UNPUBLISHED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Affirmed by unpublished per curiam opinion.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. Sondra 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Unpublished opinions are not binding precedent in this circuit.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 summary 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 industrial 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 conclusion. 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 disability 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 welfare benefit plan," thus bringing the claim dispute within the regulatory 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 supported 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 disagreement 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 jurisdiction. 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 disputes in federal court. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41,

56 (1987). Accordingly, removal was grounded in a federal question

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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 disabled. 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 determining 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 judgment 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 provide 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 determination that MetLife's denial of benefits was reasonable.

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