Unpublished Disposition, 927 F.2d 610 (9th Cir. 1990)

MEMORANDUM^* 

Pedro Lucero brought an action against Construction Laborers' Pension Trust (CLPT) to recover pension benefits and eventually received benefits. Lucero requested $42,040 in attorneys' fees under ERISA, 29 U.S.C. § 1132(g). In an order entered February 12, 1990, the district court awarded Lucero $20,000 in attorneys' fees. Lucero appeals the amount of the fee award. Lucero also tries to appeal the court's refusal to order CLPT to pay preaward interest on his pension award. We vacate the award of fees for lack of jurisdiction. We need not address the issue of interest.

* CLPT is a trust established pursuant to collective-bargaining agreements to provide pension benefits to eligible employees and their beneficiaries. In 1963, the plan began providing pension benefits to participants who reached designated ages following fifteen years of service. In 1970, the plan began providing disability pensions to participants with fifteen or more years of service.

Lucero applied for a disability pension in 1984. The trust denied Lucero's application after it appeared that he had less than fifteen years of service, due to a break in service in 1973 and 1974. Lucero would have qualified for a disability pension in 1984 if he could have avoided a break in service.

Lucero retained counsel. CLPT advised Lucero that he could avoid the break in service if he could demonstrate that he had been totally disabled for ninety days in a calendar year.

Lucero's counsel submitted an amended application. In the application, Lucero claimed to have been totally disabled for ninety days or more in 1973. He further claimed that his doctor, James Stakely, had left the country and that his medical records had been destroyed in a fire in 1982. Lucero submitted a sworn statement that he was disabled in 1973 and a declaration from an employer that he was off work from May 10, 1973 to September 15, 1973 due to back and knee trouble. Because of other evidence tending to show that Lucero was not disabled in 1973,¹  CLPT denied Lucero's amended application in 1986.

Lucero submitted a second amended application in October of 1986. This application included no new evidence and was denied in January of 1987.

Lucero retained new counsel and filed suit against CLPT in October of 1987. Lucero's complaint alleged wrongful denial of the pension in 1984 and that CLPT's break-in-service rule was a "structural defect" under Sec. 302 of the Labor Management Relations Act. The break-in-service rule had been upheld against prior Sec. 302 challenges. See Ponce v. Construction Laborers Pension Trust, 628 F.2d 537, 542-43, 545 (9th Cir. 1980); Honeycutt v. Board of Trustees of the Construction Laborers Pension Trust, 468 F. Supp. 1213, 1215 (C.D. Cal. 1979), aff'd, 649 F.2d 867 (9th Cir. 1981) (unpublished).

Before trial, Lucero's counsel located and deposed Dr. Stakely. Lucero also provided two new medical reports from doctors who had seen him in connection with his 1977 industrial accident. CLPT took this new evidence into account and hired an orthopedic specialist to conduct an independent examination. Trial of the case became unnecessary when, in October of 1989, CLPT decided to award Lucero a pension retroactive to 1984.

II

Lucero requested and received attorneys' fees under ERISA. No other basis for an award of fees appears in the Excerpts of Record or the briefs. CLPT contends that Lucero's action did not arise under ERISA. The district court relied on ERISA in awarding fees, however, stating:

I believe that ERISA does govern this situation because the determination was made with respect to the plaintiff's [disability] in December of 1984, after ERISA's effective date; thus, I think this comes under ERISA; thus the court has discretion as to whether or not to award attorney fees.

Lucero's cause of action accrued in 1984, at the time his pension was considered and denied. Accrual, however, does not by itself confer jurisdiction under ERISA.

ERISA took effect on January 1, 1975. When benefits are denied under a pre-1975 plan provision that is unambiguous and nondiscretionary, ERISA does not apply. Tafoya v. Western Conference of Teamsters Pension Trust Fund, 909 F.2d 344, 347 (9th Cir. 1990). On the other hand, ERISA would apply if benefits were denied as the result of a significant act of discretion under the plan, or an interpretation of the plan, that took place after ERISA's effective date. Smith v. Retirement Fund Trust, 857 F.2d 587, 590 (9th Cir. 1988); Menhorn v. Firestone Tire & Rubber Co., 738 F.2d 1496, 1501 (9th Cir. 1984).

It is undisputed that Lucero's benefits were denied under a pre-1975 provision. Section 4.06(a) of the plan provided:

An employee's previously accumulated credits for future and past service shall be cancelled if he fails to earn credited service during a period of two consecutive calendar years. Such credited service shall not be cancelled, if in accordance with the appropriate regulations adopted by the board, the employee ... (a) is totally disabled from engaging in any occupation or employment on account of illness or injury. For purposes of this paragraph, if such total disability exists for at least ninety days in any calendar year, such year shall not be counted as a break in service year....

This provision is unambiguous and nondiscretionary. In this regard, the district court stated that Lucero "simply lacked evidence" to show that there had not been a break in service. "Thus," the court concluded, CLPT "was justified in denying the pension application until the 'second trial,' which elicited testimony from two additional doctors.... As a result of that testimony, which tended to be confirmed by an orthopedist chosen by [CLPT], the pension was awarded." ER at 14 (Memorandum of Decision).

Lucero's claim did not involve a significant act of discretion or interpretation that took place after ERISA's effective date. Because Lucero's benefits were denied under a pre-1975 plan provision that is unambiguous and nondiscretionary, ERISA does not apply. Therefore, the district court did not have jurisdiction to award attorneys' fees under ERISA. Because Lucero presented no other basis for an award of fees in the district court or on appeal, we must vacate the award.² 

III

Lucero's notice of appeal states that Lucero appeals "from the decision entered on February 12, 1990 awarding of [sic] attorney fees or [sic] less than the amount requested by Plaintiff's attorney herein." (emphasis added). The highlighted language serves no purpose other than to limit the issue on appeal to the question of attorneys' fees. Therefore we do not address the issue of interest.

The award of attorneys' fees is VACATED for lack of jurisdiction.