UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROSCOE RUSSELL MCWILLIAMS, JR.,
Plaintiff-Appellant,

v.
                                                                         No. 98-1732
METROPOLITAN LIFE INSURANCE
COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Max O. Cogburn, Magistrate Judge.
(CA-97-264-C-1)

Submitted: January 26, 1999

Decided: February 11, 1999

Before MURNAGHAN, ERVIN, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William C. Morris, Jr., Asheville, North Carolina, for Appellant. Son-
dra Modell Hirsch, New York, New York, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Roscoe Russell McWilliams, Jr., appeals from an order granting
Metropolitan Life Insurance Company's ("MetLife") motion for sum-
mary judgment in an action challenging the denial of his claim for
long term disability benefits. Finding no error, we affirm.

In October 1995, McWilliams voluntarily left his job as an indus-
trial engineer with ITT Automotive of America ("ITT"). In March
1996, he submitted a claim for long term disability benefits under
ITT's Long-Term Disability Benefits ("LTD") Plan. McWilliams
claimed that he was unable to work due to mental disability, seizure
disorder, hypertension, and gastritis. In reviewing his claim, MetLife,
the claims administrator for ITT's LTD Plan, obtained records from
McWilliams' treating psychiatrist, Dr. C. Pamela Lowe-Hoyte.
Although Dr. Lowe-Hoyte concluded that McWilliams was disabled,
she provided no objective medical evidence to support this conclu-
sion. Thereafter, MetLife referred McWilliams' claim file to
Dr. Leonard Kessler, a board certified psychiatrist and neurologist, to
conduct an independent evaluation. Dr. Kessler concluded that
McWilliams could continue to function at his job. Consequently,
MetLife determined that McWilliams was not totally disabled and
denied his claim.

On July 9, 1997, McWilliams sued MetLife in North Carolina state
court pleading a state law claim for breach of contract. McWilliams
contended that MetLife improperly denied his claim for long term dis-
ability benefits under the plan purchased by his employer, ITT.
MetLife removed the action to federal court, alleging federal question
jurisdiction in accordance with the Employee Retirement Income
Security Act of 1974 ("ERISA"), 29 U.S.C.A.§§ 1001-1461 (West
1994 & Supp. 1998). McWilliams did not move to remand the case
to state court. Thereafter, both parties consented to jurisdiction by a
magistrate judge under 28 U.S.C. § 636(c)(1) (1994). The magistrate
judge determined that ITT's LTD plan qualified as an"employee wel-
fare benefit plan," thus bringing the claim dispute within the regula-
tory scope of ERISA. As a result, the magistrate judge converted the
action from a breach of contract claim to an ERISA claim. The magis-

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trate judge then determined that MetLife's denial of benefits was sup-
ported by substantial evidence and granted MetLife's motion for
summary judgment. This appeal followed.

We review the district court's grant of summary judgment de novo
and affirm only if the record reveals no genuine issue of material fact.
See Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). A genuine issue
of material fact exists when the evidence presents sufficient disagree-
ment to require submission to a jury. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-49 (1986). In ruling on a motion for summary
judgment, a court must assess the evidence in a light most favorable
to the non-moving party. See Miller v. Leathers , 913 F.2d 1085, 1087
(4th Cir. 1990).

McWilliams seeks reversal of the district court's order on the
ground that the case should have been adjudicated in state court. On
August 11, 1997, MetLife timely filed its notice of removal in federal
district court. See 28 U.S.C.A. §§ 1446, 1447 (West 1994 & Supp.
1998). Although McWilliams now challenges the removal of the case
from state court to federal court, we note that he failed to file a
motion to remand the case on the basis of lack of subject matter juris-
diction. See 28 U.S.C.A. § 1447(c). Moreover, we reject McWilliams'
assertion that the district court lacked jurisdiction to adjudicate this
action. Subject to certain statutory exceptions, see ERISA
§ 514(b)(2)(A), 29 U.S.C.A. § 1144(b) (West 1994 & Supp. 1998),
none of which are implicated in this case, McWilliams' state law
claim for breach of contract is preempted by ERISA because the
claim relates to an employee benefit plan. See ERISA
§§ 502(a)(1)(B), 514(a), 29 U.S.C.A. §§ 1132(a)(1)(B), 1144(a);
FMC Corp. v. Holiday, 498 U.S. 52, 58 (1990) (holding that ERISA's
preemption provisions are broadly construed); Shaw v. Delta Airlines,
Inc., 463 U.S. 85, 96-97 (1983) (holding that law "`relates to' an
employee benefit plan, in the normal sense of the phrase, if it has a
connection with or reference to such a plan"). Specifically, this suit
by an employee to recover benefits from a covered plan falls under
§ 502(a)(1)(B) of ERISA, which allows for the resolution of such dis-
putes in federal court. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41,
56 (1987). Accordingly, removal was grounded in a federal question

                    3
arising under ERISA and the district court properly retained
jurisdiction.1

McWilliams next contends that the district court erroneously
reviewed MetLife's denial of benefits under an abuse of discretion
standard because the Administrative Services Agreement ("ASA") for
the LTD Plan was not in effect on the date he allegedly became dis-
abled. The ASA, which was in effect when MetLife denied his claim,
expressly grants MetLife the discretion to determine eligibility for
LTD Plan benefits and to interpret LTD Plan terms. Although the
ASA was not in effect when McWilliams submitted his claim, an
ERISA cause of action based on the denial of benefits accrues at the
time benefits are denied, and the plan in effect when the decision to
deny benefits is controlling. See Bolton v. Construction Laborers
Pension Trust, 56 F.3d 1055, 1058 (9th Cir. 1995). Therefore, we find
that the district court properly applied the ASA provisions in deter-
mining that MetLife's decision must be accorded deference and
reviewed for abuse of discretion.2

Accordingly, we affirm the district court's grant of summary judg-
ment in favor of MetLife. We grant MetLife's motion to submit the
case on briefs and dispense with oral argument because the facts and
legal contentions are adequately set forth in the materials before the
court and argument would not aid in the decisional process.

AFFIRMED
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1 McWilliams further contends that because ERISA provides that state
and federal courts have concurrent jurisdiction over individual claims for
benefits under an ERISA plan, see ERISA§ 502(a)(1)(B), 29 U.S.C.A.
§ 1132(e)(1) (West 1994 & Supp. 1998), his action should have
remained in state court. However, he provides no support for his claim
and this court has consistently held that concurrent jurisdiction does not
defeat a defendant's right to removal. See Whitfield v. Federal Crop Ins.
Corp., 557 F.2d 413, 414 (4th Cir. 1977) (holding that where federal and
state courts have concurrent jurisdiction Congress must expressly pro-
vide for nonremovability to prevent removal); Callison v. Charleston
Area Med. Ctr., Inc., 909 F. Supp. 391, 394 (S.D.W. Va. 1995) (holding
that concurrent jurisdiction with the state courts does not preclude
removal on original jurisdiction grounds).
2 McWilliams does not challenge on appeal the district court's determi-
nation that MetLife's denial of benefits was reasonable.

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