DeBardeleben v. Cummings

• Decision Date: 03 January 1972
• Docket Number: No. 71-1812 Summary Calendar.,71-1812 Summary Calendar.
• Citation: 453 F.2d 320
• Parties: Bailey T. DeBARDELEBEN and Richard Egan, surviving Trustees of DeBardeleben Employee's Retirement Plan, Plaintiffs-Appellants, v. Marcellus M. CUMMINGS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

453 F.2d 320 (1972)

Bailey T. DeBARDELEBEN and Richard Egan, surviving Trustees of DeBardeleben Employee's Retirement Plan, Plaintiffs-Appellants, v. Marcellus M. CUMMINGS, Defendant-Appellee.

No. 71-1812 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

January 3, 1972.

Irvin J. Langford, George W. Finkbohner, Jr., Mobile, Ala., J. B. Blackburn, Bay Minette, Ala., Howell, Johnston, Langford & Finkbohner, Mobile, Ala., for plaintiffs-appellants.

Paul W. Brock, G. Hamp Uzzelle, III, Mobile, Ala., for defendant-appellee; Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, Ala., of counsel.

Before JOHN R. BROWN, Chief Judge, INGRAHAM and RONEY, Circuit Judges.

JOHN R. BROWN, Chief Judge:

The battleground for this appeal is the rocky terrain of Subchapter D of the Internal Revenue Code, 26 U.S.C.A. § 401 et seq., and predictably the weapons consist of alternative mathematical formulas for the calculation of benefits payable pursuant to a so-called "qualified" employee retirement pension plan. After losing the first-round skirmish when the District Court granted the defendant-Pensioner's motion for summary judgment, the trustees of the plan now attempt to bring up heavy artillery for reversal by contending that material issues of fact are as yet unresolved. The barrage is never zeroed in. We affirm.

Apart from the questions raised by the trustees regarding the propriety of summary judgment, the case is simply a matter of the correct interpretation of some rather involved contractual and statutory language. Viewed from this angle our problem is to decide whether the plan's prescription for the redetermination of benefits in the event of an early termination of "qualified" status requires the computation of the number of years elapsed between the date of the plan's initiation and (i) the Pensioner's retirement date (as contended by the trustees) or (ii) the plan's termination date (as asserted by Cummings, the retired employee-Pensioner). With the District Court we conclude that despite its unavoidable and traditional prolixity the plan is not ambiguous when read in conjunction with the applicable Treasury regulations, and that a proper construction of it dictated on the undisputed facts a judgment for Pensioner.

Our analysis centers on the dissolved DeBardeleben Marine Corporation (formerly Coyle Lines) employee retirement plan and pension fund, established on July 1, 1956 and geared to qualify for the favorable tax treatment afforded by § 401 and § 501 of the Code. One of the requirements for qualification under these sections is that the plan must not discriminate in favor of certain classes of employees with respect to contributions or benefits provided,¹ and the applicable Treasury Regulations² implement this standard by requiring each plan to incorporate specific restrictions limiting the maximum benefits payable to such employees in the event any one of three named contingencies should occur. Section 3.8(b) of the Coyle plan³ contains these limitations, and both parties agree that the meaning of this provision (particularly the key phrase "multiplied by the number of years elapsed since July 1, 1956") controls the disposition of the case and must be determined by reference to the Regulations.

Before implementation of the DeBardeleben (Coyle) plan, and prior to each subsequent revision of it, the trustees secured a determination letter from the District Director of Internal Revenue approving qualification of the plan under § 401⁴ and exempting the pension fund under § 501.⁵ In succeeding years several changes in the plan were made, including the addition of DeBardeleben Marine Corporation as a participant in September 1959 and a change in both name and trustees in February 1964. All such revisions were explicitly conditioned on the approval of the District Director and the continuation of exempt status.

Pensioner Marcellus Cummings was originally a Coyle Lines employee who elected to participate in the plan when it was inaugurated on July 1, 1956. He retired on April 30, 1962, having received an average annual salary during the preceding five years of $23,700. For the first 16 months following his retirement he received from the company's pension fund a monthly payment of $316.65. Then, on September 1, 1963, the fund purchased for him a single premium annuity policy costing $49,708.77 which since that date has paid him a monthly income of $319.65. Cummings' total contribution to the fund amounted to $5,335.56, while the 16 monthly payments he received before purchase of the annuity totaled $5,114.40. There is no dispute that he is one of the class of employees subject to the limitations on pension benefits contained in § 3.8(b) (note 3, supra).

The problem arises from the fact that the plan's qualified (exempt) status under Subchapter D was terminated by the District Director on May 31, 1966, thereby triggering the limitations. The surviving trustees under the plan, pursuant to an order of a Louisiana State District Court, were directed to seek recovery from participating employees of all excess benefits paid from the fund and thereafter to distribute ratably any recoveries to other pensioner-participants. Cummings refused their demands for reimbursement, contending that by the terms of the plan he had not been overpaid. Unable to resolve their conflicting interpretations of the cryptic proviso, the parties ended up in court, where the trustees sought a declaration of Cummings' obligations under the plan and a money judgment in the amount of $28,358.28.

The crux of the dispute involves the correct date to be used in computing "the number of years elapsed since July 1, 1956" (see note 3, supra). The trustees assert this phraseology to mean the number of years between the kick-off date and the date of retirement, in which event there would have been a $23,243.88 overpayment.⁶ Cummings, on the other hand, contends that the time elapsed is to be computed by using the date the plan was terminated (May 31, 1966), in which event there was no overpayment at all.⁷ In granting his motion for summary judgment the District Court adopted Cummings' formula.

In urging reversal the trustees contend not simply that the District Court misinterpreted the plan's provisions but also that the judgment cannot stand in any event because material issues of fact are still in dispute. If this were correct, reversal and remand would follow almost as a matter of course, since we have invariably rejected the appealing shortcut of summary judgment in lieu of trial when genuine (not illusory), material (not immaterial or irrelevant), controverted (not uncontested) issues of fact remain to be resolved. Cole v. Chevron Chemical Co., 5 Cir. 1970, 427 F.2d 390; United States v. Burket, 5 Cir. 1968, 402 F.2d 426; Braniff v. Jackson Ave.-Gretna Ferry, Inc., 5 Cir., 1960, 280 F.2d 523, on rehearing, 1961, 289 F.2d 939; Robbins v. Milner Enterprises, Inc., 5 Cir., 1960, 278 F.2d 492; Murphy v. Light, 5 Cir. 1958, 257 F.2d 323.

However, with equal consistency we have rejected the misconception that "it is the adversary, not the court, who must be satisfied and determine whether a genuine issue of fact exists." Bruce Construction Corp. v. United States, 5 Cir., 1957, 242 F.2d 873, 878; Jenkins v. Aquatic Contractors & Engineers, 5 Cir., 1971, 446 F.2d 520. There is no impediment to the entry of summary judgment when the dispute is verbal rather than factual. Almost as axiomatic is the principle that any genuine material issue of fact must somehow be shown to exist in the District Court. Where the moving papers do not reveal the presence of a factual controversy on a material issue, the adversary cannot simply assent by silence to the factual theory presented in the motion—and on which the parties stand in the Trial Court—and then assert thereafter on appeal as grounds for reversal a purported factual disagreement never before revealed. Christian v. Jemison, 5 Cir., 1962, 303 F.2d 52; Surkin v. Charteris, 5 Cir., 1952, 197 F.2d 77; 6 Moore, Federal Practice ¶ 56.271.

Judged by these standards the propriety of summary judgment here is undeniable. On appeal the trustees argue what is in effect an entirely new theory of the case, never presented to the District Court, based upon the ostensibly unresolved factual issue of whether the plan was fully funded up to its termination date.⁸ There was not the slightest indication in the Trial Court that there was any question about funding. The battle was pitched over the choice of the two ending dates on the assumption that the condition of full funding had been satisfied. The Trial Court is not to be trapped by methods which focus on the critical decision, only to be brought up short in the appellate court by the belated argument that some condition implicit in the underlying controversy had not adequately been eliminated as a factual dispute. As the Trial Court saw it—and was entitled to see it—both parties assumed full funding in arguing for their respective interpretations of the limitations provision.⁹ We cannot now recognize this D-minus one attempt to resurrect and breathe new juridical life into a moribund issue strangled in its crib by appellants' inaction.

Trustees next argue that the District Court incorrectly assumed that another participant in the plan Henry DeBardeleben, did not retire but instead continued his employment with the company until his death on April 8, 1964.¹⁰ The purported relevance of this issue arises from the trustees' assertion that the District Director recomputed Henry's entitlement to pension benefits by using in the formula the date of retirement rather than the date of termination, thereby dictating that the same date be used in calculating Cummings' entitlement.

For several reasons the argument is unpersuasive. In the first place even if Henry DeBardeleben's benefits were computed by utilizing the date of retirement, the District...