Plaintiffs James M. Morrissey and Ralph Ibrahim, members of the National Maritime Union of America, appeal from a decision of the United States District Court for the Southern District of New York, Robert J. Ward, J., dismissing on jurisdictional grounds their amended complaint against various officers of the Union and the trustees and administrator of the NMU Pension & Welfare Plan ("the Plan"). Because we believe that under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., jurisdiction exists as to at least one of the transactions alleged in the complaint, we reverse for further proceedings.

* As the district judge rightly put it, this litigation has had "a lengthy history." The earlier manifestations, summarized in the margin,1 need not concern us now. The latest aspect is an amended complaint containing three causes of action based on ERISA.2 That complaint alleges that defendants improperly administered the Plan by using more than $25,000 of its funds for pleasure trips, by improvidently investing over $1 million in a Panama venture, by misappropriating some $50,000 for personal use, and by paying $201,820.58 to defendant Shapiro, the Plan's administrator. Plaintiffs sought an accounting, money damages payable to the Plan and an injunction against future misuse of its assets.

The district judge recognized that the complaint alleged "continuing wrongdoing," but concluded nonetheless that "all of the acts complained of appear to have taken place prior to January 1, 1975." Since ERISA did not become effective until that date, the district judge concluded that he lacked jurisdiction because ERISA was not retroactive. The judge rejected a complicated argument offered by plaintiffs that 29 U.S.C. §§ 1132(a)(3) and 1104(a)(1)(D) gave the court jurisdiction over any claim of violation of "the terms of the plan," regardless of when the violation took place.3 The judge also held, contrary to plaintiffs' contention, that 29 U.S.C. § 1105(a) (3)4 did not confer jurisdiction over a claim against a trustee who, prior to ERISA's effective date, acquired knowledge continuing to the present time concerning another trustee's breach of duty. Accordingly, the judge dismissed the amended complaint, and this appeal followed.

Before us, plaintiffs in large part repeat the arguments they made below for construing ERISA to furnish federal jurisdiction to examine pre-1975 transactions. While the authority in this circuit is against plaintiffs on the retroactivity of ERISA,5 we have not directly addressed the other issues of statutory construction that plaintiffs raise. However, for reasons indicated below, we do not find it necessary to deal with them. In this court, plaintiffs stress that whatever else the trustees may have done before 1975, they also breached their trust after that date. Plaintiffs argue that when the trustees became ERISA fiduciaries on January 1, 1975, they inherited an imprudent and unproductive investment in Panama, which they were bound to review and liquidate. As ERISA trustees, defendants cannot be excused from this obligation merely because the unwise investment was made before ERISA took effect.

The district judge did not deal with this argument, undoubtedly because it was not pressed with clarity below. However, the amended complaint contained allegations broad enough to encompass this claim of present fiduciary violation,6 and other papers before the district judge supported it.7 We have no doubt that under the "prudent man" rule, which is codified in ERISA,8 the trustees here had a duty within a reasonable time after ERISA took effect to dispose of any part of the trust estate which would be improper to keep.9

Under these circumstances, we remand the case to the district court, which has jurisdiction under ERISA over plaintiffs' claim that the trustees improperly retained the Panama investment after January 1, 1975. Indeed, under the exclusive jurisdictional provisions of ERISA,10 that claim could be made nowhere else. See Marshall v. Chase Manhattan Bank, 558 F.2d 680 (2d Cir. 1977). We do not know whether the Fund actually possessed a Panama investment after January 1, 1975, or whether, if it did, keeping the investment was unwise. There was some dispute on the matter at oral argument in this court, and we cannot resolve such issues. But on this record, it was error for the district judge to rule as a matter of law, with no further inquiry into the facts, that jurisdiction was lacking under ERISA. We leave to the district court the question whether to take jurisdiction over the other claims against defendants.11 In exercising its discretion, the district court will undoubtedly keep in mind that a portion of plaintiffs' action must be brought in the federal court, that the district court and the parties have already devoted considerable time and effort to the other incidents of alleged wrongdoing, that bifurcation of the claims may be wasteful and that success on the pendent claims may afford plaintiffs substantially complete relief. Of course, the substantiality of plaintiffs' claim concerning post-1975 fiduciary abuse will also be relevant to the court's determination.

Case remanded for further proceedings consistent with this opinion.

Although I endorse both the reasoning and the conclusion of Judge Feinberg's carefully considered opinion, I would go further in recognizing federal jurisdiction over these plaintiffs' claims under ERISA. Specifically, I would hold that 29 U.S.C. § 1105(a)(3)1 makes it a violation of ERISA for a trustee who has knowledge after January 1, 1975, of a breach of fiduciary responsibility committed in the past by a co-trustee, to take no corrective action if there is a reasonable basis for the recovery of wasted assets from the receiver thereof, or of misused funds from the person who profited from the misuse.

Section 1105(a)(3) does not speak of violations of ERISA, or even of violations of the plan; it deals explicitly with breaches of fiduciary responsibility. ERISA only created a federal standard for those fiduciary responsibilities which trustees of pension plans already owed to the beneficiaries under well settled principles. When Congress wished to limit the applicability of a section of ERISA to offenses involving the new law itself, it drafted the appropriately restrictive language, as in 29 U.S.C. § 1132. Where it did not do so, as in section 1105, I conclude that the resulting liability is to be read more broadly.

What is required by section 1105, then, is that a trustee who "has knowledge of a breach by (an) other fiduciary . . . (make) reasonable efforts under the circumstances to remedy the breach." The only reference to time in the section is in connection with the possession of knowledge: presumably, in order to come within the compass of ERISA, the trustee to be charged must possess the relevant knowledge at some time after the effective date of ERISA. Allegations of that nature form a major part of the plaintiffs' claims herein.

It is not unreasonable to suppose that Congress wished to impose upon trustees of a pension plan as of January 1, 1975, a duty to be alert to rectify breaches of fiduciary responsibility committed by co-trustees at some recent date; indeed, such a duty seems no more burdensome than the duty recognized by Judge Feinberg's opinion to search the plan's portfolio for imprudent investments. Just as trustees who retained their posts through the magic date of January 1, 1975, may be said to have started with a clean slate (in the eyes of federal law) with respect to the quality of the plan's investments, so they started with a clean slate with respect to abuses that they may have deliberately ignored or aided in concealing but in either case, the slate would rapidly be soiled if the trustees did not take advantage of the locus poenitentiae afforded them by the statute, and swiftly act to remedy their and their co-trustees' past delicts. Indeed, the legislative history of ERISA provides a very clear picture of just what the "reasonable efforts under the circumstances" called for by section 1105 might have entailed:

(T)he most appropriate steps in the circumstances may be to notify the plan sponsor of the breach, or to proceed to an appropriate Federal court for instructions, or bring the matter to the attention of the Secretary of Labor.

House Conference Report No. 93-1280, 93d Cong., 2d Sess., 1974 U.S.Code Cong. & Ad.News 5080.

It may suffice to consider two hypothetical situations in order to demonstrate the undesirable consequences of the hiatus in trustee responsibility that would exist if we hold that there is no such duty of rectification. First, let it be supposed that a trustee had learned of an egregious breach of fiduciary responsibility by a co-trustee occurring some time in 1974, but that he had acquired this knowledge immediately prior to the effective date of ERISA. If it were not reasonable to require him to act at once by reason of the late hour, would he thereby be absolved of any responsibility to act simply because ERISA became effective between the time he learned of the abuse and the time by which he could be expected to take remedial action? Yet since he had committed no breach himself prior to January 1, 1975 (assuming his failure to act immediately was reasonable), he could not be held accountable in any state court. See Marshall v. Chase Manhattan Bank, 558 F.2d 680 (2d Cir. 1977). Only by permitting a federal court to assume jurisdiction over a suit against him could he be brought to account for any failure to take corrective action.

Second, let it be supposed that a trustee does not even learn of a pre-effective breach by a co-trustee until after the effective date of ERISA. How then is he to be constrained to seek a remedy if not by permitting an action against him to be maintained under 29 U.S.C. § 1105(a)(3)? Since this is a situation not unlikely to recur with some frequency at least for the next few years, I deem it preferable to address squarely another question of jurisdiction under ERISA that my colleagues do not decide, rather than leave beneficiaries without any recourse against trustees who choose to continue to cover up abuses by their fellows that occurred before January 1, 1975.

I wish to emphasize that in my view, the reading of section 1105 that I advocate does not represent either a radical departure from prior construction of ERISA or an extension of federal jurisdiction beyond appropriate limits. The authority of the cases cited by Judge Feinberg in footnote 5 of his opinion, concerning the non-retroactivity of ERISA, remains undiminished. It is present knowledge coupled with unjustifiable inaction that constitutes the predicate for liability, not any acts or omissions that took place prior to January 1, 1975. Moreover, like Judge Feinberg, I find it unnecessary to consider plaintiffs' arguments that 29 U.S.C. § 1132 confers upon federal courts jurisdiction to hear claims, governed by state law, concerning naked pre-1975 breaches of fiduciary responsibility. Acceptance of that contention would involve major questions of the proper scope of protective and other forms of federal jurisdiction. See Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S. Ct. 923, 1 L. Ed. 2d 972 (1957).

Finally, even on the narrower view of this case taken by Judge Feinberg, I would like to point out explicitly what I believe is implicit in his opinion: In order for the district court to be able adequately to decide whether to take jurisdiction over plaintiffs' claims other than those concerned with the Panamanian investment, plaintiffs should be permitted a reasonable opportunity for discovery with respect to these claims. This will not only help the plaintiffs, who, situated as they are, have no access to such evidence as may exist of deliberate cover-ups by trustees; it will also aid the court in determining whether the proof relating to the other claims will be so closely tied to that concerning the Panamanian investment as to make the claims ones which the plaintiffs would "ordinarily be expected to try . . . all in one judicial proceeding. . . ." United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218 (1966).