* Pursuant to 5 TH C IR

. R. 47.5, the Court has determined that this

opinion should not be published and is not precedent except under United States Court of Appeals

Fifth Circuit 

## FILED

December 16, 2003

Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 03-30051

RAY WORTHY; ET AL.,

Plaintiffs,

RAY WORTHY,

Plaintiff–Appellant,

VERSUS

NEW ORLEANS EMPLOYERS INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION, AFL-CIO, PENSION, WELFARE,
VACATION AND HOLIDAY FUNDS; RICHARD TEISSIER, Trustee;
C.G. MILLER, Trustee; WIN NIEMAND, Trustee; SID HOTARD,
Trustee; MAX SANDERS, Trustee; JAMES CAMPBELL, Trustee;
JAMES MCCLELAND, Trustee; LLOYD IRVIN; DWAYNE BOUDREAUX, Trustee; MARK ELLIS, Trustee; THOMAS R. DANIEL, Administrator,

Defendants–Appellees.

Appeal from the United States District Court

For the Eastern District of Louisiana

01-CV-3750

Before DAVIS, WIENER, and STEWART, Circuit Judges,

PER CURIAM: *the limited circumstances set forth in 5 TH C IR . R. 47.5.4.

2 In this decl aratory judgment action, plaintiff Ray Worthy

sought a determination th at the plan administrator for three

employee benefit plans erred in interpreting plan language to

disqualify him for certain fringe benefits because he was no longer

a paid employee of Local Union 854 (Local 854). The district court

granted summary j udgment to the defendants and rejected Worthy’s

arguments. We agree with the district court’s conclusion that the

plan administrator correctly interpre ted the plan and affirm the

district court judgment.

The Plan takes contribution s and gives benefit credit “for

each

. . . hour for which an Employee is paid, or en titled to

payment, for the performance of

. . . dut ies for the Employer.”

Worthy worked as president of Local 854, between May 1998 and

July 2001 without pay. As president, and thus employee of Local

854, he was eligible for benefits under the Plan and was eligible

for payment from his employer, the Union. Nevertheless, in a

letter to the Local 854, he waived that payment, essentially

negating his legal entitlement to the salary:

I Ray A. Worthy, President, because of financial

conditions of the Local, hereby waive all monies given to me by the Local (Salary) with the exception of pension/welfare, vacation/holiday benefits. I authorize

the Local to pay my benefits and all salary is given back

to the Local until revoked by me. In the event the Local
conditions improve/merger and/or sell of [sic] building, all monies will be paid at that time. I reserve the right to forfeit or collect on back pay.3

Worthy never sought to collect the back pay he forfeited.

The Board, as plan administrator, determined that Worthy could

not receive credit for the years he volunteered his services

because he was not legally entitled to payment. For this reason,

the Plan refused to accept contributions made to the fund by Local

854 on Worthy’s behalf.

The district court properly considered: “(1 ) whether the

a dministrator has given the plan a uniform construction, (2)

whether the interpretation is consistent with a fair reading of the

plan, and (3) any unanticipated costs resul ting from different

i nterpretations of the plan,” W ildbur v. ARCO Chemical Co.

, 974

F.2d 631, 638 (5 th Cir . 1992), as required by W ildbur. We agree

with the district court that Worthy was not “legally entitled to

payment” as the plan requires, and that the Board’s interpretation

was correct. Judgment for defendants was therefore appropriate.

AFFIRMED.