## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 27 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CLAY BRONK; MAURINE BURK; MARK DAMILINI; JACQUELINE ENRIQUEZ; CHUCK FLETCHER; NATALIE FRANZ; JOHN GIERKA; RANDOLPH GILMORE; MARK HAY; KIM JOHNSON; JOHN KENNEDY; JANE KNUTSON; CAROL MAJOR; SANDRA MARTINSKIS; ALFRED MULFORD; TERRY REYES; ROY R. SALINAS; LARRY SANCHEZ; LYNN SAXE; JOHN SAXE; LING SIGSTEDT; STEVEN STOLLMAN; DONNA SLY; LYDIA THOMAS; ROBERT TOANNON; FRANK VIGIL; CYNTHIA VOIGT; COLISSION WELLS; LYNN G. WULF, individually and as representatives of a Class, Plaintiffs-Appellants,

v. No. 99-1236 MOUNTAIN STATES TELEPHONE AND TELEGRAPH, INC., doing business as U.S. West Communications, a Colorado corporation; U.S. WEST, INC., a Colorado corporation; U.S. WEST, INC., EMPLOYEES’ BENEFIT COMMITTEE; U.S. WEST FINE CONTRIBUTIONS PLAN COMMITTEE; U.S. WEST COMMUNICATIONS BASE BENEFIT COMMITTEE, Defendants-Appellees. (D.C. No. 93-D-1961) (D. Colo.)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable Robert H. McWilliams, Senior Circui t Judge, has recused.

*** The Honorable Arthur L. Alarcón, Senior United Stat es Circuit Judge for the Ninth Circuit, sitting by designation. 2 ORDER AND JUDGMENT *

Before KELLY , ** BRISCOE , and ALARCON , Circuit Judges. ***

Plaintiffs filed suit under the Employee RetirementIncome Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., challenging the denial of their request to participate in defendants’ employee welfare and pen sion plans. On the parties’ cross-motions for summary judgment, the district co urt held that plaintiffs were properly excluded from defendants’ employee welfare plans, but would be entitled to participate in defendants’ pension plans if theycould demonstrate they were common-law employees of defendants. Defendants fil ed an interlocutory appeal challenging the district court’s holding regarding the pension plans. This court reversed and remanded for further proceedings. Bro nk v. Mountain States Tel. and Tel., Inc. , 140 F.3d 1335 (10th Cir. 1998) (Bronk I ). On remand, the district court entered judgment in favor of defendants, conc luding plaintiffs were not entitled to participate in either the welfare plans or the pension plans. Plaintiffs1 For example, plaintiff Clay Bronk, working through a leasing company

called The Temporary Market, performed services forUS West between June 27, 1988, and May 5, 1991. West did not pay a salary d irectly to Bronk. Instead, US West paid a fee to The Temporary Market, who, afterretaining a portion of the fee, paid Bronk for his services.

2 The employee welfare plans include the US West Heal th Care Plan (Health Plan), the US West Group Life Insurance Plan (Life Plan), and the US West Sickness and Accident Disability Benefit Plan (Disability Plan).

3 The pension plans include the US West Pension Plan (Pension Plan), the (continued...) 3 now appeal from that judgment. We exercise jurisdi ction pursuant to 28 U.S.C. § 1291 and affirm.
I. Plaintiffs are twenty-nine individuals who, at vari ous times between January 1984 and June 1991, performed services for defendant US West, Inc. (US West) and its wholly-owned subsidiary Mountain Stat es Telephone and Telegraph, Inc. (Mountain States). Plaintiffs were not hired directly by Mountain States or US West, but instead were hired by various leasing companies who, in turn, entered into leasing contracts with US West and Mou ntain States. 1 The leasing contracts typically provided that the leasing compa ny was the “employer” of the leased workers and that the workers were consideredto be employees only of the leasing company. Bronk I , 140 F.3d at 1337. During this period of time, US West had in place va rious employee welfare 2 and pension 3 plans. It is uncontroverted that all of these pla ns had some type of3 (...continued)

US West Savings & Security Plan/ESOP (ESOP), and th e US West Payroll Stock Ownership Plan (PAYSOP). 4 eligibility requirement for participation. Althoug h the specific language of the plans varied, the pension plans generally required an individual to be an employee in the “active service” of, and receive a regular a nd stated compensation from, US West or one of its subsidiaries. Appellants’ App. at 64-66 (discussing specific eligibility requirements of each pension plan). S imilarly, the welfare plans generally required an individual to be classified a s a “regular employee” according to the payroll records of US West or one of its subsidiaries. Id. at 66- 67 (discussing specific eligibility requirements of each welfare plan). In December 1990, and June and July 1991, plaintiff s filed administrative claims seeking to participate in and receive benefi ts under the various employee welfare and pension plans provided by US West to it s “regular employees.” Plaintiffs claimed they performed the same or simil ar functions as US West’s regular employees and were therefore entitled to pa rticipate in the plans. Plaintiffs’ claims were initially denied by US West ’s Communications Base Benefits Committee (BBC), which had the delegated a uthority to initially review claims for benefits under the various plans. Plaintiffs appealed the BBC’s decision to US West’s Employee Benefit Committee (E BC). The EBC denied the appeal, concluding that plaintiffs were not “regula r employees” of US West or its4 Each of the individual plans had slightly differentrequirements for

participation. It appears, however, that all of th e plans (except for possibly the ESOP) essentially required an individual to be an “ employee” of US West and to have received regular compensation from US West or one of its subsidiaries. It is uncontroverted that plaintiffs were not maintained on US West’s official service records and did not receive salaries from US West o r its subsidiaries. 5 subsidiaries. 4 Plaintiffs filed this action on September 17, 1993, asserting they had been wrongfully denied participation in US West’s plans and requesting that defendants “be enjoined from refusing to allow [the m] to participate in The Plans.” Appellants’ App. at 9. After engaging in limited discovery, the parties filed cross-motions for summary judgment. Plaintif fs asserted three related arguments: (1) that the term “employee,” as used in the various plans, should be defined to mean a person who is a common-law employ ee (and thus any express requirements set forth in the plans for determining who was an employee should be ignored); (2) because each plaintiff satisfied t he common-law definition of the term “employee,” he or she should be considered eli gible to participate in the various plans, notwithstanding the fact that most o f the plans expressly required that an employee receive a regular compensation fro m US West or one of its subsidiaries; and (3) in any event, each plaintiff satisfied the eligibility requirement because he or she received regular comp ensation from US West or one of its subsidiaries, albeit primarily through t he conduit of one of the leasing6

companies. The district court granted defendants’ motion for s ummary judgment and denied plaintiffs’ motion for summary judgment withrespect to the employee welfare plans. With respect to the pension plans, the district court concluded they were subject to ERISA’s “minimum participation, ves ting and funding requirements . . . regardless of the language of th e plan,” and that “these minimum standards require[d] the inclusion in the c ase at hand of leased employees who meet the definition of common law emp loyees under law.” Id. at 455-56. Because, however, it was unable to determi ne from the record whether plaintiffs satisfied the common-law definition of t he term “employee,” the district court ordered supplemental briefing on the issue an d delayed a final ruling on this aspect of the motions for summary judgment. Pursuant to the defendants’ request, the district c ourt certified for interlocutory appeal the portion of its summary jud gment ruling pertaining to the pension plans. More specifically, the district cou rt certified for interlocutory appeal “the issues of (1) whether the minimum parti cipation, vesting and funding requirements of ERISA must be complied with by the plan administrator, regardless of the language of the plan, and (2) whe ther these minimum standards require the inclusion of leased employees who meet the definition of common law employee.” Id. at 496-97. This court subsequently granted defend ants permission7

to file an interlocutory appeal. On appeal, this court reversed the district court’s decision regarding plaintiffs’ entitlement to benefits under the pensi on plans. In doing so, this court held that “ERISA does not prohibit an employer fromdistinguishing between groups or categories of employees, providing benefi ts for some but not for others.” Bronk I , 140 F.3d at 1338. More specifically, the court e mphasized, “an employer need not include in its pension plans all employees who meet the test of common law employees.” Id. This court further rejected the district court’s conclusion that ERISA implicitly incorporates Internal Revenue Code provisions and accompanying Treasury regulations pertaining to tax-qualification for employer-provided pension plans (which, in pertinent part, contain minimum age and service requirements for participation in a qua lified plan, and which treat, for tax qualification purposes, leased employees as emp loyees of the entity to whom they provide services). In short, the court conclu ded that “the tax-qualification provisions of the [Internal Revenue] Code do not re write pension plans under ERISA . . . to mandate inclusion of employees, leas ed or otherwise, whom the plans have permissibly excluded.” Id. at 1339-40. Finally, although this court acknowledged that pension plans could expressly pro vide for compliance with all relevant ERISA and Internal Revenue Code provisions , it concluded that plaintiffs had failed to demonstrate that the plans at issue c ontained any such provision:8

At oral argument, the [Plaintiffs’] counsel argued that U.S. WEST’s pension plans contained . . . language requiring th e plans to comply with all Internal Revenue Code and Treasury regulat ions, as well as ERISA. US WEST’s counsel vigorously denied that. The document in the record to which the [Plaintiffs’] counsel re fers us as supporting his argument does not demonstrate that the plans he re included any obligation, explicit or otherwise, to maintain tax- qualified status. Id. at 1338. On remand, defendants filed a motion for entry of j udgment, arguing that in light of the appellate reversal, the “case turn[ed] on whether the EBC properly determined that the Pension Plans’ eligibility rule s excluded leased workers.” Appellees’ Supp. App. at 2115. Defendants pointed out that the district court, in its previous order addressing the parties’ cross-mo tions for summary judgment, had stated that “[i]f the issue presented to the Co urt was whether under the terms of its Plans US West must include all employees, . . . I would have to conclude that the answer is no and grant summary judgment infavor of US West.” Id. at 2112. Plaintiffs filed a response to defendants’ motion f or entry of judgment, arguing that the statement contained in the distric t court’s prior order, and relied upon by defendants, was not meant to be dispositive . Plaintiffs asserted that, in its previous order, the district court had failed t o address all of the arguments presented by plaintiffs in their original motion fo r summary judgment. Consistent with these arguments, plaintiffs filed a renewed mo tion for summary judgment,5 According to defendants, the cited language came fr om a 1994

amendment to US West’s Pension Plan which was made retroactive to 1989. The sole purpose of this amendment, according to defend ants, was to comply with IRS regulations issued in 1993 outlining how plan spons ors were to conform to statutory changes implemented by Congress in 1988. In short, “the 1994 Restatement was prepared solely for tax purposes – to reflect the Pension Plan’s qualified status between 1988 and 1993, so that an IRS determination letter could be obtained.” Appellees’ Supp. App. at 2008. The 1994 amendment “was never used for plan administration purposes, and was not effective in 1989 for any purpose other than those required by recent tax leg islation and the implementing regulations.” Id. 9 essentially asking the district court to address th e substantive arguments asserted in plaintiffs’ previous motion for summary judgment . Plaintiffs argued that the pension plans in question “incorporate[d] the Internal Revenue Code and/or require[d] that [they] be interpreted in accordance with the Internal Revenue Code.” Appellants’ App. at 526. In their oppositi on to plaintiffs’ renewed motion for summary judgment, defendants asserted, i n part, that the plan language relied on by plaintiffs was “irrelevant because it did not exist until years after the EBC denied their claims and because it [wa]s not pa rt of the administrative record that was before the EBC.” Appellees’ Supp. App. at1989. 5 On March 25, 1999, the district court conducted a h earing on the parties’ motions. During the hearing, the district court as ked plaintiffs’ counsel the following question: “When you prepared your record for the [interlocutory] appeal, did you include as a part of the record thi s US WEST pension plan which says amended and restated effective January 1, 1989 ? Was that made a part of the10

record?” Appellants’ App. at 707. Plaintiffs’ cou nsel did not remember whether it was included, but acknowledged that even if it w as included he did not point it out to the appellate panel. The district court the n asked plaintiffs’ counsel whether there was “any evidence which would show th at the [EBC] when it considered the status of these leased workers consi dered the” 1994 amendments which plaintiffs were relying upon in their renewedmotion for summary judgment. Id. at 711. Plaintiffs’ counsel responded “No.” Id. Ultimately, the district court found that the plan that plaintiff now relies on was not a plan that the plan administrator used when it made its decision regard ing the plaintiffs. And so, therefore, to the extent the Tenth Circuit in its decision that overruled me found that there cannot be any relianc e on Internal Revenue Code provisions or Treasury regulations abs ent an explicit reference in an applicable plan, it seems to me that that holding is still applicable and has not been distinguished by the plaintiffs’ renewed motion. Id. Accordingly, the district court denied plaintiffs ’ renewed motion for summary judgment and granted defendants’ motion for entry o f judgment in their favor.
II. Because this case was decided in the context of a s ummary judgment ruling, we turn first to the well-established standard of r eview applicable to such rulings. “Review of a grant of summary judgment is de novo, applying the same legal standard used by the district court.” Kimber v. Th iokol Corp. , 196 F.3d 1092, 1097 (10th Cir. 1999). “Summary judgment is approp riate ‘if the pleadings,11

depositions, answers to interrogatories, and admiss ions on file, together with the affidavits, if any, show that there is no genuine i ssue of material fact and that the moving party is entitled to a judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)). Notwithstanding the fact that we review de novo the district court’s summary judgment ruling, we are also bound by a sec ond, and more limited, standard of review. “A court reviewing a challenge to a denial of employee benefits under 29 U.S.C. § 1132(a)(1)(B) applies an‘arbitrary and capricious’ standard to a plan administrator’s actions if the p lan grants the administrator discretionary authority to determine eligibility fo r benefits or to construe the plan’s terms.” Charter Canyon Treatment Ctr. v. Po ol Co. , 153 F.3d 1132, 1135 (10th Cir. 1998) (citing Firestone Tire & Rubber Co . v. Bruch , 489 U.S. 101, 115 (1989)); see also Millensifer v. Retirement Plan , 968 F.2d 1005, 1009 (10th Cir. 1992) (stating “if the Plan gives the retirement co mmittee discretion to construe doubtful provisions of the plan itself, the committ ee’s decision must be upheld unless it was arbitrary and capricious, not support ed by substantial evidence, or erroneous on a question of law”) (internal quotatio ns omitted). Here, the uncontroverted facts demonstrate that the EBC had discretionary authority under each of the plans at issue to deter mine eligibility for benefits and to construe the plans’ terms. Under the arbitrary and capricious standard of6 Section 202(a) of ERISA imposes on employer-provide d pension plans

what are referred to as minimum participation requi rements: (a)(1)(A) No pension plan may require, as a conditi on of participation in the plan, that an employee complet e a period of service with the employer or employers maintaining the plan extending beyond the later of the following dates (continued...) 12 review, we will not set aside a benefit committee’s decision if it was based on a reasonable interpretation of the plan’s terms and w as made in good faith. See Jones v. Kodak Med. Assistance Plan , 169 F.3d 1287, 1292 (10th Cir. 1999); Averhart v. U.S. West Management Pension Plan , 46 F.3d 1480, 1485 (10th Cir. 1994). “[I]n reviewing decisions of plan administr ators under the arbitrary and capricious standard, [we] may consider only the evi dence that the administrators themselves considered” on or before the final decis ion denying benefits. Chambers v. Family Health Plan Corp. , 100 F.3d 818, 823, 823-24 (10th Cir. 1996); see also Sandoval v. Aetna Life & Cas. Ins. Co. , 967 F.2d 377, 380-81 (10th Cir. 1992).
III. In order to properly address the arguments assertedby plaintiffs in this appeal, we find it useful to briefly revisit the ru lings previously handed down in this case. In initially ruling on the parties’ cro ss-motions for summary judgment, the district court concluded that if an employee satisfied the minimum participation requirements of ERISA § 202(a) 6 , the employee was entitled to6 (...continued) (i) the date on which the employee attains the age of 21; or (ii) the date on which he completes 1 year of servi ce. * * * (4) A plan shall be treated as not meeting the requ irements of paragraph (1) unless it provides that any employee who has satisfied the minimum age and service requirements specified in such paragraph, and who is otherwise entitled to partici pate in the plan, commences participation in the plan no later than t he earlier of– (A) the first day of the first plan year beginning after the date on which such employee satisfied such requirements, or (B) the date 6 months after the date on which he satisfied such requirements. 29 U.S.C. § 1052(a)(1)(A) & (4). 13 participate in the employer’s pension plan regardle ss of any other eligibility requirements that might be contained in the pension plan itself. The district court concluded that the minimum participation requiremen ts of § 202(a) implicitly incorporated Internal Revenue Code (IRC) §§ 410 and414 (26 U.S.C. §§ 410 and 414) and Treasury Department regulations promulgate d thereunder. Section 410 of the IRC is similar to § 202(a) of ERISA in that it sets forth minimum participation requirements which are used by the IR S to determine whether a pension plan will receive preferential tax treatmen t. Section 414 of the IRC provides that, for purposes of applying § 410 of th e IRC, leased employees are to be treated as employees of the company for whom the y perform services. Taking all of these provisions together, the district court concluded that § 202(a) of ERISA required “the inclusion in the case at hand o f leased employees who [met]14

the definition of common law employees under law.” Appellants’ App. at 456. In Bronk I , this court rejected the district court’s conclusi ons, holding that ERISA § 202(a) simply prevents an employer from mak ing participation “distinctions based upon age or length of service.” 140 F.3d at 1338. This court further rejected the notion that the minimum partic ipation requirements of ERISA § 202(a) were implicitly modified by IRC §§ 410 and414. In particular, this court concluded that, “absent explicit indication b y Congress, the taxqualification provisions of the [IRC] do not rewrit e pension plans under ERISA § 202(a) to mandate inclusion of employees, leased or otherwise, whom the plans have permissibly excluded.” Id. at 1339-40. In reaching its conclusions, the court in Bronk I distinguished an earlier circuit case, Crouch v. Mo-Kan Iron Workers Welfare Fund , 740 F.2d 805 (10th Cir. 1984), upon which the district court had relie d. In Crouch , this court held that the plaintiff, a secretary in a local union’s office, was entitled to benefits under her employer’s pension plan even though her e mployer had rejected her claim for benefits on the grounds she was not a uni on officer. The Crouch decision rested on two related grounds: (1) the pen sion plan at issue expressly indicated that it must comply with ERISA, the IRC, and accompanying Treasury regulations regarding tax qualification (in other w ords, it must maintain taxqualified status), and (2) precluding plaintiff fro m participating in the pension15

plan would result in the plan failing to meet the t ax qualification requirements. The court in Bronk I concluded that, unlike Crouch , there was no evidence that the pension plans at issue in this case “contained similar language requiring the plans to comply with all [IRC] and Treasury regulat ions, as well as ERISA.” 140 F.3d at 1338 n.5. In reaching this conclusion, the court in Bronk I rejected plaintiffs’ counsel’s argument to the contrary, andspecifically noted that “[t]he document in the record to which the [plaintiffs’] c ounsel refers us as supporting his argument does not demonstrate that the plans he re included any obligation, explicit or otherwise, to maintain tax-qualified st atus.” Id. On remand, plaintiffs adopted two strategies. Firs t, they attempted to present new evidence (i.e., evidence not considered by the EBC or previously presented to the district court or this court) indi cating that amendments made to the Pension Plan in 1994, but which were retroactiv e to January 1, 1989, specifically required the Pension Plan to comply wi th ERISA and the IRC. In other words, plaintiffs attempted to present new ev idence to the district court in an effort to persuade it that the Pension Plan was like the pension plan at issue in Crouch . Second, plaintiffs argued that, even ignoring th e 1994 amendment to the Pension Plan, the EBC’s decision was arbitrary and capricious because the facts demonstrated that they were “regular employees” of the defendants and were entitled to participate in the pension plans. As p reviously noted, the district court16

rejected both of these strategies and entered judgm ent in favor of defendants. Plaintiffs reassert these same arguments on appeal. First, they contend the district court erred in failing to take into accoun t the 1994 amendment to the Pension Plan. According to plaintiffs, the 1994 am endment demonstrates that the Pension Plan is similar to the plan at issue in Cro uch , and must be construed to comply with ERISA and IRC §§ 410 and 414. Second, plaintiffs argue that, even ignoring the 1994 amendment to the Pension Plan, th e facts demonstrate they were “regular employees” of defendants and were ent itled to participate in and receive benefits under the pension and welfare plan s. For the reasons that follow, we reject these arguments. The Bronk I panel effectively concluded that none of the pensi on plans at issue (including the Pension Plan) included an expr ess obligation to maintain taxqualified status. Under the law of the case doctri ne, this same issue could not be relitigated on remand. See Phelps v. Hamilton , 122 F.3d 1309, 1322 (10th Cir. 1997) (“The law of the case doctrine provides that when a court decides upon a rule of law, that decision should continue to gover n the same issues in subsequent stages of the same case.”) (internal quotation omitted); Rohrbaugh v. Celotex Corp. , 53 F.3d 1181, 1183 (10th Cir. 1995) (“[W]hen a ca se is appealed and remanded, the decision of the appellate court estab lishes the law of the case and ordinarily will be followed by both the trial courton remand and the appellate17

court in any subsequent appeal.”). An “important c orollary” to the law of the case doctrine, “known as the ‘mandate rule,’ provides th at a district court ‘must comply strictly with the mandate rendered by the re viewing court.’” Ute Indian Tribe v. State of Utah , 114 F.3d 1513, 1520-21 (10th Cir. 1997) (quoting Colorado Interstate Gas Co. v. Natural Gas Pipeline Co. of America , 962 F.2d 1528, 1534 (10th Cir. 1992)), cert. denied , 522 U.S. 1107 (1998). Although there are a few narrow exceptions to the law of the case doctrine, none are applicable here. See United States v. Monsisvais , 946 F.2d 114, 116-17 (10th Cir. 1991) (holding that a court will depart from the law of t he case doctrine: (1) when the evidence in a subsequent trial is substantially dif ferent; (2) when controlling authority has subsequently made a contrary decisionof the law applicable to such issues; or (3) when the decision was clearly errone ous and would work a manifest injustice). Further, the amendment was not considered by the EB C in denying plaintiffs’ administrative appeal (and indeed could not have been considered because the EBC’s decision was rendered in Septembe r 1991). It is well established that, in determining whether ERISA planadministrators acted arbitrarily and capriciously in making eligibility and/or benefit determinations, this court “may consider only the evidence [and arg uments] that the administrators themselves considered.” Chambers , 100 F.3d at 823. “An18

administrator’s decision is not arbitrary or capric ious for failing to take into account evidence not before it.” Sandoval , 967 F.2d at 381. There was no basis for the district court (or this court) to consider the 1994 amendment. Even assuming, arguendo, the 1994 amendment should have been considered, and further assuming the 1994 amendmentcould be construed as requiring the Pension Plan to maintain tax-qualifie d status, it is clear that it would not have made any difference in the outcome of this case. In Bronk I , the panel noted that IRC §§ 410 and 414 do not necessarily re quire the inclusion in a pension plan of all persons who meet the definitionof common-law employee. 140 F.3d at 1339. Rather, common-law employees mus t be included only when the pension plan at issue expressly includes an obl igation to maintain taxqualified status, and where the exclusion of common -law employees would jeopardize the plan’s tax-qualified status. Here, defendants presented evidence, unchallenged by plaintiffs, that the Pension Plan m aintained its tax-qualified status at all times relevant to this lawsuit, notwi thstanding the exclusion of the plaintiffs. Thus, the EBC’s decision to exclude pl aintiffs did not violate the terms of the Pension Plan, even as amended in 1994. The terms of the 1994 amendment expressly exclude leased employees from participati ng in the Pension Plan. The remaining issue is whether the EBC acted arbitr arily and capriciously when it determined that plaintiffs were not “regula r employees” for purposes of19

the pension and welfare plans. Plaintiffs’ arguments on this point are, at best, confusing. Plaintiffs rely on Nationwide Mutual In surance Co. v. Darden , 503 U.S. 318, 319 (1992), in which the Supreme Court co nstrued the term “employee,” as used in ERISA, “to incorporate tradi tional agency law criteria for identifying master-servant relationships.” The pro blem is that Dardendoes not in any way alter the specific eligibility requirements in the plans at issue. Even though plaintiffs may in fact qualify as “employees ” under Darden(for purposes of ERISA generally), that does not mean they otherw ise satisfy the plans’ eligibility requirements. Ultimately, it appears t hat plaintiffs are relying on an equitable argument, i.e., that because they were in fact common-law employees of defendants, it would be unfair to exclude them from participation in the defendants’ pension and employee benefit plans. Th is argument, though perhaps appealing in some respects, simply ignores applicab le law and the specific eligibility requirements of the plans at issue. Focusing on the evidence contained in the record on appeal that was presented to the EBC, we conclude the EBC did not e rr in concluding that plaintiffs were ineligible for benefits under the p lans at issue. Although plaintiffs may have been similar in many respects to defendant s’ ordinary or “regular” employees, it is uncontroverted that plaintiffs wer e hired as employees of the various leasing companies, who in turn entered into leasing contracts with20

defendants. Under this arrangement, plaintiffs wer e not on the payroll records of defendants and did not receive compensation directl y from defendants. Instead, defendants paid the leasing companies in accordance with the leasing contracts and, in turn, the leasing companies paid plaintiffs for their work. Plaintiffs did not receive a regular and stated compensation from defendants, were not classified as employees according to the defendants ’ payroll records, and, in short, were not “regular employees” of the defendan ts. III. The judgment of the district court is AFFIRMED. Entered for the Court Mary Beck Briscoe Circuit Judge