Fase v. Seafarers Welfare and Pension Plan, 326

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: Before FRIENDLY, MANSFIELD and MESKILL; FRIENDLY
• Citation: 589 F.2d 112
• Parties: 100 L.R.R.M. (BNA) 2221, 85 Lab.Cas. P 11,148, 1 Employee Benefits Ca 1474 Adrian FASE, Individually and on behalf of all others similarly situated, Plaintiff-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-Appellees. ocket 78-7368.
• Docket Number: D,No. 326,326
• Decision Date: 22 December 1978

Page 112

589 F.2d 112 100 L.R.R.M. (BNA) 2221, 85 Lab.Cas. P 11,148,
1 Employee Benefits Ca 1474 Adrian FASE, Individually and on behalf of all others
similarly situated, Plaintiff-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-Appellees. No. 326, Docket 78-7368. United States Court of Appeals,
Second Circuit. Argued Nov. 8, 1978.
Decided Dec. 22, 1978.

Page 113

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

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

Before FRIENDLY, MANSFIELD and MESKILL, Circuit Judges.

FRIENDLY, Circuit Judge:

This is an appeal from an order of the District Court for the Eastern District of New York denying a motion by plaintiff's attorney for the award of counsel fees for his successful prosecution of an action for disability pension benefits by plaintiff Fase against defendant Seafarers Welfare and Pension Plan (SWPP). Fase claimed that a provision of the Plan which required an applicant for a disability benefit who was covered by the Social Security Act or the Railroad Retirement Act to apply for the

Page 114

disability benefits provided by such acts and await the determination of the Social Security Administration or the Railroad Retirement Board before becoming entitled to disability benefits under the Plan violated § 302(c)(5) of the Taft-Hartley Act, 29 U.S.C. § 186(c)(5), and unspecified provisions of ERISA, 29 U.S.C. §§ 1001 Et seq. Fase did not contend that it was illegitimate for the Plan to defer to the decisions of these agencies in determining eligibility. Rather he argued that the Plan was invalid insofar as it refused retroactive payment of benefits where the agency had taken an unreasonably long time in determining that he had indeed been eligible.

The action was brought as a class action but the late Judge Judd denied certification under F.R.Civ.P. 23(a). In an opinion reported in 432 F.Supp. 1037 (1977), familiarity with which is assumed, Judge Platt granted plaintiff's motion for summary judgment with respect to the claim under the Taft-Hartley Act ¹ and consequently did not reach what he characterized as "the more difficult question of jurisdiction under ERISA." Id. at 1039. Although the complaint had sought "costs and interests, and attorneys fees", the judgment, entered by the clerk on June 15, 1977, recited only that it is

Ordered and Adjudged that plaintiffs' motions for summary judgment as to pension benefits from August 1, 1972 to February 1, 1975 and on the defendants' counter claim, are granted.

On July 13, 1977, SWPP filed a concededly untimely notice of appeal and moved for an extension of time under F.R.A.P. 4(a); Judge Platt granted the motion on September 12. Plaintiff contended on appeal that the district court had erred in granting the extension since there was no sufficient showing of excusable neglect. We sustained this contention and dismissed the appeal, 574 F.2d 72 (1978).

Meanwhile plaintiff had moved, on July 14, 1977, for the award of attorney's fees of $20,175 ² "on the theory that he has secured a common benefit accruing to other Plan beneficiaries" and also because such an award was authorized by § 502(g) of ERISA, 29 U.S.C. § 1132(g), in any action arising under that statute. Expressing some doubt whether he had authority to entertain the motion in light of F.R.Civ.P. 59(e), which requires that

A motion to alter or amend the judgment shall be served not later than 10 days after entry of the Judgment

the judge denied the motion on the merits. ³

The judge was clearly justified in concluding that the attorney's efforts had

Page 115

not produced such financial benefits to persons other than Fase as would warrant the imposition of an attorney's fee upon SWPP. In denying the motion for class certification, Judge Judd had found that there were only twenty-four other members of the Plan who had encountered some delays as a result of the requirement of obtaining a determination from the Social Security Administration and only two who had experienced such long delays as plaintiff. Under the peculiar circumstances of this case, where defendant's appeal was dismissed as untimely, it is at least doubtful whether Fase's unreviewed judgment would work as a collateral estoppel in favor of another similarly situated plaintiff under Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), even though inability to obtain review was the result of SWPP's neglect, see Restatement of Judgments 2d § 88 (Tent.Draft No. 2, April 15, 1975). ⁴ The doubt is particularly acute in view of the questions concerning the applicability of § 302(c)(5) of the Taft-Hartley Act to a case like this which were raised in Lugo v. Employees Retirement Fund of Illumination Products Industry, 529 F.2d 251, 254-55 (2 Cir.), Cert. denied, 429 U.S. 826, 97 S.Ct. 81, 50 L.Ed.2d 88 (1976), and Riley v....