PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT D. CUSTER, as a Participant

of and Trustee for the Sheet Metal

Workers' National Pension Fund,

Plaintiff-Appellant,

v.

RAYMOND J. SWEENEY,

Defendant-Appellee,

and

No. 95-1077

HARRY HUGE; KRISTA FOGLEMAN;

ROGOVIN, HUGE & SCHILLER;

DONOVAN, LEISURE, NEWTON &

IRVINE; SHEA & GOULD,

Defendants.

HARRY HUGE; ROGOVIN, HUGE &

SCHILLER,

Amici Curiae.
ROBERT D. CUSTER, as a Participant

of and Trustee for the Sheet Metal

Workers' National Pension Fund,

Plaintiff-Appellee,

v.

RAYMOND J. SWEENEY,

Defendant-Appellant,

and

No. 95-1079

HARRY HUGE; KRISTA FOGLEMAN;

ROGOVIN, HUGE & SCHILLER;

DONOVAN, LEISURE, NEWTON &

IRVINE; SHEA & GOULD,

Defendants.

HARRY HUGE; ROGOVIN, HUGE &

SCHILLER,

Amici Curiae.

Appeals from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CA-94-910-A)

Argued: December 4, 1995

Decided: July 22, 1996

Before HALL and NIEMEYER, Circuit Judges, and BUTZNER,

Senior Circuit Judge.

_________________________________________________________________

Affirmed by published opinion. Judge Niemeyer wrote the opinion,

in which Judge Hall and Senior Judge Butzner joined.

_________________________________________________________________

 2
COUNSEL

ARGUED: William Willis Carrier, III, TYDINGS & ROSENBERG,

Baltimore, Maryland, for Appellant. James J. McGuire, MAYER,

BROWN & PLATT, New York, New York, for Appellee. ON

BRIEF: J. Hardin Marion, Lawrence J. Quinn, TYDINGS &

ROSENBERG, Baltimore, Maryland; William L. Stauffer, Jr.,

Kurt C. Rommel, R. Grant Decker, STAUFFER & ABRAHAM,

Vienna, Virginia, for Appellant. Nicholas W. Lobenthal, Richard E.

Rosberger, MAYER, BROWN & PLATT, New York, New York, for

Appellee. John Rounsaville, Jr., Roger W. Yoerges, Anne D. Bolling,

Steven P. Finizio, WILMER, CUTLER & PICKERING, Washington,

D.C.; Michael C. Montavon, MICHAEL C. MONTAVON, P.C.,

Fairfax, Virginia, for Amici Curiae.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

Robert D. Custer, a trustee of and participant in the Sheet Metal

Workers' National Pension Fund, an employee benefit plan regulated

by the Employee Retirement Income Security Act of 1974 (ERISA),

29 U.S.C. § 1001 et seq., sued the plan's attorneys, alleging breach

of ERISA fiduciary duties and legal malpractice. The district court

dismissed Custer's ERISA claim on the ground that the attorney

named in the ERISA count was not a plan fiduciary and declined to

exercise jurisdiction over the malpractice claims, allowing Custer to

prosecute those claims in state court. The court also denied a defendant's motion for attorneys fees.

Custer appeals the dismissal of his ERISA claim, and Raymond J.

Sweeney, one of the defendant attorneys, cross-appeals, contending

that the district court erred in failing to dismiss Custer's malpractice

claims with prejudice as preempted by ERISA. Sweeney also crossappeals the district court's refusal to award him attorneys fees. We

now affirm.

I

Until his resignation in mid-1993, the late Edward J. Carlough

served as chairman of the Sheet Metal Workers' National Pension

 3
Fund and president of the Sheet Metal Workers' International Association, the pension plan's affiliated union. While holding those positions, Carlough allegedly squandered millions of dollars of the

pension plan's assets (1) to subsidize the lease of a private jet primarily for his personal use and (2) to purchase, improve, furnish, operate,

and reside at a lavish mansion under the guise that it was needed as

a second conference center. Sweeney, Carlough's nephew, served as

legal counsel to the pension plan and to the two trustee committees

that oversaw the airplane and conference center transactions.

In July 1994, Custer filed this action against Sweeney and the pension plan's other attorneys, alleging (1) that Sweeney breached fiduciary duties imposed by ERISA by making the arrangements for

Carlough to consummate the airplane and conference center transactions and (2) that Sweeney and the other legal counsel to the pension

plan committed legal malpractice in their representation of the plan.

Custer predicated federal jurisdiction over the legal malpractice

claims on diversity of citizenship, 28 U.S.C. § 1332, and supplemental jurisdiction, 28 U.S.C. § 1367.

The district court granted the defendants' Rule 12(b)(6) motion to

dismiss Custer's suit on the ground that Custer's allegations failed to

establish that Sweeney, as counsel to the pension plan, qualified as a

fiduciary under ERISA. The court, however, granted Custer leave to

amend his complaint to allege sufficient "indicia of fiduciary position." The court also dismissed without prejudice Custer's malpractice

claims. It found an absence of complete diversity and declined to

exercise its discretionary supplemental jurisdiction over the malpractice claims.

Custer filed an amended complaint, reasserting in more detail his

ERISA claim against Sweeney. He alleged that Sweeney not only had

exercised "de facto control over [the] arrangements for leasing the

[a]irplane and the acquisition, build-out, furnishing, operation, and

maintenance" of the conference center, but also had authorized expenditures and approved payments for those purposes from pension plan

funds. Custer appended dozens of documents that purported to illustrate Sweeney's discretionary control over plan assets and management. In the amended complaint, Custer predicated federal subject

matter jurisdiction over his malpractice claims against Sweeney and

 4
the other former counsel to the pension plan solely on the court's supplemental jurisdiction.

Again the defendants moved to dismiss the complaint. While

Sweeney argued that he was not an ERISA fiduciary, all of the defendants argued that Custer's malpractice claims were preempted by

ERISA and failed to establish their duty to monitor the pension plan's

airplane and conference center investments for compliance with

ERISA. Sweeney also requested attorneys fees under both Federal

Rule of Civil Procedure 11(c) and ERISA § 502(g), 29 U.S.C.

§ 1132(g), on the ground that Custer lacked a good faith basis for his

claims.

The district court dismissed Custer's ERISA claim against

Sweeney with prejudice, concluding that Custer's second attempt to

plead Sweeney's fiduciary status under ERISA was"at best hopeless

or at worst contrived." It dismissed the legal malpractice claims without prejudice, declining to exercise supplemental jurisdiction over

them. Finally, the court denied Sweeney's motion for attorneys fees

because it did "not believe that there [was] a sufficient inference of

bad faith" on Custer's part.

Custer appeals the district court's dismissal of his ERISA claim,

and Sweeney cross-appeals the district court's failure to dismiss the

malpractice claim with prejudice as preempted by ERISA. Sweeney

also contends that the district court abused its discretion in refusing

to award him attorneys fees.*

II

We begin with Custer's contention that the district court erred in

dismissing his ERISA claim against Sweeney for breach of fiduciary

duty. After affording Custer the opportunity to replead that claim, the

district court observed that Custer's amended complaint still alleged

"that Sweeney was at most an attorney and consultant who took care

_________________________________________________________________

*None of the fund's other counsel is a party to this appeal. But Harry

Huge and his former law firm, Rogovin, Huge & Schiller, have filed an

amicus brief arguing that ERISA substantively preempts Custer's malpractice claims.

 5
of the ministerial, day-to-day payment of bills, securing of funds with

which to meet Fund obligations, and monitoring the progress of construction and operations on Fund property." Concluding that such

activities "completely fail[ed] to establish the exercise of the type of

discretion or control necessary to hold Sweeney liable as an ERISA

fiduciary," the court dismissed Custer's ERISA claim with prejudice.

Whether the district court acted properly thus depends on whether

Sweeney qualifies as a "fiduciary" under ERISA.

"[T]he concept of a fiduciary under ERISA is broader than the

common law concept of a trustee." Custer v. Pan Am. Life Ins. Co.,

12 F.3d 410, 418 n.3 (4th Cir. 1993). It includes not only those

"named [as fiduciaries] in the plan instrument, or who, pursuant to a

procedure specified in the plan, [are] identified as . . . fiduciar[ies],"

29 U.S.C. § 1102(a)(2), but any individual who de facto performs

specified discretionary functions with respect to the management,

assets, or administration of a plan. According to§ 3(21)(A) of

ERISA:

[A] person is a fiduciary with respect to a plan to the extent

(i) he exercises any discretionary authority or discretionary

control respecting management of such plan or exercises

any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee

or other compensation, direct or indirect, with respect to any

moneys or other property of such plan, or has any authority

or responsibility to do so, or (iii) he has any discretionary

authority or discretionary responsibility in the administration of such plan.

29 U.S.C. § 1002(21)(A).

While an attorney's duty to his client is that of a fiduciary, see F.H.

Krear & Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1259 (2d

Cir. 1987), the mere fact that an attorney represents an ERISA plan

does not make the attorney an ERISA fiduciary because legal representation of ERISA plans rarely involves the discretionary authority

or control required by the statute's definition of"fiduciary." According to the regulations promulgated by the Department of Labor--the

agency charged with enforcing ERISA--an attorney or other profes-

 6
sional service provider who represents an ERISA plan will not qualify

as an ERISA fiduciary so long as he "performs purely ministerial

functions . . . within a framework of policies, interpretations, rules,

practices and procedures made by other persons." 29 C.F.R.

§ 2509.75-8 (D-2); see also 29 C.F.R.§ 2509.75-5 (D-1) (applying

ERISA's definition of "fiduciary" to attorneys); Useden v. Acker, 947

F.2d 1563, 1577 (11th Cir. 1991) (holding that law firm was not

ERISA fiduciary because it did not "depart[ ] from the usual functions

of a law firm or otherwise effectively or realistically control[ ] the

[ERISA] Plan"), cert. denied , 508 U.S. 959 (1993); Nieto v. Ecker,

845 F.2d 868, 870 (9th Cir. 1988); Yeseta v. Baima, 837 F.2d 380,

385 (9th Cir. 1988); F.H. Krear, 810 F.2d at 1259-60. Moreover, negligence in the provision of professional services does not create

ERISA fiduciary status. See Pappas v. Buck Consultants, Inc., 923

F.2d 531, 538 (7th Cir. 1991); Nieto, 845 F.2d at 870-71. ERISA's

careful allocation of fiduciary liability is consonant with the statute's

"clear purpose" of ensuring ERISA plans "access to ordinary legal

advice." Useden, 947 F.2d at 1578.

But merely because a person serves as legal counsel to a pension

plan does not automatically preclude a finding that the attorney is also

an ERISA fiduciary, at least as to some activities. Fiduciary status

under ERISA is not "an all-or-nothing concept." Coleman v. Nationwide Life Ins. Co., 969 F.2d 54, 61 (4th Cir. 1992), cert. denied, 113

S. Ct. 1051 (1993). As we explained in Coleman , "the inclusion of the

phrase `to the extent' in [ERISA's definition of `fiduciary'] means

that a party is a fiduciary only as to the activities which bring the person within the definition." Id.; see also F.H. Krear, 810 F.2d at 1259.

Therefore, to determine whether Custer has sufficiently alleged

Sweeney's status as an ERISA fiduciary, we must discern from Custer's amended complaint the functions that Sweeney allegedly performed.

Conceding that the pension plan's documents do not expressly confer ERISA fiduciary status on Sweeney, Custer argues only that his

amended complaint sufficiently pled Sweeney's de facto fiduciary

status by alleging that Sweeney's activities "transcended the normal

legal services rendered by plan counsel." Custer contends that his

amended complaint reveals that Sweeney "caused the Fund to enter

into, and continue with," both the airplane and conference center

 7
transactions by (1) exercising discretionary decisionmaking authority

over "all aspects" of those transactions and (2) "withh[olding] vital

information [from] and actively deceiv[ing]" the pension plan's trustees. Sweeney argues, on the other hand, that the district court properly

dismissed Custer's ERISA claim because his amended complaint "allege[s] not one fact tending to show that Mr. Sweeney exercised control or authority specifically over the decisions to acquire and retain

[the conference center] or the [a]irplane." He maintains that, to the

contrary, the substance of the complaint's allegations support the conclusion that Sweeney "performed purely ministerial functions." And,

according to Sweeney, Custer's assertions that Sweeney usurped the

other plan fiduciaries' decisionmaking authority over the airplane and

conference center transactions amount to no more than allegations of

negligence in the performance of ordinary professional services.

Having carefully reviewed the amended complaint de novo, accepting all of Custer's well-pleaded allegations as true and construing

them in the light most favorable to Custer, see Mylan Lab., Inc. v.

Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993), cert. denied, 114 S. Ct.

1307 (1994), we agree with Sweeney. While Custer's amended complaint is replete with assertions of Sweeney's "discretionary authority,

control, and responsibility over the management of the Fund and certain assets of the Fund," it nevertheless lacks any specific allegations

capable of demonstrating that Sweeney transcended his role as legal

counsel. See 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, 317-18 (2d ed. 1990) (noting that court

need not accept plaintiff's "`unwarranted deductions,' `footless conclusions of law,' or `sweeping legal conclusions cast in the form of

factual allegations'" (footnotes omitted)); see also Randall v. United

States, 30 F.3d 518, 522 (4th Cir. 1994), cert. denied, 115 S. Ct. 1956

(1995). The amended complaint discloses that the trustee subcommittees that Sweeney represented made only non-binding recommendations to the pension plan's board of trustees, who ultimately decided

to enter into the airplane and conference center transactions and

retained authority over spending the pension plan's funds. And the

documents appended to Custer's amended complaint illustrate that

Sweeney performed only ministerial functions for the pension plan,

such as soliciting bids for contracting work and approving the payment of bills, and that he lacked check-writing authority. See Useden,

947 F.2d at 1577 (affirming summary judgment for law firm on

 8
ground that firm was not ERISA fiduciary where plaintiff alleged that

"law firm deeply penetrat[ed] the governance of the Plan" by, inter

alia, "drafting . . . amendments to the Plan on its own initiative" and

providing "hybrid business-legal . . . advice").

Custer's allegations that Sweeney usurped trustee decisionmaking

authority by controlling information relevant to the propriety of the

airplane and conference center transactions also fail to state an ERISA

claim. If true, the assertions establish at most that Sweeney violated

legal duties arising from his representation of the ERISA plan. But

they do not satisfy the requirement that Sweeney caused the plan's

trustees "to relinquish [their] independent discretion in investing the

plan's funds and follow the course [he] prescribed." Schloegel v.

Boswell, 994 F.2d 266, 271-72 (5th Cir.), cert. denied, 114 S. Ct. 440

(1993).

The amended complaint that the district court dismissed represents

Custer's second attempt to plead Sweeney's ERISA fiduciary status

and impose on Sweeney personal liability under ERISA for his role

in advising the Sheet Metal Workers' National Pension Fund. Given

the district court's explicit instructions to Custer to allege in his

amended complaint all that he could properly allege about Sweeney's

role and the inadequacy of Custer's latest attempt, we affirm the district court's dismissal with prejudice of Custer's ERISA claim against

Sweeney.

III

In his cross-appeal, Sweeney contends that the district court erred

in dismissing Custer's malpractice claim without prejudice for lack of

jurisdiction, rather than with prejudice as substantively preempted by

ERISA. Sweeney argues that even though Custer's malpractice claim

is pleaded as a state common law claim, it arises under ERISA

because (1) ERISA completely preempts the claim and (2) the claim

necessarily presents questions of federal law substantial enough to

create federal-question jurisdiction.

Before we can address Sweeney's argument, we must decide the

threshold issue of whether Sweeney has standing to appeal that decision. Relying on our decision in HCA Health Services v. Metropolitan

 9
Life Ins. Co., 957 F.2d 120 (4th Cir. 1992), Custer suggests that

Sweeney "may not be sufficiently aggrieved by the district court's

decision" to present a justiciable issue.

It is a well-established rule of "federal appellate practice . . .

derived from the statutes granting appellate jurisdiction and the historic practices of the appellate courts" that"[o]rdinarily, only a party

aggrieved by a judgment or order of a district court may exercise the

statutory right to appeal therefrom." Deposit Guar. Nat'l Bank v.

Roper, 445 U.S. 326, 333 (1980). This court accords "the party

`aggrieved' concept . . . a practical rather than hypertechnical meaning." Department of Defense v. Federal Labor Relations Auth., 879

F.2d 1220, 1222 (4th Cir. 1989). A party may be aggrieved by a district court decision that adversely affects its legal rights or position

vis-a-vis other parties in the case or other potential litigants, but a "desire for better precedent does not by itself confer standing to appeal."

HCA Health Services, 957 F.2d at 124. Thus, in HCA Health Services,

we held that the appellant, who had prevailed in the district court on

its interpretation of state law, lacked standing to appeal the district

court's failure to reach its ERISA preemption defense where there

was merely a "hypothetical possibility" that the issue would again

arise in a suit against the appellant "sometime in the future." Id. at

125.

In this case, however, because Custer has already filed a legal malpractice claim against Sweeney in Virginia state court, which has

been stayed pending resolution of this appeal, HCA Health Services

is inapposite. The district court's dismissal order presents a certainty,

rather than a mere hypothetical possibility, that Sweeney will be

forced to incur considerable expense relitigating Custer's malpractice

claim in state court. Accordingly, we conclude that Sweeney has

standing to cross-appeal the district court's refusal to exercise federal

jurisdiction over Custer's malpractice claim.

IV

We turn next to whether the district court was required to exercise

federal-question jurisdiction over Custer's malpractice claim or

whether it could exercise the discretionary authority of supplemental

jurisdiction to dismiss it without prejudice. See United Mine Workers

 10
v. Gibbs, 383 U.S. 715, 726 (1966). This issue reduces to whether

Custer's malpractice claim independently "arises under" the ERISA

statute, creating federal-question jurisdiction. See 28 U.S.C. § 1331

("The district courts shall have original jurisdiction of all civil actions

arising under the Constitution, laws, or treaties of the United States").

If it does, the district court could not have declined to exercise jurisdiction over the malpractice claim. See id.; Colorado River Water

Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (recognizing "virtually unflagging obligation of the federal courts to exercise the jurisdiction given them"); McLaughlin v. United Va. Bank,

955 F.2d 930, 934 (4th Cir. 1992).

As noted, Sweeney advances two independent arguments for his

position that Custer's malpractice claim arises under ERISA. First, he

contends that Custer's legal malpractice claim is in essence an ERISA

claim because it is completely preempted by ERISA. Alternatively, he

maintains that even if Custer's malpractice claim is not created by

ERISA, it still arises under federal law within the meaning of 28

U.S.C. § 1331 because its resolution requires the interpretation of

substantial ERISA issues.

A

For his "complete preemption" argument, Sweeney contends that

Custer's malpractice claim falls "squarely within" ERISA's civil

enforcement provision, § 502, 29 U.S.C. § 1132, because, even if

prosecuted against non-fiduciaries, the claim "purports to remedy

harm arising out of breaches of ERISA fiduciary duties." Relying on

the Supreme Court's decision in Metropolitan Life Ins. Co. v. Taylor,

481 U.S. 58 (1987), Sweeney maintains that Custer's malpractice

claim is, therefore, completely displaced by federal law for purposes

of establishing federal-question jurisdiction.

As an initial matter, we recognize that the "well-pleaded complaint

rule" ordinarily directs us to look no farther than the plaintiff's complaint in determining whether a lawsuit raises issues of federal law

capable of creating federal-question jurisdiction under 28 U.S.C.

§ 1331. See Gully v. First Nat'l Bank, 299 U.S. 109, 112-13 (1936);

Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908).

The well-pleaded complaint rule enforces the principle that the plain-

 11
tiff is the master of his complaint and generally permits plaintiffs to

"avoid federal jurisdiction by exclusive reliance on state law."

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987).

The complete preemption doctrine, however, is "an independent

corollary of the well-pleaded complaint rule," Franchise Tax Bd. v.

Construction Laborers Vacation Trust, 463 U.S. 1, 22 (1983), and

trumps the plaintiff's characterization of his claim by "convert[ing] an

ordinary state common law complaint into one stating a federal

claim." Taylor, 481 U.S. at 65; see also Franchise Tax Bd., 463 U.S.

at 24 ("[I]f a federal cause of action completely preempts a state cause

of action any complaint that comes within the scope of the federal

cause of action necessarily `arises under' federal law"). The complete

preemption doctrine recognizes that "Congress may so completely

pre-empt a particular area that any civil complaint raising this select

group of claims is necessarily federal in character." Taylor, 481 U.S.

at 63-64; see also Caterpillar, 482 U.S. at 393. Underlying the complete preemption doctrine is the notion that the federal policies implicated by a federal statute are sufficiently important to override the

plaintiff's effort to rely on state law. Although federal preemption

defenses do not ordinarily permit federal courts to exercise subject

matter jurisdiction over claims that a plaintiff predicates on state law,

the complete preemption doctrine confers federal-question jurisdiction over such claims. Taylor, 481 U.S. at 63-64.

In applying the complete preemption doctrine, courts generally

look first to the preemptive scope of the federal statute and second to

its preemptive force. See, e.g., Taylor, 481 U.S. at 62-63; Kramer v.

Smith Barney, 80 F.3d 1080, 1083-84 (5th Cir. 1996); Rosciszewski

v. Arete Assoc., Inc., 1 F.3d 225, 229-33 (4th Cir. 1993). A statute's

preemptive force is measured by the extent to which it precludes state

court consideration of claims falling within the statute's preemptive

scope. In Taylor, for example, the Supreme Court reasoned that

ERISA completely preempted the plaintiff's claim for improper processing of a benefits claim under an ERISA employee benefits plan

because (1) such claims fell within the scope of ERISA's express preemption provision, and (2) ERISA's language and legislative history

evinced a clear legislative intent to imbue ERISA with a preemptive

force so extraordinary as to displace state law claims, converting them

into claims arising under ERISA. Only where the federal statute's

 12
preemptive scope is sufficiently broad to reach a purported state law

claim and its preemptive force is sufficiently powerful to convert that

particular claim into a federal claim will the complete preemption

doctrine apply.

Following that analytical sequence, we consider first whether Custer's malpractice claim falls within the scope of ERISA's preemption

provision, § 514(a), 29 U.S.C. § 1144(a). Custer maintains that his

legal malpractice claim relies entirely on state common law and that

ERISA's preemptive scope does not reach such a claim. He argues

that his malpractice claim does not "relate to" ERISA within the

meaning of § 514(a) because it arises under a state "law of general

applicability" and involves "an area traditionally the subject of state

regulation." Because professional negligence and malpractice claims

against third-party service providers to an ERISA plan do not implicate "the essential functions of an employee benefit plan, such as

funding, benefits, reporting, and administration," Custer insists that

Congress did not intend ERISA's preemptive scope to reach such

claims.

Section 514(a) of ERISA provides that ERISA preempts"any and

all State laws" that "relate to" an ERISA plan. 29 U.S.C. § 1144(a).

For ERISA preemption purposes, "State law" includes both statutory

and common law. 29 U.S.C. § 1144(c)(1). The Supreme Court and

this court have given the phrase "relate to" in § 514(a) its "broad

common-sense meaning." See Metropolitan Life Ins. Co. v.

Massachusetts, 471 U.S. 724, 739 (1985); Custer v. Pan Am. Life Ins.

Co., 12 F.3d 410, 418 (4th Cir. 1993). A state law falls within

ERISA's preemptive scope "if it has a connection with or reference

to" an ERISA plan. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97

(1983). State laws may be preempted even if consistent with ERISA's

substantive provisions, see Metropolitan Life , 471 U.S. at 739, and

not specifically designed to affect ERISA plans, Shaw, 463 U.S. at 98.

The absence of a particular remedy under ERISA, moreover, has no

bearing on whether a state law falls within the scope of § 514. Custer,

12 F.3d at 418-19.

Though broad, ERISA's preemption provision does have limits.

"Some state actions may affect employee benefit plans in too tenuous,

remote, or peripheral a manner to warrant a finding that the law

 13
`relates to' the plan." Shaw, 463 U.S. at 100 n.21. In Mackey v. Lanier

Collection Agency & Service, Inc., 486 U.S. 825 (1988), for example,

the Supreme Court held that ERISA did not bar a state-law garnishment action against an ERISA employee welfare benefit plan. The

Court explained that ERISA does not preempt "run-of-the-mill statelaw claims such as unpaid rent, failure to pay creditors, or even torts

committed by an ERISA plan" even though such claims "obviously

affect[ ] and involv[e] ERISA plans and their trustees." Id. at 833; see

also Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987) (state law

requiring companies to make lump-sum severance payments when

closing plant not preempted by ERISA); Aetna Life Ins. Co. v.

Borges, 869 F.2d 142 (2d Cir.) (state escheat law not preempted by

ERISA), cert. denied, 493 U.S. 811 (1989); Drinkwater v. Metropolitan Life Ins. Co., 846 F.2d 821 (1st Cir.), cert. denied, 488 U.S. 909

(1988) (spouse's claim for emotional distress from husband's denial

of benefits not preempted by ERISA); Firestone Tire & Rubber Co.

v. Neusser, 810 F.2d 550 (6th Cir. 1987) (municipal ordinance imposing income tax of general application on employees' contributions to

benefit plans not preempted by ERISA).

Whether ERISA preempts legal malpractice claims against attorneys representing ERISA plans is a question of first impression for

the federal circuit courts, although several federal district courts have

addressed the issue, uniformly concluding that ERISA does not preempt such claims. See, e.g., Sullivan v. Lampf, Lipkind, Prupis, Petigrow & Labue, 1994 WL 669624, at *9-*10 (D.N.J. Nov. 21, 1994)

(unpublished); Anoka Orthopaedic Associates, P.A. v. Mutschler, 773

F. Supp. 158, 164, 168 (D. Minn. 1991). Moreover, the various circuit

and district courts that have faced the preemption question in cases

involving professional negligence or malpractice claims against other

service providers to ERISA plans have declined to read ERISA's preemptive scope so broadly. See, e.g., Painters of Phila. Dist. Council

No. 21 Welfare Fund v. Price Waterhouse, 879 F.2d 1146, 1153 n.7

(3d Cir. 1989) ("ERISA does not generally preempt state professional

malpractice actions"); Airparts Co. v. Custom Benefit Services of Austin, Inc., 28 F.3d 1062, 1065 (10th Cir. 1994) (consultant); Bourns,

Inc. v. KPMG Peat Marwick, 876 F. Supp. 1116, 1122 (C.D. Cal.

1994) (auditor); Berlin City Ford, Inc. v. Roberts Planning Group,

864 F. Supp. 292, 296 (D.N.H. 1994) (consultant); Mertens v. Kaiser

Steel Retirement Plan, 829 F. Supp. 1158, 1162 (N.D. Cal. 1992)

 14
(actuary); Richards v. Union Labor Life Ins. Co. , 804 F. Supp. 1101,

1103-04 (D. Minn. 1992) (actuary); Carl Colteryahn Dairy, Inc. v.

Western Pa. Teamsters & Employers Pension Fund, 785 F. Supp.

536, 543 (W.D. Pa. 1992) (accountants and actuaries); Framingham

Union Hosp., Inc. v. Travelers Ins. Co., 721 F. Supp. 1478, 1490 (D.

Mass. 1989) (accountant); Isaacs v. Group Health, Inc., 668 F. Supp.

306, 312-13 (S.D.N.Y. 1987) (actuary). Indeed, Sweeney has not

cited a single decision holding that ERISA preempts a malpractice or

professional negligence claim against a service provider to an ERISA

plan.

We now join this unanimous body of federal law and conclude that

Custer's legal malpractice claim against Sweeney does not fall under

ERISA's preemptive umbrella. We do so because we do not believe

that Congress intended ERISA to preempt state law malpractice

claims involving professional services to ERISA plans. ERISA does

not evince a clear legislative purpose to preempt such traditional

state-based laws of general applicability, and permitting Custer's

claim would not undermine the congressional policies that underlie

ERISA.

A presumption that ERISA does not preempt legal malpractice

claims arises because the law governing legal malpractice represents

a traditional exercise of state authority. See Mackey, 486 U.S. at 833;

Airparts, 28 F.3d at 1066-67; Painters, 879 F.2d at 1153 n.7;

Firestone, 810 F.2d at 555. Federalism concerns strongly counsel

against imputing to Congress an intent to displace"a whole panoply

of state law in this area" absent some clearly expressed direction.

Painters, 879 F.2d at 1153 n.7; see also Firestone, 810 F.2d at 555.

We are especially wary of finding ERISA preemption in this case

because the logic of such a holding would sweep into federal court

a wide range of professional malpractice claims, like Custer's, that

allege the provision of negligent advice about the requirements of federal law.

Moreover, we do not believe that permitting state law malpractice

claims against attorneys representing ERISA plans would in any way

compromise the policies that ERISA was designed to promote. In

enacting ERISA, Congress sought "to protect . . . the interests of participants in employee benefit plans and their beneficiaries, . . . by

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establishing standards of conduct, responsibility, and obligation for

fiduciaries . . . and . . . by providing for appropriate remedies, sanctions, and ready access to the Federal courts." 29 U.S.C. § 1001(b).

A legal malpractice claim "does not affect the structure, the administration, or the type of benefits provided by an ERISA plan." Rebaldo

v. Cuomo, 749 F.2d 133, 139 (2d Cir. 1984), cert. denied, 472 U.S.

1008 (1985); see also Airparts, 28 F.3d at 1066. Nor does such a

claim implicate "the relations among the traditional [ERISA] plan

entities[,] . . . [the] principals, the employer, the plan, the plan fiduciaries, and the beneficiaries." Id. Thus, a legal malpractice claim

such as that at issue here does not fall within any of the categories of

laws that courts have generally held to be preempted by ERISA:

"laws . . . that provide an alternative cause of action to employees to

collect benefits protected by ERISA, refer specifically to ERISA

plans and apply solely to them, or interfere with the calculation of

benefits owed to an employee." Aetna Life Ins. Co., 869 F.2d at 146;

see also Airparts, 28 F.3d at 1064-65.

Sweeney argues that even if ERISA does not generally preempt all

legal malpractice claims, it preempts Custer's malpractice claim

because that claim depends upon proof that Sweeney negligently provided inaccurate legal advice concerning ERISA's fiduciary standards. Sweeney attempts to analogize this case to Ingersoll-Rand Co.

v. McClendon, 498 U.S. 133, 140 (1990), in which the Supreme Court

held that ERISA preempted a wrongful discharge claim brought under

Texas law, which required the plaintiff to prove that an ERISA plan

existed and that his employer "had a pension-defeating motive in terminating the employment." Because "the existence of a pension plan

[was] a critical factor in establishing liability under the State's wrongful discharge law," the Ingersoll-Rand Court concluded that the plaintiff's claim "relate[d] not merely to pension benefits, but to the

essence of the pension plan itself." Id. at 139-40.

In Ingersoll-Rand, however, the Court reasoned that permitting

"state based" wrongful discharge actions would subject plans and

their sponsors to "conflicting directives among States or between

States and the Federal Government," thereby imposing inefficient

"administrative and financial burden[s] . .. to the detriment of plan

beneficiaries." Id. at 142. Here, by contrast, Custer's claim affects

neither the core functions performed by ERISA plans nor the central

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ERISA players, and, therefore, "there is no threat that, by allowing

this suit to go forward, conflicting regulations will emerge which will

destroy the structural unity of the ERISA scheme." Airparts, 28 F.3d

at 1066; see also Redall Indus., Inc. v. Wiegand , 876 F. Supp. 147,

152 (E.D. Mich. 1995) ("Even after the Ingersoll-Rand . . . decision[ ], courts have held that state common law claims based on professional malpractice and negligence . . . do not`relate to' an ERISA

benefit plan and therefore are not preempted by ERISA"); Mertens,

829 F. Supp. at 1162 ("[T]he fact that professional malpractice claims

require some interpretation of ERISA law does not mean that these

claims are preempted by ERISA").

In light of our conclusion that Custer's legal malpractice claim is

not within ERISA's preemptive scope, we need not decide whether

ERISA's preemptive force would trump the well-pleaded complaint

rule and convert Custer's claim into one "arising under" ERISA. See,

e.g., Sullivan, 1994 WL 669624, at *10; Berlin City Ford, 864 F.

Supp. at 296.

B

As an alternative ground for arguing that the district court had

federal-question jurisdiction over Custer's malpractice claim and was

therefore required to address its merits, Sweeney contends that the

claim is "not a purely state law claim" because it raises "substantial

federal questions." Sweeney maintains that resolution of Custer's

malpractice claim would require the district court"to make findings

as to a number of ERISA-related issues, including, centrally, whether

[the conference center and airplane transactions] were improper under

ERISA." We find Sweeney's argument unpersuasive.

To determine whether Custer's malpractice claim arises under

ERISA despite ERISA's failure to preempt it, we need look no farther

than the Supreme Court's decision in Merrell Dow Pharmaceuticals

Inc. v. Thompson, 478 U.S. 804 (1986). In Merrell Dow, the plaintiffs

brought an action in state court alleging, inter alia, that the manufacturer and distributor of the drug Benedictin had negligently failed to

warn consumers that the drug caused birth defects when ingested during pregnancy. Although the plaintiffs did not allege that federal law

created their claim, they relied on the Federal Food, Drug, and Cos-

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metic Act's definition of "misbranded," 21 U.S.C. § 301 et seq., to

create a rebuttable presumption of the defendant's negligence. The

defendant removed the case to federal court on the ground that the

plaintiffs' case was based in part on federal law.

The Supreme Court held that the case had been improperly

removed because it did not arise under federal law within the meaning

of 28 U.S.C. § 1331. While reaffirming "that federal-question jurisdiction is appropriate when `it appears that some substantial, disputed

question of federal law is a necessary element of one of the wellpleaded state claims,'" id. at 813 (quoting Franchise Tax Bd., 463

U.S. at 13), the Court cautioned that "the mere presence of a federal

issue in a state cause of action does not automatically confer federalquestion jurisdiction," id. Rather, the Merrell Dow Court explained,

the existence of federal question jurisdiction must be determined by

"principled, pragmatic distinctions" and "careful judgments about the

exercise of federal judicial power," id. at 813-14; only where the "federal interest at stake" is substantial will federal jurisdiction lie, id. at

814 n.12. In the "vast majority" of cases, therefore, federal-question

jurisdiction exists only where federal law creates the plaintiff's cause

of action. Id. at 808.

Because Sweeney concedes that ERISA does not provide a cause

of action for malpractice against legal counsel to ERISA funds, that

reason cannot establish that Custer's malpractice claim arises under

federal law. See Clark v. Velsicol Chem. Corp. , 944 F.2d 196, 198

(4th Cir. 1991), cert. denied, 502 U.S. 1096 (1992); Mulcahey v.

Columbia Organic Chemicals Co., 29 F.3d 148, 152 (4th Cir. 1994).

Moreover, the nature of the federal interest implicated by Custer's

malpractice claim demonstrates that Congress did not intend for

claims like Custer's to create federal subject matter jurisdiction. As

noted, Custer's claim does not implicate in any significant way the

federal policies that Congress sought to promote in enacting ERISA.

Thus, the possibility that state courts may incorrectly or inconsistently

interpret ERISA's fiduciary duty provisions in the context of malpractice claims like Custer's does not militate in favor of the exercise of

federal subject matter jurisdiction in such cases. See Merrell Dow,

478 U.S. at 814-15 n.12; compare Smith v. Kansas City Title & Trust

Co., 255 U.S. 180 (1921) (upholding federal jurisdiction over shareholder's bill to enjoin corporation from purchasing bonds issued

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under Federal Farm Loan Act on ground that federal statute authorizing bonds' issuance was unconstitutional; claim implicated federal

government's ability to raise capital) with Moore v. Chesapeake &

Ohio Ry. Co., 291 U.S. 205 (1934) (finding no basis for federal jurisdiction over state statutory claim where plaintiff interposed defendant's failure to comply with Federal Safety Appliance Acts in reply

to contributory negligence defense; because state statute only governed liability to employees who were injured while engaged in

intrastate commerce, claim under statute did not implicate federal

interests).

Accordingly, we conclude that the district court had discretion to

decline to exercise supplemental jurisdiction over Custer's legal malpractice claim after dismissing his ERISA claim because Custer's

legal malpractice claim is not completely preempted by ERISA and

does not incorporate federal law issues substantial enough to create

federal-question jurisdiction.

V

Finally, Sweeney challenges the district court's refusal to award

him attorneys fees under Federal Rule of Civil Procedure 11(c) and

ERISA § 502, 29 U.S.C. § 1132(g). We review a district court's

refusal to award attorneys fees for abuse of discretion. See Cooter &

Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990) (Rule 11);

Reinking v. Philadelphia Am. Life Ins. Co., 910 F.2d 1210, 1217

(ERISA).

Even though the district court dismissed Custer's ERISA claim

against Sweeney with prejudice, it denied Sweeney's motion for attorneys fees because it did "not believe that there[was] a sufficient

inference of bad faith on the part of [Custer]" in bringing that claim.

Having reviewed Custer's complaint and Sweeney's allegations of

bad faith, we cannot conclude that the district court abused its discretion in denying Sweeney attorneys fees.

For the foregoing reasons, we affirm the judgment of the district

court.

AFFIRMED

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