Green v. Hartford Steam Boiler Inspection and Ins. Co.

• Citation: 124 F.3d 211
• Decision Date: 17 September 1997
• Docket Number: No. 96-16741,96-16741
• Parties: NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Allen T. GREEN, Plaintiff-Appellant, v. HARTFORD STEAM BOILER INSPECTION AND INSURANCE COMPANY; The Hartford Steam Boiler Inspection and Insurance Company Employees' Retirement Plan, Defendants-Appellees. . Submitted **
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 211

124 F.3d 211

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Allen T. GREEN, Plaintiff-Appellant, v. HARTFORD STEAM BOILER INSPECTION AND INSURANCE COMPANY; The Hartford Steam Boiler Inspection and Insurance Company Employees' Retirement Plan Defendants-Appellees.

No. 96-16741.

United States Court of Appeals, Ninth Circuit.

Submitted ^** September 17, 1997

Sept. 19, 1997.

Appeal from the United States District Court for the Eastern District of California, D.C. No. CV-95-01321-EJG(PAN); Edward J. Garcia, District Judge, Presiding.

BEFORE: ALDISERT ^***, CHOY and THOMPSON, Circuit Judges.

MEMORANDUM ^*

Allen T. Green appeals from the district court's grant of summary judgment in favor of the Hartford Steam Boiler Inspection and Insurance Company ("HSB") and The Hartford Steam Boiler Inspection and Insurance Company Employees Retirement Plan ("the Plan"). Green brought an action under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et seq. seeking retirement benefits from the Plan. We conclude that the district court lacked jurisdiction over Green's complaint because Green was not a participant in the Plan. We vacate the judgment and remand with instructions to dismiss.

From 1972 through March of 1988, Green was president and CEO of a company called Acoustic Emission Technology Company ("Acoustic"). In 1988, Acoustic became an affiliate of HSB, and Acoustic was renamed Hartford Steam Boiler Inspection Technologies ("HSBIT"). Green never worked for HSB directly, but was an officer of HSBIT. His employment ended in 1991 when HSB sold the assets of HSBIT to another entity. Green then filed a claim for benefits under HSB's retirement benefits plan. After the Plan denied his claim, he brought suit against HSB and the Plan in state court. The Defendants removed to federal court pursuant to 28 U.S.C. § 1441, on the grounds that ERISA preempted Green's claims. Green did not object to removal. The district court granted summary judgment in favor of HSB and the Plan and Green timely appeals.

Removal is a question of federal subject matter jurisdiction reviewed de novo. Harris v. Provident Life and Accident Ins. Co., 26 F.3d 930, 932 (9th Cir.1994). Although Green did not object to removal, we must still address whether federal jurisdiction exists. Id. "[A] federal court has no jurisdiction to hear a civil action under ERISA that is brought by a person who is not a 'participant, beneficiary, or fiduciary.' " Id. at 933 (quoting Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 27 (1983)).

The question for decision is whether Green was a participant in the Plan. To resolve this issue, we must look to the language of the Plan. We accept Green's argument that the 1985 version of the Plan is the relevant document; we will not consider the 1994 amendments that were issued three years after Green's termination. The 1985 Plan provides:

1.17 "Employee " shall mean any person on the payroll of an Employer or an Affiliate.

1.18 "Employer " shall mean the Company [HSB] and any Affiliate of the Company that, with the approval of the Board of Directors, has adopted this Plan as a participant herein.

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1.24 "Participant " shall mean any Employee described in paragraph 2.01.

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2.01 Participation.

All Employees shall become Participants on the date of employment....

CR 26, Exhibit A.

Green concedes that, under the terms of the Plan, an affiliate of HSB (such as HSBIT) must adopt the Plan with the approval of HSB's board of directors before the affiliate's employees can participate in the Plan. Appellant's Br. at 29. Notwithstanding the uncontroverted evidence that neither HSB's nor HSBIT's directors ever voted to approve or adopt the Plan, Green maintains that the Plan was in fact approved by HSBIT and adopted by HSB. He argues that the language of the Plan is ambiguous because it does not explicitly require a vote for approval or adoption....