McGowan v. NOE-ILA Pension Fund
Filing
28
ORDER & REASONS denying 25 Motion for New Trial. Signed by Judge Martin L.C. Feldman on 12/19/2012. (caa, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TROY McGOWAN
CIVIL ACTION
v.
NO. 12-990
NEW ORLEANS EMPLOYERS
INTERNATIONAL LONGSHOREMEN’S
ASSOCIATION, AFL-CIO PENSION FUND
SECTION "F"
ORDER AND REASONS
Before the Court is Troy McGowan’s motion for new trial. For
the reasons that follow, the motion is DENIED.
Background
This
litigation
arises
out
of
a
pension
fund’s
alleged
improvident termination of a participant’s disability retirement
benefits and retiree health insurance benefits.
The facts of this case are more completely set forth in this
Court’s October 15, 2012 Order and Reasons, in which the Court
granted
defendant
Longshoremen’s
New
Association
Orleans
Pension
Employers
Funds’
International
motion
for
summary
judgment, finding that McGowan failed to exhaust his administrative
remedies.
The
undisputed
facts
relevant
to
resolving
the
plaintiff’s request for a new trial are summarized as follows:
The
New
Orleans
Employers
International
Longshoremen’s
Association, AFL-CIO Pension Fund is an employee pension benefit
1
plan as defined by the Employee Retirement Income Security Act of
1974, as amended, Section 3(2)(A)(I), 29 U.S.C. § 1002(2)(A)(I).
Pursuant to a Collective Bargaining Agreement for the Port of New
Orleans and Baton Rouge area, the Fund was established to provide
disability and pension benefits to its member participants.
Civil
litigation and enforcement “under the terms of the plan” are
governed by 29 U.S.C. § 1132.
Predictably, the Plan defines
disability, requirements for eligibility to receive disability
pension, contains a Claims Review Procedure,1 and provides a time
1
An excerpt of the Plan’s Claims Review Procedure:
9.5 - Claims Review Procedure
(a)
Any claimant whose application or claim for benefits
under the Plan has been denied in whole or in part has
the right to appeal the determination in accordance with
the Claims Review Procedure described in this Section.
(b)
Within 180 days after receipt of an adverse benefit
determination for a Disability Claim...the claimant or
his representative may appeal the determination by making
a written request for review to the Board....
If a
timely written request for review is not made, the
initial decision on the claim will be final....
The review on appeal will take into account
all comments, documents, records and other
information submitted by the claimant and
relating to the claim, without regard to
whether it was submitted or considered in the
initial determination. For Disability Claims,
no deference will be given to the initial
determination....
(c)
A decision on appeal must be made within a reasonable
period of time following the request for review and no
later than the first regularly scheduled Board meeting
immediately following receipt of the request for
review....
(d)
If a claim is denied in whole or in part on review, the
notice of the decision on review to the claimant will set
forth the following information in a manner calculated to
be understood by the claimant....
2
limit for filing lawsuits;2 the Plan is administered by the Pension
Board and Thomas R. Daniel.
Troy McGowan, a longshoreman covered by the Plan of benefits
administered
by
the
Fund,
qualified
for
disability
effective
December 2003 after he was injured while winding up the landing
gear on a container.3
Years later on April 18, 2011 McGowan and
Plan Administrator Daniel discussed that, if McGowan engaged in
gainful employment, then disability pension and health benefits
would be terminated.4
(e)
Two days later, Daniel wrote McGowan:
A decision on review of any claim made under the Plan, or
an initial decision on a claim under the Plan that is not
timely appealed, will be conclusive, final and binding on
all persons.
2
Section 9.6 limits the time for filing lawsuits:
9.6 - Time Limit for Legal Actions
In no event may legal action be brought by or on behalf of any
individual to receive benefits under the Plan unless the individual
or his representative, if any, has first fully complied with and
timely exhausted the Claims and Claims Review Procedures under the
Plan. In addition, in no event may legal action be brought to
contest or set aside a decision on a claim, initially or upon
review, or otherwise to receive benefits under the Plan, unless it
is filed in a court of competent jurisdiction within one (1) year
following the date of written notice of the decision denying the
claim on review or other final decision on a claim.
3
As a result of his disabling injury, McGowan settled
with his stevedore employer pursuant to the Longshore and Harbor
Worker’s Compensation Act; the settlement was approved on July 16,
2002. In the settlement agreement, McGowan stipulated that he was
permanently disabled from returning to work on the Waterfront.
4
In his Response to List of Uncontested Material Facts,
McGowan “admit[s]” this fact; in his complaint, however, he alleges
that he contacted Daniel regarding the hospitalization of his
newborn child “and was confronted by Mr. Daniel with an allegation
that he worked at Lowe’s and therefore should be terminated from
3
This is to confirm our discussion of April 19, 2011
concerning the termination of your Disability Retirement
pension benefit payments and your retiree health
insurance benefits effective April 30, 2011. You called
me on April 18...to inquire about returning to work as a
longshoreman. I asked you if you were no longer disabled
and you replied that you could perform longshoreman work
and that you were currently working construction at a job
site at Lowes. You also said you worked in the longshore
industry for several employers during the 2009/2010 labor
contract year.
You qualified to receive a Disability Retirement
pension benefit on December 1, 2003 from the Pension Plan
because you were deemed disabled from performing work as
a longshoreman by the Fund’s physician (see Transcription
from Concentra Medical Centers enclosed). The Trustees
approved your application for a Disability Retirement
benefit on January 1, 2004 to be effective December 1,
2003 in the gross amount of $435.00 per month.
The Plan provides that Disability payments will end
if you cease to be Disabled or if you return to work
other than for the purpose of rehabilitation at a nominal
wage (see pages 15 and 16 of the enclosed Summary Plan
Description booklet). Since you are no longer disabled
from performing longshoreman work, your Disability
retirement benefit payments will end on April 30, 2011.
Your final payment was April 1, 2011. You may retire
with a reduced Early Retirement benefit between the ages
of 51 and 62 or you may defer your retirement date until
age 62 at which time you will receive your full Vested
Retirement benefit.
You and your dependents’ retiree health insurance
benefit will also terminate on April 30, 2011 because you
must be retired in order to qualify to receive those
benefits.
Your post-appeal rights are set forth on pages 36-39
of the enclosed Summary Plan Description booklet. Please
note your right to pursue legal action under Section
502(a) of ERISA. The limitation period is one (1) year
from today.....
The Fund received no written appeal advising it that McGowan
[receiving] benefits.”
4
contested the ending of the disability benefits.5
Thereafter, on September 12, 2011, McGowan’s then-attorney,
Scott Bickford, wrote to the Fund that he was assisting McGowan in
returning to work as a longshoreman. Bickford described McGowan as
“re-certified in Hazmat training, lift truck operations, heavy
truck operations and completed the classroom and written test for
top load operations.”
On February 9, 2012, nearly 10 months after
the April 20 letter confirming an end to McGowan’s disability
benefits, McGowan, represented by new counsel, William Vincent,
sought to continue eligibility for disability benefits.6
On March
1, 2012 Vincent again wrote Daniel:
Enclosed please find a Residual Functional Capacity
Evaluation for Longshoreman dated February 27, 2012
completed by Dr. Joseph Miceli.
As per my telephone
conversation with you today, please forward the Soc
Security forms which are required of my client and a
waiver of prescription extending my client’s right to
file court proceedings....
5
McGowan suggested in motion practice that he contested
this assertion, pointing to “exhibit A.”
Buried in those
administrative hearing meeting minutes from August 17, 2012 is a
position advanced by McGowan and his counsel that McGowan called
Mr. Daniel after receiving the April 20 letter; McGowan suggests
that his phone call was his intention to appeal.
6
Specifically, McGowan’s counsel wrote:
By this letter, I formally request that Mr.
McGowan be reevaluated by a physician employed
by the Fund with regards to his continuing
eligibility for disability benefits. It is my
understanding that this request will be
presented to the board at it’s [sic] upcoming
meeting which would allow time for evaluation
prior to the one year limitation....
5
On April 18, 2012 McGowan sued NOE-ILA Pension Fund in this Court,
to challenge the termination of his benefits pursuant to ERISA, 29
U.S.C. § 1001.7
After the Fund requested dismissal or summary
relief on the ground that McGowan failed to timely exhaust his
administrative remedies, on September 12, 2012 the Board of the
Fund issued its “final decision” with respect to McGowan’s request
through counsel that disability benefits be continued:
The April 20, 2011 administrative action taken by the
Plan Administrator was correct. The subsequent “appeal”
was untimely.
Thus, the April 20, 2011 stands as
conclusive and final as affirmed here by the Board of
Trustees.
After the Fund had requested dismissal of McGowan’s lawsuit and
after the Board issued its “final decision”, McGowan amended his
complaint (as a matter of course) on October 1, 2012, adding
allegations that he exhausted his administrative remedies and that
the Board itself failed to comply with the Plan.
The Fund filed
reply papers in support of their motion to dismiss or motion for
summary judgment, maintaining their position that McGowan’s lawsuit
should be dismissed because McGowan failed to comply with the terms
of the Plan, which require exhaustion of administrative remedies
before filing a lawsuit.
On October 15, 2012 this Court granted
7
Meanwhile, the Trustees held an administrative hearing
on August 17, 2012, at which time a written record was developed
and evidence was received from McGowan and his counsel. According
to the minutes of the special “Pension Hearing”, Fund Counsel
stated that “a formal appeal hearing was called in regard to Mr.
Troy McGowan’s disability retirement.”
6
the defendant’s motion for summary judgment, finding that McGowan
failed to exhaust his administrative remedies under the Plan.
The
next day, Judgment was entered in favor of the Fund. The plaintiff
now seeks reconsideration of the Court’s October 16, 2012 Judgment
entered in favor of NOE-ILA Pension Fund.
I.
Rule 59(e) of the Federal Rules of Civil Procedure provides
that a motion to alter or amend a judgment must be filed no later
than 28 days after the entry of the judgment.
Fed.R.Civ.P. 59(e).
Rule 60(b), on the other hand, applies to motions filed after the
28-day
period,
requirements.”
but
demands
more
“exacting
substantive
See Lavespere v. Niagara Machine & Tool Works, 910
F.2d 167, 173-74 (5th Cir. 1990), abrogated on other grounds,
Little v. Liquid Air Corp., 37 F.3d 1069, 1078 (5th Cir. 1994)(en
banc).
“A Rule 59(e) motion ‘calls into question the correctness of
a judgment.’”
Templet v. Hydrochem, Inc., 367 F.3d 473, 478 (5th
Cir. 2004) (quoting In re Transtexas Gas Corp., 303 F.3d 571, 581
(5th Cir. 2002)).
Because of the interest in finality, Rule 59(e)
motions may only be granted if the moving party shows there was a
mistake of law or fact or presents newly discovered evidence that
could
not
have
been
discovered
previously.
Id.
at
478-79.
Moreover, Rule 59 motions should not be used to relitigate old
matters, raise new arguments, or submit evidence that could have
7
been presented earlier in the proceedings.
See id. at 479;
Rosenblatt v. United Way of Greater Houston, 607 F.3d 413, 419 (5th
Cir. 2010)(“a motion to alter or amend the judgment under Rule
59(e) ‘must clearly establish either a manifest error of law or
fact or must present newly discovered evidence’ and ‘cannot be used
to raise arguments which could, and should, have been made before
the judgment issued’”)(citing Rosenzweig v. Azurix Corp., 332 F.3d
854, 864 (5th Cir. 2003)(quoting Simon v. United States, 891 F.2d
1154, 1159 (5th Cir. 1990)).
The grant of such a motion is an
“extraordinary remedy that should be used sparingly.” Indep. CocaCola Employees’ Union of Lake Charles, No. 1060 v. Coca-Cola
Bottling Co. United, Inc., 114 Fed.Appx. 137, 143 (5th Cir. Nov.
11, 2004) (citing Templet, 367 F.3d at 479).
The Court must
balance two important judicial imperatives in deciding whether to
reopen a case in response to a motion for reconsideration: “(1) the
need to bring the litigation to an end; and (2) the need to render
just decisions on the basis of all the facts.”
Templet, 367 F.3d
at 479.
Because the Court entered the challenged Judgment on October
16, 2012, and the plaintiff filed his motion to reconsider 27 days
later, the motion to amend is timely under Rule 59(e).
II.
McGowan urges the Court to reconsider its Judgment in favor of
the Fund: McGowan contends that he was denied his appeal rights as
8
a result of the Board’s intentional misrepresentation of the
plaintiff’s rights under the Plan or, alternatively, that the Board
violated the Plan procedure and ERISA law by issuing a final
decision without affording him an appeal.
For these reasons,
McGowan insists, the Fund should not be permitted to raise as a
defense his failure to exhaust administrative remedies.
McGowan
suggests that he does not raise new arguments or rely on new
evidence but, rather, he contends that the Court failed to consider
the incorrect representations in Daniel’s letter, and the Court
failed to determine that the Plan was not reasonably maintained.
The Fund counters that McGowan asserts one new argument: that
he was denied his appeal rights as a result of the Board’s and its
Administrator’s intentional misrepresentation of the plaintiff’s
rights under the Plan. The Fund insists that McGowan should not be
permitted to do what courts have consistently instructed against by
advancing theories, rehashing old arguments, and using the new
trial motion as an appeal.
The Court agrees.
In granting summary relief in favor of the Fund, this Court
considered the contents of the April 20 letter, and rejected
McGowan’s argument that the letter was legally inadequate to
trigger his appeal rights:
[McGowan] provides no support for his argument and, even
if the Court indulged him, the contents of the April 20
letter is in substantial compliance with ERISA such that
the letter triggered the running of his administrative
appeal period. See 29 U.S.C. § 1133; see also Lacy v.
Fulbright & Jaworski, 405 F.3d 254, 256-57 (5th Cir.
9
2005)(holding that an initial denial notice need only be
in substantial compliance with 29 U.S.C. § 1133 and the
DOL Regulations...in order to trigger an ERISA appeal
period). The record shows that, by the April 20 letter,
McGowan was informed that his benefits were being
terminated and why, with references to the pages of the
attached summary plan description book; McGowan was
advised about his post-appeal rights and directed to the
pages of the enclosed summary plan booklet for more
information; and he was also advised about his right to
file an ERISA lawsuit. McGowan fails to persuade the
Court that the letter fails to substantially comply with
the statutory and regulatory notice requirements. To the
contrary, he had all of the Plan appeal procedure
pinpointed for him....
McGowan v. New Orleans Employers Int’l Longshoremen’s Assn. AFL-CIO
Pension Fund, No. 12-990, 2012 WL 4885092, at *7 (E.D. La. Oct. 15,
2012).
To the extent McGowan does not simply rehash arguments
previously advanced, he raises arguments that should have been made
previously.
“[A] motion to alter or amend the judgment under Rule
59(e) ‘must clearly establish either a manifest error of law or
fact or must present newly discovered evidence’ and ‘cannot be used
to raise arguments which could, and should, have been made before
the judgment issued.’”
Rosenblatt v. United Way of Greater
Houston, 607 F.3d 413, 419 (5th Cir. 2010). In any event, the Court
determined that the record demonstrated that McGowan did not comply
with the Plan’s claim review procedures; he failed to exhaust his
administrative remedies under the Plan.
His arguments now do not
alter that determination.
Accordingly, because McGowan has failed to demonstrate that
this Court manifestly erred in law or in fact, the plaintiff’s
10
motion for new trial is DENIED.
New Orleans, Louisiana, December 19, 2012
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
11
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