                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                               F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                   April 19, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                            No. 05-20253
                          Summary Calendar



MARK L. SUDA,

                                      Plaintiff-Appellant,

versus

BP CORPORATION NORTH AMERICA, INC.,
doing business as BP America, Inc.,

                                      Defendant-Appellee.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                       USDC No. 4:04-CV-95
                      --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Mark L. Suda, a former employee of BP Corporation North

America, Inc., appeals from the district court’s summary judgment

for BP, concluding that Suda’s state-law claims of fraud and

misrepresentation were preempted by the Employee Retirement

Income Security Act (ERISA) and that Suda failed to exhaust his

administrative remedies under the plan.      See 29 U.S.C. §§

1132(a), 1144(a).



     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                           No. 05-20253
                                -2-

     After BP terminated Suda’s position in April 2003, Suda

filed this lawsuit in Texas state court, alleging that a BP

official had misrepresented to him that all of the years he had

worked for BP, its predecessor Amoco Corporation, and any BP or

Amoco affiliate would be credited to him.   BP removed the action

to federal district court, arguing ERISA preemption.   In

concluding that Suda’s state-law claims were preempted by ERISA,

the district court determined that:   Suda was seeking relief

under the “2003 BP Severance Benefits Plan” (BP Plan); Suda was

eligible for a severance allowance and other benefits under the

BP Plan; he failed to sign the Employee Termination Agreement

that was necessary for participation in the BP Plan; and Suda had

not exhausted the administrative remedies under the Plan.     The

court concluded that the BP Plan was an ERISA “employee benefit

plan” and that ERISA completely preempted Suda’s state-law

claims.

     Suda argues, for the first time, that the BP Plan was not an

ERISA “plan” at all, because it entitled him to receive a single

lump-sum payment, was not “complex,” and did not require an

“ongoing administrative program” or scheme.   This argument

amounts to a contention that the district court lacked subject-

matter jurisdiction to consider his state-law claims, because the

existence of an ERISA “plan” is required for federal subject-

matter jurisdiction.   See Tinoco v. Marine Chartering Co., 311

F.3d 617, 623 (5th Cir. 2002).   The existence of subject-matter
                            No. 05-20253
                                 -3-

jurisdiction may be raised at any time, and we will examine that

issue for the first time on appeal.     See Giles v. NYLCare Health

Plans, Inc., 172 F.3d 332, 336 (5th Cir. 1999).

     Suda relies on a line of authority including Fontenot v. NL

Industries, Inc., 953 F.2d 960 (5th Cir. 1992), and Fort Halifax

Packing Co. v. Coyne, 482 U.S. 1 (1987), for the proposition that

the BP plan is not an ERISA “plan.”   In Fontenot and other Fifth

Circuit decisions, we have held that certain severance-payment

arrangements did not qualify as ERISA “plans” when they involved

single payments triggered by events that “may never materialize,”

were not “ongoing” programs, and did not require “administrative

schemes.”   See Tinoco, 311 F.3d at 618-23; Fontenot, 953 F.2d at

961-63; Wells v. General Motors Corp., 881 F.2d 166, 168, 176

(5th Cir. 1989).   Each of these decisions relied heavily on the

guidance of Fort Halifax.    Tinoco, 311 F.3d at 622-23; Fontenot,

953 F.2d at 962-63; Wells, 811 F.2d at 175-76.

     In contrast to the plan in Fontenot and the language of Fort

Halifax, the BP Plan, although establishing a seemingly simple

formula for determining the severance allowance for which a

terminated BP employee was eligible, made that allowance subject

to a variety of deductions that complicated the calculation of

the severance allowance.    It also provided non-trivial criteria

for determining employee eligibility.      Moreover, the BP Plan

Administrator had wide discretion and the Plan provided for a

two-level administrative claims procedure.      Furthermore, the BP
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                                 -4-

Plan provided more than a one-time severance payment, it provided

ongoing health and life insurance, relocation, and educational

aid.    BP had to do more than “write a check.”   Cf. Fort Halifax,

482 U.S. at 12; Tinoco, 311 F.3d at 623.     All of this required an

“ongoing administrative scheme,” albeit a modest one.

       Accordingly, we conclude that the BP Plan is an “employee

benefit plan” under ERISA, and we affirm the district court’s

conclusion that ERISA preempts Suda’s state-law claims of fraud

and misrepresentation and that Suda failed to exhaust his

administrative remedies under the BP Plan.

       Suda also argues that the district court abused its

discretion in granting summary judgment because he had not yet

had an opportunity to depose the BP official who allegedly made

the misrepresentations to him.    However, that testimony would

have been irrelevant to the issue of ERISA preemption.

Consequently, the district court did not abuse its discretion.

See Baker v. American Airlines, Inc., 430 F.3d 750, 756 (5th Cir.

2005).

       AFFIRMED.
