH THE CLEAR LANGUAGE OF THE
STATUTE AND WITH ITS OWN PREVIOUS DECISION
AND DECISIONS OF OTHER CIRCUITS

The Third Circuit has announced, in one published opinion
and two unpublished opinions, that the retroactive application of
Title I of ERISA to the conduct of employers is not only permissi-
ble, but mandated. Henglein I, 974 F.2d at 398; Henglein II at 5;
Henglein III at 6. [App. at 494, 37, 8.] This is in clear and direct
violation of ERISA § 514 and the law established by this Court.”

'* See, e.g., United States v. Security Indus. Bank, 459 U.S. 70 (1982); Union
Pac. R.R. Co. v. Laramie Stock Yards Co., 231 U.S. 190 (1913).

25

No employer, or any other fiduciary for that matter, in existence
prior to the effective date of ERISA can be assured that conduct
occurring twenty years ago will not become legally significant and
generate enormous liability.

ERISA Section 514(a) specifically prohibits this mandated
retroactive application for it provides, in relevant part, that Title I
of ERISA supersedes all state laws to the extent they relate to a ben-
efit plan after the effective date of ERISA (generally January 1,
1975). Section 514(b), however, applies two important unambigu-
ous limitations to generally mandated preemption: Title I of
ERISA will not supersede any state law (i) with respect to any
cause of action which arose before January 1, 1975, or (ii) with
respect to any act or omission which occurred before January 1,
1975. If the cause of action arose before 1975, ERISA does not
apply. If the act or omission occurred before 1975, the provisions
of ERISA may not apply to any judicial inquiry with respect to
those acts or omissions and their legal significance and effect.

ERISA § 502(a)(1)(B) gives a participant or beneficiary the
right to bring a claim to recover benefits due under the terms of a
plan. If there is no plan there can be no participant as defined in
ERISA Section 3, and a plaintiff is entitled to no relief.

In Henglein I, the Third Circuit has badly misconstrued
ERISA § 514 and its relationship to ERISA § 502. The court has
construed § 514 to provide once an allegation of a claim is made
after 1975, that subject matter jurisdiction attaches to a claim
because it is a cause of action that arose after 1975, and a district
court should apply ERISA with respect to all acts or omissions
relating to that claim, regardless of whether they occurred before
1975. See generally, 974 F.2d at 397-99. [App. at 491-95.] The
only way state law would apply, according to the Third Circuit, is
if the plaintiffs brought a state law count over which the district
court would have either supplemental jurisdiction or federal ques-
tion jurisdiction "if the contract could be construed as an employee
benefit plan." Jd. at 398. [App. at 493-94.] The court also said "if
.. . benefits were denied not in 1974, but in 1976, a district court

26

would have jurisdiction to hear both a contract claim . . . and an
ERISA claim .... The court would apply state contract law to the
contract claim and federal law to the ERISA claim."" /d. at 399.
[App. at 495.] The error in this line of reasoning is that a pendant
state contract claim under holdings of this Court "relate to" an employ-
ee benefit plan and are preempted by ERISA. See e.g., District of
Columbia v. Greater Washington Bd. of Trade, 113 S. Ct. 580 (1992);
Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990);
Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 (1987); Pilot Life
Ins. Co. v. Dedeaux, 481 U.S. 41 (1987); Shaw v. Delta Air Lines,
Inc., 463 U.S. 85 (1983).

The Third Circuit attempted to justify its holding with a
flawed and difficult to follow syllogistic-like line of reasoning. 974
F.2d at 399. [App. at 494-95.] The court differentiated between
"enforceability" of a plan (with respect to which the application of
post-ERISA law prior to 1975 clearly would be impermissable) and
the "existence" of a plan. The premise for such a finding, as
described in the first paragraph of Section V, id., is the following
sophistry: ERISA applied prospectively to plans in existence at the
time of its enactment; thus, the pre-ERISA enforceability of a plan
under state law is not a pre-requisite to a finding that an employee
benefit plan exists after the passage of ERISA. As will be dis-
cussed further herein, the error here is that prior to the passage of
ERISA the rights of employees to employer furnished fringe bene-
fits (including pensions) were totally dependent upon state contract
law principles.

A “plan," if it ever existed before 1975, had to exist as an
enforceable group offer which ripened into an enforceable contract
upon the individual employees’ performance of the stipulated pre-
conditions (e.g., working a specified number of years or until a cer-
tain age). If there was no enforceable offer (usually forming the

* This statement is in direct conflict with Ingersoll-Rand Co. v. McClendon,
498 U.S. 133 (1992).

* A small number of states immediately before ERISA maintained specific
pension statutes later preempted by ERISA.

27

offer as a basis for a unilateral contract) there was no plan. See
Frenn at 8-12. [App. at 522-525.] If, on the other hand, the "offer"
or promise was nothing more than an illusion, then nothirs ««~d,
let alone anything that was enforceable. The subsequent €a,“s-
sion of the employer's intent through a withdrawal of the "illusory
offer" pursuant to a validly enacted board resolution that prohibited
any offer or contract from coming into being removed any doubt
that a "participant" could enforce any right because absolutely noth-
ing whatsoever existed which could provide the basis for the
enforcement of any rights. Enforceability, at some time, of an offer
under state law was everything.

Because of the Third Circuit's interpretation of ERISA pre-
emption, the Court is mandating that a district court apply a test
developed under ERISA Title I in clear violation of a plain reading
of a limitation on preemption: "[T]he provisions of [Title I] . . .shall
not apply with respect to any . . . act or omission that occurred
before 1975." To determine whether there was a basis for conclud-
ing the existence of a plan (or more importantly, in this case, the
elimination of a plan) before 1975, the law as in effect at the date
of the act or omission must be applied to that act or omission. In
this case the relevant inquiry was (i) whether Crucible ever main-
tained a class offer prior to 1972 that could be accepted by certain
employees of Crucible under Pennsylvania law and (ii) whether
certain salaried employees of Crucible had any rights under
Pennsylvania law that would effectively prevent Crucible from
rescinding the 1969 and all predecessor arrangement (e.g., perhaps
some sort of promissory estoppel argument).

The district court consistently engaged in precisely the
foregoing exercise. Frenn at 8-12; Henglein 2 at 45-53; Henglein

” E.g., an offer to pay X for each year employed to any employee retiring after
age 60 was an offer in a potential unilateral contract; a policy that said that Crucible
would consider a supplementary pension to employees nominated by management
and approved at a higher level was, in contract terms, a mere illusion. "If what
appears to be a promise is an illusion, there is no promise: like the mirage of the
desert with its vision of flowing water which yet lets the traveller die of thirst, there
is nothing there." Corbin on Contracts § 145, at 627 (1963). See also Williston on
Contracts § 1:2, at 10-11 (1959); Restatement (Second) of Contracts § 2 (1982).

28

3 at 3-5. [App. at 522-25, 85-91, 25-27.] The Third Circuit, on the
other hand, interpreted the district court's actions to "appear [ | to
have dismissed the employees' ERISA claims as if they were sup-
plemental state law claims." 974 F.2d at 398. [App. at 493.] To
the contrary, the district court dismissed the plaintiff's claims
because it had made a determination of fact and law that no plan of
any sort existed. Henglein 1 at 6, Henglein 2 at 42. [App. at 509,
42.| Later, under the Third Circuit's direction, Henglein II at 5,
[App. at 8], the district court examined acts or omissions occurring
after 1974 to determine whether or not a plan existed, the existence
of which is a requisite element under ERISA § 502(a)(1)(B).
Henglein 3 at 5-9. [App. at 26-30.]

The district court correctly conducted this exercise by an
application of the standards of Dillingham. Now, once again on
remand, the Third Circuit has directed the district court to apply
Dillingham to pre-ERISA events in addition to post-ERISA events.
Henglein III at 10. [App. at 11.]

To test the legal effect of Crucible's act taken in 1972
against law that first came into effect two years later is simply not
fair (in addition to being an improper expansion of the jurisdiction
and power of the federal courts). Fairness is the underlying policy of
§ 514. As the First Circuit put it:

Section [514], however, renders ERISA inapplicable not only
with respect to "causes of action" arising prior to January 1,
1975, but also with respect to "any act or omission" which
occurred before that date. The phrase "act or omission" has
been said to "refer [ ] to those significant facts which give rise
to a claim but which fall short of establishing a cause of
action" [citations omitted] and seems to have been inserted
"to permit courts to apply state law, even if the cause of action
accrued after January 1, 1975, in cases where that result most
fairly accommodates the interest of all affected parties -- the
beneficiaries, the participants, and fiduciaries of and contrib-
utors to an ERISA trust" [citation omitted]. The clear practi-
cal import of the act or omission clause is to prevent past con-
duct of pension plan fiduciaries and contributors from being

29

judged retroactively under the standards established by
ERISA simply because the conduct generates consequences
subsequent to the ERISA effective date that give rise to what
is, technically, an independent "cause of action."

Quinn, 639 F.2d at 841 (1st Cir. 1981) (emphasis added).

Petitioner does not contest that if the Dillingham surrounding
"facts and circumstances" were construed to include the original 1962
policy, and the 1968 and 1969 modifications, that a plan within the
meaning of ERISA would exist in 1982. But if a court must consider
all surrounding circumstances, the acts of Crucible in terminating the
program in 1972 would have been fully effective under ERISA. In
1982, ERISA contained no notice of termination requirement that
would have nullified operation of the termination. Thus, if ERISA is
to be applied retroactively, the Third Circuit cannot do it selectively.

CONCLUSION

For all the reasons stated above, this petition for writ of
certiorari should be granted.

Respectfully submitted,

Of Counsel: William H. Powderly, III
JONES, DAY, REAVIS & POGUE
Anthony J. diBuono 500 Grant Street - 31st Floor

COLTEC INDUSTRIES INC doe hee

430 Park Avenue

Robert A. Mason
New York, New York 10022 JONES, DAY, REAVIS & POGUE

(212) 940-0574 303 Peachtree Street, N.E.
Atlanta, GA 30308
(404) 521-3939

30

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1245%3A1. Public record. Not legal advice.