                                                                                        [PUBLISH]

                       IN THE UNITED STATES COURT OF APPEALS

                                FOR THE ELEVENTH CIRCUIT

                                  ________________________
                                                                               FILED
                                         No. 97-6643                  U.S. COURT OF APPEALS
                                  ________________________              ELEVENTH CIRCUIT
                                                                                2/19/03
                                 D. C. Docket No. CV-96-L-1974            THOMAS K. KAHN
                                                                              CLERK

WILLIAM O’NEAL WHITT, JR.,

                                                                                Plaintiff-Appellant,

       versus

SHERMAN INT’L CORP., ET AL.,

                                                                            Defendants-Appellees.

                                  ________________________

                           Appeal from the United States District Court
                              for the Northern District of Alabama
                                 _________________________

                                          (July 30, 1998)


Before CARNES and MARCUS, Circuit Judges, and MILLS*, Senior District Judge.




___________________
*Honorable Richard Mills, Senior U.S. District Judge for the Central District of Illinois, sitting
by designation.




MARCUS, Circuit Judge:
       This appeal raises issues involving the Employee Retirement Income Security Act of

1974 (“ERISA”), 29 U.S.C. §§ 1001-1461, and state contract and tort law. Upon termination of

his employment with defendant-appellees Sherman International Corporation and Constar, Inc.

(collectively, “Sherman”), plaintiff-appellant William O’Neal Whitt, Jr. sought benefits in state

court for which he had allegedly contracted with Sherman. Sherman removed the case to federal

court, alleging that Whitt’s state law claims were preempted by ERISA, and thus, federal

question jurisdiction existed. The district court agreed with Sherman. Consequently, it denied

Whitt’s motion for remand to state court and entered summary judgment for Sherman. Because

we conclude that no ERISA “plan” existed at the time of Whitt’s termination, we hold that

Whitt’s state causes of action are not preempted by ERISA. Accordingly, we VACATE the

district court’s order granting summary judgment and REMAND to the district court with

instructions to REMAND this case to state court.

                                                I.

       A detailed recitation of the facts is necessary to understand our holding. Whitt served as

a Group Vice President and General Counsel to Sherman from February 1984 until November 2,

1995, when Sherman involuntarily terminated his employment. Whitt also sat as a member of

Sherman’s Board of Directors from 1978 until mid-1994. In May 1988 Sherman and Whitt

entered into a non-qualified stock option agreement and cash right agreement (collectively,

“1988 Stock Option Agreement”). At that time, Constar was a minority shareholder of Sherman.

In 1991, in connection with Constar’s acquisition of a large portion of the stock of Sherman as a

part of the financial restructuring of Sherman, Whitt signed an agreement he drafted dated

September 10, 1991 (“1991 Release Agreement”), in which Whitt released his rights under the


                                                2
1988 Stock Option Agreement in exchange for cash payments totaling $300,000 and a phantom

stock plan or similar plan to be developed in the future. Phantom stock is “[a] right . . . to

receive an award with a value equal to the appreciation of a share of stock from the date the

Phantom Stock is cashed out . . . . Phantom Stock programs are designed to provide executives

with cash payments equivalent to amounts they could receive under an actual stock option or

similar program . . . . Phantom programs are based on ‘phantom’ or ‘hypothetical’ shares or

units.” Coopers & Lybrand, Executive Summary of Nonqualified Long-term Incentive Plans,

CV01 ALI-ABA 619, 632 (1996). Specifically, paragraph 4 of the 1991 Release Agreement

states, “Sherman agrees that it will establish a Phantom Stock Plan, or similar plan, for the

benefit of employees, said plan to be effective on or before January 1, 1992.”

       Work began on a phantom stock plan in 1992 or 1993. Various individuals created

several draft proposals through July 22, 1994, but none garnered universal support. J. Thomas

Holton, Chief Executive Officer and Chairman of the Board of Sherman, testified in deposition

that, at that point, “[t]he whole issue just sort of, you know, went under study again, and just

didn’t surface. You know, it just became sort of a nonissue at that point.” Nov. 20, 1996,

Holton Dep. at 40. He further stated, “[I]t was in [Constar Chief Executive Officer O’Neill’s]

court to get it done.” Meanwhile, O’Neill stated that after July of 1993, the implementation of

the plan, other than an equity contribution issue, “was left to Mr. Holton.” Around August 1995,

Whitt directly asked O’Neill when Sherman would finally establish the promised plan.

According to Whitt, O’Neill told him “it was not going to be done, that I had [a] plan and it was

my job, that I ought to be happy about it, and that we were just not going to do it.”




                                                  3
       On November 2, 1995, Sherman terminated Whitt’s employment by letter that same day.

Among other things, the letter provided, “Upon the close of the 1995 fiscal year and receipt of

the audited financial statements, payment, if any, due you under the ‘Sherman Long-Term

Incentive Plan for Senior Executives, Effective January 1, 1992' will be paid to you in

accordance with the provisions of that plan . . . .” Holton testified that as of the time he fired

Whitt in November 1995, he did not know what the terms of the 1992 LTIP named in the

termination letter would be. Frank Anderson, President and Chief Executive Officer of Sherman

and a party to the 1991 agreements, agreed, stating that he only first learned that a plan had been

adopted in approximately October 1996, that he did not become aware of the actual terms of the

plan until the week of November 22, 1996, and that he did not know how many drafts existed or

which of the various, competing drafts would be adopted by Sherman prior to mid-November

1996. William Hamilton, Chief Financial Officer of Sherman, also testified in deposition that he

did not learn of the terms of the plan until November 18, 1996. He further testified that he did

not place the plan on Sherman’s books before this lawsuit was filed or this case removed because

“you have to have a plan before you can book a liability. I mean there was no plan, so you have

no basis to book a liability.”

       In early 1996, Sherman engaged KPMG Peat Marwick to perform the accounting work

necessary to calculate the benefits due Whitt under the plan. Holton testified that Whitt did not

receive his payment before filing this lawsuit because KPMG Peat Marwick had not completed

the accounting work.

       Subsequently, on September 17, 1996, Sherman’s Board of Directors adopted the 1992

Long Term Incentive Plan for Senior Executives of Sherman (“1992 LTIP”), making the


                                                  4
effective date of the plan January 1, 1992, in accordance with the terms of the 1991 Release

Agreement. Whitt’s benefits accrued as of the effective date of the 1992 LTIP. After Sherman

adopted the 1992 LTIP, Sherman made a filing regarding the plan under 29 CFR §2520.104-23

with the Department of Labor. On September 26, 1996, Sherman issued and mailed to Whitt a

check in the amount of $9,412.16, which represented the amount due under the first of the ten

annual installments called for by the LTIP, plus interest calculated pursuant to the terms of the

Plan. Whitt refused to accept the check and returned it to Sherman.

       On June 25, 1996, Whitt instituted this lawsuit in the Circuit Court of Jefferson County,

Alabama. The complaint alleged causes of action for breach of contract, fraud, and interference.

On July 30, 1996, Sherman filed a notice of removal to the United States District Court for the

Northern District of Alabama, Southern Division, claiming ERISA super-preemption. Sherman

then moved to dismiss, arguing ERISA “defensive preemption.” On August 29, 1996, Whitt

moved to remand the case to state court for lack of subject matter jurisdiction and improper

removal, claiming that his state claims were not preempted because Sherman neither established

nor promised to establish an ERISA plan. Thereafter, on October 7, 1996, the district court

denied Whitt’s motion to remand. The same day, the district court granted Sherman’s motion to

dismiss, allowing Whitt thirty days to amend the complaint to state a claim under ERISA. On

November 4, 1996, Whitt filed an amended complaint naming as defendants Sherman, Constar,

1988 ERISA Plan, 1991 ERISA Plan, 1996 ERISA Plan, and Amalgamated ERISA Plan. The

complaint expressly stated that in filing the amended complaint, Whitt did not waive his

“previously asserted claims that the suit was not properly removed, does not arise under ERISA,

or is properly in federal court.”


                                                 5
       On March 3, 1997, following discovery, Whitt filed a motion to reinstate the dismissed

state law claims and to remand the case to the state court for lack of subject matter jurisdiction

and improper removal. The same day, Sherman filed a motion for summary judgment alleging

that Whitt’s amended complaint failed to state a claim under ERISA. On May 23, 1996, the

district court denied the motion to remand but certified the order for interlocutory appeal

pursuant to 28 U.S.C. §1292(b). Thus, on June 9, 1997, Whitt petitioned this Court for

permission to take an appeal under 28 U.S.C. §1292(b), but the Court denied the petition on July

7, 1997. The district court then lifted its stay of the proceedings and granted Sherman’s motion

for summary judgment. Whitt now appeals the denial of his motion for remand and the entry of

summary judgment.

                                                 II.

       We review questions of jurisdiction de novo. McKusick v. City of Melbourne, 96 F.3d

478, 482 (11th Cir. 1996) (citing Lucero v. Operation Rescue, 954 F.2d 624, 627 (11th Cir.

1992)). In reviewing matters concerning removal and remand, our predecessor Court has noted

that “it is axiomatic that ambiguities are generally construed against removal.”1 Butler v. Polk,

592 F.2d 1293, 1296 (5th Cir. 1979).

       A defendant may remove a case to federal court only if the district court would have had

jurisdiction over the case had the case been brought there originally. 28 U.S.C. §1441. Federal

district courts, of course, have original jurisdiction over diversity cases and matters arising under

federal law. 28 U.S.C. §§1331, 1332. Because, in this case, there is no contention that diversity



       1
         Decisions issued by the old Fifth Circuit are binding as precedent on the Eleventh
Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981).

                                                  6
exists between the parties, federal jurisdiction must rest, if at all, on federal question jurisdiction.

Under the “well-pleaded complaint” rule, a case does not arise under federal law unless a federal

question is presented on the face of the plaintiff’s complaint. Kemp v. Int’l Business Machines

Corp., 109 F.3d 708, 712 (11th Cir. 1997) (citing Franchise Tax Bd. v. Constr. Laborers Vacation

Trust, 463 U.S. 1, 11 (1983)). Because the well-pleaded complaint rule requires a federal

question to appear on the face of the plaintiff’s complaint, a defense presenting a federal

question -- even a valid one -- cannot create removal jurisdiction. Id. (citing Franchise Tax Bd.,

463 U.S. at 25-28). In this case, Whitt brought only state law claims, and Sherman removed the

case to federal court on account of ERISA preemption, a federal law defense. Under the general

terms of the well-pleaded complaint rule, therefore, the removal of this case to federal court was

improper because the preemption defense was not presented on the face of the complaint. See

id.

        The doctrine of “complete preemption” or “super preemption,” however, qualifies the

general well-pleaded complaint rule. Kemp, 109 F.3d at 712. Where Congress preempts an area

of law so completely that any complaint raising claims in that area is necessarily federal in

character, super preemption applies, and federal jurisdiction exists, even if the face of the

complaint does not plead federal claims. Id. (citing Metropolitan Life Ins. Co. v. Taylor, 481

U.S. 58, 63-64 (1987) (citing Avco Corp. v. Machinists, 390 U.S. 557 (1968)). Super

preemption converts state law claims into federal claims for purposes of the well-pleaded

complaint rule, allowing a defendant to remove the case to federal court. Id. As this Court has

recognized, the Supreme Court has held that Congress created super preemption in ERISA,

which provides the exclusive cause of action for the recovery of benefits governed by an ERISA


                                                   7
plan. Id. (citing Metropolitan Life, 481 U.S. at 65-67). State law claims that seek relief

available under ERISA are recharacterized as ERISA claims and therefore arise under federal

law. Id. (citing Metropolitan Life, 481 U.S. at 67).

       Thus, this Court has found that the jurisdictional issue in cases such as the one at hand is

dependent upon whether the plaintiff is seeking relief that is available under 29 U.S.C. §1132(a).

Kemp, 109 F.3d at 712. If so, the Court must recharacterize the plaintiff’s claim as an ERISA

claim, and removal jurisdiction exists. Id. Conversely, if the plaintiff is not seeking relief that

is available under section 1132(a), no federal question jurisdiction exists. Id.

                                                 A.

       Section 1132(a) provides, in relevant part, that a participant or beneficiary of a “plan”

may bring suit “to recover benefits due to him under the terms of his plan . . . .” 29 U.S.C.

§1132(a)(1)(B). As used in ERISA, the term “plan” means an “employee welfare benefit plan”

or an “employee pension benefit plan.” See 29 U.S.C. §1002(3). Thus, our central inquiry is to

determine whether the 1992 LTIP constituted an ERISA “plan” as of the time Whitt filed suit.

This Court has adopted a “flexible analysis” for determining whether an ERISA “plan” is

established, Williams v. Wright, 927 F.2d 1540, 1543 (11th Cir. 1991), finding the existence of

such plans where, “from the surrounding circumstances a reasonable person can ascertain the

intended benefits, a class of beneficiaries, the source of financing, and procedures for receiving

benefits.” Donovan v. Dillingham, 688 F.2d 1367, 1373 (11th Cir. 1982) (en banc) (citation

omitted).

       In Williams, for example, a retiring general manager brought an action against his

employer, alleging violations of ERISA. The employer had sent Williams, the employee, a letter


                                                 8
that provided, among other benefits, for Williams to receive $500 on the first of each month.

After approximately three years of providing Williams with these benefits, the employer ceased.

This Court concluded that the letter created a “plan” under ERISA, because it met the

requirements outlined in Donovan. Specifically, we found that the employer’s general assets

provided the required source of financing. In so holding, we noted that, with some exceptions,

the assets of employee benefit plans are required to be held in trust. Nonetheless, we concluded

that “[a]n employer . . . should not be able to evade the requirements of the statute merely by

paying . . . benefits out of general assets.” Id. at 1544. Thus, we found that the payment of

benefits out of an employer’s general assets does not affect the threshold question of ERISA

coverage. Second, we determined that the plan had sufficiently ascertainable procedures for

receiving benefits: on the first of each month, the employer would send Williams a check for

$500. Although we noted that the procedure was “simple,” we nonetheless found it sufficient

under the Donovan test. Third, although Donovan refers to an ascertainable “class of

beneficiaries,” we stated, “[W]e do not interpret Donovan’s use of the word ‘class’ as an

absolute requirement of more than one beneficiary or that a plan tailored to the needs of a single

employee can not be within ERISA.” Williams, 927 F.2d at 1545. Thus, we concluded that an

ascertainable beneficiary existed. The analysis assumed that the benefits were reasonably

ascertainable. Accordingly, we found that the letter constituted an ERISA “plan.”

       Both parties claim that Williams mandates a decision by this Court in their favor.

Sherman argues that the instant case involves more documentation and a more readily

ascertainable plan than Williams. In support of this contention, Sherman claims that whereas in

Williams, the Court found a plan where only a letter existed, in this case, the Court can look to


                                                 9
both the November 2, 1995 termination letter promising benefits under the 1992 LTIP and “a

draft plan” of the LTIP to determine the plan. Whitt argues, however, that unlike in Williams, at

the time Whitt was fired, neither the benefits intended nor the procedure for receiving those

benefits could be determined from the letter and the 1992 LTIP draft because no one knew

which, if any, of the several LTIP drafts containing various proposed benefits and procedures for

delivering them would ultimately be adopted. While Sherman suggests that it was understood

which particular draft of the 1992 LTIP governed at the time plaintiff-appellant’s employment

was terminated, Sherman cites nothing to support this proposition. Moreover, the record reflects

that even the president and other officers of Sherman did not know at the time that Whitt was

fired what, if any, plan would be adopted as the 1992 LTIP. Thus, under this Court’s Donovan

analysis, no ERISA “plan” existed at the time that Whitt was fired. As this Court has stated,

“[I]t is the reality of a plan, fund or program and not the decision to extend certain benefits that

is determinative.” Donovan, 688 F.2d at 1373.

       This conclusion is bolstered by an additional point. Although we have previously noted

that “ERISA does not . . . require a formal, written plan,” Donovan, 688 F.2d at 1372, the

Supreme Court has recently stated,

               . . . ERISA already has an elaborate scheme in place for enabling
               beneficiaries to learn their rights and obligations at any time, a
               scheme that is built around reliance on the face of written plan
               documents.

                       The basis of that scheme is another of ERISA’s core
               functional requirements, that “[e]very employee benefits plan shall
               be established and maintained pursuant to a written instrument.”. .
               . In the words of the key congressional report, “[a] written plan is
               to be required in order that every employee may, on examining the
               plan documents, determine exactly what his rights and obligations
               are under the plan.” . . .

                                                 10
Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 82-83 (1995) (emphasis in original)

(quoting 29 U.S.C. §1102(a)(1) (emphasis added) & H.R. Rep. No. 93-1280, p. 297 (1974),

reprinted in U.S. Code Cong. & Admin. News ¶. 4639, 5077, 5078 (emphasis added)). The

Supreme Court’s emphasis in Schoonejongen on the importance of a written plan presents yet

another reason why on this record we are not prepared to find the existence of an ERISA plan.

Here, Sherman had either numerous conflicting draft plans or, at best, a single draft plan that was

still subject to change. Thus, upon examining the so-called “plan,” an employee could not hope

to “determine exactly what his rights and obligations [were] under the plan,[]” as they were

subject to change upon adoption of the final version. Consequently, no ERISA “plan” existed at

the time of Whitt’s removal. Finally, although not dispositive of the issue, we note that Sherman

never made an ERISA filing with the federal government in connection with the 1992 LTIP until

after Whitt was fired.

                                                B.

       Sherman therefore argues alternatively that the 1992 LTIP had a retroactive effective date

of January 1, 1992. The gist of Sherman’s argument in this regard is first, that the 1992 LTIP as

it currently stands no doubt constitutes an ERISA “plan,” and second, that pursuant to the 1991

Agreement, which Whitt drafted, the parties agreed to give the plan ultimately adopted as the

1992 LTIP retroactive effect to January 1, 1992. Sherman further contends that retroactive

ERISA plans are permissible and effective in preempting state claims. In support of this

contention, Sherman cites to our decision in Dyce v. Salaried Employees’ Pension Plan of Allied

Corp., 15 F.3d 163 (11th Cir. 1994). We are not persuaded.

       In Dyce, Ignition Products, a wholly owned subsidiary of Allied-Signal Corporation,


                                                11
maintained an ERISA pension plan for its employees which, among other benefits, provided that

employees who elected to take early retirement from Allied would be eligible for and receive

certain pension benefits. Before the group of plaintiff employees retired, the formerly Allied-

owned Ignition was merged into Unison Industries, and Allied transferred all of its shares in

Ignition to Unison. All of the plaintiffs continued their employment without interruption. As

part of the deal, the ERISA pension plan was amended eight months after the change in

ownership and retroactive to the date of change in ownership to provide that employees eligible

to retire as of the date of the merger, but who elected to continue employment with Unison,

would be eligible for plan benefits as of the date they terminated their employment with Unison,

rather than the date they terminated their employment with Ignition. The plaintiff group of

employees, who had worked for Ignition when it was owned by Allied and had continued to

work for Unison after Unison purchased Ignition, sought to receive early retirement benefits

from Allied under the original ERISA plan, although they were still employed by Ignition, now

owned by Unison. Essentially, they contended that the merger had resulted in the employees’

departure from Allied, thus triggering benefits under the plan. Pursuant to the amendment, the

company rejected the plaintiffs’ claims. The plaintiff employees contended that the retroactive

change to the ERISA plan was improper. Finding that Unison had effectively stepped into the

shoes of Allied, we upheld the retroactive change because the regulations interpreting ERISA

specifically provide that a modification or amendment of a pension plan may be retroactively

applied under certain applicable circumstances, and the employees had not experienced a loss or

change in benefits. Just as they were to be able to receive early retirement benefits upon electing

to leave Allied, they would receive the same benefits upon electing to leave Unison. We further


                                                12
noted that the plaintiffs had not “elected” to leave Allied. Rather, Ignition had been purchased

by Unison, and the employees went with the company. Had the employees exercised their rights

to leave Allied before the transfer, Unison may have chosen not to rehire them.

       Sherman attempts to liken Dyce to this case, arguing that Whitt contends that prior to

Sherman’s late 1996 adoption of the 1992 LTIP, Sherman had no ERISA plan. Thus, Sherman

suggests, whatever the 1992 LTIP provided had to have increased the benefits available to Whitt

before its retroactive enactment. Since there was no decrease in benefits from the prior situation

(no ERISA plan), Sherman reasons, under Dyce, retroactive application of the 1992 LTIP is

permitted.

       Substantial problems with Sherman’s analysis exist. First, the right to remove is

generally tested at the time of the filing for removal. See Wright, Miller, and Cooper, Federal

Practice and Procedure: Jurisdiction 2d, §3739. Sherman filed its notice of removal on July 30,

1996, notably, some six weeks before it adopted the 1992 LTIP on September 17, 1996.

Because the 1992 LTIP had not been enacted as of the time of removal, for purposes of

determining federal jurisdiction, no ERISA “plan” existed when Sherman removed the case, and,

consequently, no federal question jurisdiction existed, either. Second, we find the instant case to

be distinguishable in significant ways from Dyce. The retroactive Dyce amendment amounted to

nothing more than a technical change to a plan already in existence. None of the benefit terms

changed at all, so the employees could review the old plan and know what their benefits would

be under the new plan. Thus, the retroactive Dyce amendment did not conflict with ERISA’s

“elaborate scheme in place for enabling beneficiaries to learn their rights and obligations at any

time, a scheme that is built around reliance on the face of written plan documents.”


                                                13
Schoonejongen, 514 U.S. at 82-83 (1995).

        Here, however, there was no previously existing plan to amend. Rather, Sherman

subsequently adopted one of several new “plan” proposals from among a gaggle of drafts.

Consequently, during Whitt’s employment with Sherman, it is undeniable that there was no plan

to examine, and Whitt had no way to “‘determine exactly what his rights and obligations [were]

under the plan.’” Schoonejongen, 514 U.S. at 82-83 (1995) ( quoting H.R. Rep. No. 93-1280, p.

297 (1974), reprinted in U.S. Code Cong. & Admin. News ¶. 4639, 5077, 5078 (emphasis

added)). Our research has revealed no case where an entirely new plan, as opposed to an

amendment to an existing plan, has been retroactively applied, and, under the facts of this case,

we decline to adopt such an approach here.

        Nor, as Sherman suggests, does the legislative history demand a different result. Relying

on isolated Supreme Court statements referring to congressional intent behind ERISA, Sherman

argues that ERISA requires us to find preemption in this case. Not one of the cases Sherman

cites, however, so much as implies that preemption would be appropriate under the facts of this

case.

        In Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41 (1987), for example, Dedeaux was

injured in an employment-related accident and filed a disability claim with Pilot Life, the

provider and partial administrator of Dedeaux’s employer’s long-term disability employee

benefit plan. When Dedeaux’s ERISA plan disability benefits were terminated by Pilot Life,

Dedeaux instituted a diversity suit against the company and alleged tortious breach of contract,

breach of fiduciary duties, and fraud in the inducement. Pilot Life argued that Dedeaux’s state

law claims were preempted by ERISA, and the Supreme Court agreed, finding that Dedeaux’s


                                                14
common law causes of action, “each based on alleged improper processing of a claim for

benefits under an employee benefit plan, undoubtedly meet the criteria for pre-emption . . . .”

Pilot Life, 481 U.S. at 48. Unlike the case at hand, Pilot Life involved no question of whether an

ERISA “plan” existed and no retroactivity issue. Consequently, it is not instructive on the issue

at hand.

       Similarly, in Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990), an employee

brought a state law action against his employer and alleged that the employer had wrongfully

terminated him to avoid contributing to, or paying benefits under, the employee’s pension plan

(ERISA plan). Again, the Supreme Court found that the employee’s claim was preempted under

ERISA because “in order to prevail, [the] plaintiff must plead, and the court must find, that an

ERISA plan exists and the employer has a pension-defeating motive in terminating the

employment.” Id. at 140. Once again, as in Pilot Life, neither the existence of an ERISA “plan”

nor the need to apply an ERISA “plan” retroactively were in issue. Thus, also like Pilot Life, we

do not find this case helpful in resolving the current situation.

       We do find relevant, however, the recent sea change in courts’ willingness to apply the

preemption doctrine expansively. As we recently observed, in New York Conference of Blue

Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645 (1995), the Supreme Court has

begun “essentially [to] turn[] the tide on the expansion of the preemption doctrine[.]” Morstein

v. National Insurance Services, Inc., 93 F.3d 715, 721 (11th Cir. 1996) (en banc). Particularly in

view of this Court’s preference for remand where federal jurisdiction is not absolutely clear,

Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994), we decline Sherman’s invitation

to set sail on the uncharted waters of retroactive application of entirely new ERISA “plans.”


                                                  15
                                               III.

       Because we conclude that no ERISA plan existed at the time of removal, and further, that

retroactive application of the subsequently adopted ERISA plan would be inappropriate in this

case, the preemption doctrine does not apply, federal jurisdiction cannot be found, and the

district court’s entry of summary judgment was a nullity. Accordingly, we VACATE the district

court’s order granting summary judgment and REMAND to the district court with instructions to

REMAND this case to state court.




                                               16
