Heimann v. National Elevator Industry Pension Fund

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

97-50165

LOUIS D. HEIMANN,

Plaintiff-Appellant,
versus

THE NATIONAL ELEVATOR INDUSTRY PENSION FUND,
and THE NATIONAL ELEVATOR INDUSTRY HEALTH BENEFIT PLAN,

Defendants.

LOUIS D. HEIMANN, Jr., and LOU HEIMANN,

Plaintiff-Appellant,
versus

INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS, and Ken BURKETT,

Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Texas

August 27, 1999

Before EMILIO M. GARZA, STEWART, and DENNIS, Circuit Judges,

DENNIS, Circuit Judge:

Louis Heimann and his wife, Lou Heimann, appeal from the

dismissal of their case for failure to state a claim upon which

relief may be granted under Fed.R.Civ.P. 12(b)(6). They contend

that the district court erred in deciding that the Employee

Retirement Income Security Act of 1974 (“ERISA”) preempted their

1
Texas state law claims for tortious interference with contract and

intentional infliction of emotional distress. Alternatively, if

the state law claims are preempted, they argue that their complaint

states federal law claims upon which relief may be granted under

ERISA §§ 502 (29 U.S.C.§ 1132) and 510 (29 U.S.C. § 1140). We

affirm the district court’s dismissal of the Heimanns’ state law

tort claims because of preemption, but reverse the dismissal of

their suit entirely because their petition states actionable

federal ERISA claims, and remand the case to the district court for

further proceedings.

I. FACTS AND PROCEDURAL HISTORY

Louis D. Heimann, the plaintiff appellant, was employed in

the elevator industry for approximately 36 years and was a member

of the International Union of Elevator Constructors (“IUEC”).

During his years of employment, Mr. Heimann contributed to the

National Elevator Industry Pension Fund and the National Elevator

Industry Health Benefit Plan (“Plans”). It is undisputed that the

Plans are governed by ERISA. Mr. Heimann is a participant and Mrs.

Heimann is a beneficiary of the plans. Upon retirement, Mr.

Heimann began to receive pension benefits from the Pension Fund and

also obtained benefits from the Health Benefit Plan. The Plans

specifically provide that benefits will be suspended if the retiree

engages in work defined as “disqualifying employment.”

Under the facts as alleged by the Heimanns, in March 1994, Mr.

Heimann, while receiving benefits from the Plans, was hired by the

University of Texas as an elevator inspector. The job does not

2
fall within the Plans’ definition of disqualifying employment.

Before taking the job, Mr. Heimann conferred with representatives

of the Plans and was assured that it did not constitute

disqualifying employment. Nevertheless, the IUEC, through its

business agent, Ken Burkett, intentionally and maliciously

misrepresented to the Plans that Heimann was engaging in

disqualifying employment. The IEUC’s actions caused the Plans to

suspend Mr. Heimann’s pension benefits and terminate the Heimanns’

health benefits.

The Heimanns sued the Plans in federal court for wrongful

termination of benefits (“Heimann I”). The Heimanns later brought

suit in Texas state court against IUEC and Mr. Burkett for

intentional infliction of emotional distress and tortious

interference with contract (“Heimann II”). IUEC and Mr. Burkett

removed Heimann II to federal court on the basis that the Heimanns’

state law causes of action were preempted by ERISA. Shortly after

removal, Heimann I and Heimann II were consolidated.

IUEC and Burkett moved the district court to dismiss the

Heimann’s state law claims on the grounds that they were preempted

by ERISA and for failure to state an actionable claim under ERISA.

The court adopted the recommendations of a magistrate judge and

issued an “Order and Partial Judgment” dismissing Heimann II

because of preemption and failure to state a claim, but retained

jurisdiction over Heimann I.

The district court dismissed the plaintiffs’ claims in Heimann

I, concluding that the Plans did not act wrongfully in terminating

3
the Heimanns’ benefits. Subsequently, the parties settled the

claims involved in Heimann I. The Heimanns appealed from the

district court’s Rule 12(b)(6) dismissal of their claims against

IUEC and Mr. Burkett in Heimann II.

II. ERISA COMPLETE PREEMPTION JURISDICTION

“[E]very federal appellate court has a special obligation to

‘satisfy itself not only of its own jurisdiction, but also that of

the lower courts in a cause under review,’ even though the parties

are prepared to concede it. Mitchell v. Maurer, 293 U.S. 237, 244

(1934). Juidice v. Vail, 430 U.S. 327, 331-332 (1977) (standing).”

(internal quotations omitted); Steel Co. v. Citizens For A Better

Environment, --- U.S. ---, 118 S.Ct. 1003, 1012 (1998) (quoting

Arizonans for Official English v. Arizona, 520 U.S. 43, 70 (1997))

(quoting Bender v. Williamsport Area School Dist., 475 U.S. 534,

541 (1986)).

“[A]ny civil action brought in a State court of which the

district courts of the United States have original jurisdiction,

may be removed by the defendant or the defendants, to the district

court of the United States for the district and division embracing

the place where such action is pending.” 28 U.S.C. § 1441(a). The

district courts have original jurisdiction over “federal question”

cases; that is, those cases “arising under the Constitution, laws,

or treaties of the United States.” 28 U.S.C. § 1331. It is well

settled that a cause of action arises under federal law only when

the plaintiff’s well-pleaded complaint raises issues of federal

law. Gully v. First National Bank, 299 U.S. 109 (1936); Louisville

4
& Nashville R. Co. v. Mottley, 211 U.S. 149 (1908).

One oft-cited, yet often confused, corollary to the well-

pleaded complaint doctrine “developed in the case law . . . is that

Congress may so completely preempt a particular area that any civil

complaint raising this select group of claims is necessarily

federal in character.” Metropolitan Life Insurance Co. v. Taylor,

481 U.S. 58, 63 (1987). As this court has recently pointed out,

confusion arises in distinguishing between the “complete

preemption” described in Metropolitan Life which creates federal

removal jurisdiction and the more common ordinary preemption which

does not.1 See McClelland v. Gronwaldt, 151 F.3d 507, 515 (5th Cir.

1998).

Ordinarily, the term federal preemption refers to ordinary

preemption, which is a federal defense to the plaintiff’s suit and

may arise either by express statutory term or by a direct conflict

between the operation of federal and state law. Being a defense,

it does not appear on the face of a well-pleaded complaint, and,

thus, does not authorize removal to a federal court. Id. at 516.

By way of contrast, complete preemption is jurisdictional in nature

rather than an affirmative defense to a claim under state law.

Id., see also Giles v. NYLCare Health Plans, Inc., 172 F.3d 332 (5th

1
This court in McClelland utilized the term ordinary preemption
in analyzing preemption under § 514 of ERISA. Thus, we will also
utilize the term ordinary preemption in discussing preemption under
§ 514. However, for purposes of this opinion, the term ordinary
preemption will encompass any term used to describe preemption
under § 514 including, but not limited to, conflict preemption,
express preemption and field preemption.

5
Cir. 1999). As such, it authorizes removal to federal court even

if the complaint is artfully pleaded to include solely state law

claims for relief or if the federal issue is initially raised

solely as a defense. See Rivet v. Regions Bank of Louisiana, 522

U.S. 470, 475 (1998).

Historically, the doctrine of complete preemption has been

narrowly applied. In general, to demonstrate that there has been

complete preemption justifying federal removal jurisdiction over an

otherwise purely state law claim, a petitioner must show (1) the

statute contains a civil enforcement provision that creates a cause

of action that both replaces and protects the analogous area of

state law (2) there is a specific jurisdictional grant to the

federal courts for enforcement of the right and (3) there is a

clear Congressional intent that claims brought under the federal

law be removable. Aaron v. National Union Fire Insurance Co., 876

F.2d 1157 (5th Cir. 1989). This test should be “applied with

circumscription to avoid difficult issues of federal-state

relations”, and accordingly few federal statutes can meet such an

exacting standard. Id. at 1161 (citing United Jersey Banks v.

Parell, 783 F.2d 360, 368 (3rd Cir.) cert. denied 476 U.S. 1170

(1986)).

As the Supreme Court has noted, claims under the Labor-

Management Relations Act of 1947 (“LMRA”) have long qualified for

complete preemption. Metropolitan Life, 481 U.S. at 63-64 (“For 20

years, this Court has singled out claims pre-empted by § 301 of the

LMRA for such special treatment.”)( citing Gully v. First National

6
Bank, supra.) (citing Avco Corp. v. AERO Lodge No. 735, 390 U.S.

557 (1968)) (quoting Franchise Tax Board of Cal. v. Const. Laborers

Vacation Trust, 463 U.S. 1, 23 (1983) (“The necessary ground of

decision [in Avco] was that the preemptive force of §301 is so

powerful as to displace entirely any state cause of action ‘for

violation of contracts between an employer and a labor

organization.’ Any such suit is purely a creature of federal law,

notwithstanding the fact that state law would provide a cause of

action in the absence of § 301.”(footnote omitted))).

In Franchise Tax Board the Court held that ERISA preemption

under § 514, without more, does not meet this standard and thus

does not convert a state claim into an action arising under federal

law (i.e., it is mere ordinary preemption). Id. at 25-27. That

Court suggested, however, that a state action that was not only

preempted by ERISA under § 514, but that also came “within the

scope of § 502(a) [the civil enforcement provision] of ERISA[,]”

might fall within the Avco rule. Franchise Tax Board, 463 U.S. at

24-25. In Metropolitan Life, 481 U.S. at 64, the Court had

opportunity to address a claim which, “unlike the state tax

collection suit in Franchise Tax Board, is within the scope of §

502(a).” In so doing, the Court noted that:

[T]he language of the jurisdictional subsection of
ERISA’s civil enforcement provisions closely parallels
that of § 301 of the LMRA. Section 502(f) says:
“The district courts of the United
States shall have jurisdiction,
without respect to the amount in
controversy or the citizenship of
the parties, to grant the relief
provided for in subsection (a) of
this section in any action.” 29

7
 U.S.C. § 1132 (f).
Cf. § 301(a) of the LMRA, 29 U.S.C. § 185(a).

Id. at 65.

The Court further reasoned that the presumption that the

similar language in the two labor law statutes had a similar

meaning was fully confirmed by the legislative history of ERISA’s

civil enforcement provisions. In this regard, the Court observed

that:

The Conference Report on ERISA describing the civil
enforcement provisions of § 502 (a) says:
“[W]ith respect to suits to enforce
benefit rights under the plan or to
recover benefits under the plan
which do not involve application of
the title I provisions, they may be
brought not only in U.S. district
courts but also in State courts of
competent jurisdiction. All such
actions in Federal or State courts
are to be regarded as arising under
the laws of the United States in
similar fashion to those brought
under section 301 of the Labor-
Management Relations Act of 1947.’
H.R.Cong.Rep. No. 93-1280, p. 327
(1974) (emphasis added).”

Id. at 65-66.

For these reasons, the Court concluded that “Congress has

clearly manifested an intent to make causes of action within the

scope of the civil enforcement provisions of § 502(a) removable to

federal court[;]” Id. at 66, and that “this suit, though it

purports to raise only state law claims, is necessarily federal in

character by virtue of the clearly manifested intent of Congress.

It therefore, ‘arise[s] under the ... laws ... of the United

8
States,’ 28 U.S.C. § 1331, and is removable to federal court by the

defendants[.]” Id.

Subsequently, the Supreme Court clarified its holdings in

Franchise Tax Board and Metropolitan Life in Ingersoll-Rand Company

v. McClendon, 498 U.S. 133 (1990), a case taken not by removal but

by certiorari from the Texas Supreme Court. Ingersoll-Rand held

that ERISA preempted, by both ordinary express and conflict

preemption, the plaintiff employee’s state law wrongful discharge

claim based on allegations that his employer took the adverse

action for the purpose of interfering with his rights under his

pension plan. The Court stated that the employee McLelland’s Texas

cause of action conflicts directly with an ERISA cause of action

because it “falls squarely within the ambit of ERISA § 510, which

... protects plan participants from termination motivated by an

employer’s desire to prevent a pension from vesting.” Id. at 142-

143.

Significantly, however, in adverting to the complete

preemption effect of § 502(a) for violations of § 510, the Court

recalled that in Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54,

(1987), it had “explained that Congress intended § 502(a) to be the

exclusive remedy for rights guaranteed under ERISA, including those

provided by §510[] ... [and] that ‘the pre-emptive force of §

502(a) was modeled on the exclusive remedy provided by § 301 of the

[LMRA].’” Ingersoll-Rand, 498 U.S. at 144 (quoting and citing Pilot

Life, 481 U.S. at 52, 54-55). The Court further clarified that in

Metropolitan Life, 481 U.S. at 64-67, it had again drawn on “the

9
parallel between § 502(a) and § 301" to conclude “that the pre-

emptive effect of § 502(a) was so complete that an ERISA pre-

emption defense [under § 502(a)] provides a sufficient basis for

removal of a cause of action to the federal forum notwithstanding

the traditional limitation imposed by the ‘well-pleaded complaint’

rule.” Ingersoll-Rand, 498 U.S. at 145. The Court then rejected

the Texas court’s attempt to distinguish, for preemption purposes,

McClendon’s wrongful discharge claim from a claim for pension

benefits, stating “[n]ot only is § 502(a) the exclusive remedy for

vindicating § 510-protected rights, but there is no basis in §

502(a)’s language for limiting ERISA actions to only those which

seek ‘pension benefits.’” Id. at 145. Thus the Court in Ingersoll-

Rand clearly indicated that it was the complete preemption under

the civil enforcement provisions of § 502(a), in that they were

modeled on § 301 of the LMRA, and not the ordinary preemption

provisions of § 514, that justify removal of a cause of action

within the ambit of § 502(a) to the federal courts. Id. at 142.

Previous panels of this Circuit, exercising great caution,

have used a two-step analysis under both § 514 and § 502(a) in

their complete preemption analysis. In McClelland the court noted,

as had been the case in Ingersoll-Rand, that both ordinary and

complete preemption were present. McClelland, 151 F.3d at 515-517.

This is not uncommon given the “deliberately expansive” nature of

§ 514 ordinary preemption which almost always will encompass claims

preempted by § 502 as well. See, e.g., Pilot Life, 481 U.S. at 46.

Because we conclude, for the reasons hereinafter assigned, that

10
under the two-step analysis the Heimanns’ causes of action fall

within the scope of §§ 514 and 502(a), removal was proper under the

“complete preemption” corollary to the “well-pleaded complaint

rule.” Hence, we are satisfied that the district court had

jurisdiction of this case and that this court does as well.

III. ISSUES

The issues presented by this appeal are:

1) whether the Heimanns’ complaint states causes of action against

the defendants under ERISA §§ 502 and 510, 29 U.S.C. §§ 1132 and

1140, and

2) whether the Heimanns’ state law causes of action for tortious

interference with contract and intentional infliction of emotional

distress against IUEC and Mr. Burkett are preempted by ERISA.

IV. STANDARD OF REVIEW

We review the dismissal of an action under Federal Rules

12(b)(6) de novo. Carney v. Resolution Trust Corp., 19 F.3d 950,

954 (5th Cir. 1994). In reviewing a 12(b)(6) dismissal, an

appellate court may uphold the action of the trial court “only if

it appears that no relief could be granted under any set of facts

that could be proved consistent with the allegations.” Barrientos

v. Reliance Standard Life Ins. Co., 911 F.2d 1115, 1116 (5th Cir.

1990) (quoting Baton Rouge Bldg. & Const. Trades Council AFL-CIO v.

Jacobs Constructors, Inc., 804 F.2d 879, 881 (5th Cir. 1986)).

V. CIVIL ACTIONS UNDER ERISA § 502(a) AND § 510

The Heimanns allege that Mr. Burkett, acting for the IEUC,

11
intentionally and without justification incorrectly informed the

plans that Mr. Heimann was engaged in “disqualifying employment;”

that the false report was made maliciously and with an evil intent

to harm the Heimanns by interfering with their rights to benefits

under the plans; and that this wrongful interference proximately

caused the plans to terminate the Heimanns’ pension and health

benefits. The plaintiffs’ allegations also indicate that these

actions interfered with Mr. Heimann’s right under the plan to

engage in non-disqualifying employment.

We begin our analysis by setting forth the relevant provisions

of ERISA:

ERISA § 510, 29 U.S.C. § 1140, provides:

§ 1140. Interference with protected rights
It shall be unlawful for any person to discharge,
fine, suspend, expel, discipline, or discriminate against
a participant or beneficiary for exercising any right to
which he is entitled under the provisions of an employee
benefit plan, this title, section 3001 [29 U.S.C. §
1201], or the Welfare and Pension Plans Disclosure Act
[29 U.S.C. § 301 et seq.], or for the purpose of
interfering with the attainment of any right to which
such participant may become entitled under the plan, this
title, or the Welfare and Pension Plans Disclosure Act
.... The provisions of section 502 [29 U.S.C. § 1132]
shall be applicable in the enforcement of this section.

ERISA § 502 is the statute’s civil enforcement mechanism.

That section, in pertinent part, as set forth in 29 U.S.C. §

1132(a)(1)(B), § 1132 (a)(3), and §1132(e), provides:

§ 1132. 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

12
 the terms of the plan, or to clarify his
rights to future benefits under the terms of
the plan;
* * *
(3) by a participant, beneficiary, or fiduciary (A) to
enjoin any act or practice which violates any provision
of this subchapter or the terms of the plan, or (B) to
obtain other appropriate equitable relief (i) to redress
such violations of (ii) to enforce any provisions of this
subchapter or the terms of the plan;
* * *
(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, fiduciary, or any person referred to in
section 101(f)(1)[29 U.S.C. § 1021 (f)(1)] ....
(f) Amount in controversy; citizenship of parties
The district courts of the United States shall have
jurisdiction, without respect to the amount in
controversy or the citizenship of the parties, to grant
the relief provided for in subsection (a) of this section
in any action.

ERISA § 3, 29 U.S.C. § 1002, defines “employee benefit plan”

or “plan,” “employee organization,” “employer,” “employee,”

“participant,” “beneficiary,” and “person” as follows:

§ 1002. Definitions
For purposes of this subchapter:
* * *
(3) The term “employee benefit plan” or “plan” means an
employee welfare benefit plan or an employee pension
benefit plan or a plan which is both an employee welfare
benefit plan and an employee pension benefit plan.
(4) The term “employee organization” means any labor
union or any organization of any kind ... in which
employees participate and which exists for the purpose,
in whole or in part, of dealing with employers concerning
an employee benefit plan, or other matters incidental to
employment relationships; or any employees’ beneficiary
association organized for the purpose in whole or in
part, of establishing such a plan.
(5) The term “employer” means any person acting directly
as an employer, or indirectly in the interest of an
employer, in relation to an employee benefit plan; and
includes a group or association of employers acting for
an employer in such capacity.
(6) The term “employee” means any individual employed by

13
 an employer.
(7) The term "participant" means any employee or former
employee of an employer, or any member or former member
of an employee organization, who is or may become
eligible to receive a benefit of any type from an
employee benefit plan which covers employees of such
employer or members of such organization, or whose
beneficiaries may be eligible to receive any such
benefit.
(8) The term "beneficiary" means a person designated by
a participant, or by the terms of an employee benefit
plan, who is or may become entitled to a benefit
thereunder.
(9) The term "person" means an individual, partnership,
joint venture, corporation, mutual company, joint-stock
company, trust, estate, unincorporated organization,
association, or employee organization.

It is undisputed that Mr. Heimann is a “participant” of the

plans as defined in § 1002(7). He is both a former employee of an

employer and a former member of a union or employee organization

who is eligible to receive benefits from the plans that cover

employees of his former employer and members of his former union.

(In fact, the plans involved in the present case were negotiated by

IUEC and National Elevator Industry, Inc., a multi-employer

bargaining unit including Mr. Heimann’s former employer. We infer,

therefore, that IUEC is a sponsor of the plans.) It is also

undisputed that Mrs. Heimann is a “beneficiary” under § 1002(8)

because she was designated by her husband or by the terms of the

plans and is entitled to benefits thereunder.

It follows that the terms “participant” and “beneficiary” must

be deemed to have the same meaning throughout ERISA, and that the

terms include the Heimanns for all purposes of the statute. See

Mertens v. Hewitt Associates, 508 U.S. 248, 259 (1993).

For the same reason, the defendants, the IEUC and Mr. Burkett,

14
are “persons” for purposes of each provision of the statute. Under

the alleged facts, the IEUC is an “unincorporated association,

association, or employee organization” and therefore is a “person”

under the statute. § 1002(9). Mr. Burkett is included within the

definition of “person” because he is an “individual.” Id.

Furthermore, it is undisputed that Mr. Burkett was a business agent

of the IEUC and was acting in the scope and course of his

employment for the union when he committed the acts that the

Heimanns allege were unlawful under ERISA and the plans.

A. Scope of ERISA Civil Enforcement Provisions

Section 502(a)(3), 29 U.S.C. § 1132(a)(3)--the third of

ERISA’s “six carefully integrated civil enforcement provisions,”

Massachusetts Mutual Life Insurance Company v. Russell, 473 U.S.

134, 146 (1985)--allows a participant, beneficiary, or fiduciary to

bring a civil action “(A) to enjoin any act or practice which

violates any provision of this subchapter or the terms of the plan,

or (B) to obtain appropriate equitable relief (i) to redress such

violations or (ii) to enforce any provisions of this subchapter or

the terms of the plan[.]” Unlike four of § 502's six subsections,

§ 502(a)(3) is not focused on specific areas or types of

defendants. See Varity Corp., 516 U.S. at 512. As the Supreme

Court pointed out, § 502(a)(3) and (5) “create[] two ‘catchalls,’

[to protect the interests of participants and beneficiaries]

providing ‘appropriate equitable relief’ for ‘any’ statutory

violation[,]” whereas the others address particular evils, “i.e.,

the first (wrongful denial of benefits and information), the second

15
(fiduciary obligations related to the plan’s financial integrity),

the fourth (tax registration), and the sixth (civil penalties).”

Id. Further, “these ‘catchall’ provisions act as a safety net,

offering appropriate equitable relief for injuries caused by

violations that § 502 does not elsewhere adequately remedy.” Id.

As well, the legislative history describes these enforcement

provisions as intended to “‘provide both the Secretary and

participant and beneficiaries with broad remedies for redressing or

preventing violations of [ERISA][.]’” Id. (citing S. REP. NO. 93-

127, p. 35 (1973, 1 Leg. Hist. 621; H.R. REP. NO. 93-533, at 17, 2

Leg. Hist. 2364)).

Section 510 of ERISA, 29 U.S.C. § 1140, makes it unlawful for

“any person” to “discriminate” against a participant or beneficiary

(1) “for exercising any right to which he is entitled” under the

plan, ERISA, or the Welfare and Pension Plans Disclosure Act [29

U.S.C. § 301 et seq.], or (2) for the purpose of “interfering” with

the attainment of any right to which such participant may become

entitled under the plan or such laws. The Heimanns have set forth

allegations under which most of the facts necessary to state a

claim for relief unquestionably could be proved, viz., that (1)

they are a “participant” and a “beneficiary” of an ERISA plan; (2)

who have been intentionally and maliciously injured without cause

or justification by a “person”-–the IEUC, Mr. Heimann’s former

union or employee organization and its employee, Mr. Burkett, an

individual;(3) because of the Heimanns’ “exercise of rights to

which they were entitled” under the plans and ERISA, i.e., their

16
rights to receive plan pension and health benefits, as well as Mr.

Heimann’s right to engage in non-disqualifying employment (without

unjustifiable interference). The only genuine question remaining

is whether the defendants’ alleged conduct amounted, under § 510,

to unlawful discrimination against the Heimanns either (i) because

of the exercise of their rights under the plans or ERISA; or (ii)

for the purpose of interfering with their attainment of such

rights.

We conclude that, under the alleged facts, the defendants

violated provisions of both § 510 of ERISA and the Plans. Although

the Supreme Court has not interpreted the term “discriminate

against” in the context of § 510 of ERISA, it has construed the

same words in the antiretaliation provisions of other federal

statutes as meaning, in essence, to retaliate economically against.

See Robinson v. Shell Oil Co., 519 U.S. 337, 342, 345, (1997)

(Section 704(a) of Title VII of the Civil Rights Act of 1964, 42

U.S.C. §2000e-(a)); NLRB v. Scrivener, 405 U.S. 117, 121-122 (1972)

(Section 8(a)(4) of the National Labor Relations Act, 29 U.S.C.

§158(a)(4)); Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S.

288, 292-293 (1960) (Section 15(a)(3) of the Fair Labor Standards

Act of 1938, 29 U.S.C. §215(a)(3)); Cf. Mertens, 508 U.S. at 255

(“And though we have never interpreted the precise phrase ‘other

appropriate equitable relief’ [in § 502 of ERISA] we have construed

the similar language of Title VII of the Civil Rights Act of 1964

(before its 1991 amendments)--“any other equitable relief as the

court deems appropriate,” 42 U.S.C. § 2000e-5(g)--to preclude

17
“awards for compensatory or punitive damages.”)

The antiretaliation provision of Section 704(a), Title VII of

the Civil Rights Act of 1964, makes it unlawful “for an employer to

discriminate against any of his employees or applicants for

employment” who have either availed themselves of Title VII’s

protections or assisted others in so doing. 42 U.S.C. § 2000-e(a).

In Robinson, the Supreme Court was asked to decide whether the term

“employees,” as used in § 704(a), includes former employees, such

that petitioner may bring suit against his former employer for

post-employment actions allegedly taken in retaliation for

petitioner’s having filed a charge with the Equal Employment

Opportunity Commission. Robinson. 519 U.S. at 339-40. The Court

held that “the term ‘employees,’ as used in § 704(a) of Title VII,

is ambiguous as to whether it includes former employees. It being

more consistent with the broader context of Title VII and the

primary purpose of §704(a), we hold that former employees are

included within §704(a)’s coverage.” Id. at 346. The Court’s

reasoning in refusing to construe the term “employees” narrowly as

excluding former employees from the antiretaliation protection of

§704(a) of Title VII is applicable by analogy to the question of

whether we, in the present case, may exclude former employee-

participants from antiretaliation protection and exclude unions or

employee organizations from amenability for economic retaliation

against former employee-participants under § 510 of ERISA. The

Court stated:

According to EEOC, exclusion of former employees from the
protection of § 704(a) would undermine the effectiveness

18
 of Title VII by allowing the threat of post-employment
retaliation to deter victims of discrimination from
complaining to EEOC, and would provide a perverse
incentive for employers to fire employees who might bring
Title VII claims. Brief for United States and EEOC as
Amici Curiae 18-21.
Those arguments carry persuasive force given their
coherence and their consistency with a primary purpose of
antiretaliation provisions, maintaining unfettered access
to statutory remedial mechanisms. Cf. NLRB v. Scrivener,
405 U.S. 117, 121-122, 92 S.Ct. 798, 800-01 ... (1972)
(National Labor Relations Act); Mitchell v. Robert
DeMario Jewelry, Ind., 361 U.S. 288, 292-293, 80 S.Ct.
332, 335-36 ... (1960) (Fair Labor Standards Act). EEOC
quite persuasively maintains that it would be destructive
of this purpose of the antiretaliation provision for an
employer to be able to retaliate with impunity against an
entire class of acts under Title VII--for example,
complaints regarding discriminatory termination.

Robinson, 519 U.S. at 346.

In the present case, it is not only more consistent with the

broader context of ERISA and the primary purpose of § 510, but also

explicitly required by the definitions of “participant” and

“person” in § 1002(7) and (9), that we hold that former employee-

participants are protected from economic retaliation by their

former unions or employee organizations and their former employers

under § 510 for exercising their rights under the plans, ERISA and

other laws.

Consequently, if, as the Heimanns allege, the defendants

intentionally and maliciously retaliated economically against the

Heimanns because of their exercise of rights under the plans and

ERISA, the defendants “discriminated against” the Heimanns

unlawfully under § 510 in violation of the plans and ERISA. To

read § 510's use of the term “discriminate against” in any other

way would require us to give the term a different meaning than the

19
Supreme Court has consistently assigned to it in construing

previously enacted antiretaliation provisions. In all likelihood,

Congress relied on the Supreme Court’s interpretations of other

federal antiretaliation provisions in drafting and enacting § 510

of ERISA. We see no good reason to read the term “discriminate

against” eccentrically in the present statute. “The authority of

courts to develop a ‘federal common law’ under ERISA, see

Firestone, 489 U.S. at 110, is not the authority to revise the text

of the statute.” Mertens, 508 U.S. at 258.

The Supreme Court in Mertens announced precepts that we must

follow in construing and applying ERISA. Two of them are:

(1)“[L]anguage used in one portion of a statute ... should be

deemed to have the same meaning as the same language used elsewhere

in the statute[,]”; and (2) “[V]ague notions of a statute’s ‘basic

purpose’ are ... inadequate to overcome the words of its text

regarding the specific issue under consideration. Id. at 260

(citing Pension Benefit Guaranty Corporation v. LTV Corp., 496 U.S.

633, 646-647 (1990)). This is especially true with legislation

such as ERISA, an enormously complex and detailed statute that

resolved innumerable disputes between powerful competing interests-

-not all in favor of potential plaintiffs. Id. at 261-262 (citing

Pilot Life Insurance Company v. Dedeaux, 481 U.S. 41, 54-56

(1987))”

Accordingly, we do not find determinative or helpful the

20
 2
flawed but frequently quoted dicta of West v. Butler, 621 F.2d

240 (6th Cir. 1980), that ERISA’s legislative history indicates

“that the [§ 510] prohibitions were aimed primarily at preventing

unscrupulous employers from discharging or harassing their

employees in order to keep them from obtaining vested pension

rights[,]” id. at 245, and “that discrimination, to violate § 510,

must affect the individual’s employment relationship in some

substantial way.” Id. at 245-246. Recently, the Sixth Circuit in

Mattei v. Mattei, 126 F.3d 794 (6th Cir. 1997) reconsidered and

limited the West v. Butler dicta to the confines of the statute,

holding that the antiretaliatory protection of § 510 is not

restricted to shielding only active employees from economic

sanctions. As the Mattei court observed:

[I]n the [West] court’s statement that “Congress designed
§ 510 primarily to protect the employment relationship,”
the use of the word “primarily” necessarily means that,
in the court’s view, Congress intended that the statute
sometimes reach beyond the employment relationship. The
overarching goal of the statute was to protect rights
conferred by an employee benefit plan, and the court
recognized that the most common, but not the only
possible, attack on those rights would be through the
employment relationship. Notably, the committee report
quoted in West, 621 F.2d at 245, evinced Congress’s
desire for §510 to protect pension rights and
expectations from “economic sanctions”--a broad
description not limited to the sphere of employment.

Id. at 800. See also, Clark v. Resistoflex Co., 854 F.2d 762, 770

(5th Cir. 1988) (“Resistoflex points to the Sixth Circuit’s

2
See ,e.g., Haberern v. Kaupp Vascular Surgeons Ltd. Defined
Benefit Pension Plan, 24 F.3d 1491 (3d Cir. 1994), cert. denied,
513 U.S. 1149, 115 S.Ct. 1099 (1995); McGrath v. Auto-Body North
Shore, Inc., 7 F.3d 665 (7th Cir. 1993); Deeming v. American
Standard, Inc., 905 F.2d 1124 (7th Cir. 1990).

21
statement in West v. Butler, 621 F.2d 240, 245 (6th Cir. 1980), that

‘[t]he legislative history [of § 510 of ERISA] reveals that the

[statute’s] prohibitions were aimed primarily at preventing

unscrupulous employers from discharging or harassing their

employees in order to keep them from obtaining vested pension

rights.’ As we read this passage, however, the qualifying word

‘primarily’ leaves room for a construction that extends section 510

protection to vested employees as well.”)

In our own review of the ERISA historical materials we found

nothing to suggest that Congress intended to protect the pension

and welfare benefits of active employees any more strenuously than

that of retirees. Instead, Congress’s aim to safeguard equally the

rights of all participants, which by § 1002(7)’s definition

includes former employees and former union members, is as evident

in the legislative history as it is in ERISA’s statement of its

policy, viz., “to protect ... the interests of participants in

employee benefit plans and their beneficiaries, by requiring the

disclosure and reporting to participants and beneficiaries of

financial and other information ..., by establishing standards of

conduct, responsibility, and obligation for fiduciaries of employee

benefit plans, and by providing for appropriate remedies,

sanctions, and ready access to the Federal courts.” § 1001(b).

See, e.g., S. REP. NO. 93-127, at 35 (1973) (describing Senate

version of enforcement provisions as intended to “provide both the

Secretary and participants and beneficiaries with broad remedies

for redressing or preventing violations of [ERISA]”); H.R. REP. NO.

22
93-533, at 17 (describing House version in identical terms).

ERISA’s basic purpose is “to strengthen and improve the protections

and interests of participants and beneficiaries of employee pension

and welfare plans.” S. REP, NO. 93-127. See also, H.R. REP. NO. 95-

533, stating that the “primary purpose of the bill is the

protection of individual pension rights[.]” ERISA’s basic

purposes, plain words and legislative history, require a reading of

§§ 510 and 502(a)(3) that provides all participants and

beneficiaries, including former employees, former union members,

and retirees with a remedy for economic retaliation because of

participants’ and beneficiaries’ exercise of pension plan rights.

Cf. Varity Corp, 516 U.S. at 512, 513.

Even if we could accept West v. Butler’s notion of the primary

purpose of § 510 as a plausible interpretation of part of the

legislative history, the West court’s leap to the conclusion that

§ 510 makes discrimination against those who exercise ERISA rights

unlawful only when it affects an ongoing employment relationship is

without support in the text or the legislative history of ERISA.

To read § 510 to exclude retirees from its protection would require

either that we give “participant” a different meaning in § 510 than

in § 1002(7) and elsewhere in ERISA or that we judicially exclude

retirees, i.e., former employees, from all rights, information,

remedies and access to court afforded other participants by ERISA.

We cannot do either because, as the Supreme Court has admonished,

courts lack authority to revise the text of the statute and should

give language used in one portion of a statute the same meaning as

23
the same language has when used elsewhere in the statute. Mertens,

508 U.S. at 258, 260.

B. Pleading Requirements of § 502

Defendants argue that, even construing the Heimanns’ petition

liberally, it fails to allege facts from which a reasonable trier

of fact could find or infer that the defendants specifically

intended to retaliate against the Heimanns for their exercise of

rights under the Plans or to interfere with any of their rights

under the Plans. We disagree. Under ERISA § 510 plaintiffs are

required to prove by a preponderance of the evidence that the

defendants specifically intended to commit acts which violated the

provisions of ERISA or the terms of the plan. See, e.g., Kimbro v.

Atlantic Richfield Co., 889 F.2d 869, 881 (9th Cir. 1989) (employee

must prove employer’s specific intent to retaliate for employee’s

exercise of rights under plan), cert. denied, 498 U.S. 814 (1990);

Clark v. Resistoflex Co., a Div. of Unidaynamics Corp., 854 F.2d at

770 (employee must prove specific intent to interfere with

employee’s pension rights); Dister v. Continental Group, Inc., 859

F.2d 1108, 1111 (2d Cir. 1988) (section 510 claimant must prove

specific intent to engage in activity prohibited by section 510).

In their complaint, the Heimanns alleged that: (1) Mr. Heimann

“made contributions to The National Elevator Industry Pension Fund

(‘Pension Fund’), and The National Elevator Industry Health Benefit

Plan (‘Health Benefit Plan’)”; (2) “Louis Heimann retired from Otis

Elevator Company in January 1992 ... [and] [a]t that time Pension

Fund began paying pension benefits to Louis Heimann and Health

24
Benefit Plan continued providing medical and dental insurance to

the Heimanns”; (3) “Louis Heimann’s employment by the University of

Texas as an elevator inspector does not constitute disqualifying

employment”; (4) “Burkett, in his capacity as Business

Representative of Local 133, and therefore as the agent of IUEC,

and on his own behalf, communicated to the Plans that Louis Heimann

was engaged in disqualifying employment and therefore caused the

Plans to suspend his pension benefits and terminate medical and

dental insurance coverage for the Heimanns”; (5) “This

communication with the Plans constituted interference with the

contract between the Heimanns and the Plans”; (6) “In interfering

with the contract between the Heimanns and the Plans IUEC and

Burkett acted willfully and intentionally, and with a reckless

disregard for the rights of the Heimanns”; (7) “As a proximate

result of the interference with the Heimann’s [sic] contractual

rights under the Plans by IUEC and Burkett, the Plans suspended the

pension plan payments which it was making to Louis Heimann and

terminated the medical and dental insurance coverage being provided

to the Heimanns.”

Federal Rule of Civil Procedure 9(b), pertaining to pleading

special matters, provides, in pertinent part, that “[m]alice,

intent, knowledge, and other condition of mind of a person may be

averred generally.” See Barrientos v. Reliance Standard Life Ins.

Co., 911 F.2d 1115 (5th Cir. 1990); Belli v. Orlando Daily

Newspapers, Inc., 389 F.2d 579, 589 (5th Cir. 1967); D’Allessandro

v. Bechtol, 104 F.2d 845 (5th Cir. 1939). The rule recognizes the

25
unworkability and undesirability of requiring specificity in

pleading a condition of mind; describing a state of mind with

exactitude is inherently difficult and would lead to complexity and

prolixity in pleadings. 5 CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL

PRACTICE AND PROCEDURE, § 1301 at 674 (2d ed. 1990).

From the above facts alleged in the complaint, it can

reasonably be inferred that the Heimanns had protected rights under

the plans; Mr. Heimann exercised his right under the plan to engage

in non-disqualifying employment; IUEC and Burkett falsely informed

the Plans that Mr. Heimann was engaging in disqualifying

employment; IUEC and Burkett had the specific intent to interfere

with the Heimanns’ benefits and Mr. Heimann’s right to engage in

non-disqualifying employment; IUEC and Burkett’s action caused the

unjust termination of these rights. This is sufficient to state a

claim under ERISA.

Federal Rules of Civil Procedure 8(a)(2), 8(e) and 8(f) state

that technical forms of pleading are not required, that pleadings

ought to be construed liberally so as to do substantial justice,

and most important of all, they substitute the requirement of “a

short and plain statement of the claim showing that the pleader is

entitled to relief” for the technical formula, such as “facts

constituting a cause of action,” which typified the preexisting

codes. WRIGHT & MILLER, supra, § 1202 at 68 (2d ed. 1990). Hence,

a complaint is not subject to dismissal with prejudice unless it

appears with certainty that no relief can be granted under any set

of facts that can be proved in support of its allegations. Id. at

26
145 (citing Fernandez-Montes v. Allied Pilots Assoc., 987 F.2d 278

(5th Cir. 1993)); U.S. v. Uvalde Consol. Indep. Sch. Dist., 625 F.2d

547 (5th cir. 1980). The use of the term “specific intent” or other

ERISA terminology is not sacramental or necessary to the pleading

of a cause of action under § 502(a). The Supreme Court has held

that state causes of action may fall squarely within the ambit of

ERISA §§ 502(a) and 510 even when the state action purports to

assert only a remedy available under state law using only state law

theories and terminology. See Metropolitan Life Insurance Company

v. Taylor, supra and Ingersoll-Rand Company v. McClendon, supra.

The Heimanns’ petition’s allegation of facts also entitle them

to bring a civil action for declaratory judgment to clarify and

enforce their rights under the terms of the plan. Consequently,

the Heimanns are entitled to bring a civil action under §

502(a)(1)(B) for those purposes.

A civil action may be brought by a participant or beneficiary

under §502(a)(1)(B) “to recover benefits due 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[.]” The purpose of § 502(a)(1)(B) is to provide the means by

which a participant or beneficiary may enforce his rights to

benefits and any other plan-created rights. Dukes v. U.S.

Healthcare, Inc., 57 F.3d 350, 357 (3d Cir. 1995). For example, an

ERISA welfare benefit plan participant may seek declaratory

judgment to clarify his rights under the plan. Camarada v. Pan

American World Airways, 956 F. Supp. 299 (E.D.N.Y. 1997).

27
 The Declaratory Judgment Act provides that, with exceptions

not here pertinent, “in a case of actual controversy within its

jurisdiction ... any court of the United States, upon the filing of

an appropriate pleading, may declare the rights and other legal

relations of any interested party seeking such declaration, whether

or not further relief is or could be sought.” 28 U.S.C. § 2201.

Further necessary or proper relief based on a declaratory judgment

may be granted, after reasonable notice and hearing, against any

adverse party whose rights have been determined by the declaratory

judgment. 28 U.S.C. § 2202. Under the Act a court has the power,

upon a subsequent petition, to grant coercive or further

declaratory relief in connection with a final declaratory judgment

theretofore entered. Shumaker v. Utex Exploration Co., 157 F. Supp

68 (D.Utah 1957); Univ. of New Hampshire v. April, 347 A.2d 446

(N.H. 1975).

“Proceedings under the Declaratory Judgment Act are governed

by the same pleading standards that are applied in other federal

civil actions.” 5 WRIGHT & MILLER, supra, §1238 at 285 (footnotes

omitted citing authorities). The plaintiff must allege a

“justiciable controversy” in order to state a claim for declaratory

relief. Id. (citing Maryland Gas. Co. v. Pacific Coal & Oil Co.,

312 U.S. 270, 61 S.Ct. 510 (1941)); Aetna Life Ins. Co. v. Haworth,

300 U.S. 227, 57 S.Ct. 461 (1937); Tennessee Coal, Iron & R. Co. v.

Muscoda Local No. 123, etc., 137 F.2d 176 (5th Cir. 1943) aff’d 321

U.S. 590 (1944). The complaint must disclose “a legal right,

relation, status, or interest claimed by plaintiff over which a

28
dispute with the defendant has arisen.” 5 WRIGHT & MILLER, supra, at

287 (citing Paper Carriers Union No. 450 v. Pulitzer Pub. Co., 309

F.2d 716 (8th Cir. 1962)); see also Aralac, Inc. v. Hat Corp. of

America, 166 F.2d 286 (3rd Cir. 1948). The Declaratory Judgment Act

is a procedural statute providing an additional remedy in which the

federal courts already have jurisdiction, and should be given a

liberal interpretation. Tennessee Coal, Iron & R. Co. v. Muscoda

Local No. 123, supra, 137 F.2d at 179.

The Heimanns’ complaint discloses that they have legal rights

to pension and health benefits under the plans, and that Mr.

Heimann has the right to engage in non-disqualifying employment

without being threatened or harmed with loss of benefits for

himself and his wife; that a dispute has arisen with the defendants

over whether the employment in which he wishes to engage is

“disqualifying employment” under the plan and whether Mr. Heimann

can pursue such employment without impairing his and his wife’s

rights to benefits under the plans; that the defendants have

already once acted, and may act again, to deprive him and his wife

of benefits from the plans and to deprive him of his right under

the plan to pursue such non-disqualifying employment. Thus, the

Heimanns’ complaint fulfills the requisites of § 502(a)(1)(B) of

ERISA and the Declaratory Judgment Act for stating a cause of

action for declaratory relief clarifying and enforcing their rights

under the plans, viz., legal rights under the terms of the plans

claimed by plaintiffs over which a dispute has arisen with the

defendants. In adopting the Declaratory Judgment Act, it was

29
Congress’ intent to prevent avoidable damages from being incurred

by a person who is not certain of his rights, and to afford him an

early adjudication of his rights without waiting until his

adversary takes injurious action against him. See 5 WRIGHT & MILLER,

supra, at 288. It is evident that Congress was of the same mind

when it enacted § 502(a)(1)(B), giving every participant and

beneficiary the right to bring a civil action to clarify and

enforce his rights under the terms of the plan. Under the facts

alleged declaratory judgment can and should be granted clarifying

and enforcing the Heimanns’ rights under the Plans to benefits and

to engage in non-disqualifying employment. The Heimanns are

entitled to early adjudication of these rights without risking

further retaliation or interference by the defendants.

In addition to their main argument that the Heimanns failed to

state a claim for relief, the defendants contend that the Heimanns’

suit must be dismissed because they did not specify the particular

type of equitable relief to which they are entitled. However,

Federal Rule of Civil Procedure 8(a) requires only “a short and

plain statement of the claim showing that the pleader is entitled

to relief.” See Doss v. South Central Bell Tel. Co., 834 F.2d 421,

423, n.3 (5th Cir. 1987) (“[D]ismissal was not proper. The court

stated that it dismissed those claims because the plaintiff had

requested legal relief rather than the equitable relief authorized

by Title VII. However, demand of an improper remedy is not fatal

to a party’s pleading if the statement of the claim is otherwise

sufficient to show entitlement to a different form of relief.”)

30
(discussing Hildebrand v. Honeywell Co., 622 F.2d 179, 181 (5th Cir.

1980)); Southpark Square Ltd. v. City of Jackson, 565 F.2d 338, 341

n.2 (5th Cir. 1977); Thompson v. Allstate Ins. Co., 476 F.2d 746,

749 (5th Cir. 1973) (“[A] motion to dismiss for failure to state a

claim should not be granted ‘unless it appears to a certainty that

the plaintiff would be entitled to no relief under any set of facts

which could be proven in support of his claim.’”); cf. Carter v.

South Central Bell, 912 F.2d 832, 841 (5th Cir. 1990). See also

FED.R.CIV.P. 54(c) (“[E]very final judgment shall grant the relief

to which the party in whose favor it is rendered is entitled, even

if the party has not demanded such relief in the party’s

pleadings.”) Accordingly, we hold that the Heimanns’ claim, while

failing to specifically request equitable relief, is otherwise

sufficient to show entitlement to such relief.3

VI. ERISA ORDINARY PREEMPTION UNDER § 514 and § 502(a)

ERISA is a comprehensive statute designed “to protect ... the

interests of participants ... and ... beneficiaries ... by

establishing standards of conduct, responsibility, and obligation

for fiduciaries ... and ... providing for appropriate remedies ...

and ready access to the Federal courts.” Varity Corp., 516 U.S. at

3
The dissent argues that because the Heimanns did not request
leave to amend in their initial brief, they waived the issue on
appeal, citing Light v. Blue Cross and Blue Shield of Ala., Inc.,
790 F.2d 1247, 1248 n.2 (5th Cir. 1986). Light is inapposite,
however, because the Heimanns did not need to amend their petition
due to the fact that they have stated a cause of action under ERISA
based on their factual allegations. See Doss, 834 F.2d at 424
(citing Hildebrand, 622 F.2d at 181).

31
513 (citing ERISA § 2(b), 29 U.S.C. § 1001(b)). See also Shaw v.

Delta Air Lines, 463 U.S. 85, 90 (1983). Section 514(a) of ERISA,

29 U.S.C. § 1144(a), specifically provides that ERISA “shall

supersede any and all State laws insofar as they may now or

hereafter relate to any employee benefit plan ....” (Emphasis

added). The Supreme Court has “endeavored with some regularity to

interpret and apply the ‘unhelpful text’ of ERISA’s pre-emption

provision.” Cal. Div. of Labor Standards Enforcement v. Dillingham

Constr., N.A., Inc., 519 U.S. 316, 323 (1997). The Court’s cases

have acknowledged that ERISA’s pre-emption provision is “clearly

expansive,” has “a broad scope,” “expansive sweep,” is “broadly

worded,” “deliberately expansive,” and “conspicuous for its

breadth.” Id. (Citations omitted). The Court’s efforts have

yielded a two-part inquiry: a law relates to a covered employee

benefit plan for purposes of § 514(a) if it (1) has a connection

with or (2) reference to such a plan. Id. Additional insight was

provided by the Court’s observation in John Hancock Life Insurance

v. Harris Bank, 510 U.S. 86, 99 (1993) that “we discern no solid

basis for believing that Congress, when it designed ERISA, intended

fundamentally to alter traditional preemption analysis.”4

4
See also Dillingham Constr., 519 U.S. at 336, 117 S.Ct. at 843
(1997)(Scalia, J., with Ginsburg, J., concurring):
...[t]he ‘relate to’ clause of the pre-emption provision
is meant, not to set forth a test for pre-emption, but
rather to identify the field in which ordinary field pre-
emption applies–namely, the field of laws regulating
‘employee benefit plan[s] described in section 1003(a) of
this title and not exempt under section 1003(b) of this
title,’ 29 U.S.C. § 1144(a). [In view of][o]ur new
approach to ERISA preemption ... set forth in John

32
 Obviously preemption under § 514 is not without its limits.

See, e.g., Mackey v. Lanier Collection Agency & Service, Inc., 486

U.S. 825 (1988); Fort Halifax Packing Co. v. Coyne, 482 U.S. 1

(1987). However in the present case, as in Ingersoll-Rand, we have

no difficulty finding the state law causes of action preempted

because “the existence of a pension plan is a critical factor in

establishing liability” under state law. Ingersoll-Rand, 498 U.S.

at 139.

Also, as in Ingersoll-Rand, even if there had been no express

preemption, the Heimanns’ state causes of action are preempted

because they conflict directly with an ERISA cause of action.5

Ingersoll-Rand., 498 U.S. at 142. With respect to ERISA causes of

action, the Supreme Court has noted that “‘“[w]hen it is clear or

may fairly be assumed that the activities which a State purports to

regulate are protected” by § 510 of ERISA “due regard for the

federal enactment requires that state jurisdiction must yield.”’”

Id. at 145 (quoting Lingle v. Norge Div. of Magic Chef, Inc., 486

U.S. 399, 409, n.8 (1988)).

Hancock Mut. Life Ins. Co. v. Harris Trust and Sav. Bank
... it accurately describes our current ERISA
jurisprudence to say that we apply ordinary field pre-
emption, and, of course, ordinary conflict pre-emption
....
5
State law is preempted to the extent it actually conflicts with
federal law; that is, when it is impossible to comply with both
state and federal law or where the state law stands as an
obstacle to the accomplishment of the full purposes and objectives
of Congress. See, e.g., Florida Lime & Avocado Growers, Inc. v.
Paul, 373 U.S. 132, 142-143 (1963); Hines v. Davidowitz, 312 U.S.
52, 67 (1941); Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984).

33
 Accordingly, we conclude that because the Heimanns have stated

claims upon which relief may be granted under ERISA §§ 502(a) and

510 that conflict with their causes of action under Texas law for

tortious interference with contract and intentional infliction of

emotional distress, such state law causes of action are preempted

by ERISA.

VII. CONCLUSION

For the reasons assigned, we affirm the district court’s

dismissal of the appellants’ state law tort claims, but reverse the

district court’s dismissal of the appellants’ causes of action

under ERISA §§ 502(a) and 510, and remand this case for further

proceedings.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

34
EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting in part:

The majority decides that the Employee Retirement Income Security Act of 1974 (“ERISA”)

completely preempts the claims of Louis and Lou Heimann (“the Heimanns”) and that the Heimanns

allege facts legally sufficient to state a claim under ERISA. I agree with the first holding, but disagree

with the second one. Accordingly, I concur in part and dissent in part.

I

The Heimanns sued the International Union of Elevator Constructors (“IUEC”) and Ken

Burkett, the Business Representative for IUEC Local No. 133, in Texas court. In their petition, they

averred that their benefits from The National Elevator Industry Health Benefit Plan (“Plan”) and

Louis Heimanns’ benefits from The National Elevator Industry Pension Fund (“Fund”) were

discontinued after Burkett misrepresented to the Plan and the Fund that Louis Heimann was engaged

in disqualifying employment.6 Based on this contention, the Heimanns charged IUEC and Burkett

with intentional infliction of emotional distress and tortious interference with a contract.

IUEC and Burkett removed the case to federal district court, alleging that ERISA and the

Labor Management Relations Act (“LMRA”) preempted the Heimanns’ claims.7 The Heimanns

responded with a motion to remand for lack of jurisdiction. The district court denied the motion,

finding ERISA to preempt the claims.8

IUEC and Burkett subsequently filed a motion to dismiss the Heimanns’ claims as preempted

by ERISA. The Magistrate Judge, to whom the motion was referred, recommended dismissal. The

6
During his career, Louis Heimann and his employers, Otis Elevator Company and
Montgomery Elevator Company, “each [had] made contributions to the Plan and the Fund in
accordance with provisions of the applicable Standard Agreements which were in effect from time
to time, and which had been negotiated by IUEC an National Elevator Industry, Inc., a multi-
employer bargaining unit.”
7
Following removal, the action against IUEC and Burkett was consolidated with an action that
the Heimanns had filed against the Plan and the Fund. The Heimanns later settled with the Plan and
the Fund.
8
The district court expressed no opinion on the LMRA’s effect on the claims.

35
Heimanns objected. At the end of their objections, they stated, “If the Court is of the opinion that

[we] . . . should specifically plead a claim under [ERISA] . . ., then [we] . . . request leave to filed an

Amended Complaint in this matter.” The district court agreed with the Magistrate Judge, and granted

the motion to dismiss. In doing so, it failed to act on the Heimanns’ request for leave to amend their

pleading. “Although Plaintiffs’ motion to remand was denied . . ., Plaintiffs have not sought leave

of Court to amend their complaint to add a claim under ERISA section 502(a),” it mistakenly stated.

The Heimanns timely appealed.

II

The Heimanns first challenge the denial of their motion to remand for lack of jurisdiction,

arguing that ERISA does not preempt their claims. We review the district court’s refusal to remand

de novo. See McClelland v. Gronwaldt, 155 F.3d 507, 511 (5th Cir. 1998).

District courts possess jurisdiction over actions removed from state court that include one or

more state-law claims completely preempted by ERISA. See Giles v. NYLCare Health Plans, Inc.,

172 F.3d 332, 336-37 (5th Cir. 1999). ERISA completely preempts state-law claims that fall within

(1) its express preemption provision, see 29 U.S.C. § 1144(a) (section 514(a)),9 and (2) its civil

enforcement provision, see id. § 1132(a) (section 502(a)).10 See McClelland, 155 F.3d at 517-19.

The plaintiff’s well-pleaded complaint ordinarily determines whether or not a state-law claim meets

9
Section 514(a) declares that ERISA (subject to several exceptions inapplicable here)
“supersedes any and all State laws insofar as they may now or hereafter relate to any employee benefit
plan” subject to regulation under ERISA (“ERISA plan”). 29 U.S.C. § 1144(a). As such, it
establishes that ERISA overrides, among other things, state-law claims raising factual issues
that “are intricately bound up with the interpretation and administration of an ERISA plan.” Hubbard
v. Blue Cross & Blue Shield, 42 F.3d 942, 946 (5th Cir. 1995). Courts usually characterize the type
of preemption arising under section 514(a) as conflict, defensive, or ordinary
preemption. See Butero v. Royal MacCabes Life Ins. Co., 174 F.3d 1207, 1212 (11th Cir. 1999);
Giles v. NYLCare Health Plans, 172 F.3d 332, 337 (5th Cir. 1999).
10
We previously have “note[d] that there exists some ambiguity in the caselaw as to whether
the scope of complete preemption is limited only to those claims falling within section 502(a)(1)(B),
or whether complete preemption encompasses all claims falling within the scope of section 502(a).”
McClelland v. Gronwaldt, 155 F.3d 507, 517 n.34 (5th Cir. 1998).

36
the two criteria for complete preemption.11 See id. at 512 n.11.

I agree with the majority that the Heimanns’ claims satisfy our test for complete preemption.

The claims come within ERISA’s express preemption provision. To resolve them, the fact-finder

must decide: (1) whether or not the IUEC, through Burkett, notified the Plan and the Fund that Louis

Heimann was engaged in disqualifying employment; (2) whether or not Louis Heimann was engaged

in disqualifying employment; and (3) whether or not the Plan and the Fund discontinued benefits

because the IUEC, through Burkett, told them that Louis Heimann was engaged in disqualifying

employment.12 Because these issues are intricately bound up with the interpretation and

administration of an ERISA plan, the claims relate to an ERISA plan, and therefore are subject to

ordinary preemption. See Hubbard v. Blue Cross & Blue Shield Ass’n, 42 F.3d 942, 946 (5th Cir.

1995) (holding that state-law claim alleging that a third party caused the denial of benefits under an

ERISA plan is subject to ordinary preemption). The claims also fall within the scope ERISA’s civil

enforcement provision in that they seek relief for an alleged wrongful denial of benefits due under

ERISA plans. See 29 U.S.C. § 1132(a)(1)(B). Accordingly, the district court did not err in denying

the Heimanns’ motion to remand for lack of jurisdiction.13

III

The Heimanns also dispute the district court’s dismissal of their claims as preempted by

ERISA. We review a dismissal for failure to state a claim de novo. See Doe ex rel. Doe v. Dallas

11
For discussion of the well-pleaded complaint rule, see Metropolitan Life Insurance Company
v. Taylor, 481 U.S. 58, 63, 107 S. Ct. 1542, 1546, 95 L. Ed. 2d 55, ___ (1987) (ERISA case).
12
Based on the allegations in the Heimanns’ petition, I conclude that the Plan and the Fund are
ERISA plans, see 29 U.S.C. § 1002(1)-(3) (defining the different kinds of ERISA plans); Kenney v.
Roland Parson Contracting Corp., 28 F.3d 1254, 1257-59 (D.C. Cir. 1994) (deciding whether or not
a plan meets ERISA’s definition of “pension plan”); Hansen v. Continental Ins. Co., 940 F.2d 971,
976-78 (5th Cir. 1991) (deciding whether or not a plan meets ERISA’s definition of “employee
welfare benefit plan”), Louis Heimann is a participant in the Fund and the Plan, see 29 U.S.C. §
1002(7) (defining “participant”), and Lou Heimann is a beneficiary of the Plan, see id. § 1002(8)
(defining “beneficiary”).
13
Unlike the majority, I see no reason to provide an additional ground for affirming the denial
of the motion to remand for lack of jurisdiction. See Boggs v. Boggs, 520 U.S. 833, 841, 117 S. Ct.
1754, 1760, 138 L. Ed. 2d 45, ___ (1997).

37
Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir. 1998). In deciding whether or not a complaint states

a valid claim for relief, we consider its allegations in the light most favorable to the plaintiffs and

resolve every doubt in their favor. See Lowery v. Texas A & M Univ., 117 F.3d 242, 247 (5th Cir.

1997).

I disagree with the majority that the Heimanns have stated valid claims for relief. IUEC and

Burkett sought dismissal of the Heimanns’ claims as subject to ordinary preemption after the district

court decided not to remand. Having already found the claims to come within ERISA’s express

preemption provision in determining that complete preemption provided a jurisdictional basis for

removal, the district court granted the motion to dismiss. This disposition was entirely proper. See

Butero v. Royal MacCabees Life Ins. Co., 174 F.3d 1207, 1215 (11th Cir. 1999) (ERISA case)

(affirming the district court’s finding of jurisdiction based on complete preemption and subsequent

dismissal (with leave to refile) of the plaintiff’s claims as subject to ordinary preemption) (citing

McClelland v. Gronwaldt, 155 F.3d 507, 517 (5th Cir. 1998), for the proposition that “[i]f the

plaintiff’s claims are superpreempted [i.e., completely preempted], then they are also defensively

preempted”).

I appreciate that affirming the dismissal of the claims seems harsh in light of the Heimanns’

motion for leave to amend their pleading to allege an ERISA claim. See JAMES F. JORDEN ET AL.,

HANDBOOK ON ERISA LITIGATION § 2.07[A] (2d ed. Supp. 1999) (“If [ordinary preemption is]

raised by a motion to dismiss, counsel should anticipate that the plaintiff may be afforded one or more

opportunities to amend the complaint, including the opportunity to redraft factual allegations and to

add a claim for relief under ERISA.”); see also Griggs v. Hinds Junior College, 563 F.2d 179, 180

(5th Cir. 1977) (per curiam) (“Granting leave to amend is especially appropriate, in cases such as this,

when the trial court has dismissed the complaint for failure to state a claim.”). However, the

Heimanns have chosen not to make the district court’s inaction on their motion for leave to amend

38
an issue on appeal.14 Faced with this situation, we must let the dismissal stand. See Light v. Blue

Cross & Blue Shield of Ala., Inc., 790 F.2d 1247, 1248 n.2 (5th Cir. 1986) (affirming grant of

summary judgment on claims subject to ordinary preemption) (refusing to consider the plaintiffs’

argument that the district court erred in failing to allow them to amend their complaint to state a claim

under ERISA because the argument was not raised in the plaintiffs’ initial brief).

IV

I conclude that the district court was correct not only in refusing to remand for lack of

jurisdiction, but also in subsequently dismissing the state-law claims comprising this action.

Accordingly, I concur in part and dissent in part.

14
The majority holds that the Heimanns do not need to amend because their petition pleads facts
legally sufficient to state a claim under ERISA. In support of this determination, it cites the
longstanding rule that a complaint need not correctly categorize legal theories giving rise to the
claims, but only must allege facts upon which relief can be granted to survive a motion to dismiss for
failure to state a claim. See Rathborne v. Rathborne, 683 F.2d 914, 917 n.8 (5th Cir. 1982). That
rule is inapplicable here. Pleading facts that bring one’s state-law claims within ERISA’s express
preemption provision, as the Heimanns have done, does not have the effect of transforming the state-
law claims into ERISA claims. It has the effect of extinguishing the state-law claims. See 29 U.S.C.
§ 1144(a); see also JAMES F. JORDEN ET AL., HANDBOOK ON ERISA LITIGATION § 2.03 (2d ed. Supp.
1999) (“The legislative history behind [ERISA’s express preemption provision] . . . makes it clear that
Congress intended to supplant all state regulation
of employee benefit plans with a uniform system.”).

39