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November 14, 1988

J. RAYMOND CLARK, Plaintiff,

The opinion of the court was delivered by: LAMBERTH


 Plaintiff in this action is defendant in a suit by his former spouse, Danielle J. Clark, in the Superior Court of the District of Columbia. The Superior Court action concerns Danielle Clark's contract claim for one-half of the gross proceeds of Raymond Clark's Keogh account, under the terms of their separation agreement. *fn1" That account was completely paid out in November 1986, and Raymond Clark received the lump-sum amount of $ 279,637.56 at that time.

 Judge Wertheimer of Superior Court denied the motion to dismiss on the grounds that Danielle Clark's claim sounded essentially in contract. *fn2" Raymond Clark now asks this court to enjoin the Superior Court from continuing to act on this matter, on the grounds that this court has exclusive jurisdiction, pursuant to the provisions of the Employees Retirement Income Security Act of 1974 (as amended) ("ERISA") 29 U.S.C. §§ 1001, et seq., 29 U.S.C. § 1132.

 Raymond Clark's claim relies on two related assertions. He first asserts that Danielle Clark's action "relates to" ERISA within the broad preemptive effect given that phrase in Shaw v. Delta Airlines, 463 U.S. 85, 77 L. Ed. 2d 490, 103 S. Ct. 2890 (1983). Plaintiff asserts that Danielle Clark's claim, therefore, is void under 29 U.S.C. § 1056 (d)(1), which prohibits assignment or alienation of benefits provided under the plan. Second, plaintiff asserts that Danielle Clark failed to obtain a "qualified domestic relations order" under 29 U.S.C. § 1056(d)(3)(G), which is the only exception to the anti-alienation provision. A qualified domestic relations order, according to plaintiff, is a predicate for a cause of action under 29 U.S.C. § 1132(a)(1)(B). That section, plaintiff argues, is the only exception to § 1132(e), which vests exclusive jurisdiction over ERISA civil actions in the federal courts. *fn3"

 The Supreme Court, in two recent decisions, has done much to clarify the interrelated preemption and jurisdictional provisions of ERISA. In Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 107 S. Ct. 1542, 95 L. Ed. 2d 55 (1987), and in Franchise Tax Bd. v. Laborer's Vacation Trust, 463 U.S. 1, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983), the Court carefully analyzed and distinguished two types of preemption claims. The first occurs when a defendant raises preemption as a federal defense. The second type applies to a situation in which "Congress may so completely preempt a particular area, that any civil complaint raising this select group of claims is necessarily federal in character." Taylor, 107 S. Ct. at 1546.

 Addressing the former type, the Court in Taylor and Franchise Tax affirmed the "long-settled law that a cause of action arises under federal law only when the plaintiff's well-pleaded complaint raises issues of federal law." Taylor, at 1546. "Federal pre-emption," the Court continued, "is ordinarily a federal defense to the plaintiff's suit. As a defense, it does not appear on the face of the complaint, and, therefore, does not authorize removal to federal court." Id.4 In Franchise Tax, moreover, the Court held that "ERISA pre-emption, without more, does not convert a state claim into an action arising under federal law." Id.

 Danielle Clark's Superior Court complaint states a claim for specific performance of the separation agreement and for damages. The Superior Court found this claim to state only a contract claim under state law, and this court does not disagree. Raymond Clark's defense that the anti-alienation provision of ERISA preempts her claim, and that the contract is therefore void, is not enough to vest jurisdiction in this court. Under Taylor and Franchise Tax, a federal defense alone, regardless of its merits, does not serve to vest jurisdiction in this court.

 The question is thus whether Danielle Clark's cause of action is itself preempted by ERISA, that is, whether it is within the "select group of claims" that "is necessarily federal in character." Taylor, at 1546. This latter type of preemption arises from the principle of Avco Corp. v. Machinists, 390 U.S. 557, 20 L. Ed. 2d 126, 88 S. Ct. 1235 (1968), which found that the

preemptive force of § 301 [of the Labor Management Relations Act] is so powerful as to displace entirely any state cause of action 'for violation of contracts between an employer and a labor organization.' Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301.

 Franchise Tax, 463 U.S. at 23.

 Franchise Tax and Taylor make clear, however, that preemption under the Avco doctrine is much more limited than under § 301 of the Labor Management Relations Act. Franchise Tax involved the question of whether a state could enforce tax laws by levying funds held in trust under an ERISA-covered plan. The Court held that, for preemption to occur, the state law rights asserted must be of "central concern" to the ERISA statute. Additionally, however, the Court required that the federal statute must provide a cause of action which supplants that created by state law. As the Court explained in that case:

The phrasing of § 502(a)[ 29 U.S.C. § 1132] is instructive. Section 502(a) specifies which persons, participants, beneficiaries, fiduciaries, or the Secretary of Labor - may bring actions for particular kinds of relief. It neither creates nor expressly denies any cause of action in favor of state governments, to enforce tax levies or for any other ...

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