The opinion of the court was delivered by: Gettleman, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Forman Friend has filed a four count complaint
against his former employer, Ancillia Systems Inc., alleging
violations of the Employee Retirement Income Security Act
("ERISA"), 29 U.S.C. § 1001 et seq., the Fair Credit Reporting
Act ("FCRA"), 15 U.S.C. § 1681, and state law claims for breach
of contract and unpaid wages under the Indiana Code. The court's
jurisdiction is alleged under 28 U.S.C. § 1331 based on the ERISA
and FCRA claims. Defendant has moved to dismiss for lack of
subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1),
arguing that plaintiff cannot establish either an ERISA or FCRA
claim, leaving only state law claims. For the reasons set forth
below, defendant's motion is granted.
Defendant is a not-for-profit corporation that provides support
services to affiliated hospitals and other affiliated health care
providers. Defendant is sponsored by the Poor Handmaids of Jesus
Christ ("PHJC"), a religious order affiliated with the Roman
Catholic Church. The PHJC appoints all members of defendant's
board of directors and three of those including the chairperson,
are religious sisters of the PHJC. Defendant's board of directors
must obtain prior approval from the PHJC on all major decisions.
The PHJC, defendant, and each of the five hospitals that it
operates are listed in the Official Catholic Directory.
On September 13, 1997, defendant hired plaintiff as its Chief
Financial Officer. Pursuant to the terms of plaintiff's
employment agreement, plaintiff's compensation was comprised of:
1) base compensation; 2) incentive compensation and; 3)
additional retirement benefits (later memorialized as the
Selective Executive Retirement Program ("SERP")). The agreement
further provided that if plaintiff's employment was terminated by
defendant after a "transition event" as defined in the agreement,
for any reason other than for cause, plaintiff would receive as
severance his base compensation and incentive compensation for 24
months from the date of termination. In addition, plaintiff would
be entitled to payments under the SERP. If, however, plaintiff
was terminated for cause, defendant would have no obligation to
pay plaintiff any amounts, and plaintiff would forfeit any rights
he may have had under the SERP. Defendant terminated plaintiff in
June 1999, after a transition event, allegedly for cause,
asserting that plaintiff had breached his fiduciary duties, acted
contrary to defendant's code of conduct, and otherwise breached
the employment agreement.*fn1
Defendant has moved to dismiss pursuant to Fed.R.Civ.P.
12(b)(1) arguing that the court does not have subject matter
jurisdiction over this case. Under Rule 12(b)(1), a court must
dismiss any action for which it lacks subject matter
jurisdiction. Rule 12(b)(1) motions are premised on either facial
or factual attacks on jurisdiction. Villasenor v. Industrial
Wire & Cable, Inc., 929 F. Supp. 310, 311 (N.D.Ill. 1996). If
defendant makes a factual attack on the plaintiff's assertion of
subject matter jurisdiction, it is proper for the court to look
beyond the jurisdictional allegations in the complaint, and "view
whatever evidence has been submitted on the issue to determine
whether in fact subject matter jurisdiction exists." Capitol
Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993). To
withstand such a motion, plaintiff must put forth "competent
proof" that the court has subject matter jurisdiction. NLFC,
Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 237 (7th Cir.
1995). Put another way, the plaintiff must prove by "a
preponderance of the evidence, or proof to a reasonable
probability that jurisdiction exists." Id.
Plaintiff first attempts to establish subject matter
jurisdiction by arguing that the severance benefits to which he
claims entitlement constitute an ERISA Plan, and that defendant's
breach gives rise to a claim under § 502 of ERISA,
29 U.S.C. § 1132. Defendant challenges this assertion, arguing that even if
the SERP is an ERISA Plan, it is a "church plan," which is
specifically excluded under Title I of ERISA, including the civil
remedies contained in § 502.
29 U.S.C. § 1003(b) provides that the provisions of Title I of
ERISA "shall not apply to any employee benefit plan if — (2) such
plan is a church plan (as defined in § 1002(33) of this Title)
with respect to which no election has been made under § 410(d) of
Title 26." A church plan is defined as "a plan established and
maintained (to the extent required in clause (ii) in subparagraph
(B)) for its employees (or their beneficiaries) by a church or by
a convention or association of churches which is exempt from tax
under § 501 of Title 26." 29 U.S.C. § 1002(33)(A). In addition,
29 U.S.C. § 1002(33)(C)(i) provides that:
A plan established and maintained for its employees
(or their beneficiaries) by a church or a convention
or association of churches includes a plan maintained
by an organization, whether a civil law corporation
or otherwise, the principle purpose or function of
which is the administration or funding of a plan or
program for the provision or retirement benefits or
welfare benefits, or both, for the employees of a
church or a convention or association of churches, if
such organization is controlled by or associated with
a church or a convention or association of churches.
The parties have not cited any case law, and the court has
found few cases interpreting ERISA's definition of a church plan.
Defendant has submitted numerous Department of Labor opinion
letters that set forth the factors reviewed by that department to
determine if an organization qualifies for church plan status.
Those factors include whether: a religious order or congregation
controls the entities sponsoring the plan; the operation of the
organization furthers the goals of the religious order; the
entity and/or the religious order are listed in an official
religious directory; the organization is a not-for-profit tax
exempt entity pursuant to § 501 of the Internal Revenue Code; and
members of the religious order sit on the board of directors of
the organization. See generally ERISA Opinion Letter No.
95-10A, 1995 ERISA LEXIS 12 (June 16, 1995) (church plan status
given to St. Joseph's University of Pennsylvania, which is
operated by the Society of Jesus); ERISA Opinion Letter No.
94-04A, 1994 ERISA LEXIS 4 (February 17, 1994) (church plan
status given to healthcare system controlled by a religious
order); ERISA Opinion Letter No. 90-13A 1990 ERISA LEXIS 14 (May
10, 1990) (church plan status given to college controlled by a
religious order); ERISA Opinion Letter No. 90-12A, 1990 ERISA
LEXIS 13 (May 10, 1990) (church plan status given to nursing
center controlled by a religious order); and ERISA Opinions
Letter No. 85-14A, 1985 ERISA LEXIS 32 (March 26, 1995) (church
plan status given to hospital controlled by a religious order).
In the instant case, it is undisputed that defendant meets all
the factors set out in the Department of Labor opinion letters.
Despite this, plaintiff argues that defendant's severance plan
does not qualify as a church plan because, according to
plaintiff, 29 U.S.C. § 1002(33)(C)(i) requires that the plan be
"administered by an organization the principle purpose of which
is the administration or funding of the plan." Because the plan
in question fails to designate an administrator, ERISA provides
the sponsor to be the plan administrator. Therefore, under ERISA
defendant is the plan administrator. Because defendant is not an
organization the principal purpose of which is the administration
or funding of the plan, plaintiff argues that the plan cannot
qualify as a church plan.
Contrary to plaintiff's strained interpretation, however, §
1002(33)(C)(i) does not "require" that the plan be maintained by
an organization the principle purpose of which is administering
or funding the plan. The statute merely "includes" such plans in
the definition of church plan. 29 U.S.C. § 1002(33)(C)(i). The
language of the statute is clear and unambiguous and this court
is unwilling to rewrite that section to be more restrictive than
provided. It is a fundamental canon that "all statutory
interpretation begins with the language of the statute itself,
and where the statute's language is plain, the sole function of
the courts is to enforce it according to its terms." Pittway
Corp. v. United States, 102 F.3d 932, 934 (7th Cir. 1996).
Indeed, in Health Cost Control v. Fuxan, 1997 WL 725440
(E.D.La., November 17, 1997), the only case this court has found
addressing this issue, the court held that even though the plan
at issue was sponsored by an organization that was controlled by
or associated with a church, it was not a church plan because it
was administered by an independent third party administrator.
Fuxan illustrates the intent of ...