Court: U.S. FEDERAL CIRCUIT COURT OF APPEALS
Citation: 950 F.2d 13 (1st Cir. 1991)
Parties: JAMES L. MCCOY, ADMINISTRATOR OF THE ELECTRICAL WORKERS TRUST
FUNDS vs. MASSACHUSETTS INSTITUTE OF TECHNOLOGY
Docket No.: 91-1318
Decision Date: November 19, 1991; As Amended November 21, 1991
Judges: BREYER, ALDRICH AND SELYA, CIRCUIT JUDGES
Katherine A. Hesse, with whom David W. Healey, and Murphy, Hesse, Toomey and
Lehane were on brief for appellant.
Corwin & Corwin, Lisa H. Harrod and
Joseph M. Corwin on brief for David
R. McGinness, Administrator for Trustees of Various Funds (Plumbers and
Gasfitters Local Union No. 12), amicus curiae.
Bruce D. Berns, with whom Jeffrey Swope, Harvey Nosowitz and Palmer & Dodge
were on brief for appellee.
SELYA, J., This appeal calls upon us to determine an issue of first impression:
whether the Employee Retirement Income Security Act of 1974 (ERISA), 29
U.S.C.§§ 1001-1461 (1988), preempts the operation of a Massachusetts
mechanics' lien statute, Mass. Gen. L. ch. 254 (1990), as it concerns the
rights of employee benefit plans. The district court dismissed the plaintiff's
suit, finding preemption. McCoy v. Massachusetts Institute of Technology, 760
F. Supp. 12 (D. Mass. 1991). We affirm.
I. BACKGROUND
Because the district court's order of dismissal was entered pursuant to Fed. R.
Civ. P. 12(b)(6), we must accept as true the well-pleaded factual averments
contained in the complaint, while at the same time drawing all reasonable
inferences therefrom in the appellant's favor. See Correa-Martinez v.
Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir. 1990); Dartmouth
Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989).
The salient facts are susceptible to succinct summarization.Plaintiff-appellant
James L. McCoy is the administrator of several different trust funds (the
Funds) set up by Local 103 of the International Brotherhood of Electrical
Workers. The Funds, through McCoy, brought suit in state court to enforce a
lien against property owned by the defendant Massachusetts Institute of
Technology (MIT). Neither the Funds nor the union had any direct relationship
with MIT. Rather, the Funds premised their action on a Massachusetts law
allowing the trustee of an employee benefit plan to assert a lien against
property improved through the labor of plan participants in order to collect
overdue benefit contributions.
The Funds alleged, in particular, that S.N. Brown Electrical Corporation
(Brown) was the employer of some plan participants; that Brown, as a
subcontractor, employed these persons to effect improvements to property owned
by MIT and located at 143-153 Albany Street, Cambridge, Massachusetts; that
Brown, in derogation of its obligations under a collective bargaining
agreement, neglected to make employee benefit contributions attributable to the
work; and that the Funds were, therefore, entitled to look to MIT's interest in
the Albany Street property as a means of recouping the resultant shortfall.
Invoking 28 U.S.C. §1441 (1988), MIT removed the case to the district
court based on federal question jurisdiction.*fn1
MIT then moved to dismiss, claiming preemption. The district court agreed,
McCoy, 760 F. Supp. at 14-16, and this appeal ensued.
II. STANDARD OF REVIEW
We afford plenary review to orders of the district court granting motions to
dismiss under Civil Rule 12(b)(6). See Miranda v. Ponce Fed. Bank, 948 F.2d 41
(1st Cir. 1991) [No. 90-2214, slip op. at 3]; Kale v. Combined Ins. Co., 924
F.2d 1161, 1165 (1st Cir.), cert. denied, 116 L. Ed. 2d 44, 112 S. Ct. 69
(1991). The same benchmarks apply in the exercise of appellate jurisdiction as
in the nisi prius court. It follows that, "in the Rule 12(b)(6) milieu, an
appellate court ...may affirm a dismissal for failure to state a claim only if
it clearly appears, according to the facts alleged, that the plaintiff cannot
recover on any viable theory." Correa-Martinez, 903 F.2d at 52.
III. THE STATE STATUTE
To place the issues on appeal into perspective, it isnecessary first to give
the reader a glimpse of the Massachusetts mechanics' lien law. The central
provision of the lien law states:
A person to whom a debt is due for personal labor performed in the erection,
alteration, repair or removal of a building or structure upon land, by virtue
of an agreement with, or by consent of, the owner of such building or
structure, or of a person having authority from or rightfully acting for such
owner in procuring or furnishing such labor, shall, under the provisions of
this chapter, other than sections three and four, have a lien upon such
building or structure and upon the interest of the owner thereof in the lot of
land upon which it is situated, for not more than eighteen days' work actually
performed during the forty days next prior to his filing a statement as
provided in section eight.
For purposes of this chapter, a person shall include any employee of any
employer and the trustee or trustees of any fund or funds, established pursuant
to section 302 of the Taft Hartley Law (29 USC 186), providing coverage or
benefits to said person. The trustee or trustees of any such fund or funds
shall have all the liens under this chapter that any person has. The trustee or
trustees shall also have the right to enforce said liens pursuant to this
chapter.
Mass. Gen. L. ch. 254, §1. The statute provides for notices referable to
liens, see, e.g., id.§§ 2-4, and specifically contemplates that,
where subcontractors are involved, certain lien notices "may also be filed
by the trustee or trustees of a fund or funds, described in section one,
providing coverage or benefits to any person performing labor under a written
contract with a contractor, or with a subcontractor of such contractor."
Id.§ 4. In succeeding sections, the lien law limns the mechanics of
enforcement. Generally, a lien is enforced by means of a civil action brought
by the lienor against the property owner in the county or judicial district
where the property lies. Id.§ 5.
The remaining provisions of the lien law are not germane to our discussion.
IV. ANALYSIS
We elect to divide our perlustration of the merits into three segments.
Initially, we review the general principles and policies pertaining to
preemption in the ERISA context. We then address the chief argument advanced in
support of reversal. Finally, we comment upon certain secondary theses hawked
by the Funds.
A. ERISA Preemption: An Overview.
Out of respect for the distinct spheres of authority inherent in our federal
system, pre-emption of state law is generally disfavored. See, e.g., Alessi v.
Raybestos-Manhattan, Inc., 451 U.S. 504, 522, 68 L. Ed. 2d 402, 101 S. Ct. 1895
(1981). But, this presumption is not inviolable. If "the nature of the
regulated subject matter permits no other conclusion, or . . . Congress has
unmistakably so ordained," federal preemption of state law is mandated
under the Supremacy Clause. Florida Lime & Avocado Growers, Inc. v. Paul,
373 U.S. 132, 142, 10 L. Ed. 2d 248, 83 S. Ct. 1210 (1963).
ERISA preemption is, as a general matter, extensive in its scope. ERISA governs
"employee benefit plans." 29 U.S.C.§1001. As part of the
statutory structure established to regulate such plans, Congress formulated a
sweeping preemption clause. This clause, ERISA§ 514(a), commands that
ERISA "shall supersede any and all State laws insofar as they may now or
hereafter relate to any employee benefit plan." 29 U.S.C.§ 1144(a).
For preemption purposes, "State laws" are "all laws, decisions,
rules, regulations, or other State action having the effect of law." 29
U.S.C.§ 1144(c)(1).
Under the provisions of section 514(a), if a state law"relates to" an
employee benefit plan, it is preempted. "Alaw 'relates to' an employee
benefit plan, in the normal sense of the phrase, if it has a connection with or
reference to such a plan." Shaw v. Delta Air Lines, Inc., 463 U.S. 85,
96-97, 77 L. Ed. 2d 490, 103 S. Ct. 2890 (1983). "[A] state law may
'relate to' a benefit plan, and thereby be preempted, even if the law is not
specifically designed to affect such plans, or the effect is only
indirect." Ingersoll-Rand Co. v. McClendon, 112 L. Ed. 2d 474, 111 S. Ct.
478, 483 (1990); see also Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47-48,
95 L. Ed. 2d 39, 107 S. Ct. 1549 (1987); Shaw, 463 U.S. at 98.
At the bottom line, "the question whether a certain state action is
pre-empted by federal law is one of congressional intent." Allis-Chalmers
Corp. v. Lueck, 471 U.S. 202, 208, 85 L. Ed. 2d 206, 105 S. Ct. 1904 (1985);
Malone v. White Motor Corp., 435 U.S. 497, 504, 55 L. Ed. 2d 443, 98 S. Ct.
1185 (1978). While fathoming congressional intent can sometimes be an imprecise
venture, section 514(a)'s bold and capacious language provides a particularly
incisive manifestation of congressional purpose, thus easing the judicial
chore. See Ingersoll-Rand, 111 S. Ct. at 482 ("Where, as here, Congress
has expressly included a broadly worded pre-emption provision in a
comprehensive statute such as ERISA, our task of discerning congressional
intent is considerably simplified."); Shaw, 463 U.S. at 96 (similar).
In considering Congress' intent in the ERISA context, all roads lead to Rome.
The legislative history of section 514(a), like its language, counsels against
a crabbed interpretation of the statute. As the Shaw Court observed, the bill
that became ERISA originally contained a much narrower preemption clause that
Congress rewrote more panoramically, indicating "that the section's
pre-emptive scope was as broad as its language." Shaw, 463 U.S. at 98.
Senator Williams, a principal sponsor of the bill, stated that the ERISA
preemption clause, in its final form, was "intended to apply in its
broadest sense to all actions of State or local governments, or any
instrumentality thereof, which have the force or effect of law." 120 Cong.
Rec. 29,933 (1974).
Exhibiting great deference to the statutory language and legislative history,
the Court has consistently acknowledged the far-ranging scope of section
514(a)'s phraseology and interpreted section 514(a) expansively. See, e.g.,
Ingersoll-Rand, 111 S. Ct. at 482; Pilot Life, 481 U.S. at 44-47 ; Shaw, 463
U.S. at 96-100; see also FMC Corp. v. Holliday, 112 L. Ed. 2d 356, 111 S. Ct.
403, 407 (1990) (observing that "[ERISA's] pre-emption clause is
conspicuous for its breadth"); Franchise Tax Bd. v. Construction Laborers
Vacation Trust, 463 U.S. 1, 24 n.26, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983)
(describing ERISA's commodious preemption provision as "virtually
unique").
Despite the fact that section 514(a) casts a long shadow, ERISA preemption is
not limitless. "Some state actions may affect employee benefit plans in
too tenuous, remote, or peripheral a manner to warrant a finding that the law
'relates to' the plan." Shaw, 463 U.S. at 100 n.21; see also Retirement
Fund Trust, Etc. v. Franchise Tax Bd., 909 F.2d 1266, 1281 (9th Cir. 1990)
(ERISA held not to preempt a state income tax levy); Aetna Life Ins. Co. v.
Borges, 869 F.2d 142, 147 (2d Cir.) (ERISA held not to preempt a state escheat
law), cert. denied, 493 U.S. 811, 110 S. Ct. 57, 107 L. Ed. 2d 25 (1989);
Firestone Tire & Rubber Co. v. Neusser, 810 F.2d 550, 556 (6th Cir. 1987)
(ERISA held not to preempt a municipal income tax of general applicability);
Rebaldo v. Cuomo, 749 F.2d 133, 139 (2d Cir. 1984) (ERISA held not to preempt a
state law regulating hospital fees), cert. denied, 472 U.S. 1008, 86 L. Ed. 2d
718, 105 S. Ct. 2702 (1985). By the same token, ERISA does not preempt state
judgment-enforcing laws of general application. Thus, in Mackey v. Lanier
Collection Agency & Serv., Inc., 486 U.S. 825, 100 L. Ed. 2d 836, 108 S.
Ct. 2182 (1988), a state's general garnishment statute evaded preemption even
when used to satisfy judgments against ERISA plan participants. See id.
at 841.
We do not pretend that it is always easy to draw the line separating those
state statutes that fall prey to ERISA preemption from those that stand fast.
But, to the extent that gray areas exist, the policy rationales that permeate
ERISA and its preemption clause can afford sound guidance in determining what
state laws may survive. See Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 15,
96 L. Ed. 2d 1, 107 S. Ct. 2211 (1987). The drafters of section 514(a) wished,
among other things, to protect the rights and expectations of plan
participants, Ingersoll-Rand, 111 S. Ct. at 482, and to ensure that plans and
plan sponsors would be subject to a uniform body of benefit law; the goal was
to minimize the administrative and financial burden of complying with
conflicting directives among States or between States and the Federal
Government. Otherwise, the inefficiencies created could work to the detriment
of plan beneficiaries.
Id. at 484. Indeed, the Court has often justified section 514(a)'s elongated
reach by citing Congress' desire to avoid a "patchwork scheme of
regulation [which] would introduce considerable inefficiencies in benefit
program operation." Fort Halifax, 482 U.S. at 11; see also FMC, 111 S. Ct.
at 408-09; Shaw, 463 U.S. at 105.
B. ERISA Preemption: The Doctrine As Applied.
Based on the policy considerations described above, the Funds have a plausible
argument that the mechanics' lien law here at issue should not succumb to
section 514(a). After all, the Massachusetts statute grants employee benefit
plans access not only to a further mechanism by which they can collect
outstanding debts, but also to a new (and perhaps deeper) pocket from which
monies owed may be repaid. Improving a fund's collection prospects seems, at
first blush, fully consonant with Congress' purpose of safeguarding
participants' rights and expectations. Furthermore, the lien law advantages
employee benefit plans without increasing "the administrative and
financial burden of complying with conflicting directives among States or
between States and the Federal Government" -- a factor which "could
work to the detriment of plan beneficiaries." Ingersoll-Rand, 111 S. Ct.
at 484. And, it is hard to see how use of Mass. Gen. L. ch. 254 might interfere
with establishing "a uniform body of benefit law," id., to any
greater degree than would use of a state garnishment statute (as permitted in
Mackey). In this sense, then, allowing trustees of covered plans to utilize the
lien law at their own volition would simply add an arrow to an already
well-stocked quiver. Coming at the same point from another direction, if the
trustees of an ERISA-regulated plan choose to impose and enforce a lien, it is
fair to presume that, as fiduciaries, they will use the proceeds to the
betterment of plan beneficiaries. So viewed, the lien law is a help, not a
hindrance, to ERISA-regulated plans.
But, benefit is not the relevant test. Notwithstanding the synchronicity
between the policy considerations that undergird ERISA and the Funds' attempted
utilization of the Massachusetts mechanics' lien law, fidelity to precedent
compels a conclusion that any such use of the lien law is preempted. We explain
briefly.
The Court has been especially skeptical of state laws which, like the
Massachusetts lien law, specifically refer to ERISA plans and grant them
special treatment. See Mackey, 486 U.S. at 829 (stating that the Court has
"virtually taken it for granted that state laws which are specifically
designed to affect employee benefit plans are pre-empted under§
514(a)") (quotation marks omitted). The vice in such laws is not palliated
by a state legislature's good intentions or by a comfortable fit between a
state statute and ERISA's overall aims. To the exact contrary, the Court has
made it pellucidly clear that section 514(a) "was intended to displace all
state laws that fall within its sphere, even including state laws that are
consistent with ERISA's substantive requirements." Metropolitan Life Ins.
Co. v. Massachusetts, 471 U.S. 724, 739, 85 L. Ed. 2d 728, 105 S. Ct. 2380
(1985); accord Mackey, 486 U.S. at 830. Hence, "any state law which
singles out ERISA plans, by express reference, for special treatment is
pre-empted." Id. at 838 n.12 (emphasis in original). This means, in short,
that state laws which expressly relate to employee benefit plans are
necessarily grist for the preemption mill.
To be sure, footnote 12 in Mackey is dictum -- but it is considered dictum. We
are, therefore, both unable to ignore it and unwilling to do so. We agree with
Professor Wright that, in evaluating dicta, "much depends on the character
of the dictum. Mere obiter may be entitled to little weight, while a carefully
considered statement . . ., though technically dictum, must carry great weight,
and may even . .. be regarded as conclusive." Charles A. Wright, The Law
of Federal Courts§ 58, at 374 (4th ed. 1983). And here, the earmarks of
careful consideration are readily apparent. In our judgment, it would be
blinking reality to pass off Mackey's footnote 12 as a chance statement.
Justice White's emphasizing of the word "any" by placing it in
italics eliminates even the remote possibility that footnote 12 was casually
constructed.
This conclusion draws the grease from the goose. We think that federal
appellate courts are bound by the Supreme Court's considered dicta almost as
firmly as by the Court's outright holdings, particularly when, as here, a
dictum is of recent vintage and not enfeebled by any subsequent statement. Cf.,
e.g., Faucher v. Federal Election Comm'n, 928 F.2d 468, 470 (1st Cir.) (court
of appeals cannot assume the Supreme Court "proclaims the law
lightly" when it authors considered dictum), cert. denied, 116 L. Ed. 2d
52, 112 S. Ct. 79 (1991). If lower courts felt free to limit Supreme Court
opinions precisely to the facts of each case, then our system of jurisprudence
would be in shambles, with litigants, lawyers, and legislatures left to grope
aimlessly for some semblance of reliable guidance. Nor are we alone in voicing
our healthy regard for dictum that appears to have been carefully considered.
See, e.g., Nichol v. Pullman Standard, Inc., 889 F.2d 115, 120 n.8 (7th Cir.
1989) (court of appeals "should respect considered Supreme Court
dicta"); United States v. Underwood, 717 F.2d 482, 486 (9th Cir. 1983)
(court of appeals not at liberty to "disregard . . . guidelines"
established by Supreme Court, albeit through dicta), cert. denied, 465 U.S.
1036 (1984); United States v. Bell, 524 F.2d 202, 206 (2d Cir. 1975)
(considered dictum "must be given considerable weight and can not be
ignored in the resolution of [a] close question").
If we are to turn corners squarely, the rest follows inexorably. In respect to
the scope of ERISA preemption, we have no real option except to conclude that
the High Court meant exactly what it wrote in footnote 12 of Mackey. Therefore,
we are constrained to treat the statement as authoritative and to obey its
command.
Given this preface, there can be no question about the closing chapter. The
statute at issue expressly singles out ERISA plans for special treatment. The
second paragraph of Mass. Gen. L. ch. 254,§ 1 provides, inter alia, that
the mechanics' lien law shall inure to the advantage of "the trustee or
trustees of any fund or funds, established pursuant to section 302 of the Taft
Hartley Law (29 USC 186), providing coverage or benefits to [an
employee]." Similarly, the law provides for the filing of certain
lien-related notices "by the trustee or trustees of a fund or funds,
described in section one, providing coverage or benefits to any person
performing labor." Id.§ 4. Under ERISA's staple definitions, the term
"employee benefit plan" (or simply "plan") includes
"employee welfare benefit plans." 29 U.S.C. § 1002(3). A plan
fits within this integument if it is established, inter alia, "for the
purpose of providing for its participants or their beneficiaries . . . any
benefit described in [29 U.S.C.§ 186(c)]." Id.§ 1002(1)(B).
Thus, any plan that grants benefits under 29 U.S.C.§ 186, which is another
way of describing any plan that grants benefits under section 302 of the
Taft-Hartley Act, is by definition an ERISA plan.*fn2 Put bluntly, by singling out "section 302" plans
for special treatment, the Massachusetts mechanics' lien law, in the same
stroke, singles out ERISA plans for special treatment. It is, therefore,
preempted as it applies to ERISA-regulated plans.
In light of this analysis, we find it unsurprising that, in analogous cases,
several of our sister circuits have ruled in favor of preemption. The Fifth
Circuit, in a strikingly similar case involving Louisiana's mechanics' lien
statute, La. Rev. Stat. Ann.§§ 9:4801-9:4823 (West 1983), held that
ERISA preempted the law's operation. See Iron Workers Mid-South Pension Fund v.
Terotechnology Corp., 891 F.2d 548, 556 (5th Cir.), cert. denied, 111 L. Ed. 2d
782, 110 S. Ct. 3272 (1990). The Third Circuit found preemption in a case
involving Pennsylvania's wage payment and collection law, Pa. Stat. Ann. tit.
43,§§ 260.1-260.12 (Supp. 1985). See McMahon v. McDowell, 794 F.2d
100, 105-08 (3d Cir.), cert. denied, 479 U.S. 971, 93 L. Ed. 2d 417, 107 S. Ct.
473 (1986). The Ninth Circuit recently decided that a California lien law which
advantaged trusts established to receive employer's contributions "on
account of fringe benefits supplemental to a wage agreement," Cal. Civ.
Code§ 3111 (West 1974), was preempted by ERISA. See Sturgis v. Herman
Miller, Inc., 943 F.2d 1127 (9th Cir. 1991) [No. 90-15054, slip op. at
12286-89]. The court remarked that, while the California law did not expressly
refer to ERISA plans, "it need not do so where the statute obviously
singles out ERISA plans." Id. at [slip op. at 12289]. Since the state law
accorded "ERISA plans a unique procedural benefit by conferring upon them
special mechanic lien rights to collect delinquent contributions," it was
preempted. Id. Given the difference in language between the Massachusetts and
California statutes --a difference which tilts toward preemption, not away from
it -- the same result must obtain here.*fn3 We need
not paint the lily. State statutes which expressly grant preferential benefits
to ERISA plans cannot withstand the preemptive force of ERISA§ 514(a).
Inasmuch as Mas . Gen. L. ch. 254 is such a statute, the Funds' use of the lien
created thereby is preempted.
C. Other Arguments.
The Funds make two other attempts to avoid a preemptive strike. Neither effort
brings them out of range.
1. Rule 64. The Funds asseverate that the use of the Massachusetts mechanics'
lien law is authorized by Fed. R. Civ. P. 64*fn4
and, therefore, is salvaged from preemption by section 514(d) of ERISA, 29
U.S.C.§ 1144(d), which provides that ERISA shall not "be construed to
alter, amend, modify, invalidate, impair, or supersede any law of the United
States . . . or any rule or regulation issued under any such law." The
asseveration cannot survive the mildest of scrutiny.
In order to trigger section 514(d), some alteration of a federal law must be in
prospect. The Federal Rules of Civil Procedure can properly be regarded as
coming under this rubric since they have the same force and effect as federal
statutory law. See United States v. St. Paul Mercury Ins. Co., 361 F.2d 838,
839 (5th Cir.), cert. denied, 385 U.S. 971, 17 L. Ed. 2d 435, 87 S. Ct. 510
(1966); Laker Airways Ltd. v. Pan Am. World Airways, 103 F.R.D. 42, 50 n.19
(D.D.C. 1984). Nevertheless, the Civil Rules cannot roam at will. The Rules
Enabling Act, 28 U.S.C.§ 2072 (1988), ordains that the Civil Rules must
relate to "practice or procedure." Id.§2072(a); see also
Answering Serv., Inc. v. Egan, 234 App. D.C. 266, 728 F.2d 1500, 1506 (D.C.
Cir. 1984). The Enabling Act expressly forbids Civil Rules that "abridge,
enlarge or modify any substantive right." 28 U.S.C.§ 2072(b); see
also Brown v. E.W. Bliss Co., 818 F.2d 1405, 1409 (8th Cir. 1987).
The Funds say, in essence, that the marriage of Civil Rule 64 and ERISA§
514(d) permits employee benefit plans to take advantage of the Massachusetts
mechanics' lien law. If this argument were correct, the upshot would be to give
birth to a new, independent cause of action, not otherwise suable. Such a
result would obviously affect substantive rights and thus alter substantive
law. And the result would, in the bargain, contravene the Rules Enabling Act.
In this respect, the mechanics' lien law, which creates a new right of action
against a new defendant, is unlike most remedies contemplated by Rule 64
"because it is not a remedy against [a] judgment debtor or against a
person who is personally indebted to, or in possession of the property of, the
judgment debtor." Bricklayers Fringe Benefit Funds v. North Perry Baptist
Church, 590 F.2d 207, 209 (6th Cir.) (affirming dismissal of a mechanics' lien
foreclosure claim asserted pursuant to Rule 64 against property owners for
fringe benefit contributions owed by a contractor), cert. denied, 444 U.S. 834,
62 L. Ed. 2d 43, 100 S. Ct. 66 (1979).
In sum, the Rules Enabling Act forecloses the Funds' argument. Civil Rule 64
cannot be employed as an effective vehicle to remove the Massachusetts
mechanics' lien law from preemption under the terms of 29 U.S.C.§ 1144(d).
2. The Education and Cultural Fund. The Funds' fallback position is that, even
if we find preemption, the Electrical Workers Educational and Cultural Fund
(E&C Fund), one of the funds for whose benefit McCoy sues, can still avail
itself of the rights created by chapter 254. This claim rests on the assertion
that the E&C Fund is not an employee welfare benefit plan covered by ERISA.
In this regard, the Funds contend that not all plans which provide for benefits
under 29 U.S.C.§ 186 are ERISA plans. As support for this allegation, they
note that the Secretary of Labor has authority to issue regulations defining
certain terms in the ERISA statute, see 29 U.S.C.§ 1135; and that,
utilizing this power, the Secretary promulgated a regulation, 29
C.F.R.§2510.3-1(a) (1990), that fails to include plans granting benefits
under 29 U.S.C.§ 186(c)(9) within its ambit.*fn5 On this basis, the Funds try to convince us that the
regulation's silence effectively excludes section 186(c)(9) plans, like the
E&C Fund, from ERISA coverage. The contention is not only unpersuasive but
also procedurally defaulted.
It is hornbook law that theories not raised squarely in the district court
cannot be surfaced for the first time on appeal. See, e.g., Boston Celtics Ltd.
Partnership v. Shaw, 908 F.2d 1041, 1045 (1st Cir. 1990); Aoude v. Mobil Oil
Corp., 862 F.2d 890, 896 (1st Cir. 1988); Clauson v. Smith, 823 F.2d 660, 666
(1st Cir. 1987). In the lower court, the Funds' opposition to MIT's motion to
dismiss made passing mention of the general point -- a mention which, in its
entirety, comprised two sentences and one citation (to a tangentially relevant
case).*fn6 The Funds failed to provide any analysis
of the statutory scheme, to present any legal authority directly supporting
their thesis, or to give any reason why the E&C Fund was not an employee
benefit plan within ERISA's contemplation. They did not refer the court to
either 29 U.S.C.§ 186(c)(9) or 29 C.F.R.§ 2510.3-1(a). In short, when
this claim was presented below, it was the merest of skeletons.
In an analogous situation, we wrote that a party has a duty "to spell out
its arguments squarely and distinctly. . . . [rather than being] allowed to
defeat the system by seeding the record with mysterious references . . . hoping
to set the stage for an ambush should the ensuing ruling fail to suit."
Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985,
990 (1st Cir. 1988); see also Kensington Rock Island Ltd. Partnership v.
American Eagle Historic Partners, 921 F.2d 122, 124-25 (7th Cir. 1990)
("Arguments raised in the District Court in a perfunctory and
underdeveloped . . . manner are waived on appeal.") (quotation marks
omitted); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)
(appellate courts should not permit "fleeting references to preserve
questions on appeal"), cert. denied, 475 U.S. 1088, 89 L. Ed. 2d 729, 106
S. Ct. 1475 (1986). Overburdened trial judges cannot be expected to be mind
readers. If claims are merely insinuated rather than actually articulated in
the trial court, we will ordinarily refuse to deem them preserved for appellate
review. So here. We reject, as procedurally defaulted, the E&C Fund's
belated effort to give substance to its hitherto undeveloped theory.*fn7
We likewise reject the Funds' blithe suggestion that a party's duty of clear
articulation is somehow abated in the Rule 12(b)(6) context. In opposing a Rule
12(b)(6) motion, a plaintiff cannot expect a trial court to do his homework for
him. Rather, the plaintiff has an affirmative responsibility to put his best
foot forward in an effort to present some legal theory that will support his
claim. See Correa-Martinez, 903 F.2d at 52; Dartmouth Review, 889 F.2d at 16;
Ryan v. Scoggin, 245 F.2d 54, 57 (10th Cir. 1957) (a court pondering a Rule
12(b)(6) motion should not grant credence to a "footless conclusion of
law"). In this instance, the Funds disregarded that obligation. No amount
of interpretive liberality can save chestnuts so poorly protected from the hot
fire of dismissal.
A second reason to forswear the E&C Fund's claim hinges on the legal merit
of its argument (or, more exactly put, the lack of legal merit). The complaint
states that all the plans were "established pursuant to the requirements
of 29 U.S.C.§ 186."*fn8 The plans are,
therefore, employee welfare benefit plans within ERISA's purview. See supra
p.14; see also 29 U.S.C.§ 1002. At bottom, then, the E&C Fund's status
argument runs at cross purposes with the plain language of the statute.
The argument is, moreover, little bolstered by the adscititious items which the
appellant brings to bear. The Funds' reliance on 29 C.F.R.§ 2510.3-1(a),
for instance, is mislaid. The regulation was promulgated in 1975. 29
U.S.C.§ 186(c)(9), the statutory reference which the appellant contends
was purposefully excluded from the regulation's text, was not enacted until
1978. Thus, it is virtually meaningless that the regulation fails to list
within its compendium of ERISA plans those which grant benefits described in a
portion of the statute that was not yet enacted when the regulation itself was
written. The Funds' reliance on two advisory opinions of the United States
Department of Labor (DOL), ERISA Adv. Op. 91-08A (Jan. 30, 1991) and ERISA Adv.
Op. 84-40A (Oct. 26, 1984), is equally unprofitable. These opinions did not
involve either MIT or the Funds and, therefore, have no force as precedent
here. After all, the DOL's regulations specifically provide that "only the
parties described in the request for opinion may rely on the opinion." 41
Fed. Reg. 36,281, 36,283 (§ 10).
To sum up, since the E&C Fund was established pursuant to 29 U.S.C.§
186, and since ERISA states plainly that all plans granting benefits enumerated
in section 186 are ERISA-regulated employee welfare benefit plans, the E&C
Fund is subject to ERISA preemption on the same basis as the other six funds
involved in this litigation. There is no set of facts potentially provable by
the appellant which, under the complaint as framed, could change this outcome.
V. CONCLUSION
We need go no further.*fn9 The Funds' proposed use
of the Massachusetts mechanics' lien law, Mass. Gen. L. ch. 254, is thwarted by
operation of ERISA§ 514(a), 29 U.S.C.§ 1144(a). The suit was properly
dismissed on preemption grounds.
Affirmed. Costs to appellee.
Disposition
Affirmed. Costs to appellee.
--------------------------------------------------------------
Opinion Footnotes
--------------------------------------------------------------
*fn1 The well-pleaded complaint rule normally
prohibits the invocation of federal question jurisdiction if no issue of
federal law appears on the face of a complaint. Gully v. First Nat'l Bank, 299
U.S. 109, 113, 81 L. Ed. 70, 57 S. Ct. 96 (1936); Louisville & Nashville
R.R. v. Mottley, 211 U.S. 149, 152, 53 L. Ed. 126, 29 S. Ct. 42 (1908). Because
federal preemption is ordinarily raised as a defense to a suit, it will often
not appear on the face of a well-pleaded complaint and, accordingly, the
possibility of preemption does not usually authorize removal. See Metropolitan
Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 95 L. Ed. 2d 55, 107 S. Ct. 1542
(1987). But the rule, like most legal rules, is not without its recognized
exceptions. A claim of ERISA preemption animates one such exception, id. at 67,
on the basis that "Congress may so completely pre-empt a particular area
[of law] that any civil complaint raising this select group of claims is
necessarily federal in character." Id. at 63-64. Hence, the court below
properly asserted removal jurisdiction despite the fact that the complaint did
not explicitly delineate a federal question.
*fn2 We note in passing that, although there is no
legitimate doubt as to what the state legislature intended when it wrote the
words "established pursuant to section 302 of the Taft Hartley Law (29 USC
186)," the statute seems inartfully phrased. Section 302 is not a
provision "pursuant to" which a fund can be established. Rather,
section 302 regulates financial transactions between employers and employees
(or unions). See 29 U.S.C.§ 186(a)-(b) (1988). In the course of such
regulation, section 302 describes certain employee benefits. Id.§ 186(c).
It is these employee benefits that both the Massachusetts law, Mass. Gen. L.
ch. 254, 1, 4, and ERISA, 29 U.S.C.§ 1002(1)(B), incorporate by reference.
*fn3 As the appellant accurately observes, state
appellate courts have, on occasion, espoused a seemingly contrary view. See,
e.g., Plumbers's Local 458 Holiday Vacation Fund v. Howard Immel, Inc., 151
Wis. 2d 233, 445 N.W.2d 43 (Wis. 1989) (declining to find Wisconsin lien law
preempted). The better-reasoned state court decisions, however, are harmonious
with the federal precedents. See, e.g., Carpenters S. Cal. Admin. Corp. v. El
Capitan Dev. Co., 53 Cal. 3d 1041, 811 P.2d 296, 282 Cal. Rptr. 277 (Cal. 1991)
(en banc), petition for cert. filed (U.S. Sept. 18, 1991) (No. 91-480);
Prestridge v. Shinault, 552 So. 2d 643 (La. Ct. App. 1989), writ denied, 559
So. 2d 131 (La. 1990). A decision of the New York Court of Appeals, Sasso v.
Vachris, 66 N.Y.2d 28, 484 N.E.2d 1359, 494 N.Y.S.2d 856 (N.Y. 1985), much
ballyhooed by the Funds, antedates Mackey and Ingersoll-Rand, and its
reasoning, which has been called into question by at least one other circuit
court, see Local Union 598, Plumbers & Pipefitters Industry Journeymen
& Apprentices Training Fund v. J.A. Jones Constr. Co., 846 F.2d 1213, 1219
n.8 (9th Cir.), aff'd mem., 488 U.S. 881 (1988), is suspect. At any
rate, Sasso involves a significantly different statutory scheme and is largely
inapposite for our purposes.
*fn4 The rule provides in pertinent part that,
during the course of an action in federal court, all remedies providing for
seizure of person or property for the purpose of securing satisfaction of the
judgment ultimately to be entered in the action are available under the
circumstances and in the manner provided by the law of the state in which the
district court is held, existing at the time the remedy is sought, subject to
[certain qualifications not germane to the case at hand]. The remedies thus
available include arrest, attachment, garnishment, replevin, sequestration, and
other corresponding or equivalent remedies, however designated and regardless
of whether by state procedure the remedy is ancillary to an action or must be
obtained by an independent action. Fed. R. Civ. P. 64.
*fn5 Section 186(c)(9) addresses benefits granted
"with respect to money or other things of value paid by an employer to a
plant, area or industrywide labor management committee established for one or
more of the purposes set forth in section 5(b) of the Labor Management
Cooperation Act of 1978." 29 U.S.C.§ 186(c)(9). Section 5(b) of the
Labor Management Cooperation Act contemplates, as its title implies, improving
cooperation and communication between labor and management.
*fn6 The Funds' total argument to the district court
on this subject consisted of the following:
Section 514(a) of ERISA by its terms applies only to employee benefit plans
covered by ERISA as defined by §4(a). . . . Therefore Chapter 254 is not
preempted with respect to the Electrical Workers Education and Cultural Fund,
Local 103 I.B.E.W., which is not covered by ERISA. The only case cited,
Massachusetts v. Morash, 490 U.S. 107, 104 L. Ed. 2d 98, 109 S. Ct. 1668
(1989), which appeared in the opposition where we have inserted an ellipsis,
was so peripheral that the Funds do not cite it at all in their briefs on
appeal.
*fn7 The Funds maintain that they presented the
district court with a properly propaedeutic version of their argument regarding
the E&C Fund in their opposition to MIT's request for a protective order.
But, that pleading, which was submitted nearly two months after briefing on
MIT's motion to dismiss was completed, cannot resurrect the issue for appeal.
Courts are entitled to expect represented parties to incorporate all relevant
arguments in the papers that directly address a pending motion. See, e.g.,
Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 528 (1st Cir. 1991)
("Requests for hearing must be explicit and should be embodied in the
pleadings, not in correspondence which may never reach . . . the judge's
attention."); see also D. Mass. R. 7.1(a)(2) (requiring opposition to
motion to contain "in the same (rather than a separate), document a
memorandum of reasons, including citation of supporting authorities, why the
motion should not be granted"); Rule 7.1(a)(3) (prohibiting
supplementation of opposition except "with leave of court"); Rule
7.1(e) (providing that, when oral argument has not been requested, motions
"will be decided on the papers submitted [once] an opposition to the
motion has been filed"). Hence, the district court was under no obligation
to rummage through later-filed items pertaining to other matters in an attempt
to vitalize the anemic argument contained in the Funds' opposition to MIT's
dismissal motion.
*fn8 This language is inapt. See supra note 2.
*fn9 To the extent that the amicus raises different
grounds in support of reversal, we decline to consider those grounds. While
amici are allowed to participate in appellate proceedings to help the reviewing
court attain a just result, "we know of no authority which allows an
amicus to interject into a case issues which the litigants, whatever their
reasons might be, have chosen to ignore." Lane v. First Nat'l Bank, 871
F.2d 166, 175, 10 U.S.P.Q.2D (BNA) 1268 (1st Cir. 1989).