517 F.2d 1237 | D.C. Cir. | 1974
Lead Opinion
This case and its companion, Pete v. UMWA Welfare and Retirement Fund of 1950, 170 U.S.App.D.C. 437, 517 F.2d 1267, No. 73-1270, are the latest in a series of legal confrontations between retired mine workers and the Trustees of the United Mine Workers of America Welfare and Retirement Fund of 1950 (the Fund). That the present controversies have proceeded to this stage without some extrajudicial resolution is attributable not so much to the novelty of the legal issues, for the governing law is fairly clear, nor to the need for an intensive factual inquiry, for the material facts are on the whole uncontroverted. Rather, these controversies owe their lives to the continuing intractability of the Trustees in the face of a series of unambiguous pronouncements by this court designed to guide the Trustees in the discharge of their obligations to the Fund’s beneficiaries. The individuals serving as Trustees have changed from time to time during the course of this extensive litigation, as have their legal counsel, and all the incumbent Trustees were not participants in the major actions described herein. We hope that our affirmance of the orders entered below, granting the plaintiff classes summary judgment, will help close the book on this chapter, in the annals of litigation.
I. Background
The fund is an irrevocable trust established by the National Bituminous Coal Wage Agreement of 1950 under the authority of section 302(c)(5) of the Labor-Management Relations Act of 1947.
The plaintiff class in this case consists of all miners who retired after 1 February 1965 and who met all pension eligibility requirements in effect at the time they applied, except the so-called “signatory last-year employment requirement.” This requirement, embod
The plaintiffs-appellees filed their complaint on 28 February 1970, 14 days after this court issued its pivotal opinion in Roark v. Boyle
Since the court in Roark II perceived that the signatory last employment requirement could serve a legitimate purpose in some situations, we stated that such a requirement “can be valid,” but
only if it is in context of a plan that conditions eligibility on a period of contributory employment that is of sufficiently significant duration to warrant eligibility for a flat pension. A period less than five years would manifestly not be sufficient under this standard.11
We further indicated that if the Trustees chose to retain the objectionable requirement in a validating context, they would “have discretion to make their amended regulation retrospective, in the sense of being applicable to applications hereafter filed even though they relate to past retirements.”
On 14 January 1971 the Trustees approved Resolution No. 83, which contained a signatory last-year employment requirement for miners who retired on or after 1 February 1965,
Subsequently, on 25 June 1971, we handed down our decision in DePaoli v. Boyle.
[T]he new Resolution No. 83 makes no provision whatsoever for persons such as DePaoli who, like Roark and Collins, had filed before 14 August 1970 and had been denied pensions on the basis of the signatory last employment requirement declared unlawful in the Roark case. The net result of the trustees’ action is not to accept the in*413 vitation of the court to make the new eligibility requirements retroactive in an equitable and valid context, as in their discretion the trustees might have done, but specifically to promulgate as far as DePaoli and others similarly situated are concerned the very eligibility requirements struck down in Roark.18
On 28 January 1972, in Belcher v. Carey,
On 2 March 1972 the Fund’s Trustees promulgated Resolution No. 89, which attempted to give Resolution No. 83 retroactive effect with respect to applications received before 14 August 1970. However, on 12 May 1972, in Teston v. Carey,
[T]he manner in which the Trustees have perpetuated the final year of service for a signatory employer requirement under Resolution 83 is not fair and equitable ....
For the guidance of the Trustees, our failure to strike out the signatory last employment requirement totally, our recognition that “new eligibility regulations . . . might contain the signatory last employment requirement in a validating context, . -. if such were fair and equitable,” should not be interpreted as a validation of the signatory last employment requirement in every context for every purpose.
Indeed, such a requirement is probably not fair and equitable in the circumstances of most pension applicants.22
The Trustees subsequently approved Resolution No. 90, which retained the total signatory service requirement of Resolution No. 83 but eliminated the signatory last employment criterion. In its place, the Trustees imposed a requirement that a miner have worked a specified number of years for a signatory employer during his last five years in the coal industry. The number of years required for each miner is inversely related to his total years of signatory service.
On 19 January 1973 the District Court granted summary judgment to the plaintiff class, a decision which we will discuss more fully, below.
II. The District Court Decision
After reviewing the pertinent decisions of this court, the District Court found that the plaintiffs in the instant case stand in much the same position as the plaintiffs in Roark II, DePaoli, and Teston. Specifically, the court found:
It is undisputed that all of the plaintiffs in the cases at bar were denied their pensions solely on the ground of failing to meet the signatory last employment requirement. All of the plaintiffs filed their pension applications prior to the date of the Roark decision. These circumstances, coupled with the strong language of the Court in Teston that “such a requirement is probably not fair and equitable in the circumstances of most pension applicants,” compel a finding by this Court that the signatory last employment requirement as applied to the plaintiffs in the cases at bar was invalid.27
The court ordered that all class members be added to the pension rolls as of 1 January 1973 and be paid pension benefits retroactive to the dates on which their applications were denied. The court made eligibility for this relief subject to the further requirement that the miner have worked a minimum of one year for a signatory operator any time after 28 May 1946. In its Supplemental Memorandum Opinion and Order, the court ruled that accrued pensions were to be paid from the first day of the month following the date the miner’s pension application was denied. The court also reversed its earlier decision to award plaintiffs interest on their accrued pensions. Finally, in a Memorandum Opinion and Order dated 29 August 1973, the court awarded fees of $64,773.00 to the Kiser class attorneys, $4,531.32 to the attorney for consolidated plaintiffs Moore, et al., and $3,916.75 to intervenors Adkins, et al. All these fees were taxed against the defendant Fund.
We affirm the District Court’s decisions in all respects, except (1) we hold that payment to plaintiffs of interest on their accrued pensions is appropriate; and (2) we remand the issue of attorneys’ fees for action consistent with the standards set out herein.
III. Invalidity of the Signatory Last-Year Employment Requirement as Applied to Plaintiffs-Appellees
Rejection of a pension application by the Trustees must stand unless the reviewing court finds that the Trustees’ action was arbitrary or capricious.
The Trustees argue, however, that the deficiencies of Resolution No. 63 were rectified by Resolution No. 83, which by Resolution No. 89 was given retroactive effect with respect to applications received before 14 August 1970. Roark II, the Trustees contend, invited them to promulgate new eligibility criteria which, in their discretion, could be applied retroactively. Roark II also recognized that a signatory last employment requirement could advance a legitimate purpose, provided that the Trustee supplied a validating context by requiring some substantial amount of total signatory service, at least five years. The Trustees argue that they were implementing the language of Roark II when they (1) promulgated Resolution No. 83 with its signatory last employment requirement in the validating context of a five-year total signatory service provision, and (2) gave the new resolution retrospective application by means of Resolution No. 89. Therefore, the Trustees conclude, they can now justify their denial of pension benefits to plaintiffs-appellees on the basis of the valid signatory last employment requirement of Resolution No. 83.
Roark II gave the Trustees discretion to “make their amended regulation retrospective, in the sense of being applicable to applications hereafter filed even though they relate to past retirements . . . [and] to applications heretofore rejected and subsequently presented for reconsideration.”
In the language of our opinion in Roark, “We conclude that relief to the party before us should not be limited to reconsideration of his application under revised eligibility requirements.” Those revised requirements will avail [the plaintiff] nothing. He had filed his application prior to our decision in Roark, he has been denied a pension on the very eligibility requirement struck down in Roark, and, like Roark and Collins, he deserves the same relief.33
The DePaoli analysis was not altered by the subsequent promulgation of Resolution No. 89, giving Resolution No. 83 retroactive effect, for we reached the same result based on the same analysis in Teston v. Carey,
Moreover, the latitude we were willing to confer on the Trustees in Roark II was predicated on our assumption that the Trustees would act promptly to establish regulations that would ensure fair and equitable treatment of all pension applicants. But it was not until January 1971 that the Trustees finally acted to revise eligibility criteria, and
Finally, we have held, most notably in Danti v. Lewis,
In Roark II we did not say so directly, but it would seem obvious, that what would be a “validating context” for a signatory last employment requirement for future pension applicants might not be equitable, fair, and therefore valid, for current or past pension applicants, who would be powerless to rearrange their past lives. The five years of signatory employment the court implied to be of “sufficiently significant duration” to provide a “validating context” for a signatory last employment requirement should have been interpreted by the Trustees with this distinction in mind. An attitude on the Trustees’ part that the pension Fund existed for the benefit of the miners who had labored for years and now could labor no more, rejecting any idea that the Fund existed for the Fund itself or for any benefit to the Trustees by the power inherent in the administration of such a sizable fund, would have gone a long way in preserving the Trustees from the errors of judgment they subsequently made.
IV. Retroactive Relief
The District Court ordered the Trustees to pay members of the plaintiff class pension benefits retroactive to the first day of the month following the date on which each plaintiff’s pension application was denied. The Trustees invite us to exercise our equitable discretion and make payments retroactive to 14 August 1970, the date of our Roark II decision. Until that date, the Trustee's urge, they had no notice of the invalidity of the
First, the Trustees’ assertion that they had no notice of the invalidity of the signatory last employment requirement before 14 August 1970 is incorrect. In Roark I, decided 21 August 1968, we clearly indicated that, unless the Trustees could carry the burden of convincing the court that the requirement was rationally related to some legitimate purpose of the Fund, we would declare it invalid. Therefore, the Trustees had clear, unambiguous notice as early as 1968 that the signatory last employment requirement was presumptively invalid.
More importantly, however, we are bound by the holding of Danti v. Lewis that pension rights vest at the date a retired miner applies for benefits, if the applicant meets all eligibility criteria then in effect.
We are cognizant of the observation we made in Gaydosh v. Lewis that “[t]he function of the trustees, on the
The Trustees invoke the spectre of an extended strike that could curtail the Fund’s intake of royalties from contributing operators and compel the Fund to dip into its reserves. They argue that those reserves should not be diminished by substantial retroactive payments to the class plaintiffs herein. However, the risk of a strike is one that should be borne equally by all pensioners as a potential burden on their future benefits. It should not be used as an excuse for denying qualified retirees benefits they have been wrongfully denied in the past.
The District Court’s decision is affirmed insofar as it grants the plaintiffs-appellees retroactive relief.
V. Total Signatory Service Requirement
Section 302 of the Labor-Management Relations Act (Taft-Hartley Act) was enacted to prevent employers from attempting to dominate their employees’ bargaining representatives by bribing unions or union officials.
spect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer, and their families and dependents (or of such employees, families, and dependents jointly with the employees of other employers making similar payments, and their families and dependents) . . . .49
For our purposes, the crucial phrase in this subsection is the one requiring that the trust fund to which an employer contributes be “for the sole and exclusive benefit of the employees of such employer, and their families and dependents . . . .” There is virtually nothing in the legislative history of Taft-Hartley to illuminate the exact purpose and meaning of this phrase.
Since neither the relevant statute nor our eases specify what total amount of signatory service should be required, the trustees of the UMWA Welfare and Retirement Fund and of other similar funds have some discretion in setting contributory service criteria. The Trustees have exercised that discretion with respect to future applications for benefits by promulgating Resolution No. 90, which requires five years’ total signatory service for miners who apply before 31 December 1976, six years for those who apply between 1 January and 31 December 1977, and so on. However, we now hold in Part III swpra that Resolution No. 63, not No. 90, governs the applications filed by members of the plaintiff class. Resolution No. 63 contains a one-year total signatory service requirement in the form of a requirement that the applicant have retired immediately following one full year of work for a signatory employer. The District Court concluded that in implementing Resolution No. 63,
the Trustees themselves were under the apparent understanding that one year was sufficient under the TaftHartley Act in that the signatory last employment requirement applied to the last full year prior to retirement. The Trustees’ error was not the requirement of one year’s contributory employment, but the requirement that the one year of contributory service be rendered the year immediately preceding retirement.54
The District Court thus thought it equitable to impose a requirement that in order to qualify for future pension benefits and retroactive relief, each member of the plaintiff class must demonstrate that he worked at least one year for a signatory employer at any time during his career. We affirm this exercise of equitable discretion by the District Court.
While we intimate no view on whether a one-year total signatory service requirement would be fair and equitable as a criterion of prospective application, we think such a requirement is appropriate in the peculiar circumstances of this case. We are dealing here with a limited number of retired miners who filed applications before 14 August 1970 and were denied benefits on the basis of the now extinct Resolution No. 63. Therefore, the impact of the one-year signatory service requirement approved here will be limited and entirely retrospective. Moreover, to impose a five-year signatory service requirement on the plaintiff class, as the Trustees suggest, would create the kind of inequity that Roark II sought to prevent. Hypothetically, there is a former miner, A, who retired after 1 February 1965 and applied for a pension on 1 January 1970. A had worked just one year for a signatory employer, but that year had been his last in the industry. Since A met all other eligibility requirements of Resolution No. 63, which was in effect when he applied, he was granted a pension and has been paid monthly benefits ever since. By contrast, B is a member of the plaintiff class who retired after 1
We affirm the District Court’s decision to require at least one year of signatory service as a condition to obtaining relief.
VI. Interest
In its order of 19 January 1973 the District Court awarded members of the plaintiff class interest at six percent per annum on the total of the back pension payments that had accrued from the dates on which their applications had been denied to 31 December 1972.
This court has held that in an action in district court for recovery of a liquidated indebtedness, the issue of whether the plaintiff has a right to prejudgment interest is governed by 15 D.C.Code § 108 (1973),
In an action in the United States District Court for the District of Columbia or the Superior Court of the District of Columbia to recover a liquidated debt on which interest is payable by contract or by law or usage the judgment for the plaintiff shall include interest on the principal debt from the time when it was due and payable, at the rate fixed by the contract, if any, until paid.
The District Court denied the plaintiffs-appellees interest in part on the basis “that total amounts of accrued pension payments prior to January 1, 1973 cannot be considered liquidated sums due and payable at the dates of pension denial.”
Section 108 provides that “the judgment for the plaintiff shall include in
Even if section 108 were inapplicable here, we would find it difficult to affirm the District Court’s denial of interest as an exercise of equitable discretion.
The District Court offered a further reason for its denial of interest:
[Bjecause the award of interest constitutes an additional burden on the assets of the Fund, and requires what would appear to be an inordinate expenditure of time and effort for corm putation on each individual claim, the Court has determined that the benefits to be derived from the payment of interest to the plaintiffs are outweighed by the importance of effectuating the payment of claims as quickly and efficiently as possible.63
The court’s difficulty of computation rationale should be given little weight. An exhibit prepared by an actuary in connection with the companion Pete case sets out the formula and method for calculating interest on accrued pensions for the members of the Pete class from the dates monthly payments fell due through 31 December 19 72.
VII. Attorneys’ Fees
In its opinion of 29 August 197 3
The fundamental principle that must guide our review of this aspect of the case is that we must pay considerable deference to the District Court’s exercise of equitable discretion in setting the fees. As the First Circuit ,stated in Green v. Transitron Electronic Corp.:
The fixing of the amounts of attorneys’ fees must, of necessity, be a matter within the discretion of the district court. The lower court “has far better means of knowing what is just and reasonable than an appellate court can have.” Trustees v. Greenough, 105 U.S. 527, 537, 26 L.Ed. 1157 (1881). It is the lower court that has lived with the case and, therefore, is more alert to the merits of each request for counsel fees.70
Applying this standard of review, we must conclude that in most respects the District Court properly exercised its discretion.
The basic criteria for the District Court’s determination of the appropriate fee-setting formula were those set out in the Manual for Complex Litigation
We recognize, as did the District Court, that additional factors must be considered in fixing fees for attorneys in class actions.
Another concern when class attorneys’ fees are at issue is that class litigation involves an element of risk: if the class plaintiffs do not prevail, their counsel may recover inadequate or no compensation. Thus, it is sound policy to grant class counsel some premium for their efforts as an incentive for other attorneys to undertake the risk of prosecuting class actions. As the District Court noted, however, the counsel in the present case assumed very little risk in pressing the claims of the class plaintiffs. The essential legal principles that control this case were established in Roark II, which was decided 14 days before the complaint was filed herein
In determining attorneys' fees on an hourly basis, the District Court refused to give effect to consent forms mailed by counsel to class members on 22 January 1973, three days after entry of summary judgment for the plaintiff class. The consent forms bore the official caption of the case, informed the recipients of the District Court’s 19 Janu
We agree with the District Court that fee agreements of this nature must be subjected to close judicial scrutiny under equitable principles. As we stated in Spilker v. Hankin:
Fee contracts between attorney and client are a subject of special interest and concern to the courts. They are not to be enforced upon the same basis as ordinary commercial contracts. Especially is this true where, as in this case, a contract beneficial to the attorney is executed long after the attorney-client relationship has commenced, when the position of trust is well established, and the litigation involved is reaching its culmination. “In some jurisdictions it has been held that such agreements are void. In other states contracts of such character are held to be affirmatively invalid on the ground of fraud, and the burden is on the attorney to show the fairness of the transaction in that the compensation provided for does not exceed a reasonable compensation for the services rendered or to be rendered.” In re Howell, 215 N.Y. 466, 109 N.E. 572, 574. Many courts, including the courts of this jurisdiction, have gone so far as to say that they are attended by a presumption of invalidity and overreaching.80
In the case at bar, the District Court found that members of the plaintiff class “lack the sophistication, experience and education to act understandingly and deal with their attorneys on an equal basis at arms length.”
The District Court also refused to enforce contingent fee agreements obtained by counsel from consolidated plaintiffs Moore, et al., and intervenors Adkins, et al.
The single aspect of the District Court’s decision on attorneys’ fees with which we cannot agree is the award of $3,000.00 to Kiser class counsel for all work to be performed after the
The work remaining in the case consists of the argument in the Court of Appeals (briefs already filed) and the resolution of the minor dispute as to whether the 310 miners or their estates are valid members of the class. In this regard the United Mine Workers of America and the Defendant Trustees were ordered on August 1, 1973 to go into the field and assist these people in the preparation and filing of applications to determine whether they were valid members of this class and thus entitled to the benefits (Tr. 51-52). This directive eliminates the need for extended future services on the part of counsel.85
While we do not directly contest the validity of these findings, we hold that the court’s ultimate determination on fees for prospective work cannot be sustained. Any flat figure, including the $3,000.00 chosen by the District Court, is at best a mere approximation of the value of counsel’s services since August 1973. The fact that the Trustees vigorously contested the merits of this case on appeal undoubtedly compelled class counsel to log a significant number of hours in preparation, even after briefing had been completed. Moreover, despite the court-ordered efforts of the Fund and Trustees to ensure that all class members are found and enrolled, class counsel had and has a responsibility to oversee the process of finally determining the class membership. Therefore, we must remand the question of attorneys’ fees for a determination of the value of the services rendered by class counsel during the period between August 1973 and the termination of this litigation.
Finally, we think the District Court was justified in shifting liability for plaintiffs’ attorneys’ fees to the defendants. The established exceptions to the general “American Rule” that attorneys’ fees are not recoverable by a successful litigant were most recently articulated by the Supreme Court in F. D. Rich Co. v. Industrial Lumber Co.
We have long recognized that attorneys’ fees may be awarded to a successful party when his opponent has acted in bad faith, vexatiously, wantonly, or for oppressive reasons, or where a successful litigant has conferred a substantial benefit on a class of persons and the court’s shifting of fees operates to spread the cost proportionately among the members of the benefitted class.88
The District Court cogently brought the instant case within both exceptions. First, although the Trustees are before the court in their fiduciary capacities and thus bear no personal liability for the shifted attorneys’ fees, the District Court was not unwarranted in concluding:
Justice requires that the Defendants pay the costs and attorney’s fees incurred in this suit to compel the Defendants to discontinue their protracted discriminatory conduct and breach of fiduciary duty.89
More compelling was the court’s finding that it is appropriate for the Fund to bear the cost of plaintiffs’ legal fees since “the entire Fund benefited from this suit with the prevention of general fiduciary abuse and improvement of the
VIII. Conclusion
We affirm the District Court’s disposition of the substantive issues. Members of the plaintiff class are therefore entitled to immediate relief under the terms of the District Court’s order. We reverse the District Court’s decision that plaintiffs-appellees are not entitled to interest and remand for payment of interest in accordance with Part VI of this opinion. Finally, we affirm the court’s award of attorneys’ fees and taxation of those fees against defendants-appellants, except that we remand to the court for recalculation of post-August 1973 compensation for class attorneys.
Affirmed in part; reversed and remanded in part.
APPENDIX
RESOLUTION NO. 63
SEVENTY-EIGHTH MEETING OF THE BOARD OF TRUSTEES OF THE UNITED MINE WORKERS OF AMERICA WELFARE AND RETIREMENT FUND OF 1950, JANUARY 4, 1965 ******
I.Eligibility
A.An applicant who subsequent to February 1, 1965 permanently
ceases work in the bituminous coal industry as an employee of an employer signatory to the National Bituminous Coal Wage Agreement of 1950, as amended, shall be eligible for a pension if he has:
1. Attained the age of fifty-five (55) years or over at the date of his application for pension.
2. Completed twenty (20) years’ service in the coal industry in the United States, as described in paragraph II A hereof.
3.Permanently ceased work in the coal industry immediately following regular employment for a period of at least one (1) full year as an employee in a classified job for an employer signatory to the National Bituminous Coal Wage Agreement, as defined in paragraphs II B hereof.
B. An applicant who, prior to February 1, 1965, had permanently ceased work in the bituminous coal industry, as an employee of an employer signatory to the National Bituminous Coal Wage Agreement of 1950, as amended, shall be eligible for a pension if he has:
1. Attained the age of fifty-five (55) years or over at the date of his application for pension.
2. Completed twenty (20) years’ service in the coal industry as described in paragraph II A hereof, in the United Sta'tes, within the thirty (30) years’ period immediately preceding the date his application for pension is received at the office of the Trust Fund.
3. Permanently ceased work in the bituminous coal industry after May 28, 1946, following regular employment as an employee in a classified job for an employer signatory to the National Bituminous Coal Wage Agreement, and having been regularly employed in a classified job in the coal industry immediately preceding May 29, 1946.
C. An applicant who could have qualified for a pension under paragraph I B hereof, had he not worked beyond February 1, 1965, or an applicant who at any time
*428 after February 1, 1965, could have permanently ceased work and qualified for a pension under Paragraph I A hereof, at age fifty-five (55) or over but continued to work in the coal industry, shall not be required to work one (1) full year immediately preceding permanent cessation of work so long as his only subsequent employment in the coal industry is as an employee in a classified job for an employer signatory to the National Bituminous Coal Wage Agreement.
RESOLUTION NO. 83
ONE HUNDRED THIRD MEETING OF THE BOARD OF TRUSTEES OF THE UNITED MINE WORKERS OF AMERICA WELFARE AND RETIREMENT FUND OF 1950, JANUARY 14, 1971
•X- * * -X- * *
WHEREAS, it is the desire, intent and purpose of the Trustees as one of the eligibility requirements for pensions to require signatory employment of significant and meaningful duration so as to provide on an equitable basis an inducement to seasoned and experienced employees of signatory operators to remain with their respective employers, or other signatory employers, during their productive years, thus making more possible and probable a stable and continuing work force for contributing employers and a uniform but liberal eligibility requirement applicable equally to all beneficiaries on as equitable a basis as the peculiarities and the needs of the bituminous coal industry may require and the financial stability and integrity of the Fund may justify and allow;
* * -x- -x- * *
I.Eligibility
A. An applicant who, on or after February 1, 1965, ceases work in the bituminous coal industry as
an employee of an employer signatory to the bituminous coal wage agreement then in effect, shall be eligible for a pension if he has:
1. Attained the age of fifty-five (55) years or over at the date of his application for pension.
2. Completed twenty (20) years’ service in the coal industry in the United States, a “year of service” being as defined in paragraph II A hereof, provided, however, that as a part of such twenty (20) years’ service, an applicant whose application is received in the office of the Fund on April 1, 1971, or thereafter, must have worked, after May 28, 1946, the following minimum years of signatory service, a “year of signatory service” being as defined in paragraph II C hereof:
3.Ceased work in the coal industry immediately following regular employment for a period of at least “one (1) full year” as defined in paragraph II B hereof, as an employee in a classified job for an employer signatory to the bituminous coal wage agreement then in effect.
B. An applicant who, prior to February 1, 1965, had ceased work in the bituminous coal industry as an employee of an employer signatory to the National Bitumi*429 nous Coal Wage Agreement of 1950, as amended, shall be eligible for a pension if he has :
1. Attained the age of fifty-five (55) years or over at the date of his application for pension.
2. Completed twenty (20) years’ service in the coal industry in the United States, a “year of service” being as defined in paragraph II A hereof, within the thirty (30) years’ period immediately preceding the date his application for pension is received at the office of the Trust Fund, provided, however, that as a part of such twenty (20) years’ service, an applicant must have worked, after May 28, 1946, a minimum of five (5) years’ signatory service, a “year of signatory service” being as defined in paragraph II C hereof, provided further that an applicant who attains age fifty-five (55) after the effective date of this Resolution and has worked after May 28, 1946, a minimum of five (5) years’ signatory service, but delays filing an application for pension, shall be deemed to meet the twenty (20) years out of thirty (30) years’ requirement if he had completed twenty (20) years of classified service within the thirty (30) years’ period immediately preceding applicant’s attainment of age fifty-five (55).
3. Ceased work in the bituminous coal industry following regular employment as an employee in a classified job for an employer signatory to the bituminous coal wage agreement then in effect.
C. An applicant who could have met the requirements of paragraphs I B 2 and I B 3 hereof, had he not worked beyond February 1, 1965, or an applicant who at any time after February 1, 1965, could
have ceased work and met the requirements of paragraphs I A 2 and I A 3 hereof, but continued to work in the coal industry, shall not be required to work “one (1) full year” as defined in paragraph II B hereof, immediately preceding cessation of work, provided applicant’s only subsequent employment in the coal industry is as an employee in a classified job for an employer signatory to the bituminous coal wage agreement then in effect.
* -X- * * *- *
VI. Effective Date
A. Applications received in the office of the Trust Fund on April 1, 1971, and thereafter, shall be subject to, and governed by, the terms of this Resolution.
B. Applications received in the office of the Trust Fund before April 1, 1971, shall be subject to, and governed by, the regulations in effect on the date of receipt of such applications.
C. Applications received in the office of the Trust Fund during the period August 14, 1970, through March 31, 1971, which do not satisfy the requirements of regulations in effect during that period, shall be reviewed subject to the terms of this Resolution.
RESOLUTION NO. 89
ONE HUNDRED SEVENTEENTH MEETING OF THE BOARD OF TRUSTEES OF THE UNITED MINE WORKERS OF AMERICA WELFARE AND RETIREMENT FUND OF 1950, MARCH 2, 1972
WHEREAS, In adopting Resolution No. 83 on January 14, 1971, effective April 1, 1971, it was the desire and intention of the Trustees to comply with the decisions and opinions of the United
WHEREAS, Resolution No. 83 was retroactively effective only as to applications received in the office of the Trust Fund during the period August 14, 1970, through March 31, 1971, which did not satisfy the requirements of regulations in effect during that period, and it is the desire of the Trustees that eligibility requirements of Resolution No. 83 be applicable to applications received prior to August 14, 1970, which were denied because the applicant failed to prove he had ceased work in the bituminous coal industry following employment in a classified job for an employer signatory to the bituminous coal wage agreement, a requirement then in effect;
NOW, THEREFORE, BE IT RESOLVED, That Resolution No. 83 as heretofore adopted by the Trustees, is hereby retroactively amended, effective April 1, 1971, by inserting the following:
VI. Effective» Date
•X* * * * * -X-
D. Applications received in the office of the Trust Fund prior to August 14, 1970, and denied because the applicant failed to prove that he had ceased work in the bituminous coal industry immediately following regular employment for a period of at least one (1) full year as an employee in a classified job for an employer signatory to the bituminous coal wage agreement then in effect, or because the applicant failed to prove that he had ceased work in the bituminous coal industry following regular employment as an employee in a classified job for an employer signatory to the bituminous coal wage
agreement then in effect, shall, upon presentation for reconsideration, be reviewed subject to the requirements of paragraphs I.A. 2., and I.A.3., or paragraphs I.B. 2., and I.B.3., of this Resolution, whichever are applicable.
BE IT FURTHER RESOLVED, That in all other respects Resolution No. 83 remains unchanged and in full force and effect.
BE IT FURTHER RESOLVED, That the Director is hereby authorized and directed to activate this Resolution in accordance with its terms and conditions and is empowered to do all things, to perform all necessary acts, and to require the submission of evidence in order to effectuate the purpose of this Resolution.
RESOLUTION NO. 90
ONE HUNDRED TWENTY-SIXTH MEETING OF THE BOARD OF TRUSTEES OF THE UNITED MINE WORKERS OF AMERICA WELFARE AND RETIREMENT FUND OF 1950, OCTOBER 18, 1972
* -X- # * * *
BE IT FURTHER RESOLVED, That effective November 1, 1972, the following regulations shall govern the payment of pensions of $150.00 per month to employees of employers signatory to the National Bituminous Coal Wage Agreement of 1950, and the amendments thereto, the National Bituminous Coal Wage Agreement of 1968, the National Bituminous Coal Wage Agreement of 1971, and the related sub-bituminous coal wage agreements, other than those exempted from said agreements, and shall be subject to amendment, revocation and revision at the discretion of the Trusees.
I. Eligibility
A. An applicant who ceased work in the bituminous coal industry shall*431 be eligible for a pension if he has: as defined in paragraph II B hereof, as follows:
1. Attained the age of fifty-five (55) years or over at the date of his application for pension.
2. Completed twenty (20) years’ service in the coal industry in the United States, á “year of service” being as defined in paragraph II A hereof, provided, however, that as a part of such twenty (20) years’ service the applicant must have worked, after May 28, 1946, the following minimum years of signatory service, a “year of signatory service” being as defined in paragraph II B hereof:
Employment in the coal industry after April 1, 1971, will be credited as service required for pension eligibility as provided in paragraphs I A 2 and I A 3 hereof only if it is performed for an employer signatory to the bituminous coal wage agreement then in effect.
3.Worked as an employee in a classified job for an employer signatory to the bituminous coal wage agreement then in effect, during the five (5) year period immediately preceding last employment in the bituminous coal industry, based on his total number of years of signatory service completed since May 1946, a “year of signatory service” being
B. Any miner, who otherwise qualifies for a pension pursuant to sections I A 2 and I A 3 hereof at the time he is fifty-five years of age or over, may thereafter work in any job for an employer signatory to the bituminous coal wage agreement then in effect and qualify for a pension when he ceases such work.
C. Any miner who has completed at least 20 years of credited signatory employment may thereafter work in any job in the bituminous coal industry and qualify for a pension when he attains fifty-five years of age or over and ceases working in the bituminous coal industry.
D. Any miner who, based on his then current employment record, meets the requirement of paragraphs I A 2 and I A 3 hereof, may thereafter work in the coal industry and shall not be required to again meet the requirements of paragraph I A 3, provided that all such work was as an employee in a classified job for an employer signatory to the bituminous coal wage agreement then in effect.
* * X X X X
VI. Effective Date
A. Applications received in the office of the Trust Fund on November 1, 1972, and thereafter, shall be subject to, and governed by, the terms of this Resolution; Provided however, that applica-
*432 tions received between November 1, 1972 and January 1, 1973 may be approved if the terms of Resolution 83 are met.
B. Applications received in the office of the Trust Fund prior to November 1, 1972, which failed to satisfy the requirements of regulations then in effect, shall be reviewed subject to the terms of this Resolution, and if it is found the applicant meets the requirements of this Resolution, payment shall be authorized, but no payment shall be authorized for the period prior to the effective date of this Resolution.
. 29 U.S.C. § 186(c) (5) (1970).
. In Roark v. Boyle, 141 U.S.App.D.C. 390, 439 F.2d 497 (1970), we stated: “[AV]e cannot say that the law condemns outright, as inherently unreasonable, a flat pension plan that pays an equal amount to all pensioners meeting reasonable eligibility requirements.” Id. at 394, 439 F.2d at 501.
. Resolution No. 63 was adopted by the Trustees on 4 January 1965. The pertinent provisions of this and all other resolutions discussed herein are set out in the Appendix to this opinion.
. The class herein was certified as a valid class under Fed.R.Civ.P. 23(b)(3) by order of the District Court on 6 August 1971, as amended on 4 January 1972. Members of the class constitute a finite number of retired miners who are easily identifiable through the records of the Fund. The District Court ordered that the Fund “allow plaintiffs to examine the records of the 472 applicants denied pension benefits pursuant to ... paragraph I.A.3., Resolution No. 63 from February 1, 1965 to date, and that plaintiffs notify the members of this class ... of the pendency of this suit.” Since provision was made for notice by class representatives to ' all class members, this class action meets the requirements of Fed. R.Civ.P. 23(c)(2), as most recently interpreted by the Supreme Court in Eisen v. Carlisle & Jaequelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974).
Members of the class in the companion Pete case, 170 U.S.App.D.C. 437, 517 F.2d 1267, No. 73-1270, are all miners who retired prior to 1 February 1965 anl who were denied pension benefits pursuant to the requirement in Trustees’ Resolution No. 56, as amended by No. 57, that a miner have “[p]ermanently retired from and ceased work in the Bituminous Coal Industry after May 28, 1946, following regular employment in a classified job ... as an employee of an operator signatory to the National Bituminous Coal Wage Agreement of 1950 . . . . ” This requirement is referred to as the “signatory last employment requirement.” Throughout this opinion, the signatory last-year employment requirement of Resolution No. 63 is treated as one variety of signatory last employment requirement.
. 141 U.S.App.D.C. 390, 439 F.2d 497 (1970).
. 130 U.S.App.D.C. 360, 401 F.2d 425 (1968).
. Id. at 363, 401 F.2d at 428.
. 141 U.S.App.D.C. at 399, 439 F.2d at 506.
. Id. at 402, 439 F.2d at 509.
. 141 U.S.App.D.C. 387, 439 F.2d 494 (1970).
. 141 U.S.App.D.C. at 401, 439 F.2d at 508.
. IUd.
. Ibid.
. See Appendix. For miners like those in the Pete class who retired before 1 February 1965, Resolution No. 83 maintained the ■ requirement of Resolutions Nos. 56 and 57 that the miner have “[cj eased work in the bituminous coal industry following regular employment as an employee in a classified job for an employer signatory to the bituminous coal wage agreement then in effect.”
. See Appendix. The five-year requirement applied to applications received between 1 April 1971 and 31 December 1976. The requisite number of years increased to six for applications received during 1977, seven for 1978, and so on. A ten-year requirement was to apply during 1981 and thereafter.
. Resolution No. 83 also provided : Applications received in the office of the Trust Fund during the period August 14, 1970, through March 31, 1971, which do not satisfy the requirements of regulations in effect during that period, shall be reviewed subject to the terms of this Resolution.
. 144 U.S.App.D.C. 364, 447 F.2d 334.
. Id. at 367, 447 F.2d at 337 (footnotes omitted).
. No. 71-1622 (unreported).
. 150 U.S.App.D.C. 256, 464 F.2d 765.
. Id. at 258, 464 F.2d at 767.
. Id. at 260, 464 F.2d at 769 (emphasis original).
. Resolution No. 90, ¶ I.A.3. (18 October 1972), Appendix.
. Kiser v. Carey, 353 F.Supp. 736 (D.D.C.).
. Civil Actions Nos. 2186-69, 2350-69.
. The parties agreed to liquidate this amount at $1800. The Agreement recited that benefits would be paid to between 9,000 and 20,000 retired miners and widows and that the Fund’s actuarial data indicated a prospective cost of at least $40 million and a retrospective cost of $12 million.
. 353 F.Supp. at 740 (footnotes omitted).
. Kiser v. Miller, 364 F.Supp. 1311 (D.D. C.1973). Intervenors Adkins, Hensley, and Madden are members of the plaintiff class in this case. The latter two were so classified by order of the District Court on 23 May 1973. Moore was plaintiff in a consolidated case, Moore et al. v. UMWA Welfare & Retirement Fund of 1950, 353 F.Supp. 736. The Moore appeal, No. 73-1394, was dismissed by agreement of the parties.
. Gaydosh v. Lewis, 133 U.S.App.D.C. 274, 275, 410 F.2d 262, 263 (1969) ; Roark v. Lewis, 130 U.S.App.D.C. 360, 361, 401 F.2d 425, 426 (1968) ; Kosty v. Lewis, 115 U.S. App.D.C. 343, 346, 319 F.2d 744, 747 (1963), cert. denied, 375 U.S. 964, 84 S.Ct. 482, 11 L.Ed.2d 414 (1964) ; Danti v. Lewis, 114 U.S.App.D.C. 105, 108, 312 F.2d 345, 348 (1962).
. Kiser v. Carey, 353 F.Supp. 736, 737 n.l (D.D.C.1973).
.The governing resolution is now Xo. 90, which also purports to have retroactive application. What impact it would have on the pension rights of the plaintiff class is unclear since it replaced the signatory last employment requirement with a requirement that the applicant have worked a specified number of years for a signatory .employer during his last five years in the industry. Given our conclusion that plaintiffs’ applications are governed by Resolution Xo. 63, we need not explore the complexities that would arise were the provisions of Resolution Xo. 90 in issue.
. 141 U.S.App.D.C. at 401, 439 F.2d at 508 (emphasis supplied).
. 144 U.S.App.D.C. at 368, 447 F.2d at 338.
. 150 U.S.App.D.C. 256, 464 F.2d 765 (1972).
. Id. at 260, 464 F.2d at 769.
. 114 U.S.App.D.C. 105, 312 F.2d 345 (1962).
. See also Patterson v. UMWA Welfare & Retirement Fund of 1950, 346 F.Supp. 11 (E.D.Tenn.1971), in which the court stated:
It seems unjust for the Trustees, once having recognized the arbitrariness of a portion of Resolution No. 63 and after plaintiff had filed his claim, to pass another resolution subjecting him to the same arbitrary treatment which had been invalidated and to say they have cured the' arbitrariness by inserting a new criterion that is irrelevant in this case.
.See also Lavella v. Boyle, 144 U.S.App.D. C. 35, 444 F.2d 910 (1971) ; Kosty v. Lewis, 115 U.S.App.D.C. 343, 319 F.2d 744 (1963), cert. denied, 375 U.S. 964, 84 S.Ct. 482, 11 L.Ed.2d 414 (1964). In Lavella, the appellant was denied a pension in 1967 on the basis that he had failed to fulfill the requirement of having worked in the coal industry 20 of the 30 years preceding the year of his application. The 20-out-of-30 rule had been put into effect in 1953. The court held that since plaintiff had accumulated sufficient service by 1952 to qualify under the standard then in effect and since physical disability had necessitated his retirement and prevented his fulfillment of the 20-out-of-30 rule, he “had sufficiently vested rights in 1952 which could not be cut off by the change in eligibility requirements in 1953.” 144 U.S.App.D.C. at 37, 444 F.2d at 912. In Kosty, the miner failed to meet the eligibility requirements in effect at the time he retired. However, earlier in his career, he could have retired and qualified for a pension under the then existing criteria. The court held that he had not been given sufficient notice of the change in criteria to allow him to decide whether to continue working or to retire. Therefore, the court ordered that he be paid a pension.
Oaydosh v. Lewis, 133 U.S.App.D.C. 274, 410 F.2d 262 (1969), is inapposite here. In that case, the frustrated pension applicant failed to meet the eligibility criteria both at the time he retired (he was too young) and subsequently when he filed his application (he had reached the necessary age but did not fulfill new criteria promulgated in the intervening years).
. Payments are to r.un through 31 December 1972, since as of 1 January 1973 the plaintiffs have been added to the pension rolls and paid pensions pursuant to the District Court order.
. 353 F.Supp. at 741, citing Collins v. UM1VA Welfare & Retirement Fund, 141 U.S.App.D.C. 387, 439 F.2d 494 (1970) ; Roark v. Boyle, 141 U.S.App.D.C. 390, 439 F.2d 497 (1970) ; DePaoli v. Boyle, 144 U. S.App.D.C. 364, 447 F.2d 334 (1971) ; Belcher v. Boyle, No. 71-1622 (D.C.Cir. 1972) ; Teston v. Carey, 150 U.S.App.D.C. 256, 464 F.2d 765 (1972) ; Gomez v. Boyle, Civil No. 170-71 (D.D.C., 24 Nov. 1971) ; Stewart v. UMWA Welfare & Retirement Finid of 1950, Civil No. 3792-70 (D.D.C., 8 Dec. 1971) ; Robbins v. UMWA Welfare & Retirement Fund of 1950, Civil No. 2218-67 (D.D.C., 23 June 1972) ; Maholtz v. Carey, Civil No. 1720-71 (D.D.C., 19 Dec. 1971) ; Foradori v. Carey, Civil No. 1960-71 (D.D. C., 19 Dec. 1971).
. 133 U.S.App.D.O. 274, 278, 410 F.2d 262, 266 (1969).
. Affidavit of Edward H. Friend, 13 March 1972, Joint App. at 30a.
. The final figure should be lower since some of the putative class members in these cases may ultimately be excluded from the class recoveries because they failed to accumulate any significant amount of signatory service during their careers in the coal industry on because it is determined that they were denied benefits for some reason other than or in addition to the signatory last employment requirement.
. Joint App. at 80a.
. Affidavit of Thomas F. Ryan, Jr., 13 July 1973, in Pete v. UMWA Welfare & Retirement Fund, No. 73-1270 Supp.Joint App. at 25. Mr. Ryan estimated that the unexpended balance as of 30 June 1974 would be $47.9 million.
. It is not clear whether the unexpended balance figures reflect the estimated retroactive costs of $12 million resulting from the Blankenship settlement approved 26 February 1973. Bee notes 25-26 supra and accompanying text. However, the balances are clearly sufficient to absorb this further cost even assuming it has not already been accounted for.
In the companion Pete case, the District Court explicitly found, “ [I]t can hardly be said that the $3,151,435 [estimated] retroactive pensions for these plaintiffs could have any serious impact on the Fund presently or in the future.” Pete v. UMWA Welfare & Retirement Fund, Memorandum and Order of 24 January 1974, Supp.Joint App. at 49, 55.
. We also affirm the District Court’s ruling that the estates of “miners whose pension applications were denied on the sole ground of failure to meet the signatory last employment requirement and who died prior to the effective pension enrollment date contained in the [District Court’s order] are entitled to receive pension installments accrued from the first of the month following dates of denial to the dates of death.” 353 F.Supp. at 741-742.
. 29 U.S.C. § 186 (1970).
.29 U.S.C. § 186(c)(5) (1970). This exception is subject to the following provisos: Provided, That (A) such payments are held in trust for the purpose of paying, either from principal or income or both, for the benefit of employees, their families and dependents, for medical or hospital care, pensions on retirement or death of employees, compensation for injuries or illness resulting from occupational activity or insurance to provide any of the foregoing, or unemployment benefits or life insurance, disability and sickness insurance or accident insurance; (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer, and employees and employers are equally represented in the administration of such fund, together with such neutral persons as the representatives of the employers and the representatives of employees may agree upon and in the event the employer and employee groups deadlock on the administration of such fund and there are no neutral persons empowered to break such deadlock, such agreement provides that the two groups shall agree on an impartial umpire to decide such dispute, or in event of their failure to agree within a reasonable length of time, an impartial umpire to decide such dispute shall, on petition of either group, be appointed by the district court of the United States for the district where the trust fund has its principal office and shall also contain provisions for an annual audit of the trust fund, a statement of the results of which shall be available for inspection by interested persons at the principal office of the trust fund and at such other places as may be designated in such written agreement: and (0) such payments as are intended to be used for the purpose of providing pensions or annuities for employees are made to a separate trust which provides that the funds held therein cannot be used for any purpose other than paying such pensions or annuities ....
. The Senate added section 302(c)(5) as an amendment to H.R. 3020, and the House conferees ultimately accepted it. The conference report does little more than describe the provision. H.R.Rep.No.510, 80th Cong., 1st Sess. (1947). Prior to the bill’s original passage in the House, Representative Landis offered an amendment that was very similar to the current section 302(c)(5). The amendment was rejected after some rather unenlightening debate. 93 Cong.Rec. 3562-70 (1947).
. 141 U.S.App.D.C. at 394, 439 F.2d at 501.
. We did make the statement quoted at note 11 supra. The Trustees argue that this statement reflects the court’s conclusion that at least five years’ total signatory employment is required as a prerequisite to pension eligibility under section 302(c)(5). We disagree. We think that the court was primarily concerned with eliminating the inequitable effects of a bare signatory last employment requirement, as reflected in the following passage:
[T]he Trustees have failed to explain why it is reasonable to award a pension to a man who has worked only one year in contributory employment and to deny one to a man who has worked 19 out of his 20 years in the coal industry in contributory employment.
141 U.S.App.D.C. at 396, 439 F.2d at 503. The five-year standard was proposed as a “validating context” for the signatory last employment requirement with the purpose of ameliorating the inequities identified by the court. We can hardly impute to the court
. Tlie plaintiffs in Roark II had worked from 9 to 15 years for signatory employers. DePaoli had accumulated 8 years of signatory service. Teston had 11 to 12 years of signatory service to his credit.
. 353 F.Supp. at 743-744 (emphasis original).
. Or the date of death, in the ease of a deceased miner. Joint App. at 96a.
. Joint App. at 112a, 113a.
. Blustein v. Eugene Sobel Co., 105 U.S. App.D.C. 32, 263 E.2d 478 (1959) (applying the predecessor provision, 28 D.C.Code § 2707 (1951)).
. Supjjlemental Memorandum Opinion (6 Feb. 1973), Joint App. at 112a (emphasis supplied).
. See Blustein v. Eugene Sobel Co., 105 U. S.App.D.C. 32, 36, 263 F.2d 478, 482 (1959) ; Royce Chemical Co. v. Sharpies Corp., 285 F.2d 183, 188 (2d Cir. 1960).
. 121 U.S.App.D.C. 328, 350 F.2d 458 (1965), cert. denied, 383 U.S. 908, 86 S.Ct. 888, 15 L.Ed.2d 663 (1966).
. Messina v. Mutual Benefit Health & Accident Ass’n, 228 F.Supp. 865 (D.D.C.1964) (applying the predecessor provision, 28 D. C.Code § 2707). In Blustein v. Eugene Sobel Co., 105 U.S.App.D.C. 32, 263 F.2d 478 (1959), we held that prejudgment interest was payable on a breach of warranty claim without expressly considering whether law or usage provided for such payment.
. 15 D.C.Code § 109 (1973) provides that the jury or trial court is not precluded “from including interest as an element in the damages awarded, if necessary to fully compensate the plaintiff.” In Jackson County Bd. of Comm’rs v. United States, 308 U.S. 343, 352, 60 S.Ct. 285, 289, 84 L.Ed. 313 (1939), the Court stated that interest “is given in response to considerations of fairness [and] is denied when its exaction would be inequitable.”
. Supplemental Memorandum Opinion (6 Feb. 1973), Joint App. at 112a.
. Letter from Ethel Censor Rubin, 9 August 1973, Pete v. UMWA Welfare & Retirement Fund of 1950 No. 73-1270, Supp. Joint App. at 46.
. The statutory rate under 28 D.C.Code § 3302 (1973).
. Kiser v. Miller, 364 F.Supp. 1311 (D.D. C.).
. In addition, expenses were awarded as follows : $2,725.00 to Kiser class counsel; $891.32 to Moore counsel; $276.75 to Adkins counsel.
. 326 F.2d 492 (1964).
. Id. at 496. See 7A O. Wright & A. Miller, Federal Practice and Procedure 289 & n.51 (1972) and cases cited therein. In Freeman v. Ryan, 133 U.S.App.D.C. 1, 408 F.2d 1204 (1968), our decision to set attorneys’ fees directly rather than remand to the district court was based on the peculiar circumstances of that case, including our assessment that we were “best situated to appraise the worth of counsel’s service in providing assistance in the salient decision making.” Id. at 3, 408 F.2d at 1206.
. § 1.47 (3d ed.), published as supplement to C. Wright & A. Miller, Federal Practice and Procedure (1973) [hereinafter Manual].
. DR § 2-106.
. See notes 25-26 supra and accompanying text.
. The stated purpose of this discounting was ‘‘to compensate for the numerous telephone calls and conferences among attorneys, the time spent on the attorney fee question, and the discrepancies among the lawyers as to the time spent in court on hearings of various motions.” 364 F.Supp. at 1318. Given the District Court’s intimate familiarity with the developments at that level, we do not find the discounting of logged hours unreasonable. Xote that despite its conclusion that the legal issues in this case are neither novel nor complex, the District Court did not attempt to second-guess class counsel on the amount of time counsel used in preparing the substance of plaintiffs’ case.
. Hee Manual, supra note 71, § 1.47.
. The complaint in the companion Pete case was filed before Roark II was decided but after Roark I had declared the signatory last employment requirement presumptively invalid. The Pete class was certified on 30 September 1971, more than a year after Roark II.
. By order dated 6 August 1971.
. The extended length of this opinion reflects the complexity of the factual aspects of the instant case and does not indicate that the controlling legal principles have ever been in substantial doubt since Roark II was decided. When clas counsel undertook this case, there was little risk that any material factual issues would be resolved against them since the Trustees have never made any effort to contest plaintiffs’ factual allegations. Indeed, most of the material facts in this litigation are incontrovertible. Our reasoning to this point applies with equal force to the counsel for intervenors Adkins, et al. and consolidated plaintiffs Moore, et al. It does not appear that the District Court acted unreasonably when it awarded the same fee to Adkins counsel as it had determined appropriate for Moore counsel. Hee text accompanying notes 67-6S supra.
. Supp. Joint App. at 86sa.
. 88 U.S.App.D.C. 206, 210, 188 F.2d 35, 39 (1951) (emphasis supplied).
. Ibid.
. Support for the District Court’s conclusion may be found in the Manual for Complex Litigation, which identifies as a potential abuse of the class action device “solicitation of funds and agreements to pay fees and expenses from potential and actual class members who are not formal parties to the class action.” Manual, supra note 71, § 1.-41. To prevent such abuses, the Manual recommends
that each court adopt a local rule forbidding unapproved direct or indirect written and oral communications by formal parties or their counsel with potential and actual class members, who are not formal parties, provided that such proposed written communications submitted to and approved by order of court may be distributed to the parties or parties designated or described in the court order of approval.
Ibid, (emphasis original).
.For reasons set out at 364 F.Supp. at 1319-1320.
. Payment of retroactive benefits to class members under the terms of the District Court’s order, as affirmed herein, should of course proceed immediately and not be delayed pending this determination.
. 417 U.S. 116, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974).
. Id. at 130, 94 S.Ct. at 2165 (footnotes omitted).
. Id. at 1321, citing Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L. Ed.2d 593 (1970).
Dissenting Opinion
(dissenting on one issue):
I regret to find myself in disagreement as to what appears to me to be the principal issue involved in this appeal. I recognize this court’s long encounter with the problems posed by that strange but lasting John L. Lewis
Unfortunately, the result in one important respect appears to me to be completely wrong in both law and equity, and I am compelled to dissent. This case (and its companion case, Pete v. UMWA Welfare and Retirement Fund of 1950, 170 U.S.App.D.C. 437, 517 F.2d 1267 No. 73-1270) will occasion the UMWA Welfare and Retirement Fund to pay lifetime pensions to miners whose coal digging contribution to the Retirement Fund is as little as one year. I doubt that there is any precedent in history for judicial imposition of such private philanthropy. Of course, I do not doubt the need of the individuals who will receive these contributions. But this is not a case involving public financing of miner’s welfare. It is, on the contrary, a wholly private fund created by the UMWA and the mine owners, members of the Bituminous Coal Operators Association, who signed labor contracts with the union. The Fund was created to provide benefits (primarily pensions) for employees under those labor-management contracts. Under this pension every retired miner who is found eligible is granted the same pension as is every other pensioner — regardless of the extent of his contribution to the fund and regardless of his family need. Although this fund deals in many millions of dollars each year, its obligations are such as really to make its pensions represent equally shared poverty.
The highest pension the miners in signatory mines have ever received is $150 a month for support of themselves and their families. The orders of this court will not increase the amount available to the Retirement Fund for distribution as pensions. It will simply decrease the amount available to all pensioned miners (present and future) by increasing the
The record in this case discloses no reason in law or equity why mine owners who have signed union agreements and joined together to finance this fund should be called upon against their will to pay full lifetime pensions to retirees who spent ^oths of their productive work lives in the nonunion mines of their competitors. Nor does the record disclose any reason why miners whose collective efforts created this fund and whose work in the mines dug the coal which financed it should have their present and future inadequate pensions reduced by full pensions for other miners whose contributions were only the most minimal.
My Brother Wilkey’s opinion argues that succeeding D. C. Circuit cases and UMWA Welfare and Retirement Fund resolutions inexorably require this result. This result, however, offends established principles of equity, a controlling federal statute, and the controlling case law of this circuit.
The United Mine Workers of America Welfare and Retirement Fund was a creation of collective bargaining. It was established by the National Bituminous Coal Wage Agreement of 1950 under the terms of Section 302(c)(5) of the Labor-Management Relations Act of 1947, codified at 29 U.S.C. § 186(c)(5) (1970). The funds for the pension trust are generated by a payment of a contractually determined amount per ton of coal mined by each producer who is signatory to the National Bituminous Coal Wage Agreement. (Under the NBCW Agreement of 1950, the figure was thirty cents per ton.) The Fund is administered by a Board of Trustees consisting of an equal number of representatives of the UMW and the Bituminous Coal Operators Association, who choose an impartial third member. The trustees “have full authority with respect to coverage and eligibility.” As noted above, the trustees have seen fit to pay all pensioners whom they accept as eligible, the same pension in dollar amount. (During the years in question here the highest pension ever paid is the present $150 per month.)
The National Bituminous Coal Wage Agreement of 1950 established the purposes of the Fund in the language of an irrevocable trust:
“It is agreed that this Fund is an irrevocable trust created pursuant to Section 302(c) of the ‘Labor-Management Relations Act, 1947,’ and shall endure as long as the purposes for its creation shall exist. Said purposes shall be to make payments from principal or income or both, of (1) benefits to employees of said Operators, their families and dependents for medical or hospital care, pensions on retirement or death of employees, compensation for injuries or illness resulting from occupational activity or insurance to provide any of the foregoing, or life insurance, disability and sickness insurance or accident insurance; (2) benefits with respect to wage loss not otherwise compensated for at all or adequately by tax supported agencies created by federal or State law; (3) benefits on account of sickness, temporary disability, permanent disability, death or retirement; (4) benefits for any and all other purposes which may be specified, provided for or permitted in Section 302(c) of the ‘Labor-Management Relations Act, 1947,’ as agreed upon from time to time by the Trustees in-*434 eluding the making of any or all of the foregoing benefits applicable to the individual members of the United Mine Workers of America and their families and dependents, and to employees of the Operators other than those exempted from this Agreement; and (5) benefits for all other related welfare purposes, as may be determined by the Trustees within the scope of the provisions of the aforesaid ‘Labor-Management Relations Act, 1947.’ Subject to the stated purposes of this Fund, the Trustees shall have full authority, within the terms and provisions of the ‘Labor-Management Relations Act, 1947,’ and other applicable law, with respect to questions of coverage and eligibility, priorities among classes of benefits, amounts of benefits, methods of providing or arranging for provisions for benefits, investment of trust funds, and all other related matters.” Joint Appendix at 32-33, Roark v. Boyle, 141 U.S.App.D.C. 390, 439 F.2d 497 (1970).
The critical language of this trust indenture establishes as its first purpose providing “benefits to employees of said Operators [previously defined as Operators who signed the National Bituminous Coal Wage Agreement] for pensions on retirement or death of employees.” It is perhaps the most fundamental rule in the law of trusts that the trustees owe absolute loyalty to the purposes of the trust as declared by the settlors.
Thus concerning beneficiaries of a trust, the Restatement of the Law of Trusts provides:
Ҥ 226. Liability for Payments or Conveyances Made to Persons Other Than the Beneficiary
If by the terms of the trust it is the duty of the trustee to pay or convey the trust property or any part thereof to a beneficiary, he is liable if he pays or conveys to a person who is neither the beneficiary nor one to whom the beneficiary or the court has authorized him to make such payment or conveyance.” Restatement (Second) of Trusts, § 226 (1957).
And Scott on Trusts elaborates:
“§ 226. Liability for Payments or conveyances made to persons other than the beneficiary. Where the trustee makes payment of trust funds or conveys trust property to a person other than the beneficiary entitled to receive the money or other property, he is liable to the beneficiary, unless the payment or conveyance was authorized by a proper court. This is true, of course, where the trustee intentionally or negligently makes a payment or conveyance to the wrong person. It is also true where he reasonably believes that the person to whom he makes the payment or conveyance is entitled thereto. Thus the trustee is liable if he makes payment to the wrong person as a result of a mistake of law or an erroneous interpretation of the trust instrument, even though the mistake is a reasonable one.” 2 A. W. Scott, The Law of Trusts § 226, at 1647-48 (2d ed. 1956). (Footnotes omitted.)
When in the Labor-Management Relations Act of 1947 (Taft-Hartley Act), 29 U.S.C. § 141 et seq. (1970), the Congress of the United States decided to legislate on the question of pensions arising out of collective bargaining, it did so in language drawn from the underlying principles of trust law outlined above.
The controlling statute provides:
“(c) The provisions of this section shall not be applicable .
“(5) with respect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer, and their families and dependents (or of such employees, families,*435 and dependents jointly with the employees of other employers making similar payments, and their families and dependents): Provided, That (A) such payments are held in trust for the purpose of paying, either from principal or income or both, for the benefit of employees, their families and dependents, for medical or hospital care, pensions on retirement or death of employees, compensation for injuries or illness resulting from occupational activity or insurance to provide any of the foregoing, or unemployment benefits or life insurance, disability and sickness insurance, or accident insurance; (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer, and employees and employers are equally represented in the administration of such fund, together with such neutral persons as the representatives of the employers and the representatives of employees may agree upon and in the event the employer and employee groups deadlock on the administration of such fund and there are no neutral persons empowered to break such deadlock, such agreement provides that the two groups shall agree on an impartial umpire to decide such dispute, or in event of their failure to agree within a reasonable length of time, an impartial umpire to decide such dispute shall, on petition of either group, be appointed by the district court of the United States for the district where the trust fund has its principal office, and shall also contain provisions for an annual audit of the trust fund, a statement of the results of which shall be available for inspection by interested persons at the principal office of the trust fund and at such other places as may be designated in such written agreement; and (C) such payments as are intended to be used for the purpose of providing pensions or annuities for employees are made to a separate trust which provides that the funds held therein cannot be used for any purpose other than paying such pensions or annuities; . . . 29 U.S.C. § 186(c)(5) (1970). (Emphasis added.)
In prior cases of this court we find recognition of an adherence to these principles. Thus the court rejected the Retirement Board’s requirement that no miner could be eligible for a pension unless he had worked the last year prior to retirement in signatory mining. But it did so in cases where the three named plaintiffs had 11 years, 9 years and 14 years of signatory employment. Roark v. Lewis, 130 U.S.App.D.C. 360, 361, 401 F.2d 425, 426 (1968) (Roark I).
In what appears to me to be the controlling case (Roark II), Judge Leventhal’s opinion for the court said:
“What is arbitrary, however, is a plan that puts a miner, leaving signatory employment through no fault of his own, to such a hard choice, all in the interest of employer loyalty and economic survival of a pension system, when the plan has not at least taken the step of furthering both these interests with an eligibility condition requiring substantial contributory employment. In a plan with flat equal pensions, eligibility requirements rationally calculated to reward employer loyalty cannot depend on the single fact of employment by a contributing employer during the year immediately preceding retirement. They must also focus a significant period of contributory employment.” Roark v. Boyle, 141 U.S.App.D.C. 390, 400, 439 F.2d 497, 507 (1970).
The court’s opinion continued:
“This defect mars the eligibility requirements applied to deny a pension to appellants. The Trustees’ contention that the signatory last employment requirement is a rational ‘minimum’ requirement of contributory em*436 ployment is not persuasive. It is a strange ‘minimum’ that can be satisfied by someone who has worked one year for a contributing employer and yet be deemed unsatisfied by a man who has worked for contributing employers for 19 of his 20 years in the coal industry.” Ibid.
Regrettably, it seems to me that the court in our instant case now stands this logic on its head. Out of concern that a miner who worked 19 of 20 years in the mines in signatory employment should be excluded from a pension, we now award pensions to miners who worked 19 out of 20 years in nonsignatory and competitive mines. And to do so, we either disregard the Roark II requirement of a “significant period of contributory employment,” or, astonishingly, we are defining one year out of twenty as “a significant period of contributory employment.”
Under the instructions of this court the UMWA Retirement Board has now established five years as its definition of “a significant period of contributory employment.” I do not see how the District Judge or we can properly hold that the five year period is “arbitrary and unreasonable.” Indeed, this court in Roark II appears to me to have directed the Retirement Board to accept just such a standard. After reviewing private pension plans under collective bargaining, this court’s final holding in Roark II was:
“[WJe conclude that a requirement of signatory last employment can be a valid eligibility requirement only if it is in context of a plan that conditions eligibility on a period of contributory employment that is of sufficiently significant duration to warrant eligibility for a flat pension. A period less than five years would manifestly not be sufficient under this standard.” Roark v. Boyle, 141 U.S.App.D.C. 390, 401, 439 F.2d 497, 508 (1970). (Emphasis added.)
As this dissent is being drafted, the United States Congress is considering a bill which would seek to spell out public policy concerning pensions more fully than has yet been done. A noncontroversial aspect of the bill now being considered by the House and Senate conferees provides as follows:
“SEC. 411. MINIMUM STANDARDS RELATING TO VESTING.
“(a) GENERAL RULE. — Except as provided in subsection (e), a trust shall not constitute a qualified trust under section 401(a) unless the plan of which such trust is a part satisfies the requirements of paragraphs (1) and (2).
“(1) EMPLOYEE CONTRIBUTIONS. — A plan satisfies the requirements of this paragraph if, under the plan, an employee’s rights in his accrued benefit derived from his own contributions are nonforfeitable.
“(2) EMPLOYER CONTRIBUTIONS.—
“(A) NONFORFEITABLE PERCENTAGE. — A plan satisfies the requirements of this paragraph if, under the plan, after 5 years of service (3 of which are consecutive) with an employer, an employee has a right to a percentage of his accrued benefit derived from employer contributions which is nonforfeitable other than by reason of death. The percentage shall not be less than the percentage determined under the following table:
Nonforfeitable
“Years of service percentage
5 ............................... 25
6 ............................... 30
7 ............................... 35
8 ............................... 40
9 ............................... 45
10 ............................... 50
11 ............................... 60
12 ............................... 70
13 ............................... 80
14 ............................... 90
15 or more ...................... 100
As has been made obvious above, I would reverse the judgment of the District Court as to the requirement that pensions be awarded to any claimant with less than five years of signatory employment. As to other issues presented, I join the opinion of the court.
Sitting by designation pursuant to 28 U.S.C. § 291(a).
. Shakespeare might have been talking about the former UMWA president when he said, “The evil that men do lives after them,/The good is oft interred with their bones.” W. Shakespeare, Julius Caesar, Act III, sc 2, ll. 80-81.
. Danti v. Lewis, 114 U.S.App.D.C. 105, 312 F.2d 345 (1962) ; Roark v. Lewis, 130 U.S. App.D.C. 360, 401 F.2d 425 (1968) (Roark I) ; Collins v. UMWA Welfare and Retirement Fund of 1950, 141 U.S.App.D.C. 387, 439 F.2d 494 (1970) ; Roark v. Boyle, 141 U.S.App.D.C. 390, 439 F.2d 497 (1970) (Roark II) ; DePaoli v. Boyle, 144 U.S. App.D.C. 364, 447 F.2d 334 (1971) ; Belcher v. Boyle, 82 L.R.R.M. 2435 (D.D.C.1971), aff’d sub nom. Belcher v. Carey, No. 71-1622 (D.C.Cir. 1972) (unreported) ; Teston v. Carey, 150 U.S.App.D.C. 256, 464 F.2d 765 (1972).
. The record shows that only a relatively few of the claimants in this appeal are seeking pensions with less than five years of signatory employment. Neverthless, as we will see, how and under what circumstances a pension vests is one of the most important questions in pension law.’ Additionally, under the majority holding, the court must anticipate a class suit on behalf of all miners, dead or alive, who could and would have filed claims had they known that such minimal signatory employment could justify a pension, seeking waiver of their failure to file promptly.