Silburn B. Francis v. Rodman Local Union 201 Pension Fund

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 23, 2004 Decided May 14, 2004
No. 03-7063
SILBURN B. F RANCIS,
APPELLANT
v.
RODMAN LOCAL UNION 201 PENSION FUND, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 01cv02390)
St. John Barrett argued the cause and filed the briefs for
appellant.
Ellen O. Boardman argued the cause for appellees. With
her on the brief were James T. Kimble, Ronald C. Gladney,
and Laurence E. Gold.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.

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Before: G INSBURG, Chief Judge, and SENTELLE and
GARLAND, Circuit Judges.
Opinion for the court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Silburn Francis filed suit against
the Rodman Local Union 201 Pension Fund to recover bene-
fits assertedly due him under the terms of an employee
pension plan. The district court granted summary judgment
for the Fund, concluding that Francis is not entitled to the
benefits he seeks. We affirm.
I
The instant appeal arises out of litigation extensively chron-
icled in this court’s opinions in Berger v. Iron Workers
Reinforced Rodmen, Local 201, 843 F.2d 1395 (D.C. Cir.
1988) (Berger I), and Berger v. Iron Workers Reinforced
Rodmen, Local 201, 170 F.3d 1111 (D.C. Cir. 1999) (Berger
II). The Berger litigation began in 1975, when a class of
African–American rodmen—‘‘construction workers who han-
dle and position steel rods for reinforcing concrete and other
building materials’’ — sued Iron Workers Reinforcing Rod-
men, Local 201 and the International Association of Bridge,
Structural, Ornamental and Reinforcing Iron Workers, AFL–
CIO (collectively ‘‘the unions’’) for denying them the benefits
of union membership on account of their race. Berger I, 843
F.2d at 1405–06. Although he was not a named plaintiff,
Francis claimed to be a member of the Berger class. In
Berger I, we upheld the district court’s determination that the
unions were liable for discrimination, and in Berger II we
upheld a number of the court’s determinations with respect to
class membership and the remedies due class members.
One determination that we specifically did not uphold in-
volved plaintiff Francis himself. The district court (in the
form of a court order adopting the report of a Special Master)
had found Francis to be a member of the plaintiff class, and it
had awarded him $166,382 in back pay and $10,000 in com-
pensatory damages. This court, however, concluded that
‘‘[t]here was conflicting testimony and other evidence as to
whether Silburn Francis sought union membership during,

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rather than after, the liability period,’’ and that the Special
Master had ‘‘weighed this evidence according to an incorrect
TTT burden of proof.’’ Berger II, 170 F.3d at 1126. Because
we were ‘‘unable to determine whether the Master would
have made the same findings if he had applied the correct
burden of proof,’’ we remanded for a redetermination of
whether Francis was an appropriate member of the class.
Id. In so doing, we emphasized that ‘‘Francis’ award [was]
subject TTT to the outcome of the remand of his class mem-
bership.’’ Id. at 1135 n.13.
On remand from Berger II, a number of claimants settled
their claims with the unions on an individual basis. Francis,
represented by his own attorney, was one of those claimants.
In return for ‘‘the sum of $150,000.00 in damages,’’ Francis
agreed to a ‘‘full, final and complete settlement’’ of all of his
claims. Francis Settlement Agreement at 1 (Oct. 12, 1999)
(J.A. at 66).
A year later, on October 9, 2000, Francis applied for
pension benefits. The Pension Fund calculated his pension
based on the reported hours he had worked in ‘‘Covered
Employment.’’ Cicero Decl. ¶ 5 (J.A. at 256). The Fund’s
calculation excluded hours that Francis did not work, but that
he contends he would have worked but for the discrimination
charged in the Berger litigation. Unhappy with the exclusion,
Francis asked the Fund to readjust his pension to reflect
those lost hours. The Fund denied that request.
On November 16, 2001, Francis filed the instant action to
recover the disputed pension benefits from the Fund, and the
unions intervened as defendants. After briefing and argu-
ment, the district court granted summary judgment for the
defendants. This appeal followed.
II
Francis filed this lawsuit, pursuant to section 502(a)(1)(B)
of the Employee Retirement Income Security Act (ERISA),
‘‘to recover benefits due to him under the terms of’’ an
employee pension plan. 29 U.S.C. § 1132(a)(1)(B). The case
turns in substantial part on the meaning of a specific provi-
sion of the Rodman Local Union 201 Pension Plan. Francis

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argues that we should determine the meaning of the provision
de novo, because it incorporates the terms of a regulation
promulgated by the Department of Labor. The Fund, citing
this circuit’s decision in Block v. Pitney Bowes Inc., contends
that where, as here, a pension plan gives its trustees ‘‘discre-
tionary authority to determine eligibility for benefits [and] to
construe the terms of the plan,’’ we must uphold the trustees’
construction as long as it is reasonable. 952 F.2d 1450, 1452
(D.C. Cir. 1992) (quoting Firestone Tire & Rubber Co. v.
Bruch, 489 U.S. 101, 115 (1989)). We need not resolve this
disagreement, however, because it is plain that the Fund
would be the victor under either standard of review.
Under the Plan, a participant’s entitlement to a pension is
based on his ‘‘hours of service.’’ Pension Plan §§ 5.3, 5.6
(J.A. at 261–62). The Plan defines ‘‘hours of service’’ as:
[E]ach hour for which an Employee is paid or entitled to
be paid for work in Covered Employment. The term
‘‘Hour of Service’’ also includes each hour for which back
pay, regardless of mitigated damages, is awarded or
agreed to by an Employer to the extent such award or
agreement is intended to compensate an Employee for
periods during which he would have been engaged in
Covered EmploymentTTTT Hours of Service shall be
computed and credited in accordance with Department of
Labor Regulations § 2530.200b.
Pension Plan § 1.16 (J.A. at 260) (emphasis added). The
referenced Department of Labor regulation uses virtually
identical language to define an ‘‘hour of service’’:
(1) An hour of service is each hour for which an employ-
ee is paid, or entitled to payment, for the performance of
duties for the employer during the applicable computa-
tion periodTTTT
(3) An hour of service is each hour for which back pay,
irrespective of mitigation of damages, is either awarded
or agreed to by the employer.
29 C.F.R. § 2530.200b–2 (emphasis added).
Under the terms of the Plan, there is no dispute that
Francis is entitled to pension benefits for the hours that he

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actually worked. At issue are his benefits for the hours that
he contends he would have worked but for discrimination by
the unions. Although the Plan permits hours of service to be
computed ‘‘to compensate an Employee for periods during
which he would have been engaged in Covered Employment,’’
Pension Plan § 1.16 (J.A. at 260), both the Plan and the
regulation define an ‘‘hour of service’’ as an hour for which
back pay is either ‘‘awarded or agreed to by the employer.’’
As the unions do not dispute that they are ‘‘employers’’ within
the meaning of the Plan, Appellee’s Br. at 23, both sides
agree that the crux of the matter is whether hours for back
pay were ‘‘awarded’’ or ‘‘agreed to’’ by the unions.
It is clear at the outset that Francis was not ‘‘awarded’’
hours for back pay by this or any court. If anything, our
remand in Berger II cast doubt on Francis’ status as a class
member and hence on his eligibility for such an award.
Thereafter, by entering into a ‘‘full, final and complete’’
settlement without waiting for an adjudication of his status,
Francis permanently eliminated the possibility of such an
award.
Because Francis did not receive an ‘‘award,’’ he must hang
his pension claim on the contention that, in the settlement
agreement, the unions ‘‘agreed to’’ give him back pay for
hours of service. But the settlement contained no such
agreement. The operative language states:
[I]n consideration of Francis’ full discharge of past, pres-
ent and future claims TTT arising out of or related to this
lawsuit against defendants, and the underlying claims
upon which this lawsuit is based, including but not limit-
ed to claims for back pay, compensatory damages, puni-
tive damages and individual counsel’s attorneys’ fees and
costs TTT defendants agree to pay to Francis the sum of
$150,000.00 in damages. This settlement shall apply to
all claims Francis has against defendants in this case to
the effect that this agreement shall be a full, final and
complete settlement between the parties to this agree-
ment.

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Francis Settlement Agreement at 1 (J.A. at 66) (emphasis
added). Although the settlement did discharge Francis’
claims for back pay, the unions did not agree that Francis
was actually entitled to such back pay. Rather, they agreed
to the sum of $150,000 ‘‘in damages.’’ Nothing in the agree-
ment allocates that lump sum to hours of service, and nothing
indicates that there was even one ‘‘hour for which back pay
TTT [was] TTT agreed to by [the] employer.’’ Pension Plan
§ 1.16. The failure of the parties to mention Francis’ pension
rights, to label the $150,000 payment back pay, or to provide
any process for determining how much of the $150,000 was
attributable to hours of service, is ‘‘evidence that they did not
intend the TTT payment to generate pension benefits.’’ Lic-
ciardi v. Kropp Forge Div. Employees’ Ret. Plan, 990 F.2d
979, 983 (7th Cir. 1993); see Anderson v. Western Conference
of Teamsters Pension Trust Fund, 1993 WL 413138, at *3–6
(E.D. Cal. 1993) (finding that settlement distribution was not
intended as an ‘‘agreement to hours of back pay’’).
Francis could have attempted to reserve his right to addi-
tional pension benefits by including an agreement for hours of
service for back pay in the settlement that he reached with
the unions. Another claimant who settled individually, Leon-
ard Robinson, did just that. His settlement agreement in-
cluded language similar to that in Francis’, but it also provid-
ed:
Robinson may participate in settlement negotiations with
defendants and the remaining claimants concerning pen-
sion adjustments and receive any such adjustments that
may be agreed to as to Robinson either individually or as
a remaining claimant in such negotiations.
Robinson Settlement Agreement at 1 (Nov. 5, 1999) (J.A. at
229). Likewise, the settlement that the unions entered into
with the remaining class members, two months after Francis
settled individually, contained the following express language:
[E]ach claimant TTT may submit a claim to the TTT
Pension Fund TTT to determine whether he is entitled to
a pension benefit or an adjustment of a pension benefit
as a result of the hours of work determined by the

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Special Master TTT and in accordance with the hours of
work attributed to the claimant by agreement of plain-
tiffs and defendants.
Class Settlement Agreement at 3 (Dec. 8, 1999) (J.A. at 76)
(emphasis added). The class settlement also contained a
process for determining ‘‘the hours of work to be attributed
to each’’ of a list of specifically identified class member
claimants. Id. at 3–5, app. A (J.A. at 76–78, 83–84). But
Francis cannot take advantage of that provision because it
was part of an agreement, entered into two months after his
own, that does not include him in its list of beneficiaries. To
the contrary, because Francis intentionally opted to settle
individually rather than as part of the class, he cannot obtain
the benefit of the bargain that the class struck for its
members alone.
We, of course, do not know why Francis opted to settle for
a lump sum — in advance of a judicial decision regarding his
class membership and separately from the other plaintiffs.
Perhaps he did not want to risk the possibility that the
Special Master, applying the burden of proof required in
Berger II, might determine that he was not a member of the
class and thus not entitled to receive anything. Whatever the
reason, Francis did settle on his own, receiving $150,000 in
exchange for dropping all of his claims. Although Francis
retains the right to receive pension benefits for the hours that
he actually worked, the Fund’s trustees cannot be faulted for
refusing to grant him still further benefits. Their fiduciary
responsibility is to those rodmen who are entitled to benefits
by virtue of work, award, or agreement, and the trustees have
an obligation to husband the Fund’s resources to ensure that
it has sufficient assets to pay those benefits.
III
Because Silburn Francis has no hours of service for which
back pay was awarded or agreed to by the unions, he is not
entitled to pension benefits beyond those attributable to the

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hours that he actually worked. Accordingly, the judgment of
the district court is
Affirmed.

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