                        John T. BURKS, Claudia Cook, et al., Plaintiffs-Appellants,

                                                       v.

                    AMERICAN CAST IRON PIPE COMPANY, Defendant-Appellee.

                                                No. 99-12191.

                                       United States Court of Appeals,

                                               Eleventh Circuit.

                                                May 31, 2000.

Appeal from the United States District Court for the Northern District of Alabama. (No. 99-01085-CV-G-S),
J. Foy Guin, Jr., Judge.

Before BIRCH and BARKETT, Circuit Judges, and ALARCON*, Senior Circuit Judge.

        PER CURIAM:

        Appellants/Plaintiffs are a group of retirees and their dependents who claim that American Cast Iron

Pipe Company ("Cast Iron") promised them health benefits, including free prescription drugs, for life. They

base their claims on oral representations, including a promise by Cast Iron's former president, Steve Moxley,

in the 1950's that "[t]he reason we're not getting the same raises as U.S. Steel is getting is because we're

putting it into medical so you'll get free drugs when you retire."

        In addition to these oral representations, the plaintiffs allegedly relied on a written plan description

from 1973 promising lifetime health benefits without reserving the right to amend the plan. The plaintiffs

included a copy of a 1973 plan booklet in the record excerpts provided on appeal; however, the 1973

document does not appear to be in the actual district court record and will not be considered.1

        Relying on these alleged representations and plan documents, the former employees worked for Cast

Iron until their retirement. They all retired before September 2, 1974, the day the Employee Retirement




   *
    Honorable Arthur L. Alarcon, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
   1
    At any rate, the 1973 booklet is not helpful to the plaintiffs, as it does not appear to provide for free
prescription drugs.
Income Security Act (ERISA) was enacted. For over twenty years, the retirees received free medical care

and medications through Cast Iron's health clinic and in-house pharmacists.

        Then in 1993, a change in financial accounting standards (FAS No. 106) increased the negative effect

of the benefit plan upon Cast Iron's financial statements.2 Cast Iron reacted by amending its benefit plan to

require that the plaintiffs pay 25% of the cost of their drugs and medicines. To soften the harm to the retirees,

Cast Iron increased pensions by forty dollars a month.

        Unhappy with this change, the plaintiffs sued in Alabama state court, alleging breach of contract,

fraud, unjust enrichment, and conversion. Their complaint was based not only on the required co-pay but also

on claims of price-gouging by Cast Iron's pharmacists, who allegedly charged almost 900% of the Wal-Mart

price for the same medication. Although Cast Iron formed a committee in response to the retirees' complaints

about pricing, the plaintiffs claimed Cast Iron's actions were inadequate. They sought injunctive relief to

ensure that Cast Iron's pharmacists would charge competitive prices.

        Cast Iron removed the case to federal district court based on ERISA preemption. That same day it

filed a motion to dismiss or in the alternative for summary judgment, supported by an affidavit of its Director

of Human Resources, Leann Barr. Ms. Barr's affidavit attached thirteen excerpts from various versions of

the health benefit plan (the "Plan") and other plan documents dating from 1966 through 1993. These excerpts

noted that benefits were not vested and reserved the right to change or terminate benefits. Full plan

documents were not provided.

        Shortly after receiving Cast Iron's motion, the district court entered a scheduling order giving the

plaintiffs fourteen calendar days to submit briefs, affidavits and any other materials opposing summary

judgment. The plaintiffs moved to continue consideration of the summary judgment motion until they had


   2
   For discussions of the negative effect of FAS No. 106 on retiree health benefits, see, e.g., Wise v. El
Paso Natural Gas Co., 986 F.2d 929, 932-33 and n. 3 (5th Cir.1993); Gregory J. Ossi, Comment, It
Doesn't Add Up, 13 J. Contemp. Health L. & Pol'y 233, 240 (1996) (noting that "[b]y the end of 1994,
almost half of the companies in the United States had modified retiree health benefits because of FAS
106").

                                                       2
a chance to conduct discovery. Supporting their motion was an affidavit from their counsel stating that

discovery was necessary to review the entire plan documents, of which the plaintiffs had received only

excerpts, and to investigate the extent and nature of oral representations regarding benefits. The plaintiffs

also moved to remand the case to state court on the grounds that ERISA did not preempt their claims.

        The district court simultaneously denied the plaintiffs' motions and granted summary judgment

against them. The court ruled that ERISA preempted the plaintiffs' claims because "[h]ealth care plans

established by employers before Congress enacted ERISA and that were maintained thereafter became subject

to ERISA in 1975." The court implicitly ruled that ERISA's enactment wiped out responsibilities based on

actions or misrepresentations predating ERISA. It further ruled that pre-ERISA employee handbooks and

plan documents did not create vested rights to health benefits.

        The plaintiffs appealed. Because the district court improperly applied post-ERISA substantive law

to rights created before the enactment of ERISA, we affirm in part and reverse in part.

                                               DISCUSSION

         We review the grant of summary judgment de novo, using the same standards as did the district

court. See Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1222 (11th Cir.1993). The judge's decision not to

grant a continuance under Rule 56(f), Federal Rules of Civil Procedure, is reviewed for abuse of discretion.

See Carmical v. Bell Helicopter Textron, Inc., 117 F.3d 490, 493 (11th Cir.1997). We review the denial of

a remand motion de novo. See Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207, 1211 (11th

Cir.1999).

        Central to all the issues on appeal is the extent to which ERISA preempts the claims of plaintiffs who

all retired before ERISA's effective date. When Congress enacted ERISA in 1974, it greatly changed the

responsibilities for sponsors and administrators of employee benefit plans. Aware of the potential unfairness

of imposing ERISA's requirements retroactively, Congress provided that ERISA "shall not apply with respect

to any cause of action which arose, or any act or omission which occurred, before January 1, 1975." 29



                                                     3
U.S.C. § 1144(b)(1). This provision contains inherent tensions where substantive rights were created before

ERISA's effective date but the cause of action arose after it. See, e.g., Rochford v. Joyce, 755 F.Supp. 1423,

1426-27 (N.D.Ill.1990) (discussing different circuits' approaches to § 1144(b)(1) and citing cases). In

Woodfork v. Marine Cooks & Stewards Union, 642 F.2d 966 (5th Cir.1981), the predecessor to this court

resolved the tensions by ruling that whenever a cause of action for employee benefits accrues after January

1, 1975, ERISA preempts the mechanism for seeking relief. See id. at 970. This reading of the statute

promotes Congress's goal of providing a federal forum for employee benefit plan participants. See id. at 972.

         The plaintiffs' claims accrued at the earliest after 1993, when the Plan was amended to require

co-payment. See Vaughter v. Eastern Air Lines, Inc., 817 F.2d 685, 692 (11th Cir.1987) (employee benefit

claims accrued when participants "became aware of the facts necessary to make their claims"). Alternatively,

their causes of action accrued even later, when they applied for 100% coverage of their medications and were

denied. See Paris v. Profit Sharing Plan for Employees of Howard B. Wolf, Inc., 637 F.2d 357, 361 (5th

Cir.1981) (ERISA "cause of action does not accrue until an application [for benefits] is denied"). Therefore

the plaintiffs must bring their claims under the section of ERISA that creates a cause of action to recover

benefits, enforce plan rights, or clarify entitlement to future benefits. See 29 U.S.C. § 1132(a)(1)(B).3 Since

ERISA "super-preempts" section 1132(a)(1)(B) claims even if they are brought in the guise of state law

claims, the judge properly denied the plaintiffs' motion for remand. See, e.g., Metropolitan Life Ins. v. Taylor,

481 U.S. 58, 63-64, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) ("any civil complaint raising this select group of

claims is necessarily federal in character"). But that does not end the analysis.

         The plaintiffs' substantive rights to retirement benefits, including retiree health benefits, were created

before ERISA existed. ERISA cannot apply retroactively to govern the rights and responsibilities that

attached to the Plan before ERISA's effective date. Cast Iron recognizes this, for it argues in its brief that


   3
   Although the record is not fully developed, if Cast Iron's in-house pharmacists did indeed
unreasonably overcharge for prescription drugs, potential additional causes of action might exist under 29
U.S.C. § 1132(a)(2) or (a)(3).

                                                        4
ERISA's summary plan description requirements did not apply retroactively to the 1973 plan booklet. When

participants' rights form before ERISA's effective date, the court as a matter of federal common law must

interpret the plan "in light of a worker's pre-ERISA state law rights." Woodfork, 642 F.2d at 973. See also

Sprague v. General Motors Corp., 133 F.3d 388 (6th Cir.1998) (en banc). In discussing liability for retiree

health benefits based on summaries that pre-dated ERISA's summary plan description requirements, the

Sprague court stated: "If the plaintiffs have any cause of action based on [pre-ERISA] summaries, it is

probably not one based on ERISA." Id. at 400. See also Jameson v. Bethlehem Steel Corp. Pension Plan,

765 F.2d 49, 51-52 (3d Cir.1985) ("ERISA's substantive provisions are not to be used to determine the law

at the time of incidents occurring before January 1, 1975."). In the present case, the district court erred by

applying ERISA substantive law retroactively to pre-1975 responsibilities. Accordingly, we remand for the

district court to consider whether, under the law applicable to welfare benefit plans when the plaintiffs retired,

Cast Iron promised to cover 100% of the plaintiffs' drug expenses-and whether that promise was unalterable

and irrevocable.

         Extrinsic evidence may be necessary to illuminate plan documents if they are ambiguous under state

law. Cf. Stewart v. KHD Deutz of Am. Corp., 980 F.2d 698, 702-703 (11th Cir.1993) (interpreting collective

bargaining agreement under the Labor Management Relations Act and Georgia law: when the agreement

promised benefits "during retirement" but also retained the right to " 'amend, modify, suspend or discontinue'

" employee benefit plans, it was ambiguous). Since discovery will be necessary to address these issues, the

district court abused its discretion in failing to grant a continuance under Rule 56(f).

        Since the court may determine that the Plan could be amended with respect to the plaintiffs after

ERISA's effective date and that post-ERISA amendments apply to them, we address the effect of ERISA

substantive preemption on the scope of discovery and the propriety of summary judgment. The district court

denied the plaintiffs' Rule 56(f) motion for continuance because "[d]iscovery will not take this action out of

the parameters of ERISA." The court apparently believed that no amount of discovery could enable the



                                                        5
plaintiffs to oppose summary judgment once ERISA preempted their claims. But even if ERISA does

establish the parameters that govern this action, the plaintiffs are not necessarily dead in the water.

        The plaintiffs allege that written plan documents entitle them to lifetime benefits and that they have

been deprived of those benefits. In addition, they allege price-gouging by in-house pharmacists. As

discussed above, these facts support claims under 29 U.S.C. § 1132(a)(1)(B) and possibly § 1132(a)(2) and

(a)(3). The plaintiffs should be allowed to amend their complaint to state ERISA claims4 and to conduct

discovery, at least sufficient for them to review the applicable plan documents in their entirety, to enable them

to oppose Cast Iron's motion for summary judgment.

         ERISA preempts and does not recognize claims based on oral representations that contradict

unambiguous written plan terms. See, e.g., Alday v. Container Corp. of Am., 906 F.2d 660, 665-66 (11th

Cir.1990). Accordingly, the need to scrutinize plan documents in their entirety is crucial, particularly when

those documents are in the exclusive control of the defendant. The plaintiffs' counsel properly noted this need

in his Rule 56(f) affidavit. In addition, discovery regarding price-gouging and misrepresentation may be

necessary to oppose summary judgment on fiduciary claims.

                                                CONCLUSION

        ERISA provides the exclusive cause of action for the plaintiffs' claims, which are based on promises

that were allegedly broken in the 1990's, well after ERISA's effective date. As a matter of federal common

law, however, the district court should look to state law to answer the substantive question of whether the

plaintiffs retired (before ERISA's effective date) under a promise to pay lifetime prescription drug benefits

that could not be amended or terminated. The district court should allow discovery before considering

summary judgment against the plaintiffs. Accordingly, the denial of the motion for remand is AFFIRMED.




   4
    See Woodfork v. Marine Cooks & Stewards Union, 642 F.2d 966, 976 (5th Cir.1981) (judge abused
discretion in failing to grant motion for leave to amend complaint to state ERISA claims; court can sua
sponte allow plaintiff to amend state-law complaint to state a claim under ERISA).

                                                       6
The grant of summary judgment against the plaintiffs is REVERSED. The denial of the plaintiffs' motion

for continuance of consideration of summary judgment is REVERSED.




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