107 F.3d 139 (2nd Cir. 1997), 531, Board of Trustees of the CWA/ITU Negotiated Pension Plan v. Weinstein

Docket Nº:531, Docket 96-7488.
Citation:107 F.3d 139
Party Name:The BOARD OF TRUSTEES OF THE CWA/ITU NEGOTIATED PENSION PLAN and John Foss, as the Administrator of the CWA/ITU Negotiated Pension Plan, Plaintiffs-Counter-Defendants-Appellees, v. Melvin WEINSTEIN, Defendant-Counter-Claimant-Appellant.
Case Date:February 24, 1997
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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107 F.3d 139 (2nd Cir. 1997)

The BOARD OF TRUSTEES OF THE CWA/ITU NEGOTIATED PENSION PLAN

and John Foss, as the Administrator of the CWA/ITU

Negotiated Pension Plan,

Plaintiffs-Counter-Defendants-Appellees,

v.

Melvin WEINSTEIN, Defendant-Counter-Claimant-Appellant.

No. 531, Docket 96-7488.

United States Court of Appeals, Second Circuit

February 24, 1997

Argued Dec. 18, 1996.

Andrew Irving, New York City (James F. Gill, Robinson Silverman Pearce Aronsohn & Berman, New York City, on the brief), for Plaintiffs-Counter-Defendants-Appellees.

David S. Preminger, New York City (Rosen, Preminger & Bloom, New York City,

Page 140

Bonnie H. Weinstein, Washington, DC, on the brief), for Defendant-Counter-Claimant-Appellant.

Feder & Associates, Washington, DC (Diana L.S. Peters, Gerald M. Feder, Kathryn Bakich, Washington, DC, of counsel), filed a brief for amicus curiae National Coordinating Committee for Multiemployer Plans in support of Appellees.

Sigman, Lewis & Feinberg, Oakland, CA (Daniel Feinberg, Oakland, CA, Mary Ellen Signorille, Cathy Ventrell-Monsees, Melvin Radowitz, Washington, DC, of counsel), filed a brief for amici curiae National Employment Lawyers Association and American Association of Retired Persons in support of Appellant.

Before: KEARSE and CABRANES, Circuit Judges, and KELLEHER, District Judge [*].

KEARSE, Circuit Judge:

Defendant Melvin Weinstein appeals from a final judgment of the United States District Court for the Southern District of New York, Deborah A. Batts, Judge, declaring that the Employee Retirement Income Security Act ("ERISA" or the "Act"), 29 U.S.C. § 1001 et seq. (1994), does not require plaintiffs Board of Trustees of the CWA/ITU Negotiated Pension Plan ("Plan") and Plan administrator John Foss (collectively the "Administrators") to disclose actuarial valuation reports to Weinstein, a participant in the Plan, and dismissing Weinstein's ERISA counterclaims seeking disclosure and penalties for nondisclosure of such reports. The district court granted summary judgment in favor of the Administrators on the ground that actuarial valuation reports are not subject to disclosure upon the written request of a participant in an employee benefit plan under ERISA because they are not "instruments under which the plan is established or operated," 29 U.S.C. § 1024(b)(4). On appeal, Weinstein contends principally that the district court erred in ruling that ERISA does not require disclosure of the requested reports and in denying him statutory penalties on account of the Administrators' refusal to disclose. For the reasons that follow, we agree with the district court that disclosure was not required, and we therefore affirm the judgment.

I. BACKGROUND

Weinstein is a retiree who has been a participant in the Plan since 1969. In 1995, concerned that improper actuarial allocations of pension-plan contributions might be reducing the pension benefits payable to Plan participants, he wrote to Foss, requesting copies of the Plan's annual reports and actuarial valuation reports for the years 1992 through 1994. Foss supplied copies of the annual reports but not the actuarial valuation reports. When Weinstein renewed his request for the actuarial valuation reports, Foss responded that those reports were "largely duplicative" of the information in the actuarial statements shown in Schedule B of the Plan's annual reports, which Weinstein had been sent, and that the data contained in the complete actuarial valuation reports were "statistical, highly technical, quite voluminous and ... unlikely to provide further clarification of the Plan's funding status." Sending Weinstein the table of contents from the most recent actuarial valuation report, Foss asked him to identify the particular portions in which he was interested. Weinstein persisted in his request for complete copies of the actuarial valuation reports.

In June 1995, the Administrators commenced the present action, requesting a declaratory judgment that ERISA does not require them to disclose actuarial valuation reports to Plan participants. Weinstein counterclaimed, seeking disclosure of the reports and alleging that the Administrators' refusal to provide him with copies of the reports breached both their disclosure obligation under ERISA § 104(b)(4), 29 U.S.C. § 1024(b)(4), and their fiduciary duties under ERISA § 404(a)(1), 29 U.S.C. § 1104(a)(1). Further, invoking ERISA § 502(c)(1), Weinstein sought the imposition of monetary penalties

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on the Administrators for nondisclosure. See 29 U.S.C. § 1132(c)(1) (court has discretion to order administrator to pay penalty of $100 per day for each day, in excess of 30, of failure to make a disclosure required by ERISA).

The Administrators moved for summary judgment on the ground that actuarial valuation reports are not subject to disclosure under § 104(b)(4) because they are not "instruments under which [a] plan is established or operated." They argued that such reports do not set forth rules or procedures used in the operation or maintenance of the Plan and that they do not contain any information used to calculate a participant's benefits or eligibility for benefits. Weinstein opposed the motion, arguing that actuarial valuation reports are needed for the preparation of a plan's annual report, see, e.g., 29 U.S.C. § 1023(d), and that such reports set forth the basis for the Plan's funding method as well as the basis for its assumptions as to, e.g., average retirement age, interest rate at which the plan's assets will grow, and mortality, which dictate the level of benefits a plan can afford. Thus, he argued that actuarial valuation reports are documents used in the operation of the Plan and hence are subject to disclosure under § 104(b)(4).

In a decision from the bench on March 11, 1996, the district court granted the Administrators' motion for summary judgment on their declaratory judgment claim and dismissed Weinstein's counterclaims. The court stated that, although the term "instruments" is not defined in ERISA, "plaintiff has the more persuasive argument that [the phrase] instrument under which the plan is established or operated suggests more than mere information." (Hearing Transcript, March 11, 1996, at 25.) Noting that actuarial valuation reports contain "pure information" and could not be considered "governing documents," the court ruled that ERISA does not require the Administrators to disclose the contents of those reports to Plan participants. (Id. at 26, 27.)

Judgment was entered accordingly, and this appeal followed.

II. DISCUSSION

On appeal, Weinstein contends that the district court erred in ruling that ERISA does not require disclosure of the requested actuarial valuation reports and in denying him statutory penalties on account of the Administrators' refusal to disclose. He argues principally (1) that because ERISA requires plan administrators periodically to obtain actuarial valuations, such reports are properly classified as instruments under which a plan is operated, and (2) that ERISA's goal of providing information to plan participants favors disclosure of such reports. Weinstein also contends that the district court lacked jurisdiction to entertain the present suit and that the complaint failed...

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