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Lehman v. Nelson

United States Court of Appeals, Ninth Circuit

December 3, 2019

Richard Lehman, on behalf of himself and others similarly situated; Michael Puterbaugh, Plaintiffs-Appellees,
v.
Warner Nelson; William Beck, Jr.; Brian Bish; Klaas A. Deboer; Michael G. Marsh; Rocky Sharp; Richard Bamberger; Dennis Callies; Clif Davis; Tim Donovan; Harry Thompson; Clint Bryson; Michael Church; Michael Doyle; Greg Elder; Glen Franz; Gary Gonzales; Carl D. Hanson; Patrick Powell; Gary Price; Scott Stephens; Roger Tobin; Grant Zadow, in their capacity as Trustees of the IBEW Pacific Coast Pension Plan; Gary Younghans, Defendants-Appellants.

          Argued and Submitted May 13, 2019 Seattle, Washington

          Appeal from the United States District Court No. 2:13-cv-01835-RSM for the Western District of Washington Ricardo S. Martinez, Chief District Judge, Presiding.

         COUNSEL

          Nathan R. Ring (argued) and Michael A. Urban, The Urban Law Firm, Las Vegas, Nevada, for Defendants-Appellants.

          Richard J. Birmingham (argued), Joseph P. Hoag, and Christine Hawkins, Davis Wright Tremaine LLP, Seattle, Washington, for Plaintiffs-Appellees.

          David Potts-Dupre and Jennifer Bush Hawkins, Potts-Dupre Hawkins & Kramer Chtd., Washington, D.C., for Amicus Curiae Reciprocal Administrator of the Electrical Industry Pension Reciprocal Agreement.

          Karl A. Schmidt, Richard A. Clark, Brenton F. Goodrich, and Rudolph G. Klapper, Parker Milliken Clark O'Hara & Samuelian APC, Los Angeles, California, for Amicus Curiae Trustees of the Southern California IBEW-NECA Pension Trust Fund.

          Before: Andrew J. Kleinfeld and Michelle T. Friedland, Circuit Judges, and David A. Ezra, [*] District Judge.

         ORDER AND OPINION

         SUMMARY [**]

         Labor Law / ERISA

         The panel filed (1) an order granting a request for publication, withdrawing the panel's prior memorandum disposition, and directing the filing of an opinion; and (2) an opinion affirming the district court's grant of summary judgment in favor of plaintiffs in an ERISA class action concerning pension contributions.

         After the Trustees of the IBEW Pacific Coast Pension Fund learned that the Fund would soon enter "critical status" under the Pension Protection Act of 2006, they twice amended the Plan. Amendments 14 and 24 had the effect of withholding at least $1.00 per hour from all employer contributions.

         Plaintiff Richard Lehman, an electrician, filed a class action against the Trustees under ERISA. Plaintiff was a member of a different local union pension fund. When he was temporarily employed outside his home fund, his employer contributed to the local fund in the place where the work was performed. Plaintiff's home fund and the Pacific Cost Fund were signatories to the Electrical Industry Pension Reciprocal Agreement, under which "travelers" like plaintiff could elect to have employer contributions from other jurisdictions electronically transferred to their designated home pension fund.

         In a prior appeal, Lehman I, the court held that the Trustees could not keep the $1.00 hourly withholdings they had made pursuant to Amendment 14, rather than including these withholdings in the transfer payments made to travelers' home funds, on the Trustees' theory that the withholdings were not "contributions" within the meaning of the Reciprocal Agreement. The court affirmed the district court's grant of summary judgment in favor of plaintiff and award of damages to the class for all contributions withheld under Amendment 14. The court remanded for the district court to address whether the class could recover contributions withheld under Amendment 24.

         On remand, the district court again granted summary judgment in favor of the class, determining that Amendment 24 violated the plain language of Article 5 of the Pacific Coast Pension Plan, which mandated that the Plan collect and transfer all contributions received on behalf of travelers. Affirming, the panel held that the Trustee's interpretation of Amendment 24 with regard to travelers' contributions was unavailing.

         ORDER

         The request to publish our disposition is GRANTED. The memorandum disposition filed June 12, 2019 is withdrawn and an authored opinion by Judge Ezra is filed concurrently with this order.

         Pursuant to Circuit Rule 40-2, by granting the request for publication, we have extended the time to file a petition for rehearing to 14 days after the issuance of this order and, because the mandate has already issued, any further petition ...


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