*1 Washington Edgerton, and! NEEDHAM, Appellant, Delos J. Circuit Danaher, ASSOCIATION, AMERICAN BANKERS Judge. WASHINGTON, Circuit brought by em- This is a a retired suit against ployee employer re- his former alleged pen- cover to be due under of Columbia Circuit. plan employer. sion established Argued Dec. employedby was Ameri- 2, 1961. here, March Decided Association, appellee can Bankers general counsel, nine- as for almost years. During greater part of

teen period, this Asso- both and the group ciation made to a contributions annuity plan surance in is- controversy sue here. The computation lates to the benefits annually payable under supplemental plan, retirement employees Ap- made no contribution. pellant complains computation that the erroneous, prejudice. The to his granted appellee’s court trial motion summary judgment, fol- lowed. Appellee concedes that

rights supplemental plan under the judicially enforceable. issue before scope us is the and definition those rights. See Hurd v. Illinois Bell Tele Danaher, Judge, dissented. phone Co., D.C.N.D.Ill.1955, F.Supp. Cir., 1956, affirmed 7 234 F.2d Seybold certiorari denied sub nom. Co., Western Electric 352 U.S. 77 S.Ct. 1 L.Ed.2d 124. aOver

period settlor-employer supplemental the trustees of the retire governing ment fund have construed the pro indenture and related documents viding for annual retirement benefits (a) supplemental which would to So Security benefits, cial the latter benefits be deducted amounts other payable employee wise under the supplemental plan, (b) be calculated average regular' Ewing Laporte, Washington, Mr. D. employee, exclusive bonuses. The trus George C. with whom Herbert Good- have tees C., Washington, rich, brief, D. on the in accordance with these de terminations, by ap both here Roberson, reviewing F. pellant. controlling Mr. Frank After documents, basis stated in *2 426 ing standing alone, that in in case, supra,1 these or cannot words we Hurd incorrect, any por deed adopted in combination with other the construction appellant’s appellant’s any way tion of and attached affidavit in invaded or that it exhibits, genuine subjected issue of ma to raise a rights, him to discrimina or any question, terial or tory fact the bonus treatment. question law other in the case. Issues of num urges Appellant there were that presented, Dis are we think the genuine presented, ber of issues of fact correctly trict Court decided. U.S.C.A., 56(e), and Fed.R.Civ.P. see that reasons, judgment of the For the these go to trial. We he was entitled to will be disagree. This the sort of to us seems summary judgment is not

'case in which by only proper is indicated but the course Judge (dissent- spirit DANAHER, Rules. For ’the letter and of the genuine ing). example, appellant is raised no respect to the material fact with sue of my col- has become certain that It ' paid in cer to leagues I the materials do not read “salary years ad tain as “bonuses” or way. quite I find in the same at hand clearly justments.” sums, These while myself not unable whether or decide services,” compensation for '“additional appellant, payments over to the certain any such, time not at and taxable as were salary, his constituted and above normal “regu part employee’s of Considered the argues, payments” appellee the “bonus “average salary” salary” lar annual or appellant’s “adjustments.” of or One meaning Plan.2 of the These within the payments that such exhibits indicates by year-end the were made awards at the always considered as addi- “have been when, superior appellant’s officer “if and during compensation for tional services budget permitted. judgment,” in his they particular year have years, the 19 In 7 or 8 out of always granted been and have been employment, -appellant’s no he received salary in our records and so cluded award, reasons unknown to him. purposes.” ported for Since con- tax averaged less than he did receive .awards troversy appellee developed, has de- urges Appellant that he each. .$1,000 If such as “bonus.” nominated bring given have been a chance they payments, should “ad- such not bonus subject at a additional facts on this important justments” factor .out became an suggest .trial, what such does not but average computing appellant’s an- in n facts might they be, or would affect how salary. nual The difference Appel legal presented. question ¡the year. per This element $270 amounts in the District Court avers lant’s affidavit case, seem, presents a it would history, to set that “The entire too genuine issue which a record should as to

n forth ,in by adequately made, permit detail affidavit and I would reverse to be showing aspect. pay proper trial, said retirement instead contract, circular notices involves ment colleagues’ My that “ad- conclusion including by all defendant justments” at con- were “not time n correspondence, memoranda, plaintiff, part” sidered only by reached, it, aceept- findWe noth oral communications.” be as see can necessarily agree argumentative Court, alleging with not do we that it 1. While opinions two in said in the is would not have been admissible at a that all may, appellant Hurd, con our would reach Be that as we trial. it giving prove after even no claim that he facts con- could clusion every trary inference favorable in If to those stated the affidavit. benefit opinions. from those given drawn arguing him to the construction that he is by irrelevant, appellee Plan urges the affidavit help him, not as the issue would this does Comptroller should pellee’s to this effect by remain one of law. the District have been considered Henry Fowler, Washington, score. M. appellee’s on that claim anee of construc Appellant has by offering position tion, his to establish Judge, Chief Miller,. Wilbur K. notices defend *3 of “circular evidence Edgerton Fahy, including plaintiff, ant to all memoranda, oral correspondence, PER CURIAM. is not the case communications.” think This is an order summary v. ripe judgment. Sartor denying petition District Court Corp., 1944, 321 Arkansas Natural Gas pellant for letters of administration 967; 620, 627, 88 L.Ed. U.S. S.Ct. Dodson, the estate Bernon S. de- Summerfield, 1954, 94 U.S. Goldman v. ceased. The District Court found after App.D.C. 858. F.2d taking testimony petitioner proof had not sustained the burden showing that she was decedent’s comr mon-law Her claim to wife. that status right was the basis for her assertion of to letters of administration. On the conflicting evidence we cannot finding of the District Court was clearly erroneous, accordingly order is DODSON, Appellant, Ruth DODSON,Appellee.

Bernon L.

No. 16088. Appeals

United States Court District of Columbia Circuit.

Argued March 1961.

Decided March 1961. HIGH, Appellant,

Ernest Mark America, UNITED STATES of District of Columbia Circuit. Argued Dec. 1960. Decided March Dwyer, Mr. John J.