Stewart v. M.M. & P. Pension Plan

• Decision Date: 21 November 1979
• Docket Number: No. 77-2166,77-2166
• Citation: 608 F.2d 776
• Parties: 103 L.R.R.M. (BNA) 2091, 87 Lab.Cas. P 11,785 Alfred J. STEWART, Plaintiff-Appellant, v. M.M. & P. PENSION PLAN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 776

608 F.2d 776

103 L.R.R.M. (BNA) 2091, 87 Lab.Cas. P 11,785

Alfred J. STEWART, Plaintiff-Appellant, v. M.M. & P. PENSION PLAN, Defendant-Appellee.

No. 77-2166.

United States Court of Appeals, Ninth Circuit.

Nov. 21, 1979.

Charles B. Bateman, Graham & James, San Francisco, Cal., for plaintiff-appellant.

Norman Leonard, Gladstein, Leonard, Patsey & Andersen, San Francisco, Cal., on brief; Richard Ernst, San Francisco, Cal., for defendant-appellee.

Appeal from the United States District Court for the Northern District of California.

Before TRASK and ANDERSON, Circuit Judges, and WYATT, ^* District judge.

WYATT, District Judge:

This appeal is by Alfred J. Stewart from a judgment of the United States District Court for the Northern District of California dismissing his action on the merits. The opinion below is reported at 432 F.Supp. 742. We conclude that dismissal of the action was proper but that it should have been for want of jurisdiction and not on the merits.

1.

Stewart has been for some years and is now a licensed deck officer for ships, having been licensed as a master (46 U.S.C. § 226). (While nowhere averred in the pleadings, this seems to have been stipulated by the parties.) We understand that a deck officer is in distinction to an engineer officer and that the term "licensed deck officer" includes a master.

International Organization of Masters, Mates & Pilots (MMP) is a labor organization which for some time has been the collective bargaining agent for its member licensed deck officers. Apparently Stewart is a member of MMP.

Pacific Maritime Association (PMA) is an association of employers in the steamship business on the Pacific coast. It has acted as collective bargaining representative for its member employers.

M.M. & P. Pension Plan (the Plan) is a series of provisions contained in an "Agreement and Declaration of Trust Establishing the M.M. & P. Pension Plan", dated as of October 17, 1973, executed by eight trustees, by MMP, and by a number of employers, parties to separate collective bargaining agreements with MMP. As will be seen, the Plan is an outgrowth of predecessor pension arrangements dating back to August 1, 1950, all made under collective bargaining agreements.

The action was commenced by the filing of a complaint on August 23, 1973. The defendants named were (a) "Trustees, Masters, Mates & Pilots Pension Plan", (b) "Stephen P. Maher, as administrator", (c) "Masters, Mates & Pilots Union", and (d) "Pacific Maritime Association." There is no affidavit or other proof of service of a summons and the complaint. Some sort of service on one or more of the named defendants was attempted by mail. There were two motions to quash, one by PMA and the other by "the defendants above named (other than Pacific Maritime Association)". The latter motion made the point (among others) that: "There is no identification of the Trustees . . ." and "it cannot be ascertained if the defendants herein (other than Pacific Maritime Association) are the 'Trustees' or the 'Plan' . . . ." The reaction for Stewart was to admit "that some of these objections are valid and, accordingly, asks leave to file an amended complaint." On consent, an order was filed on November 12, granting such leave.

A "first amended complaint" (referred to hereafter as "the amended complaint") was filed November 21, 1973. This named as defendants (a) "Masters, Mates & Pilots Pension Plan", (b) "International Organization of Masters, Mates & Pilots" and (c) "Pacific Maritime Association".

It will be seen that plaintiff, his attention drawn to the uncertainty whether he was suing the Trustees or the Plan, made it clear in the amended complaint that he was suing the Plan and not the Trustees.

Jurisdiction in the District Court was claimed under Section 301 of the Labor Management Relations Act, 1947 (sometimes called the "Taft-Hartley Act") (29 U.S.C. § 141 and following; Section 301 of the Act is § 185 of 29 U.S.C.). There was also mention in the amended complaint of 28 U.S.C. § 1337. There was no mention of Section 302 of the Act (29 U.S.C. § 186).

After a sketchy introduction, it was averred in the amended complaint that "defendants", in violation of the pension regulations, had refused to allow Stewart "to accrue pension credit past twenty years of employment." While not specifically averred, it appeared from the amended complaint that Stewart was continuing his employment as a master covered by the Plan.

The amended complaint asserted that Stewart was being deprived of benefits in violation of an agreement between PMA, an employer, and MMP, a labor organization representing employees in an industry affecting commerce.

The amended complaint contained this averment:

XVI

That an actual justiciable controversy exists between plaintiff and defendants relating to plaintiff's rights arising from his membership in the International Organization of Masters, Mates & Pilots and the MMP Pension Trust Declaration and Regulations. That because of the decision of the Board of Trustees to limit the number of years that plaintiff can accrue employment pension credit, plaintiff is being denied rights and benefits entitled to him and others in his situation in that he is being denied pension benefits for the current five year period in excess of his twenty years of employment.

The prayer for relief was for a declaration of the rights of the parties and for a decree enjoining defendants "from penalizing plaintiff in the enjoyment of pension rights upon his Subsequent voluntary retirement, or impairing his vested rights therein" (emphasis supplied).

There is an affidavit of service of the summons and of the amended complaint on PMA and on MMP. There is no affidavit of service on the Plan, nor on the Trustees; as to the Trustees, the want of proof of service is to be expected since they are not made defendants.

Appearances were filed as follows: for PMA, Mr. Ernst; for MMP, Mr. Leonard's law firm; and for "M.M. & P. Pension Plan," Mr. Ernst and Mr. Leonard.

Answers were filed for PMA and for MMP.

Mr. Ernst and Mr. Leonard filed an answer for "MMP Pension Plan, sued under the name 'Masters, Mates & Pilots Pension Plan', and on and for itself alone." This answer admitted that "the cause of action, if it had support in the facts, would be within the original jurisdiction" of the District Court. At the same time, the answer denied the averment in paragraph XVI of the amended complaint of the existence of a justiciable controversy.

By order on consent, filed July 11, 1974, the action was dismissed against MMP and PMA, leaving it to continue against the Plan as the only defendant.

The trial took place before Judge Orrick without a jury on July 14, 1976. There was no testimony. A stipulation of facts between the parties was submitted. Without objection, exhibits for Stewart numbered 1 through 18 and for the Plan numbered 1001 through 1011 were received in evidence. On this record, the trial court then set a briefing schedule. Oral argument was heard on September 8, 1976. At that argument the court referred to cross motions for summary judgment. These must have been oral and not stenographically recorded; there are no written motions for summary judgment in the record. In any event, Judge Orrick on February 4, 1977 filed his opinion, granting on the merits the motion of the Plan for summary judgment and denying the motion of Stewart for summary judgment.

The opinion shows that the District Court had the mistaken belief that the Trustees were the defendants and were defending. This belief could easily have been induced by the form of the caption employed by counsel; the first defendant named in their caption is "Trustees, Masters, Mates & Pilots Pension Plan", evidently because this was done in the complaint filed to commence the action.

It was argued for defendant to the Court below, but not here, that the issues were not "ripe for adjudication" (432 F.Supp. at 746), meaning that there was no case or controversy in the constitutional sense. Their submission in this regard was summarized as follows in the opinion below: "They argue that plaintiff, now age 55, may die without retiring, the Plan may be changed before he retires, or plaintiff may change his type of employment, such that the issues before the Court are hypothetical or abstract." (432 F.Supp. at 746) For the defendant, the decision in Lugo v. Employees Retirement Fund, etc., 529 F.2d 251 (2d Cir. 1976), was urged as persuasive. The District Court rejected the argument and found the cited decision to be "inapposite". In so doing, we believe the District Court was in error.

2.

Stewart was born on December 2, 1921; he will thus be 58 years old on December 2 of this year. He went to sea as a licensed deck officer beginning in 1942.

An agreement and declaration of trust was made, as of August 1, 1950, between MMP and the various employers having collective bargaining agreements with MMP. This instrument established the "MM&P Pension and Welfare Plan" and the "MM&P Pension and Welfare Fund", both to be for the benefit of the licensed deck officers employed under the collective bargaining agreements. Contributions to the Fund were to be made by the employers. The Fund (also the Plan) was to be administered by Trustees, half appointed by the employers and half by MMP. The Trustees were given authority to determine all questions as to what benefits to pay, as to coverage, and as to eligibility for benefits.

Under date of September 20, 1955 the Trustees executed the M.M. & P. Pension Trust Declaration and thereby established the M.M. & P. Pension Trust. At the same time, the Trustees adopted M.M. & P. Pension Regulations, which were thereafter from time to time amended.

On July 15, 1960, Stewart left employment covered by the Plan. Thereafter, on May 5, 1962, while working at a job not covered by the Plan, he was severely injured. In 1963 he was found totally and...