UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHARLES O. WARREN, JR.,
Plaintiff-Appellant,

v.
                                                                   No. 97-1374
BLUE CROSS AND BLUE SHIELD OF
SOUTH CAROLINA,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CA-96-1111-3-10)

Argued: October 1, 1997

Decided: November 12, 1997

Before RUSSELL and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Herbert Wiley Louthian, Sr., LOUTHIAN &
LOUTHIAN, Columbia, South Carolina, for Appellant. Vance J. Bet-
tis, GIGNILLIAT, SAVITZ & BETTIS, Columbia, South Carolina,
for Appellee. ON BRIEF: Rebecca G. Fulmer, LOUTHIAN &
LOUTHIAN, Columbia, South Carolina, for Appellant.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

An employee initially filed this action against his former employer
in state court. The employee alleged that the employer had fraudu-
lently induced him to enter into a separation agreement by misrepre-
senting the amount of his retirement benefits under the company's
employee benefits plan. Maintaining that §§ 502(a) and 514(a) of the
Employee Retirement Income Security Act (ERISA), 29 U.S.C.
§§ 1132(a) and 1144(a) (1985), preempted the employee's state law
claims, the employer removed the case to federal court. The district
court denied the employee's motion to remand the action and this
appeal followed. Because ERISA preempts the employee's state law
claims, we affirm.

I.

Prior to 1994, Blue Cross and Blue Shield of South Carolina had
employed Charles O. Warren for twenty-four years. Upon his dis-
charge on July 25, 1994, at the age of 53, Warren held the position
of Senior Deputy General Counsel. Under a negotiated separation
agreement, Warren received $80,176 in exchange for releasing Blue
Cross from any and all claims arising out of his employment and ter-
mination. Warren alleges that during the negotiation of this agree-
ment, Jack Mullins, Blue Cross's Assistant Vice President of Human
Resources, provided Warren with a print-out representing that War-
ren's lump-sum retirement benefits at age 55 under Blue Cross's
ERISA plan would amount to $243,000. Warren contends that this
representation materially influenced his decision to accept the terms
of the separation agreement without further negotiation.

Approximately one year after executing the separation agreement,
Warren discovered that in order to have received $243,000 in retire-
ment benefits under the plan he would have had to remain employed

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with Blue Cross until the age of 55. Because his employment termi-
nated earlier, his retirement benefits under the plan only totaled
$130,000. Upon learning of this discrepancy, Warren filed suit in
state court in which he asserted claims for fraudulent inducement and
negligent misrepresentation based on Mullins's representation regard-
ing his retirement benefits under Blue Cross's ERISA plan.

Blue Cross removed the action to federal court, asserting that
ERISA completely preempted Warren's state law claims. After the
district court denied Warren's motion to remand, he moved for recon-
sideration, or in the alternative, for permission to file an interlocutory
appeal pursuant to 28 U.S.C. § 1292(b) (1993). The district court
again denied the motion to remand but certified the case as one appro-
priate for interlocutory appeal. We agreed that the action was appro-
priate for interlocutory appeal, and now turn to the merits of that
appeal.

II.

The single question presented is: Does § 502(a), the civil enforce-
ment provision of ERISA, completely preempt Warren's state law
claims, thereby providing a basis for removal jurisdiction? We review
this question, like all determinations as to jurisdiction, de novo.
Yarnevik v. Brink's, Inc., 102 F.3d 753, 754 (4th Cir. 1996).

Removal jurisdiction exists only if the district court would have
had original jurisdiction over the suit. 28 U.S.C.§ 1441(a) (1994).
The parties here lack diversity, so removal jurisdiction must exist, if
at all, by virtue of federal question jurisdiction. Federal question juris-
diction exists where the plaintiff's claim arises under the Constitution
or other federal law. 28 U.S.C. § 1331 (1993). Pursuant to the general
well-pleaded complaint rule, federal question jurisdiction must be
apparent from the face of the complaint. Metropolitan Life Ins. Co.
v. Taylor, 481 U.S. 58, 63 (1987); Franchise Tax Bd. v. Construction
Laborers Vacation Trust, 463 U.S. 1, 9-10 (1983). Thus, federal
issues raised as defenses normally cannot provide a basis for removal
jurisdiction. Caterpillar, Inc. v. Williams, 482 U.S. 386, 393 (1987).
The Supreme Court, however, has fashioned the following exception
to the well-pleaded complaint rule: "causes of action within the scope
of the civil enforcement provisions of § 502(a) [of ERISA are]

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removable to federal court" although they "purport[ ] to raise only
state law claims." Metropolitan Life, 481 U.S. at 66-67. We must
decide, therefore, whether Warren's suit is within the scope of
§ 502(a) such that removal jurisdiction exists under the Metropolitan
Life exception.

We note, at the outset, that in its second order denying remand, the
district court addressed both § 514(a) preemption and § 502(a) pre-
emption. Because the sole question raised on appeal is whether the
district court properly exercised removal jurisdiction, we need not
review whether the substantive preemption provisions of § 514(a)
apply in this case. A state law claim can "relate to" an ERISA plan
and be preempted under § 514(a) and still not be encompassed under
§ 502(a)'s civil enforcement scheme. Only state law claims pre-
empted by § 502(a) provide a basis for removal jurisdiction. See
Metropolitan Life, 481 U.S. at 66; Romney v. Lin, 94 F.3d 74, 80 (2nd
Cir. 1996); Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 355 (3d Cir.),
cert. denied, ___ U.S. ___, 116 S.Ct. 564 (1995); Lister v. Stark, 890
F.2d 941, 943 & n.1 (7th Cir. 1989); Lancaster v. Kaiser Found.
Health Plan, 958 F.Supp. 1137, 1144 & n.21 (E.D.Va. 1997).

Section 502(a) of ERISA provides, in relevant part:

          A civil action may be brought --

          (1) by a participant or beneficiary

          ...

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

29 U.S.C. § 1132(a)(1)(B) (emphasis added).

Warren asserts that his state claims do not seek the recovery,
enforcement, or clarification of rights to benefits under an ERISA
plan. He notes that neither count in his complaint explicitly refers to

                     4
ERISA, and no federal question appears on the face of the complaint.
However, Metropolitan Life establishes that how a plaintiff denomi-
nates his claim does not determine whether it is within the scope of
§ 502(a). See 481 U.S. at 64 (action completely preempted although
complaint "purported to raise only state law causes of action").

Nevertheless, Warren maintains that he does not seek retirement
benefits but merely damages measured by reference to the benefits
due to him under the ERISA plan. The language of his complaint,
however, severely undermines this contention. In pertinent part, the
complaint states:

          [A]s a result of said reliance, [Warren] has been damaged to
          the extent of $113,000 or the actual value of the retirement
          benefits if [he] had elected a periodic pay out in lieu of a
          lump sum, plus prejudgment interest and costs.

          ....

           . . . [Warren] has been damaged as a result of said reli-
          ance to the extent of $113,000, the amount of lump sum
          benefits or all amounts due to [him] under his various
          retirement options, including a periodic pay out of the
          retirement benefits.

            WHEREFORE, [Warren] demands judgment against
           [Blue Cross] for the sum of $113,000 actual damages, or in
           the alternative for such amounts due and to become due to
           [him] as the result of his retirement options . . . .*
_________________________________________________________________
*Perhaps recognizing the devastating effect on his case, Warren argues
that we should not rely on the language of his prayer for relief because
such prayers are not considered part of a claim. Our holding, of course,
does not rely solely on the language of the prayer for relief. But we do
believe that even though it is not a part of the claim, the language of the
prayer for relief, particularly when, as here, it mirrors the actual counts
of the complaint, is relevant. In fact, the question of § 502(a) preemption
turns in large measure on the relief sought. Where the relief sought is the
recovery, enforcement, or clarification of rights to benefits, § 502(a) pre-
emption applies. See Metropolitan Life, 481 U.S. at 61(quoting plaintiff's
prayer for relief as demanding "`reimplementation of all benefits'").

                    5
(Emphasis added). Thus, in his complaint Warren seeks not simply to
measure his damages by reference to the ERISA plan but also to
recover or enforce benefits allegedly "due" to him under that plan.

Nor, upon analysis, do the cases on which Warren relies, Pizlo v.
Bethlehem Steel Corp., 884 F.2d 116 (4th Cir. 1989), Hand v. Church
& Dwight Co., Inc., 962 F.Supp. 742 (D.S.C. 1997), and Sandler v.
New York News Inc., 721 F.Supp. 506 (S.D.N.Y. 1989), support his
position. In Pizlo, we held that § 514(a) did not preempt the plaintiff's
state law claims for breach of contract, promissory estoppel, and neg-
ligent misrepresentation against his employer based on his employer's
representation or promise of employment. 884 F.2d at 120. Thus,
Pizlo, unlike the case at hand, did not involve a representation or
promise as to benefits; indeed, we expressly noted that "the claims
[did] not bring into question whether Plaintiffs [were] eligible for plan
benefits." Id. In contrast, Warren's claim is based on his employer's
representation of retirement benefits, and in his complaint he specifi-
cally alleges he has been denied the "actual value" of these "benefits."

Similarly, Hand held that § 514(a) did not preempt the plaintiff's
claims for fraud and negligent misrepresentation to the extent that she
sought damages for relinquishing a viable claim for age discrimina-
tion. 962 F.Supp. at 747. The court also held, however, that § 514(a)
did preempt the fraud and negligent misrepresentation claims to the
extent that they sought plan benefits. Id. Here, Warren's complaint
seeks relief defined as "the actual value of the retirement benefits,"
and "all amounts due to [him] under his various retirement options."

For the same reasons, Sandler, too, provides little assistance to
Warren. Sandler held that § 514(a) did not preempt the plaintiff's
negligent misrepresentation claim because the claim"(i) [did] not
seek to recover benefits . . .; (ii) [did] not proceed against the plan
administrators . . .; and (iii) [was] premised upon an employer's mis-
representation that was made outside the routine course of pension
administration." 721 F.Supp. at 514. The Sandler court pointed out
that "[a] different conclusion would be required if the record showed
that allowing Sandler to pursue his . . . claim would pose some genu-
ine threat of interference with the administration of primary plan
functions," such as determining whether or not benefits were due.
Warren, as already noted, seeks amounts "due" under the ERISA plan.

                    6
Warren's claims are similar to those found completely preempted
in Smith v. Dunham-Bush, Inc., 959 F.2d 6 (2d Cir. 1992), and Lister
v. Stark, 890 F.2d 941 (7th Cir. 1989). Smith, like Warren, alleged
that his corporate employer misrepresented his retirement benefits
and, relying on that misrepresentation, he agreed to relocate to an
affiliated corporation. Smith contended that because"he neither chal-
lenge[d] his benefits under the terms of the ERISA plan, nor [sought]
recovery from its assets, the action [did] not fall within the scope of
ERISA's civil enforcement provisions." Smith , 959 F.2d at 8. The
Second Circuit rejected this argument, explaining that notwithstand-
ing the wording of Smith's complaint he "essentially" did seek to
clarify his right to future benefits. Id. at 11. See also Lister, 890 F.2d
at 942-44 (employee's state law claim that employer fraudulently
induced his return to work by misrepresenting plan benefits com-
pletely preempted by ERISA).

Warren attempts to distinguish Smith and Lister by asserting that,
unlike his case, those cases involved claims based on "oral promises
specifically related to calculation of ERISA plan benefits" and "not
plaintiff's detrimental reliance on misrepresentations concerning
ERISA plan benefits which induced the plaintiffs to take or refrain
from taking some action that did not directly involve those benefits."
Warren misreads Smith and Lister. In Smith, the plaintiff alleged not
only the breach of an oral promise but also negligent misrepresenta-
tion, and in Lister the plaintiff alleged breach of an oral promise and
fraud. Smith, 959 F.2d at 7; Lister, 890 F.2d at 944. Moreover, like
Warren, Smith and Lister asserted that their employers misrepre-
sented their retirement benefits. Smith claimed that this misrepresen-
tation induced him to relocate to an affiliated corporation; Lister
asserted that it induced him to return to work. Neither of these actions
more "directly involved" retirement benefits than Warren's act of
leaving the company.

Finally, while we acknowledge the equitable appeal of Warren's
assertion that if his claims are completely preempted he will have no
adequate remedy for his employer's alleged misrepresentation, we
can only reject this argument. As the Second Circuit noted, in reject-
ing Smith's similar argument that "ERISA preemption [would] leave
him with no adequate remedy for [his employer's] alleged breach of
contract and misrepresentation":

                     7
         The policy choices reflected in Congress's inclusion of cer-
         tain remedies and exclusion of others [in § 502(a)] could be
         "completely undermined" if ERISA plan participants and
         beneficiaries could freely obtain remedies under state law
         that Congress has rejected.

Smith, 959 F.2d at 11 (quoting Pilot Life Ins. Co. v. Dedeaux, 481
U.S. 41, 54 (1987)).

III.

For the foregoing reasons, we hold that ERISA § 502(a)(1)(B), 29
U.S.C. § 1132(a)(1)(B), preempts Warren's state law claims, and so
the district court properly denied Warren's motion to remand.

AFFIRMED

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