# Pete v. United Mine Workers of America Welfare & Retirement Fund of 1950

> Court of Appeals for the D.C. Circuit · February 12, 1975 · 517 F.2d 1275

URL: https://www.frixlaw.com/law-library/cases/7838295

## Case

- **Full name:** Stephen PETE on behalf of himself and all others similarly situated, Louis Belton, Plaintiff-Intervenor-Appellees v. UNITED MINE WORKERS OF AMERICA WELFARE AND RETIREMENT FUND OF 1950, Appellants Slimp KISER, on behalf of himself and all others similarly situated v. Harry HUGE, and United Mine Workers of America Welfare and Retirement Fund of 1950, Appellants Slimp KISER, on behalf of himself and all other persons who have been denied pension payments from the United Mine Workers of America Welfare and Retirement Fund v. W. A. BOYLE
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** February 12, 1975
- **Citations:** 517 F.2d 1275; 171 U.S. App. D.C. 1; 88 L.R.R.M. (BNA) 2720; 19 Fed. R. Serv. 2d 1012; 1 Employee Benefits Cas. (BNA) 1239; 1975 U.S. App. LEXIS 16147
- **Precedential status:** Published
- **Opinion:** Concurring in part by Tamm
- **Judges:** Bazelon, Leven, Leventhal, MacKinnon, McGowan, Robb, Robinson, Tamm, Thal, Wilkey, Wright
- **Cited by:** 43 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7838295

## Opinion text

TAMM, Circuit Judge,
with whom WILKEY, Circuit Judge joins, concurring and dissenting:
*20 I concur with that portion of the majority opinion which reinstates Judge Wilkey’s panel opinion on the issue of attorneys’ fees. I also join Part III of that opinion which awards back pay and interest. However, I strongly dissent from Part II of the majority opinion which limits relief to members of the plaintiff classes with at least five years of signatory service. Nothing in the majority opinion convinces me that the position articulated by Judge Wilkey in the division opinion, which I joined, was erroneous. Moreover, the majority’s embracement of the Trustees’ eleventh-hour position on appeal represents an abdication of our judicial function and a surprising disregardance of the facts and history of this litigation. The majority’s conclusion is certainly not dictated by the precedents it relies upon, nor does it represent anything more than the promulgation of retroactive eligibility requirements for a private trust by a federal appellate court.
In Kiser, the district court found the signatory last employment requirement to be invalid, and, in its equitable discretion, ordered as relief that all members of the class with at least one year of signatory employment be added to the pension rolls. In Pete, the district court on January 9, 1973 invalidated the signatory last requirement as applied to plaintiffs and “enjoined the Fund from denying the class present and future benefits.” On May 25, 1973, we remanded the record to the district court for, inter alia, a determination “of what period of signatory service is a prerequisite to pension eligibility.” On January 24, 1974, the district court entered a Memorandum and Order, holding, inter alia, that the class should not be held to a five-year signatory employment requirement.
The Trustees have now acquiesced in the determination that the signatory last provision is invalid in these cases. Thus, the majority cannot hold that the signatory last provision is a valid criterion when applied to applicants with less than five years signatory service.. Instead, the majority seizes upon the Trustees’ advancement before this court of a five-year requirement and then proclaims that the issue before us is “to determine whether the Trustees’ position of a five-year contributory service provision to replace the signatory last employment requirement is arbitrary or unreasonable”. Maj. Op., 171 U.S.App.D.C. 1 at 9 , 517 F.2d 1275 at 1283 (emphasis added).
I cannot understand how a position advanced for the first time by a party can replace the district court orders as the primary issue before this court. As the Trustees themselves admit in their brief.:
Neither court below was asked to exercise its equitable discretion to reshape the Fund’s former eligibility standards, to correct the effects of the trustees’ previous adoption of and adherence to faulty criteria. The Trustees thus appear before this court in these cases in the unenviable position of seeking reversal of the District Court decisions on the grounds that those courts failed to exercise properly equitable powers which concededly they were not requested to do so.
Appellant’s Br. on Rehearing en banc at 12-13.
The majority incredibly attempts to justify this approach by arguing that according to Roark II, the Trustees should have the opportunity to fashion eligibility standards for applications hereto rejected and subsequently presented for reconsideration. The majority finds that the district courts in Pete and Kiser erroneously failed to remand the case to the Trustees, but miraculously holds that a remand by this court “would be superfluous in view of the Trustees’ adoption of a five years’ signatory service standards.”
The particular Roark II doctrine relied upon by the majority simply has no relevance to the miners in question here. These miners did not present their applications for reconsideration to the Trustees; they sued in federal district court because they felt they were wrongfully denied their pensions in the first in *21 stance. I am confident that the plaintiffs will be amazed to discover that filing a complaint in district court was found to be equivalent to seeking an application for reconsideration.
Presumably such tortured logic was necessary in order for the majority to adopt the Trustees’ position. To accept it otherwise on the facts of this case would require the overturning of established law of this court. In Roark II we concluded that “relief to the parties before us should not be limited to reconsiderations of their applications under revised eligibility standards” and ordered enrollment if they met other eligibility requirements at the time their applications were filed. 141 U.S.App.D.C. 390 , 439 F.2d 497, 509 (1970). See also Collins v. UMWA Welfare and Retirement Fund of 1950, 141 U.S.App.D.C. 387 , 439 F.2d 494 (1970). In DePaoli v. Boyle, we ordered the identical relief for plaintiff, who was in the same procedural position as the miners at issue here, because:
revised requirements will avail him nothing. He had filed his application prior to our decision in Roark, he has been denied a pension on the very eligibility requirement struck down in Roark, and, like Roark and Collins, he deserves the same relief.
144 U.S.App.D.C. 364 , 447 F.2d 334, 338 (1971). Roark IPs and DePaoli’s application to the case at bar seems clear.
To bolster their holding, the majority places reliance upon our decision in Roark II, Judge Gesell’s analysis of the Blankenship settlement and the TaftHartley Act itself as all pointing to the establishment of a five-year requirement. Under closer scrutiny, none of these provide a foundation for what is in reality the appellate imposition of such a retroactive criterion. Res judicata facit de albo nigrum et de quadrato rotundum.
Throughout its opinion, the majority relies heavily upon our decision in Roark II. It quotes from that opinion to the effect that “a ‘period [of] less than five years [contributory employment] would manifestly not be sufficient’ to ‘warrant eligibility for a flat pension.’ ” Majority Op., 171 U.S.App.D.C. 1 at 9 , 517 F.2d 1275 at 1283; see 141 U.S.App.D.C. 390 , 439 F.2d at 508. However, the majority here quotes Roark II out of context and simply mischaracterizes that opinion. The Roark II statement alluded to was in reference to the context in which a signatory last requirement would be valid — when coupled with a contributory employment requirement of at least five years. It plainly does not address the question of equitable relief for miners who retired prior to Roark II and were wrongfully denied their pensions because of a signatory last requirement. That such tortuosity is necessary to sustain the majority’s position is further proof of its unsoundness. Moreover, while the majority is correct in identifying Roark II’s suggestions in dicta that substantial contributory service should be an important validating criterion, that opinion undeniably cannot be read as supporting the imposition of a five-year requirement by this court in the first instance.
The majority notes with approval Judge Gesell’s acceptance of a settlement agreement in Blankenship with a five-year contributory service requirement as “generous, fair, and equitable.” The plaintiff class in Blankenship originally was defined to include all miners denied eligibility because of the signatory last requirement. The parties reached a settlement agreement, which included a five-year contributory service requirement, and submitted that agreement to Judge Gesell for approval. Of course, the parties could have reached any number of settlement agreements, which may have included contributory service requirements of six years, four years, one year, or fifteen years, and Judge Gesell may have found any of them to be “fair and equitable.” Even conceding that Judge Gesell might believe that a five-year standard would be the fairest possible, Blankenship still lends no guidance as to the proper resolution of the instant classes’ claims or *22 support for this court’s asserted authority to establish eligibility criteria for the Fund under the circumstances of this case, yet the majority opinion seizes upon it in a vain effort to transform a Modigliani into a Reubens.
It is appropriate, however, for the majority to rely on Blankenship for what the majority is doing is imposing on the Pete and Kiser classes the Blankenship settlement agreement. As the majority notes, the Pete and Kiser classes excluded themselves from participation in the Blankenship settlement. They litigated the merits of their claims against the Trustees before two district court judges. They could have lost or received less generous relief in equity. Nevertheless, they did prevail in both cases. However, the majority negates their exercise of free choice and throws the plaintiff classes back into the Blankenship settlement class.
Throughout its opinion, the majority speaks of fulfilling the “spirit of the Taft-Hartley proviso.” That provision, section 302(c)(5) of the Taft-Hartley Act, 29 U.S.C. § 186 (1970), authorizes the establishment of funds for the “benefit of employees.” Section 302(c)(5) contains no reference to a five-year service eligibility standard for trusts authorized under it. There is nothing in the legislative history which remotely suggests such a mandatory requirement. In fact, the only fair reading of the relevant legislative history is that Congress intended the development of eligibility criteria to remain exclusively within the province of labor-management relations. Finally, there clearly is no statutory authority for the proposition that when the Trustees establish the contributory employment standard below the level where some members of this court might set.it, this court can impose its own standard.
Stripped to its simplest form, the majority, while proclaiming that the Trustees’ present proposal is not arbitrary or unreasonable, is in reality simply legislating by judicial fiat a five-year contributory employment requirement. The majority has elected itself trustee of the Fund and thereafter has promulgated its own retroactive eligibility standards. As we have seen, no case' law, statute, or legislative history even remotely provides a springboard for this assertion of authority. The majority’s purported rationale simply is inapplicable to the facts of this case. The majority “repudiate^]” the signatory last requirement but “approve^] the Trustees’ present affirmation of a total five year signatory service criterion.” Maj. Op., 171 U.S. App.D.C. 1 at 12, 517 F.2d 1275 at 1286 (footnote omitted). I also applaud the Trustees’ reasonable present requirements. What I do not find in the majority’s opinion is any principled rationale for applying these present requirements to past applications wrongfully denied.
The fact that these miners are entitled to pensions appears established by our decision in Danti v. Lewis, 114 U.S.App.D.C. 105 , 312 F.2d 345 (1962). Danti established that a miner who met all existing criteria could not be denied a pension on the basis of requirements adopted by the Trustees after the date of his application. The miners in question here met all valid existing criteria. The majority, however, finds that plaintiffs “could only proceed” by the “reconstituting of eligibility requirements by a court of equity.” Even if this were so, the distinction between this action, which the majority claims is beyond its power, and the action it now takes is incomprehensible.
The majority attempts to distinguish the instant plaintiffs from previous cases by arguing that the only awards made previously provided pension benefits to plaintiffs with between eight and sixteen years of signatory service. This argument is simply a post hoc rationalization by the majority to bolster the result it reaches today, and serves only to emphasize the minute legal capital contained in the majority’s position. As the district courts in Pete and Kiser realized, in no previous case did we focus upon or indicate that the number of years of service was important to the decision. Until today, the vital question was *23 whether the plaintiff was denied his pension by an arbitrary provision. Under that rule and under Danti , these plaintiffs deserve relief.
Appellants in their brief for rehearing en banc argue that “in the mountains and valleys of this country” are thousands of miners with claims indistinguishable from those of the Pete and Kiser classes except they never applied for pensions. The Fund asserts that enrollment of those other, presumably rapacious miners would decimate the Fund’s resources. This argument parallels a spectre raised by Judge Edwards in his dissent to the Kiser panel opinion:
[T]he court must anticipate a class suit on behalf of all miners dead or alive who could and would have filed claims had they known such minimal signatory employment could justify a pension, seeking waiver of their failure to file promptly.
Kiser dissent at 2 n. 3.
Judge McGowan, in his separate statement, perceptively notes that “what the Fund has prevailed upon this court to do is to decide a hypothetical lawsuit adversely to those who might possibly bring it some day, but who were unrepresented in this en banc consideration.” I must agree with Judge McGowan that this is the principal rationale, which the majority dresses up as its responsibility to the “public interest,” for the result the majority reached.
I, however, see little merit in the Trustees’ argument. It is quite possible that the hypothetical claims are not totally identical to the ones at bar and that traditional equitable considerations, such as laches, might distinguish the Pete and Kiser classes from the “hills and mountains” class. Moreover, since, as appellants admit, the Pete and Kiser miners with less than five years contributory service number less than fifty, I am willing to await resolution of any decimation argument until there is a live controversy before us. Further, I am less than persuaded by appellants’ argument, since in the two years since the district courts’ decisions in Pete and Kiser, no stream of miners’ applications has emerged from the valleys and hills to swamp the Fund. All these lurking plaintiffs also were originally members of the Blankenship class, but no new lawsuit has emerged since they were defined out of that class by the settlement agreement. I am not prepared to overturn the district courts’ equitable determinations because of an excessive fear of the claims of litigants who are not before us.
Similarly, I cannot condemn the “errors” with which the majority credits the district courts in Pete and Kiser. The majority euphorically argues that the Pete court “failed to give due consideration to the salient fact that all of the previous plaintiffs before this court had at least eight years’ contributory service.” Maj. Op., 171 U.S.App. 1 at 12, 517 F.2d 1275 at 1286. It is hard, however, to fault the Pete court since that “salient fact” had been given absolutely no weight until today. The Pete court is also admonished for failing “to appreciate the Trustees’ primary role in formulating an equitable replacement for the signatory last provision.” To the contrary, unlike the majority, the Pete court followed the rule of Roark II and DePaoli and granted appropriate relief.
The Kiser court is chastised for focusing upon “the ‘sufficient’ service contention of the particular plaintiffs failed to give due account to the element of ‘substantial’ contributory service, identified in Roark II as the contemplation and spirit of the statute.” Id., 171 U.S.App. D.C. 1 at 13, 517 F.2d 1275 at 1287. However, as indicated above, the Trustees themselves admit that such an argument was never presented to the district court. The majority claims that the district judge did not realize that “the Trustees’ signatory last year requirement was, in practical significance and industrial context, consistent with a substantial service approach.” However, if the evidence the majority seizes upon had been before the Trustees indicating that a signatory last provision was the functional equivalent in the coal industry *24 to substantial contributory employment when they set the validating criteria, the signatory last provision would not have been struck down time and again as arbitrary and irrational, including this case.
If we were operating today as trustees of a newly established fund, it might make economic and practical sense to establish a contributory service requirement of at least five years. It is also undeniably true that federal legislation establishes five years as the minimum period of employment required to obtain a vested right to a percentage of a full pension. However, none of these considerations are truly relevant to the questions at issue here. What is relevant is that the duly-appointed trustees promulgated a set of validating criteria which denied miners who filed prior to Roark II their pensions on the basis of an arbitrary standard. This is a narrow case, in a narrow arena, based upon a narrow set of facts, and there appears to be no justification for what the majority attempts to do here.
Consequently, I still adhere to the position taken by Judge Wilkey’s panel opinion. In Kiser, I would affirm the district court’s equitable grant of a pension to all miners with over one year of contributory service. In Pete I would remand the record so that the district court could determine in the first instance the amount of total. signatory service to qualify for relief. Instead, in a triumph of result-orientation, the majority legislates without adequate justification new retroactive validating critería. I dissent from this unwarranted assertion of appellate authority.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7838295. Public record. Not legal advice.