Fase v. Seafarers Welfare & Pension Plan, s. 217

• Citation: 574 F.2d 72
• Decision Date: 22 February 1978
• Docket Number: Nos. 217,253,D,s. 217
• Parties: 97 L.R.R.M. (BNA) 3010, 83 Lab.Cas. P 10,399 Adrian FASE, Individually and on behalf of all others similarly situated, Plaintiff-Appellee-Appellant, v. SEAFARERS WELFARE AND PENSION PLAN, Joseph DiGiorgio, Individually and in his capacity as the Secretary-Treasurer of the Seafarers Welfare and Pension Plan, Price C. Spivey, Individually and in his capacity as the Administrator of the Seafarers Welfare and Pension Plan, and Fred Farnen, Lindsey Williams, Joseph DiGiorgio, Frank Drozak, E. Aubusson, Capt. Joseph Cecire, James Hayes, C. J. Bracco, William Crippen, Irving M. Saunders, in their capacity as Trustees of the Seafarers Pension Plan, Defendants-Appellants-Appellees. ockets 77-7380 and 77-7489.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 72

574 F.2d 72

97 L.R.R.M. (BNA) 3010, 83 Lab.Cas. P 10,399

Adrian FASE, Individually and on behalf of all others

similarly situated, Plaintiff-Appellee-Appellant, v. SEAFARERS WELFARE AND PENSION PLAN, Joseph DiGiorgio, Individually and in his capacity as the Secretary-Treasurer

of the Seafarers Welfare and Pension Plan, Price C. Spivey,

Individually and in his capacity as the Administrator of the

Seafarers Welfare and Pension Plan, and Fred Farnen, Lindsey

Williams, Joseph DiGiorgio, Frank Drozak, E. Aubusson, Capt.

Joseph Cecire, James Hayes, C. J. Bracco, William Crippen,

Irving M. Saunders, in their capacity as Trustees of the

Seafarers Pension Plan, Defendants-Appellants-Appellees.

Nos. 217, 253, Dockets 77-7380 and 77-7489.

United States Court of Appeals, Second Circuit.

Argued Dec. 7, 1977.

Decided Feb. 22, 1978.

David S. Preminger, Legal Services for the Elderly Poor, New York City, for plaintiff-appellee-appellant.

Carolyn Gentile, Brooklyn, N. Y., for defendants-appellants-appellees.

Before FRIENDLY, SMITH and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

On June 14, 1977, the United States District Court for the Eastern District of New York, Thomas C. Platt, Judge, granted summary judgment in favor of Adrian Fase, a permanently disabled former merchant seaman, and ordered the Seafarers Welfare and Pension Plan ("the Plan") to pay Fase retroactive disability benefits that it had previously denied him. The district court based its decision on § 302(c)(5) of the Labor-Management Relations (Taft-Hartley) Act, 29 U.S.C. § 186(c)(5) ("LMRA"). The decision is reported officially. Fase v. Seafarers Welfare and Pension Plan, 432 F.Supp. 1037 (E.D.N.Y.1977). Copies of the district court's memorandum decision and order were promptly mailed to the parties, and the clerk's office entered final judgment. More than one month later, on July 18, 1977, the Plan filed a notice of appeal with the district court. This notice was concededly outside of the 30-day period for filing notice of appeal under Fed.R.App.P. 4(a), so the Plan moved for an extension of the period for filing, as also provided by Rule 4(a), alleging that its tardy filing was due to "excusable neglect." The district court granted the Plan's motion for an extension. We hold that the Plan did not make a sufficient showing of "excusable neglect." Accordingly, this Court is without jurisdiction to consider the merits of the Plan's appeal and the appeal must be dismissed.

In July of 1971 Adrian Fase was forced to quit his job as a merchant seaman because of a serious back ailment. Fase was a member of the Seafarers International Union of North America and, as a result, participated in the Seafarers Welfare and Pension Plan, a jointly administered labor-management trust fund established pursuant to § 302(c)(5) of the LMRA, 29 U.S.C. § 186(c) (5). ¹ On November 22, 1971, Fase applied to the Plan for disability benefits, having been declared by the United States Public Health Service to be permanently unfit for sea duty. At the time of this application, Fase satisfied all but one of the Plan's eligibility requirements, that being the requirement that applicants who are covered by Social Security must apply for and receive a disability award from the Social Security Administration as proof of total and permanent disability. Once such a determination is made by the Social Security Administration, the Plan is bound by it. ² Because Fase was covered by Social Security, the Plan held his application for benefits in abeyance, and Fase immediately applied to the Social Security Administration for a determination of disability. Had he not been covered by Social Security, the Plan would have made its own independent determination whether Fase was in fact totally and permanently disabled, and if he was found to be so disabled, payments would have commenced promptly.

Unfortunately for Fase, his initial application to the Social Security Administration was denied. However, after an exhaustion of appeals within the Social Security system, and after review and remand by the United States District Court for the Eastern District of New York, the Social Security Administration granted Fase's application on August 8, 1974. It determined that Fase had been disabled within the meaning of the Social Security Act as of July 12, 1971, and awarded him benefits, retroactive to the time of his disability.

In January, 1975, Fase presented his first Social Security disability check to the Plan as proof of the Social Security Administration's determination of disability, and on January 22, 1975, the Plan approved his application. The Plan began making payments of $250 per month on February 1, 1975. Unlike the Social Security award, however, the Plan's payments did not include retroactive benefits. Upon learning of this, Fase inquired as to his benefits for the period of time from his application in November, 1971, through its approval in January, 1975. He was told that the Plan authorized the commencement of disability payments no earlier than the first day of the month following the Plan's approval of the application and that there was no provision for retroactive benefits. ³

This denial of retroactive benefits prompted Fase to sue the Plan in the United States District Court for the Eastern District of New York. Fase asserted that the Plan had violated § 302(c)(5) of the LMRA, because it was not for the "sole and exclusive benefit of the employees," and that the district court had jurisdiction under § 302(e) of that Act. ⁴ Essentially, Fase argued that the Plan could not require him to submit evidence of a disability award from the Social Security Administration as a condition of eligibility for benefits under the Plan and then refuse to pay him retroactive benefits for the period of time spent in obtaining from that agency a favorable determination. Fase also asserted that the district court had jurisdiction to hear claims made under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132 ("ERISA").

The district court agreed that it had jurisdiction under the LMRA, referring to Lugo v. Employees Retirement Fund of the Illumination Products Industry, 529 F.2d 251 (2d Cir.), cert. denied, 429 U.S. 826, 97 S.Ct. 81, 50 L.Ed.2d 88 (1976), Cuff v. Gleason, 515 F.2d 127 (2d Cir. 1975), and Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 90 L.Ed. 939 (1946). Compare Prescription Plan Service Corp. v. Franco, 552 F.2d 493, 495-96 (2d Cir. 1977). The district court also found in favor of Fase on the merits and granted summary judgment, awarding pension benefits from August 1, 1972, to February 1, 1975. The court believed that Fase had made a prima facie showing of the Plan's unreasonableness ⁵ and that the Plan's administrative and financial justifications were inadequate. It held that "the Plan arbitrarily and capriciously denied (Fase) benefits for the disputed period, and as such was a violation of the sole and exclusive benefit requirement of § 302(c)(5) of the (LMRA)." 432 F.Supp. at 1042. But see Riley v. MEBA Pension Trust, 570 F.2d 406, 412-13 (2d Cir. 1977). The district court's resolution of Fase's LMRA claims made it unnecessary to reach his ERISA claims and the court declined to do so.

The district court ruled in favor of Fase on June 14, 1977. The next day the clerk's office of the Eastern District mailed copies of the district court's memorandum decision and order to the parties and entered judgment on the docket sheet. The clerk's office did not send notice of the entry of judgment to the parties. ⁶ The Plan received the copies of the opinion and order on June 16. On July 18, more than one month later, the attorney for the Plan received Fase's bill for costs. Apparently, receipt of this bill prompted the attorney to investigate the status of the case and, having discovered that judgment had been entered, she filed a notice of appeal. This notice of appeal was concededly outside of the 30-day limit established by Fed.R.App.P. 4(a), and on July 20 the Plan filed a motion for an order extending the time to file its notice of appeal together with an affidavit explaining the circumstances of the delay. The Plan argued that the delay was due to "excusable neglect" and that, therefore, the time for filing should be extended under Rule 4(a). On September 12 the district court granted the motion. Fase challenges this decision.

Rule 4(a) of the Federal Rules of Appellate Procedure requires that a notice of appeal in civil actions such as this one "shall be filed with the clerk of the district court within 30 days of the date of the entry of the judgment or order appealed from." The purpose behind this time limitation is to provide a definite point at which, in the absence of a notice of appeal, litigation will come to a close. See In re Orbitec Corp., 520 F.2d 358, 362 (2d Cir. 1975); C-Thru Products, Inc. v. Uniflex, Inc., 397 F.2d 952, 955 (2d Cir. 1968). "Because the timely filing of a notice of appeal is 'mandatory and jurisdictional,' United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960), compliance with the provisions of (Rules 3 and 4) is of the utmost importance." Advisory Committee Note to Fed.R.App.P. 3; see Stirling v. Chemical Bank, 511 F.2d 1030, 1031 (2d Cir. 1975); Edwards v. Doctors Hospital, Inc., 242 F.2d 888, 891 (2d Cir. 1957), cert. denied, 356 U.S. 930, 78 S.Ct. 770, 2 L.Ed.2d 761 (1958).

This schedule for the filing of notice of appeal is not, however, without a certain degree of flexibility. The third paragraph of Rule 4(a) provides as follows:

Upon a showing of excusable neglect, the district court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. Such an extension may be granted before or after the time otherwise prescribed by this subdivision has expired; but if a...