Merit Construction Alliance v. City of Quincy

United States Court of Appeals
For the First Circuit

No. 13-2189

MERIT CONSTRUCTION ALLIANCE ET AL.,

Plaintiffs, Appellees,

v.

CITY OF QUINCY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Thompson and Selya, Circuit Judges,
and McConnell,* District Judge.

James S. Timmins, City Solicitor, for appellant.
Christopher N. Souris and Krakow & Souris, LLC on brief for
New England Regional Council of Carpenters, amicus curiae.
Christopher C. Whitney, with whom Scott K. Pomeroy and Pierce
Atwood LLP were on brief, for appellees.
Maurice Baskin and Littler Mendelson, P.C. on brief for
Associated Builders and Contractors, Inc., amicus curiae.

July 16, 2014

*
Of the District of Rhode Island, sitting by designation.
 SELYA, Circuit Judge. This case presents not one, but

two, questions of considerable import, each of which implicates the

Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.

§§ 1001-1461. The first concerns whether the reach of ERISA's

preemption provision, 29 U.S.C. § 1144(a), extends to a municipal

ordinance mandating the establishment of a specific type of

apprentice training program. The second concerns the scope of

ERISA's fee-shifting provision, 29 U.S.C. § 1132(g)(1). After

careful consideration, we conclude that the district court answered

the first question correctly, but not the second. Accordingly, we

affirm in part, reverse in part, and remand for reconsideration of

the fee award.

I. BACKGROUND

In 2012, defendant-appellant City of Quincy (the City)

solicited bids for a construction project at a middle school.

Would-be bidders were required to certify compliance with the

City's euphemistically named Responsible Employer Ordinance (the

Ordinance). Pertinently, the Ordinance demands that bidders on

municipal public works projects "engage[] in a bona fide apprentice

training program" registered with the Massachusetts Department of

Labor Standards. Quincy, Mass., Code § 15.26.010(C); see Mass.

Gen. Laws ch. 23, §§ 11H, 11I (providing relevant definitions).

The Ordinance further mandates that at least one apprentice have

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graduated from the program in the twelve months immediately

preceding the bid. See Quincy, Mass., Code § 15.26.010(C).

This bidding condition brought with it a legal cloud; a

federal district court had ruled that ERISA preempted a similar

ordinance passed in Fall River, Massachusetts. See Util. Contrs.

Ass'n of New Eng., Inc. v. City of Fall River, No. 10-10994, 2011

WL 4710875, at *7 (D. Mass. Oct. 4, 2011). Merit Construction

Alliance (the Alliance), a trade association of construction

companies, asked whether the City would continue to enforce its

apprentice training requirement. When the City responded

affirmatively,1 the Alliance, joined by two of its members

(Grasseschi Plumbing & Heating, Inc. and D'Agostino Associates,

Inc.), and a Grasseschi employee (David Ross), sued the City in the

federal district court. Among other things, the complaint sought

injunctive and declaratory relief on the ground that ERISA

preempted the Ordinance's apprentice training requirement.2

1
The City's affirmative response indicated that it would
suspend enforcement of the graduation requirement in connection
with this bid solicitation. Because of the limited nature of the
suspension, we think that it is appropriate to include the
graduation requirement in the overall preemption calculus.
2
The plaintiffs initially challenged several other provisions
of the Ordinance. The City agreed not to enforce some of these
provisions, and the litigation narrowed to focus on two provisions:
the Ordinance's residency requirement and its apprentice training
requirement. Eventually, the City conceded the former issue and,
thus, this appeal concerns only the latter.

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 The district court granted a preliminary injunction

barring enforcement of the apprentice training requirement, based

largely on its earlier decision in the Fall River case. See Merit

Constr. All. v. City of Quincy (Merit I), No. 12-10458, 2012 WL

1357656, at *2, *4 (D. Mass. Apr. 18, 2012). Summary judgment in

favor of the plaintiffs followed apace. See Merit Constr. All. v.

City of Quincy (Merit II), No. 12-10458, 2013 WL 396123, at *3 (D.

Mass. Feb. 1, 2013).

To the victor belong the spoils, and the next stage of

the battle involved attorneys' fees. The district court granted

the plaintiffs' motion for fees and awarded them the amount of

$81,007.85. See Merit Constr. All. v. City of Quincy (Merit III),

No. 12-10458, 2013 WL 3984596, at *3 (D. Mass. Aug. 2, 2013). The

City unsuccessfully sought reconsideration of the fees order. See

Merit Constr. All. v. City of Quincy (Merit IV), No. 12-10458, 2013

WL 4446935, at *3 (D. Mass. Aug. 21, 2013). This timely appeal

followed.

II. ANALYSIS

In this venue, the City for the first time questions the

plaintiffs' standing to sue. Because this challenge implicates

subject matter jurisdiction, we are obligated to address it despite

its lateness. See Am. Fiber & Finishing, Inc. v. Tyco Healthcare

Grp., LP, 362 F.3d 136, 138-39 (1st Cir. 2004) ("[I]t is firmly

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settled that challenges to federal subject matter jurisdiction may

be raised for the first time on appeal.").

The Constitution limits federal-court jurisdiction to

actual cases and controversies. See U.S. Const. art. III, § 2. In

line with this limitation, a litigant seeking to enlist federal

court jurisdiction must demonstrate his standing to bring suit: he

must have "such a personal stake in the outcome of the controversy

as to assure that concrete adverseness which sharpens the

presentation of issues." Baker v. Carr, 369 U.S. 186, 204 (1962).

When an unincorporated association seeks to open the

doors of a federal court, it must demonstrate that "(a) its members

would otherwise have standing to sue in their own right; (b) the

interests it seeks to protect are germane to the organization's

purpose; and (c) neither the claim asserted nor the relief

requested requires the participation of individual members in the

lawsuit." Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333,

343 (1977). For an individual to have standing, he must establish

injury in fact, causation, and redressability. See Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

The first element of this triad inquires into the

existence of "an invasion of a legally protected interest which is

(a) concrete and particularized and (b) actual or imminent, not

conjectural or hypothetical." Id. at 560 (internal quotation marks

and citations omitted). The second element asks whether the

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alleged injury is "fairly traceable to the challenged action of the

defendant." Id. (internal quotation mark and alterations omitted).

The third element asks whether it is "likely, as opposed to merely

speculative, that the injury will be redressed by a favorable

decision." Id. at 561 (internal quotation marks omitted).

The Alliance's members pass this tripartite test with

flying colors. Among their ranks are contractors that neither

maintain apprentice training programs nor satisfy the Ordinance's

graduation quota. Those members suffer injury because they want to

bid on public works projects in Quincy but are constrained from

doing so by the strictures of the Ordinance. If the plaintiffs

prevail, the Ordinance will be declared null and void, thus

removing the injury-causing obstruction to their bidding

eligibility.

Similarly, the Alliance meets the criteria for

associational standing. At least some of its members have

individual standing, and preserving its members' bidding

capabilities closely relates to its raison d'être. To cinch

matters, nothing about an ERISA preemption challenge calls for

enlisting the participation of individual Alliance members. See

Retail Indus. Leaders Ass'n v. Fielder, 475 F.3d 180, 187 (4th Cir.

2007).

The City, in effect, attempts to confess and avoid. It

disputes none of the conclusions recounted above but, rather, tries

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to graft a requirement of an ERISA-covered apprentice training

program onto the test for constitutional standing. This is pie in

the sky: the City offers no authority for the proposition that the

Constitution imposes any such requirement.

Of course, ERISA's statutory enforcement provision

contemplates the existence of an ERISA plan. See 29 U.S.C.

§ 1132(a)(3). But the question of standing that the City raises

here is constitutional in nature, and we see no reason that such a

condition is necessary to render this action an actual case or

controversy within the meaning of Article III. See Wright

Electric, Inc. v. Minn. State Bd. of Elec., 322 F.3d 1025, 1028-29

(8th Cir. 2003) (holding that plaintiff need not "show that its

apprenticeship program was an ERISA plan in order to establish

subject matter jurisdiction"). We therefore hold that the Alliance

has standing to challenge the Ordinance on the ground of ERISA

preemption.

Having determined that an actual case and controversy

exists, we proceed to chew on the meat of the appeal: preemption

and attorneys' fees. We address these subjects sequentially.

A. Preemption.

The City assigns error to the district court's ruling

that ERISA preempts the Ordinance's apprentice training

requirement. Since this ruling was made on summary judgment, our

review is plenary. See Geshke v. Crocs, Inc., 740 F.3d 74, 76 (1st

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Cir. 2014); see also Carpenters Local Union No. 26 v. U.S. Fid. &

Guar. Co., 215 F.3d 136, 139 (1st Cir. 2000).

"ERISA is a comprehensive statute designed to promote the

interests of employees and their beneficiaries in employee benefit

plans." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90 (1983).

Enacted in part "to safeguard employees from the abuse and

mismanagement of funds that had been accumulated to finance various

types of employee benefits," the statutory scheme "sets forth

reporting and disclosure obligations for plans, imposes a fiduciary

standard of care for plan administrators, and establishes schedules

for the vesting and accrual of pension benefits." Massachusetts v.

Morash, 490 U.S. 107, 112-13 (1989).

When considering a claim of preemption, "our task is to

ascertain Congress' intent in enacting the federal statute at

issue." Shaw, 463 U.S. at 95. With respect to ERISA, this intent

is express, if somewhat "opaque." De Buono v. NYSA-ILA Med. &

Clinical Servs. Fund, 520 U.S. 806, 809 (1997). By its terms and

subject to exemptions not relevant here, ERISA "supersede[s] any

and all State laws insofar as they may now or hereafter relate to

any employee benefit plan." 29 U.S.C. § 1144(a).

The Supreme Court has distilled the statute's "relate to"

language into two independently sufficient alternatives: "a

connection with or reference to" an ERISA plan will result in

preemption. Shaw, 463 U.S. at 97. Under this two-sided rubric,

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ERISA's preemptive reach "is clearly expansive." N.Y. State Conf.

of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S.

645, 655 (1995). But the Court has nevertheless cautioned against

"an uncritical literalism" in applying this test, warning that

"infinite connections" cannot supply the measure of preemption.

Id. at 656. Thus, we must consider "the objectives of the ERISA

statute as a guide to the scope of the state law that Congress

understood would survive." Id. In the process, we must remain

mindful that ERISA was not intended to supersede the state's

historic police powers unless such supersession "was the clear and

manifest purpose of Congress." Id. at 655 (internal quotation mark

omitted).

The battle here, as waged by the parties, focuses on the

"connection with" component of the two-sided ERISA preemption

calculus. The district court concluded that the Ordinance's

requirement that "every bidder . . . have an apprenticeship program

meeting Massachusetts standards" supplied the requisite connection.

Merit II, 2013 WL 396123, at *2. We share this view.

To begin, it is important to note that programs

"established or . . . maintained for the purpose of providing

. . . apprenticeship or other training" qualify as ERISA employee

welfare benefit plans. 29 U.S.C. § 1002(1). Thus, ERISA will

preempt the Ordinance's operation if and to the extent that the

Ordinance bears a sufficient connection to such programs.

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 Of course, not every conceivable connection will support

preemption. For example, state laws that merely exert an "indirect

economic influence" on a plan do "not bind plan administrators to

any particular choice" and, thus, do not come within ERISA's

preemptive reach. Cal. Div. of Labor Standards Enforcement v.

Dillingham Constr., Inc., 519 U.S. 316, 329 (1997) (internal

quotation marks omitted). On the other hand, "state statutes that

'mandate[] employee benefit structures or their administration'

. . . amount[] to 'connection[s] with' ERISA plans" and are

therefore preempted. Id. at 328 (final alteration in original)

(quoting Travelers, 514 U.S. at 658).

The path from influence to coercion amounts to a

continuum and it is not always a simple task to determine where

along this continuum a particular state law falls. See Travelers,

514 U.S. at 668; see also Samuel C. Salganik, Note, What the

Unconstitutional Conditions Doctrine Can Teach Us About ERISA

Preemption: Is It Possible To Consistently Identify "Coercive" Pay-

or-Play Schemes?, 109 Colum. L. Rev. 1482, 1515-19 (2009). This

case, however, does not greatly tax our capacity for discernment:

the Ordinance categorically requires all contractors on Quincy

public works projects to operate a Massachusetts-approved

apprentice training program. See Quincy, Mass., Code

§ 15.26.010(C). Incorporating the state's standards imposes a raft

of stringent conditions on would-be bidders including, among

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others, documentation of the program's terms and conditions, see

453 Mass. Code Regs. 7.03(8)(b); the location of the program's

apprentice activities, see id. 7.03(8)(e); training and

instruction, see id. 7.04(1)(b)(1)-(4); wage rates, see id.

7.04(1)(b)(5); recordkeeping, see id. 7.04(1)(b)(23), 7.13;

instructor qualifications, see id. 7.04(2); apprentice enrollment,

see id. 7.07(1); reporting, see id. 7.07(2); and termination, see

id. 7.08(3). For good measure (or bad measure depending on one's

point of view), the Ordinance separately requires a defined

graduation rate. See Quincy, Mass., Code § 15.26.010(C).

With such a compendium of stipulations in place, we have

no difficulty concluding that the Ordinance goes far beyond simply

influencing ERISA apprentice training programs. It mandates an

employee benefit structure and specifies how that structure must be

administered. This is simply too intrusive to withstand ERISA

preemption.

The City balks. It asserts that even if its Ordinance

constitutes a mandate, that should not be the end of the matter.

In support, it suggests that "[t]he key distinction is between a

statute that mandates or effectively mandates an aspect of law with

which ERISA is concerned . . . and a statute that does not."

Assoc'd Builders & Contrs. v. Mich. Dep't of Labor & Econ. Growth,

543 F.3d 275, 280 (6th Cir. 2008). ERISA is a statute concerned

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with funding, its thesis runs, and local regulation of apprentice

training standards is too remote to warrant ERISA preemption.

This assertion is true as far as it goes, but it does not

take the City very far. ERISA "has more than one purpose." Simas

v. Quaker Fabric Corp., 6 F.3d 849, 856 (1st Cir. 1993). In

addition to funding concerns, "[t]he uniformity of regulation

gained by employers under ERISA was assuredly part of the

legislative balancing of interests and trade-offs." Id.

The Ordinance plainly disturbs that balance. Let us

offer an example. Although the Ordinance requires the graduation

of at least one apprentice within the previous twelve months, see

Quincy, Mass., Code § 15.26.010(C), Fall River's counterpart

ordinance required the graduation of at least two apprentices per

year for the three years prior to a bid, see Util. Contrs. Ass'n,

2011 WL 4710875, at *7. Accordingly, compliance with the City's

formula would not effect compliance with Fall River's; and so the

Ordinance would "requir[e] the tailoring of plans and employer

conduct to the peculiarities of the law of each jurisdiction."

Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142 (1990). Such a

result would be "fundamentally at odds with the goal of uniformity

that Congress sought to implement" through the enactment of ERISA.

Id.

There is yet another reason why the City's argument does

not work. The Dillingham Court, while finding no preemption there,

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was careful to distinguish situations in which an "apprenticeship

program is required by [state] law to meet [the state's]

standards." 519 U.S. at 332. The Ordinance trips this snare: it

not only mandates the standards that apprentice training programs

must follow but also mandates that employers actually have such

programs in place as a condition of bidding. This dual mandate

goes too far: not even "discharging all of its apprentices will

release an employer or a program from the reach" of the Ordinance.

Assoc'd Builders, 543 F.3d at 282. Because the Ordinance

unqualifiedly demands the maintenance of a specific type of

apprentice training program as a condition of bidding, it exceeds

the boundaries of what ERISA allows. See Minn. Chapter of Assoc'd

Builders & Contrs., Inc. v. Minn. Dep't of Pub. Safety, 267 F.3d

807, 818 (8th Cir. 2001).

In an effort to change the trajectory of the debate, the

City seeks to wrap itself in the mantle of the Court's statement

that "an employee benefit program not funded through a separate

fund is not an ERISA plan." Dillingham, 519 U.S. at 326 (emphasis

in original). Such a plan can be used to comply with the Ordinance

and, in the City's view, the availability of this non-ERISA avenue

to compliance ought to pretermit a finding that the Ordinance

relates to ERISA plans.

This is anfractuous reasoning. "[W]hether a State

requires an existing plan to pay certain benefits, or whether it

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requires the establishment of a separate plan where none existed

before, the problem is the same." Fort Halifax Packing Co. v.

Coyne, 482 U.S. 1, 13 (1987). A plan administrator put to such a

choice is still "[f]aced with the difficulty or impossibility of

structuring administrative practices according to a set of uniform

guidelines." Id.

The lesson of Fort Halifax is pertinent here. To comply

with the Ordinance, an employer with an ERISA-governed apprentice

training program either would have to modify that program to

provide apprentices on Quincy-based projects with special benefits

or would have to establish and coordinate a separate plan into

which such apprentices would be funneled. Either way, the

employer's hope of uniform administration would be dashed by the

Ordinance's demands. Such balkanization of benefit administration

is exactly the sort of outcome ERISA was designed to prevent. The

upshot is to defenestrate the City's insistence that we attach

decretory significance to an employer's ability to comply with the

Ordinance by means of a non-ERISA plan. See Minn. Chapter of

Assoc'd Builders, 267 F.3d at 817; cf. Egelhoff v. Egelhoff ex rel.

Breiner, 532 U.S. 141, 150-51 (2001) (holding that an ability to

opt out of a state law does not save the law from preemption).

The decision in Golden Gate Restaurant Ass'n v. City &

County of San Francisco, 546 F.3d 639 (9th Cir. 2008), loudly

bruited by the City, is not to the contrary. There, the Ninth

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Circuit held that requiring a certain level of health-care

expenditures — which might, but need not, be spent through an ERISA

plan — did not trigger ERISA preemption. See id. at 646, 661. But

the court did not purpose to lay down a blanket rule that whenever

compliance can come through a non-ERISA option, ERISA preemption is

unavailable. Instead, the court recognized that state laws that

"required employers to have [benefit] plans, and . . . dictated the

specific benefits employers were to provide through those plans"

would be preempted. Id. at 655.

The City next contends that the Fitzgerald Act, 29 U.S.C.

§ 50, somehow aids its cause. That contention is fruitless. While

the Fitzgerald Act "recognized pre-existing state efforts in

regulating apprenticeship programs," Dillingham, 519 U.S. at 330,

nothing in that statute indicates a congressional intention to

sanction local efforts to mandate state-approved apprentice

training programs.

Looking for comfort in any quarter, the City proposes an

analogy to the Supreme Court's statement that a state "may force

the employer to choose between providing disability benefits in a

separately administered plan and including the state-mandated

benefits in its ERISA plan." Shaw, 463 U.S. at 108. That

pronouncement has no traction here: it is anchored in a statutory

exemption from ERISA for plans "maintained solely for the purpose

of complying with . . . disability insurance laws." 29 U.S.C.

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§ 1003(b)(3). No comparable exemption anchors the City's proposed

analogy.

Scraping the bottom of the barrel, the City asseverates

that in passing the Ordinance, it merely acted as a participant in

the market for construction services. This role, it says,

immunizes its actions from ERISA preemption. See Cardinal Towing

& Auto Repair, Inc. v. City of Bedford, 180 F.3d 686, 691 (5th Cir.

1999) (holding that "when a state or municipality acts as a

participant in the market and does so in a narrow and focused

manner consistent with the behavior of other market participants,

such action does not constitute regulation subject to preemption");

see also Reeves, Inc. v. Stake, 447 U.S. 429, 436 (1980) (drawing

distinction "between States as market participants and States as

market regulators" for Commerce Clause purposes).

This asseveration stalls before it starts. The City

failed to raise this issue in its summary judgment papers and,

"[i]f any principle is settled in this circuit, it is that, absent

the most extraordinary circumstances, legal theories not raised

squarely in the lower court cannot be broached for the first time

on appeal." Teamsters Union, Local No. 59 v. Superline Transp.

Co., 953 F.2d 17, 21 (1st Cir. 1992). The market participation

theory is, therefore, not properly before us.3

3
To be sure, the City protests that its market participation
theory surfaced during the preliminary injunction proceedings. But
"[t]he district court was under no obligation to rummage through

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 We summarize succinctly. ERISA specifically includes

apprentice training programs in its definition of employee welfare

benefit plans. A state-law mandate regarding the structure or

administration of such plans falls within the ambit of ERISA's

preemption provision. The Ordinance comprises such a mandate

because it dictates the establishment of an employee benefit

structure and sets the standards governing that structure. Even

though a non-ERISA option might be available for compliance with

the Ordinance, the availability of such an option does not save the

Ordinance: its mandate still has the effect of destroying the

benefit of uniform administration that is among ERISA's principal

goals.

That ends this aspect of the matter. We conclude that

ERISA preempts the Ordinance and affirm the district court's grant

of summary judgment.

B. Attorneys' Fees.

This leaves the issue of attorneys' fees. After entering

summary judgment, the district court, responding to the plaintiffs'

motion, awarded the plaintiffs attorneys' fees totaling $81,007.85

under ERISA's fee-shifting provision, 29 U.S.C. § 1132(g)(1), and

[the City's] preliminary injunction filings" when contemplating
summary judgment. CMM Cable Rep, Inc. v. Ocean Coast Props., Inc.,
97 F.3d 1504, 1526 (1st Cir. 1996). The dispositive circumstance
is that the City failed, directly or indirectly, to advance a
market participation defense in response to the summary judgment
motion. See id.

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the Fees Act, 42 U.S.C. § 1988. The City conceded below that a

portion of this award ($20,725) corresponded to the plaintiffs'

successful efforts in striking the residency requirement from the

Ordinance and, thus, was properly awarded under 42 U.S.C. § 1988.4

However, the district court did not make such a differentiation;

rather, it awarded a global amount that covered both work done in

attacking the residency requirement and work done in attacking the

apprentice training requirement. See Merit III, 2013 WL 3984596,

at *2-3. While the district court indicated that both 42 U.S.C.

§ 1988 and 29 U.S.C. § 1132(g)(1) were in play, it did not break

down the fee award along those lines. See id.

ERISA's fee-shifting provision permits a district court

to "allow a reasonable attorney's fee and costs of action" for an

"action under this subchapter . . . by a participant, beneficiary,

or fiduciary." 29 U.S.C. § 1132(g)(1). The City contends that the

district court lacked authority to make any fee award under this

provision. Its objections are twofold. First, it asserts that the

plaintiffs' action was not an "action under this subchapter."

Second, it asserts that no plaintiff qualifies as a "participant,

beneficiary, or fiduciary" of an ERISA plan as that phrase is used

in the fee-shifting statute.

4
The plaintiffs have not agreed that their fees for work in
connection with the residency requirement are limited to this
amount. That issue remains open for exploration on remand. See
text infra.

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 Here, too, a procedural obstacle looms. The City

advanced these objections for the first time in its motion for

reconsideration of the fee award. To succeed on such a motion,

"the movant must demonstrate either that newly discovered evidence

(not previously available) has come to light or that the rendering

court committed a manifest error of law." Calderón-Serra v.

Wilmington Trust Co., 715 F.3d 14, 20 (1st Cir. 2013) (internal

quotation mark omitted). We review the denial of such a motion for

abuse of discretion. See id.

This obstacle is formidable — but it is not

insurmountable. Although a district court has substantial

discretion in evaluating a motion for reconsideration, "substantial

discretion is not unbridled discretion." Weinberger v. Great N.

Nekoosa Corp., 925 F.2d 518, 528 (1st Cir. 1991). As here, a

manifest error of law may outstrip the boundaries of even that wide

discretion. See, e.g., Max's Seafood Café ex rel. Lou-Ann, Inc. v.

Quinteros, 176 F.3d 669, 678-79 (3d Cir. 1999); Edward Gray Corp.

v. Nat'l Union Fire Ins. Co., 94 F.3d 363, 367-69 (7th Cir. 1996).

As we explain below, we think that this is the unusual case in

which the error was so manifest that the motion for reconsideration

should have been granted.

With respect to the City's first point — whether a

preemption challenge qualifies as an "action" for the purposes of

29 U.S.C. § 1132(g)(1) — the district court acknowledged that the

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question is "close." Merit IV, 2013 WL 4446935, at *2.5 This is

an accurate characterization, but we do not need to pursue the

question: regardless of whether this case qualifies as the type of

"action" necessary to engage the gears of ERISA's fee-shifting

provision, we cannot discern an appropriate "participant,

beneficiary, or fiduciary" to whom fees could lawfully be awarded.

As both the plaintiffs and the district court concede,

the only possibility is plaintiff Ross. But there is a rub: Ross

is not a participant, beneficiary, or fiduciary of any ERISA

apprentice training program.

Ross's standing as an eligible "participant" relies

instead upon his status as a participant in his employer's 401(k)

plan — a plan that is wholly unrelated to the contested apprentice

training requirement. Such reliance depends, in turn, upon reading

the ERISA fee-shifting statute in the broadest possible sense. On

that virtually limitless view, the "participant, beneficiary, or

fiduciary" described in the statute need not have any nexus to a

relevant ERISA plan: any ERISA plan will do.

5
The district court speculated that the action might be
viewed as one to "enforce" ERISA's preemption provision. Merit IV,
2013 WL 4446935, at *2. This speculation is puzzling in light of
the district court's earlier holding (in the Fall River case) that
the preemption challenge was not "an action or [a] request [for]
relief under the civil enforcement section of ERISA." Util.
Contrs. Ass'n, 2011 WL 4710875, at *3; see Richard H. Fallon, Jr.
et al., Hart and Wechsler's The Federal Courts and the Federal
System 712 (6th ed. 2009) (stating that preemption challenges to
state law are routinely allowed "without express statutory
authorization").

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 We are confident that the text of the statute is not

elastic enough to allow so expansive an interpretation. The

plaintiffs offer no case law or legislative history for the

extraordinary proposition that Congress intended participation in

a single (unrelated) ERISA plan to confer an unfettered right to

collect attorneys' fees in any ERISA action. This lack of

authority is unsurprising: under the so-called American rule,

litigants are generally responsible for the remuneration of their

own lawyers. See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y,

421 U.S. 240, 247 (1975). Fee-shifting statutes depart from this

norm and, thus, must be strictly construed. See MR Crescent City,

LLC v. Draper (In re Crescent City Estates, LLC), 588 F.3d 822, 826

(4th Cir. 2009). The plaintiffs' proposed interpretation of 29

U.S.C. § 1132(g)(1) contravenes these tenets. As such, Ross's

participation in an unrelated 401(k) plan is manifestly

insufficient to ground an award of fees in this case.

As a fallback, the plaintiffs urge us to affirm the full

fee award under the Fees Act, 42 U.S.C. § 1988. This statute

authorizes a court to award attorneys' fees to "the prevailing

party" in an action to enforce a discrete set of civil rights

statutes. Although ERISA is not one of those civil rights

statutes, the plaintiffs say that the issue of ERISA preemption is

bound up with their victory regarding the Ordinance's residency

requirement — and the fees related to preemption of the apprentice

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training requirement should follow suit. Cf. Wagenmann v. Adams,

829 F.2d 196, 225 (1st Cir. 1987) (holding that "an award of fees

for time spent on all aspects" of the case was proper under section

1988 where the non-civil rights claims "were sufficiently

interconnected with the [civil rights] claims").

The district court explicitly declined to consider this

argument because it premised its fee award in significant part on

the ERISA fee-shifting provision. See Merit III, 2013 WL 3984596,

at *2. Since the court awarded the full amount that the plaintiffs

requested, it did not need to (and did not) articulate what portion

of the award was attributable to that provision and what portion

was attributable to section 1988. See id. at *2-3.

We are cognizant that the trial judge's "intimate

knowledge of the nuances of the underlying case uniquely positions

[her] to construct a condign award." Gay Officers Action League v.

Puerto Rico, 247 F.3d 288, 292 (1st Cir. 2001). With this

prudential principle in mind, we think it appropriate here to allow

the district court to consider, in the first instance, whether any

fees beyond the $20,725 conceded by the City are awardable under 42

U.S.C. § 1988(b) and, if so, in what amount. Accordingly, we set

aside the fee award and remand to the district court for further

consideration.

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III. CONCLUSION

We need go no further. For the reasons elucidated above,

we affirm the district court's grant of summary judgment, but

reverse the fee award and remand to the district court for further

proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded. No costs.

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