McBride

ORDER

The Opinion filed in this case on August 20, 1998, is hereby WITHDRAWN. A new Opinion of this appeal is filed with this order.

OPINION

OVERVIEW

Kevin McBride appeals the district court’s order granting summary judgment *740 in favor of his employer PLM International, Inc. The district court dismissed his case on the ground that McBride’s discharge in conjunction with the termination of the employee benefit plan left him without the “participant” status required to give him standing to sue under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461 (1994). The district court relied on several Ninth Circuit cases which have held that a claimant’s status is to be evaluated at the time of filing suit. These cases, however, do not control McBride’s claim. Policy considerations stemming from ERISA mandate that participant status and standing under its whistleblower. provision be adjudged at the time of the alleged ERISA violation. To hold otherwise would allow an employer simply by wrongfully firing a whistleblowing employee and then terminating the Plan, wrongfully or otherwise, to deprive that employee of the right to sue the employer for…

Dissenting:

I am compelled to write separately. I address issues of standing and of stare decisis. First, the opinion of the court is unfaithful to Supreme Court precedent and to precedent of this Circuit. Second, it is clear that Circuit courts generally are inconsistent in deciding who is a “participant” under ERISA.

I

Kevin McBride (“McBride”) appeals the district court’s order granting summary judgment in favor of PLM International, Inc. (“PLM”), and dismissing McBride’s complaint. McBride, a former employee of PLM, brought suit alleging that PLM’s termination of his employment violated § 1140 of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001-1461 . McBride also brought various state law causes of action. The district court granted summary judgment in favor of PLM, holding that McBride lacked standing under ERISA because he was not a “participant” in an *747 ERISA plan at the time he filed suit. The district court dismissed the complaint for lack of subject matter jurisdiction and dismissed the pendent state law claims without prejudice to refiling in state court.

Reversing the district court, the opinion filed today holds that a plaintiff…