UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_______________________________________ ) IAN PHILLIP JAMES, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-2107 (RBW) ) INTERNATIONAL PAINTERS AND ) ALLIED TRADES INDUSTRY PENSION ) PLAN, and ) GARY J. MEYERS, Administrator ) International Painters and Allied Trades ) Industry Pension Plan, ) ) Defendants. ) _______________________________________) MEMORANDUM OPINION Ian Phillip James, the plaintiff in this ci vil case, is seeking “compensatory damages for past benefits that have been improperly deniedto him,” Third Amended Complaint (“Compl.”) ¶ 23, and a “declaratory judgment as to the amount of retirement benefits, bot h past and future, to which he is entitled to under the Employee Retire ment Income Security Act of 1974, 29 U.S.C. § 1001-1461 (2000) (the “ERISA”), id. ¶ 25. Additionally, the plaintiff alleges that defendants International Painters and Allied Trades Industry Pension Plan and its administrator, Gary J. Meyers, violated 29 U.S.C. § 1140 by retaliati ng against one of the plaintiff’s prospective witnesses, id. ¶ 28-29, and “fail[ing] to supply . . . requested records, explanation and information,” id. ¶ 42, and that the defendants breach the contract that governs the retirement benefits that are disputed in this case, id. ¶ 44. Currently before the Court are the parties’ crossmotions for summary judgment pursuant to Federa l Rule of Civil Procedure 56. After carefully considering the Complaint, the parties’ summ ary judgment motions, and all memoranda of law2 and exhibits submitted with these filings, 1 the Court concludes for the r easons below that it must (1) deny the plaintiff’s and defendants’ moti on for summary judgment in part and without prejudice, and remand the case to the defendants for further cons ideration of the plaintiff’s application for benefits, (2) deny the plaintiff’s motion for summary judgme nt in part and with prejudice; and (3) grant the defendants’ motion for summary judgment in part. 2 I. BACKGROUND The plaintiff was a member of the Glazi ers Local 963 union (t he “Union”) beginning from at least August 1, 1962. See Defs.’ Mem. at 4 (acknowledging that the plaintiff’s “initial union initiation date [was] August 1, 1962”); Pl.’s O pp’n at 4-5 (claiming that he was “a member of the [U]nion covered by the co llective bargaining agreement” since 1959). While he was a member of the Union, the plaintiff was employe d by employers who contributed to the Glaziers Local 963 Pension Plan (the “Local 963 Plan”). Defs.’ Stmt. of Fa cts ¶ 1. From its inception, the Local 963 Plan was a trust and pension plan as defined under 29 U.S.C. 186(c)(5). Id. ¶ 2. The Local 963 Plan eventually merged into the International Painters an d Allied Trades Industry

1 In addition to the plaintiff’s Complaint, his motion for summary judgment (“Pl.’s Mot.”), and defendants’ motion for summary judgment (“Defs.’ Mot.”), the Court consider ed the following documents in reaching its decision: (1) the defendants’ Answer to Third Amended Complaint (“ Defs.’ Answer”); (2) the Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment (“Pl.’s Opp’n”); (3) the defendants’ Memorandum of Points and Authorities in Opposition to Plaintiff’s Motion for Summary Judgment (“Defs.’ Opp’ n”); (4) the Defendants’ Statement of Genuine Issues in Response to Plaintiff’s Statement of Material Facts as to Which There is No Genuine Issue (“Defs.’ Reply to Pl.’s Stmt. of Facts”); (5) the Plaintiff’s Reply to Defendant’s Oppos ition to Plaintiff’s Motion for Summary Judgment (“Pl.’s Reply”); (6) the defendants’ Memorandum of Points and Authorities in Support of Defendants’ Motion for Summary Judgment (“Defs.’ Mem.”); (7) the defendants’ Statement of Material Facts as to Which There is No Genu ine Issue in Support of Defendants’ Motion for Summary Judgment (“Defs.’ Stmt. of Facts”); (8) the Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment (“Pl.’s Opp’n”); and (9) the defendants’ Memorandum of Points and Authorities in Reply to Plaintiff’s Oppo sition to Defendants’ Motion for Summary Judgment (“Defs.’ Reply”).

2 The plaintiff has also moved for attorn ey’s fees pursuant to 29 U.S.C. § 11 32(g)(1) and 29 U.S.C. § 1140. Compl. ¶ 46. The Court finds it premature to address the plaintiff’s claim for attorneys’ fees at this time, as the Court has yet to resolve all of the claims in this action.3 Pension Plan on January 1, 1998. Id. ¶ 4. The Merged Plan preserved all vested benefits under the Local 963 Plan. Id. ¶ 6. To claim a vested interest in a deferred pension under the Local 963 Plan, a beneficiary must have accrued ten years of service credit. Defs.’ Mem., Ex. 13 (Glaziers Local 963 Pension Fund Plan Description and Text of Plan, Effectiv e April 1, 1971 (the “1971 Plan”)) § 3.1; Defs.’ Mem., Ex. 40 (Glaziers Local 963 Pension Plan Su mmary Plan Description and Text of Plan, As Amended Effective January 1, 1993 (the “1993 Pl an”) § 3.1. If, prior to vesting, a person worked fewer than 160 hours for two consecutive cal endar years, all prior service credit accrued is “lost.” Defs.’ Mem., Ex. 13 (1971 Plan) § 2.3; see id. , Ex. 40 (1993 Plan) § 4.3. Service credit is divided into either pa st service credit, which is creditawarded for any employment with a contributing employer prior to October 1, 1965, and future service credit, which is credit awarded for any employment with a contri buting employer after October 1, 1965. Id. , Ex. 13 (1971 Plan) §§ 2.1-2.2; id. , Ex. 40 (1993 Plan) § 4.1. The plaintiff, believing that he had accumu lated “14.54 years of covered employment,” thereby making him “a vested member of the Glaz iers Local 963 union,” Compl. ¶ 5. submitted an application for retirement benefits to the defendants on February of 2005, id. ¶ 7. The defendants denied the plaintiff’s application on March 29, 2005, id. ¶ 8; Defs.’ Answer ¶ 8, claiming that “the records received from the Local 963 Plan did not show [that the plaintiff was] a vested participant,” Defs.’ Repl y to Pl.’s Stmt. of Facts ¶ 1. The plaintiff then attempted to bolster his application by providi ng the defendants with “authoriz ation to obtain [his] Social Security Earnings Record on April 25, 2005.” See Pl.’s Mot., Ex. 3 (May 5, 2005 Letter from Gary J. Meyers to Ian P. James). The defendants, however, conte nded that far from evidencing4 the “claimed 14.54 years of service[,] . . . [his] claims conflict with information from [the successor to the Local Union 963 Pl an] and his union membership car d.” Defs.’ Reply to Pl.’s Stmt. of Facts ¶ 3. Thus, the defendants again denied the plaintiff’s appeal on August 23, 2005. Defs.’ Mem., Ex. 25 (August 23, 2005 Letter from Gary J. Meyers to Ian P. James) at 1. After this second denial, the defendants “d iscover[ed] a Local 963 Plan record from 1973, and according to this record, [the plaintiff] had accumulated 3.3 years of past service credit before October 1, 1965[,] and 6.2 years of future service credit . . . for work with contributing employers.” Defs.’ Mem. at 4. The plainti ff received a letter on June 27, 2007, informing him of this information and the Board’s conclusion that he was entitled to a pension of $409.68 in monthly benefits. Compl. ¶ 13. Upon the pl aintiff’s request, the defendants provided a “breakdown” of their calculations for his pens ion entitlement on August 16, 2007. Defs.’ Mem., Ex. 38 (August 16, 2007 Letter from Gary Meyers to Neil Intrater) at 1. Notably, the defendants’ calculations of the pl aintiff’s benefits was manifestly erroneous; specifically, the defendants determined that the plaintiff was entitled to $54.00 pe r month based on 3.3 years of past service credit at the rate of $1.50 per year, and $355.68 per month based on 6.2 years of
future service credit at the rate of $4.94 per year. Id. The plaintiff remained steadfast in his belie f that he had “accrued several years of service credits [that] the Defendant s [were] not honoring,” id. ¶ 14, and that he wa s “entitle[d] to more than the $409.68 per month awar ded by the [d]efendants,” id. ¶ 15. Specifically, the plaintiff believed that he was entitled to credit for work performed between some unspecified date in 1959 and August 1, 1962 while “work[ing] for an employer covered by the [U]nion contract,” and that he should have receivedadditional credits for service th at he purportedly performed in5 1969, 1979, and 1980. Defs.’ Mem., Ex. 4 (March 3, 2008 Letter from Gary Meyers to Neil Intrater (the “March 3, 2008 Letter”) at 2. Thus, on August 20, 2007, the plaintiff appealed the defendants’ June 27, 2007 determination. Id. , Ex. 39 (August 20, 2007 Letter from Neil Intrater to Defendants) at 1. The defenda nts acknowledged receipt of the pl aintiff’s appeal and indicated that a decision would be issued after a meeting of the Merged Plan’s trustees in February or March of 2008. Id. On November 20, 2007, while his appeal was pending, the plaintiff filed the instant action. Pl.’s Mem. at 4. On Ma rch 3, 2008, the defendants denied th e plaintiff’s appeal. Defs.’ Mem., Ex. 4 (March 3, 2008 Letter) at 1. The defendants reite rated that a 1973 Local 963 Plan service record listed the plaintiff with having only 9.5 years of service, id. , and that he did “not produce[] any reliable evidence of additional service beyond the 1973 [service record],” id. at 2. With regards to his claim of service between 1959 and 1962, the defendants concluded that while the plaintiff’s Social Security report “show[ed] work before 1962 with Local 963 employers, it [did] not show that this work was under a Local 963 Collective Bargaining Agreement,” and that it was “unlikely that the [plaintiff] worked continuously in the Local 963 bargaining unit in Maryland from 1959 to 1962 without union membership.” Id. at 3. The defendants further noted that for the disputed credits in 1979 and 1980, “[t]he re is no record of contributory work in this period beyond union membership from D ecember 5, 1979 to April 2, 1980.” Id. In regards to the disputed credit for 1969, the defendants “estimat e[d the] credit [the pl aintiff was entitled to] for 1966 to 1969 by [computing] the ratio of earnings for years 1967, 1968, and 1969 from contributing employers to the high earnings fr om contributing employers on the [plaintiff’s Social Security] report in 1966.” Id. The defendants claimed that this calculation, when6 considered along with the 1973 printout, confirme d that the plaintiff wa s only entitled to 6.3 future service credits for the time period between 1966 and 1973. Id. As for the claimed service credits in 1965, the defendants ex plained that “Section 4.1(a) of the [1993 Plan] gives past service credit for any plan year that bega n before [October 1, 1965],” where the employee “work[ed] under a Local 963 Collec tive Bargaining Agreement.” Id. at 2. Because the term “plan year” was not defined in the 1993 Plan, the defendants in ferred from the 1973 printout record that the term was to be de fined as a “calendar year.” Id. The defendants, however, did not provide a detailed breakdown of how it concluded th at the plaintiff was entitled to 3.3 years of past service credit, except to say that any credits earned in “early 1965,” were “drop[ped]” from the calculation, and the plai ntiff instead received “part[-]year credit” in 1965 for work performed “from October 1, 1965 to December 31, 1965.” Id. While the plaintiff continued to dispute th e defendants’ attribut ion to him of only 9.5 years of service, he ultimately decided that “due to the lack of documentation from the [d]efendants,” as well as his “concern[s] about retaliation[,]” he w ould “discontinue the litigation.” Compl. ¶ 16. Ther efore, “[o]n June 7, 2008, the [p]l aintiff executed . . . acceptance forms for the $409.68 pension.” Id. ¶ 17. However, “by a le tter dated June 19, 2008, [the defendants] rejected the acceptance of benefits fr om [the plaintiff] and [allegedly] retaliated against [him] by ambiguously either retracting co mpletely or reducing the amount of benefits offered to him from $409.68 to $46.93 per month.” Pl .’s Mot. at 5. According to the letter, the defendants did not alter the prior am ount of service time as to either past or future service credits previously awarded to the plaintiff, but they di d make two substantive m odifications: first, the defendants revised the amount that the plaintiff should receive fo r past service credit from $1.507 to $4.94, and second, they addressed the mathematical erro r contained in the August 16, 2007 letter and adjusted the total bene fit based on a correct computation of the plaintiff’s service credit totals multiplied by the monthly aw ard rates. Pl.’s Mot., Ex. 8 (June 19, 2008 Letter from Gary J. Meyers to Ian P. James) at 2. Throughout this process, the plaintiff asserts that he “has repeated ly requested a clear explanation of the [d]efenda nts’ calculations, copies of all rele vant pension plans[,] and a copy of the [p]laintiff’s complete records,” Compl. ¶ 9, but he asserts that he “has never received a clear explanation” of these calculations or relevant Plan documents, id. ¶ 10. Despite the plaintiff’s assertions, the defendants maintain that “[a]ll available responsive documents were provided to [the p]laintiff,” Meyers Decl. ¶ 8, and that after “considerable time and effort” the defendants were unable to locate certain information becau se of “problems arising from old and missing records,” id. ¶ 7. The defendants assert that since the plaintiff’s Local 963 Plan was a separate entity until 1998, it was not the “responsibility of the [defendants], nor was it possible [for them], to maintain Local 963 Plan records.” Id. ¶ 4. To further complicate this matter, the plainti ff revealed during discove ry that he intended to call Harold Schwartz as a witness in his case. Compl. ¶ 19. The plaintiff claimed that “[Mr.] Schwartz, who worked roughly the same years as the [p]laintiff, had been awarded a monthly pension of $602.00 in March of 2002.” Id. ¶ 20. However, the plai ntiff states that “[i]n retaliation against [Mr.] Schwartz for his poten tial testimony in this cas e[,] the [d]efendants terminated his benefits by le tter dated June 19, 2008.” Id. ¶ 21. In their defe nse, the defendants assert that “[t]he action taken with respect to Mr. Schwartz was not in retaliation for being named as a witness,” but rather because a revi ew of the evidence “showed that [he] was8 erroneously awarded benefits based on the work history [of] his deceased son, Harold Schwartz, Jr.” Defs.’ Reply to Pl.’s Stmt . of Facts ¶ 8. They also note that “Mr. Schwartz has filed an appeal of the termination of his benefits and the [defendants are] obtaining his employment and other records to consid er his appeal.” Id. ¶ 10. In reaction to the defendants’ actions, the plaintiff amended his complaint on July 21, 2008, to add an additional requestfor “relief and damages . . . pursuant to 29 U.S.C. § 1132,” Compl. ¶ 33, for “retaliat[ing] against the [p]laintiff for filing the . . . lawsuit,” id. ¶ 28, and also for “retaliating against . . . [Mr.] Schwartz,” id. ¶ 29. In addition, the plaintiff reiterated his claims for (1) monetary compensation for pa st benefits that ha ve been denied, id. ¶ 23; (2) a “declaratory judgment as to the amount of retirement benefits . . . to which he is entitled,” id. ¶ 25; (3) “injunctive relief directing . . . [the plan administrator,] Ga ry J. Meyers, . . . to pay the [p]laintiff the benefits to which [he] is entitled,” id. ¶ 36; (4) statutory damages pursuant to 29 U.S.C. § 1132(c)(1)(B) for “fail[ ing] to provide the [p]lainti ff[] [with his] union employment records or relevant documentation,” id. ¶ 39; (5) common law breach of contract, id. ; and (6) attorney’s fees, id. ¶ 46. The plaintiff then moved for summary judgment on November 1, 2008, while the defendants submitted their motion for summary judgmenton November 5, 2008. II. STANDARD OF REVIEW Before granting a motion for summary judg ment pursuant to Federal Rule of Civil Procedure 56, this Court must fi nd that “the pleadings, the discove ry and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. ” Fed. R. Civ. P. 56(c). A material fact is one that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby ,9 477 U.S. 242, 248 (1986). When ruling on a moti on for summary judgment, “the court must draw all reasonable inferences in favor of the nonmoving party, a nd it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150 (2000). The moving party has the burden of demonstrating the absence of a genuine issue of material fact, and thatthe non-moving party “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). In responding to a summary judgment motion, the non-moving party “must do more than simply show that there is some metaphysical doubtas to the material f acts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). Acco rdingly, the non-moving party must not rely on “mere a llegations or denials . . . but . . . must set forth specific facts showing that there [are] genuine issue[s] for trial.” Anderson , 477 U.S. at 248 (internal quotation and citation omitted) (second omission in or iginal). Thus, “[i]f the evidence is merely colorable . . . or is not signifi cantly probative . . . summary j udgment [may be] granted.” Id. at 249-50 (internal citations omitted). III. LEGAL ANALYSIS The parties present for the Court’s consideration several issues in their cross-motions for summary judgment, namely: (1) whether the plain tiff is entitled to a pension and, if so, how much money per month is he entitled to receiv e; (2) whether the defe ndants have a duty to maintain the plaintiff’s employme nt and union records and, if so, whether penalties should be levied against the defendants for their failure to supply that information to the plaintiff pursuant to 29 U.S.C. § 1059; (3) whether the defendants violated 29 U.S.C. §§ 1024, 1025, and10 1132(c)(1), by failing to provide the plaintiff with copies “of the relevant plans and regulations” regarding the Local 963 Plans; (4) whether the defendants imper missibly retaliated against both the plaintiff and his witness, Mr . Schwartz, in violat ion of 29 U.S.C. § 1140; and (5) whether the defendants breached the pension agreement at issue in this case. For the reasons explained in detail below, the Court concludes that the issue of whether the plaintiff is entitled to a vested pension is not yet ripe for adjudication in this forum because there is reason for the Court to believe that the defendants did not apply the correct version of the Local 963 Plan to calculate the plaintiff’s service credits, and that appli cation of a different se t of provisions could potentially yield a different result. Additio nally, because the defendants’ determination regarding the plaintiff’s pension is a material factor in determ ining whether they violated any duty to provide information regarding the pert inent Local 963 Plans pursuant to 29 U.S.C. § 1132(c)(1), the Court will also defe r consideration of this claim. But, as a matter of law, the Court can conclude from the recordcurrently before it that (1) th e defendants have no duty under the law to maintain the plaintiff’s employment and union records under 29 U.S.C. § 1059; (2) the plaintiff has failed to show that the defendants impermissibly retali ated against him in violation of 29 U.S.C. § 1140; (3) the plai ntiff lacks standing to raise a retaliation claim as to Mr. Schwartz; and (4) that his breach of contract cl aim has been pre-empted by Sections 1144(a) and 1132(a)(1)(B) of the ERISA. The Cour t will analyze each issue in turn. A. The Plaintiff’s Claim for Benefits Under the Local 963 Plan As an initial matter, the Court must first decide the appropriate standard for conducting its review of the defendants’ de cision to deny the plaintiff’s cl aim for pension benefits. In Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101 (1989), the Supreme Court determined that11 “a denial of benefits challenged under [29 U.S. C.] § 1132(a)(1)(B) is to be reviewed under a de

novo standard unless the benefit plan gives the administrator or fi duciary discreti onary authority to determine eligibility for benefits or to construe the terms of the plan.” Id. at 115. In cases where the administrator or fiduciary has been given discretionary authority, the standard of review to be applied by a court has been “v ariously described by th e [Supreme] Court as ‘arbitrary and capricious’ or ‘abuse of disc retion,’” but regardless of how it is phrased, the standard to be applied “is pl ainly deferential.” Wagener v. SBC Pension Benefit Plan-NonBargained Program , 407 F.3d 395, 402 (D.C. Cir. 2005) (citing Firestone , 489 U.S. at 111-15). And the District of Columbia Ci rcuit “has defined the Firestone deferential standard as one of ‘reasonableness.’” Id. (quoting Block v. Pitney Bowes, Inc. , 952 F.2d 1450, 1454 (D.C. Cir. 1992)). However, “if a benefit plan gives discre tion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a ‘facto[r] in determining whether there is an abuse of discretion.’” Id. (quoting Restatement (Second) of Trusts § 187, cmt. d (1959)). In reviewing a benefit plan to determine the appropriate standard of review in any given case, “Firestone . . . did not suggest that ‘discretionary auth ority’ hinges on in cantation of the word ‘discretion’ or any ot her ‘magic word.’” Block , 952 F.2d at 1453 (quoting Firestone , 489 U.S. at 115). “Rather, the Supreme Court direct ed lower courts to focus on the breadth of the administrators’ power—their ‘authority to determine eligibility for benefits or to construe terms of the plan.’” Block , 952 F.2d at 1453 (quoting Firestone , 489 U.S. at 115). Thus, the court should look for the presence of “[e]mpowering language.” Id. at 1453; see Becker v. Weinberg Group, Inc. Pension Trust , 473 F. Supp. 2d 48, 61 (D.D.C. 2007).12 Here, the plaintiff asserts that the Local 963 Plan contains “[n]o explicit discretionary authority,” Pl.’s Mem. at 6, and therefore the C ourt must evaluate the defendants’ eligibility determination de novo , id. at 5. The defendants, on the othe r hand, point to Se ction 4.5 of the 1971 Local 963 Plan as grounds for w hy discretionary review should be employed; this provision states that “[i]n the application and interpretation of this Pension Plan, the decisions of the Board of Trustees shall be final and binding on all parties, including Employees, Employers, Union, Pensions, and Beneficiaries.” Defs.’ Me m., Ex. 13 (1971 Rules) at 26; see also id. , Ex. 40 (Glaziers Local 963 Plan) at 34 (“Th e Trustees shall be the sole judges of the standard of proof required in any case.”). Moreove r, they note the Merger Agreement between the Local 963 Plan and the Trustees of the International Brotherh ood of Painters and Alli ed Trades Union and Industry Pension Fund provides that all “rights and duties in relati on to the [Local 963 Plan] shall be assumed by the [International Brotherhood of Painters and Allied Trades Union and Industry Pension Fund].” Id. , Ex. 42 (Merger Agreement) § 5.03; see also id. § 8.01 (“All questions of interpretation of this [Merger] Agreement shall be resolved by the International Trustees consistent with their fiduciary re sponsibilities.”). Finally, the defendants point out that under the International Brotherhood of Painters and Allied Trades Union and Industry Pension Fund, the Plan’s trustees “have full discretion and authority to determine all questions of fact or law arising in the administration, interpretation, and applica tion of the Plan.” Id., Ex. 41 (International Painters and Allied Trades Industry Pension Pl an (“International Painters Plan”) § 2.03. The language quoted above clearly grants disc retionary authority under the teachings of both Firestone and Block . Indeed, in Block the District of Columbia Circuit favorably cited a number of decisions that cons trued language similar to that quoted above where those courts13 concluded that the administrator’s decision shoul d be reviewed only for reasonableness. See Block , 473 F.2d at 1453; see also De Nobel v. Vitro Corp. , 885 F.2d 1180, 1186-87 (4th Cir. 1989) (finding that power “[t]o determine all benef its and resolve all questions pertaining to the administration, interpretation and ap plication of Plan provisions” en titled the plan to deferential review (emphasis omitted)). And, the language conferring authority on the administrator to decide “the application and inte rpretation of” the Local 963 Plan, and that his decision “shall be final and binding on all parties,” Defs.’ Mem., E x. 13 (the 1971 Plan) at 26, is just the type of “empowering language” to which Blockreferred, 952 F.2d at 1453. Additionally, as a multiemployer pension fund, as is the case here, the defendants do not pay bene ficiaries from their own funds, see Defs.’ Mem., Ex. 13 (1971 Plan) at 17 (“The cost [of the Plan] is paid by contributions made to the [Plan] by your employer” ), and thus the Court need not be concerned about conflicts of interest, see, e.g. , Taylor v. Pension Plan of Pipefitters Local 537 Pension Fund , Civil Action No. 06-12156-DP W, 2009 WL 1812794, at *13 (D. Mass. June 11, 2009), as this is not a situation in whic h “it is the employer that both f unds the plan and evaluates the claims,” Metropolitan Life Ins. Co. v. Glenn , ___ U.S. ___, ___, 128 S. Ct. 2343, 2348 (2008). It is under such circumstances that the Cour t must apply additional scrutiny in determining whether there has been an abuse of discretion, because “every dollar provided in benefits is a dollar spent by . . . the employer; and every do llar saved . . . is a do llar in the employer’s pocket,” and “[t]he employer’s fi duciary interest may counsel in favor of granting a borderline claim while its immediate financial interest counsels to the contrary.” Id. The Court therefore concludes that a more searching re view is unnecessary in this case. 3

3 The plaintiff also argues that regardless of any language in the Local 963 Plan, de novo review is nonetheless required because “the [d]efendants have consistently violat ed the procedural requirements of the ERISA statutes.” (continued . . . )14 Having settled the issue of the appropriate standard of review, the Court must next determine which plan governs the plaintiff’s applic ation for benefits. The plaintiff asserts that the International Painters and Allied Trades Indu stry Pension Fund plan controls his entitlement to benefits because it favors his position and “[t]he post-merger plan states that an employee who was covered by a prior plan may use ‘whichever provi sion [that] is more a dvantageous to him.” Pl.’s Mem. at 14; id. , Ex. 41 (International Painters and A llied Trades Industry Plan), § 4.02. However, in advancing this position, the plaint iff has ignored the agreement that merged the International Painters and Allied Trades Industr y Pension and the Local 963 Plans. The Merger Agreement states that the Local 963 Plan is “substitut[ed]” by the International Painters and Allied Trades Industry Pension Plan, subject to seve re “special transitional provisions.” Defs.’ Mem., Ex. 42 (Merger Agreement) Art. 3. And, the relevant transitiona l provisions in the Merger Agreement refute the notion that the plai ntiff is the intended be neficiary of the “most advantageous” language in the International Pain ters and Allied Trade Industry Pension Plan.

(. . . continued) Pl.’s Mem. at 6. As referenced earlier, the plaintiff argues that the defendants violated both their duty to maintain and produce employee records, as well as their duty to produce relevant rules, regulations, and policies regarding the Local 963 Plan. See supraat 8. It is true that several circuits and a district court have held that some violations of the ERISA entitle a plaintiff to de novo review despite the conferral of discretionary authority within the plan documents. See Gilbertson v. Allied Signal, Inc. , 328 F.3d 625, 631 (10th Cir. 2003) (“We hold that when substantial violations of [the] ERISA deadlines result in the claim’s being automatically deemed denied on review, the district court must review the denial de novo , even if the plan administrator has discretionary authority to decide claims.”); see also Jebian v. Hewlitt-Packard Co. Employees Benefit Org. Income Prot. Plan , 349 F.3d 1098, 1107 (9th Cir. 2003) (agreeing that consequential, but not in consequential, violations of the ERISA would entitle the plaintiff to de novo review); McDowell v. Standard Ins. Co. , 555 F. Supp. 2d 1361, 1373 (N.D. Ga. 2008) (agreeing with Gilbertson ). This Circuit, however, has not considered the question of whether certain violations of the ERISA require de novo review, even though discretionary review would otherwise be appropriate. At this point in the litigation, the Court will presume th at there has not been any substantial or consequential violations of the ERISA procedural requirements. As discu ssed below, the defendants have no duty to maintain or produce to the plaintiff any of his employment or union reco rds, and furthermore, it is premature at this stage to determine whether the defendants had a duty to produce information regarding the Local 963 Plan, because whether the defendants had a duty to produce such information may depend on whether the Court concludes that the plaintiff is a vested participant in the Local 963 Plan. See infra at 19-20. The Court, however, will revisit this issue once the defendants have addressed the issue of the plai ntiff’s pension entitlement as instructed below.15 Specifically, Section 4.01 of the Merger Agreement states that “[n] o person receiving benefits or entitled to receive benefits from the [Local 963 Plan] on or before the effective date of this [Merger] Agreement shall be eligible for any increase in his benefit as a result of this [Merger] Agreement.” Id. § 4.01. Additionally, Section 4.03 of the Merger Agreement continues that [t]he [Local 963 Plan participating employees] must work at least 250 contributory hours in employment covere d under the [Local 963 Plan] in 1997 to be eligible to receive the [Internati onal Painters and Allied Trade Industry Pension Plan] benefits with respect to service before the effective date of this [Merger] Agreement. Id. § 4.03. As it is undisputed that the plainti ff did not work the requisite 250 hours in 1997, see Defs.’ Stmt. of Facts, Ex. A (Ian P. James Work Hi story) at 1, it is clear that the plaintiff is limited to those benefits, if any, that he is entitled to under the Local 963 Plan. But while it is clear that the plaintiff is en titled to only those benef its that are conferred by the Local 963 Plan, the question remains as to which Local 963 Plan governs this dispute. The parties have identified two versions of the Local 963 Plan, one of which became effective on April 1, 1971, and the other onJanuary 1, 1993. See generally Defs.’ Mem., Ex. 13 (1971 Plan); id. , Ex. 40 (1993 Plan). In the defendants’ Marc h 3, 2008 response to the plaintiff’s objections regarding his service credits, the defendants note that “[t]he ear liest available complete plan document is a January 1, 1993 restatement,” id. , Ex. 4 (March 3, 2008 Letter) at 2; thus, it is evident from the March 3, 2008 Letter that the defendants did not consider whether the 1971 Plan controls this dispute. Of course, one possible reason why the defendants did not apply the 1971 Plan to the plaintiff’s application for benefits is because they were unable to procure a copy of that version of the Plan until the plaintiff produced the document in discovery. Cf. id. at 5 (asserting that the plaintiff “h ad a copy of the [1971 Plan] . . . and produced it in discovery during this litigation”); id. , November 4, 2008 Declaration of Ga ry J. Meyers, ¶ 17 (“During the16 course of this lawsuit, [the pl aintiff] provided the [defendants] with a copy of the 1971 Glaziers Local 963 Pension Fund Plan.”). Nonetheless, th e defendants did not consider and, therefore, did not apply the provisions of the 1971 Plan in determining whether the plaintiff had a vested interest in a pension under th e Local 963 Plan, and that the onl y provisions that the defendants applied in the March 3, 2008 letter were taken from the 1993 Plan. However, Section 11.4 of the 1993 Plan calls into question whether this version of the Local 963 Plan is even applicable to the plai ntiff’s case and, now that the defendants possess a copy of the 1971 Plan, whether that version shouldbe applied instead. Section 11.4 of the 1993 Plan states the following: The terms and conditions of the Plan as restated herein shall amend and supersede, effective Oct ober 1, 1976, the terms and c onditions of the Glaziers Local 963 Pension Plan, as in effect prio r to October 1, 1976; provided, however, that the provisions of such prior plan shall continue to govern the rights of all Employees who were covered thereunder and who do not become Active Employees on or after October 1, 1976 , except as otherwise stated herein Defs.’ Mem., Ex. 40 (1993 Plan) § 11.4 (emphasis added). As for who constitutes an “active employee” under the 1993 Plan, Section 1.2 states: “Active Employee” means, as of the date in question, an Employee or former Employee who is other than a Retired Employee, and who has not incurred a oneyear Break in Service, or if he has incurred a one-year Break in Service, has had contributions made to the Plan on his beha lf subsequent to his most recent oneyear Break in Service , provided however, that an employee who has not had contributions made to the Plan on his be half on or before October 1, 1976, shall not be considered to be an Active Employee. Id. § 1.2 (emphasis added). According to Sec tion 11.4, if the plaintiff is someone who was covered under the prior plan (in this case, the 1973 Plan), and is also someone who did not fall within the definition of an “Active Employee” on or after Oc tober 1, 1976, then the 1993 Plan does not apply.17 Based on the record now before the Court, there is no documentation or other evidence establishing that the defendants have addressed the issue of wh ether the 1993 Plan or the 1971 Plan applies to the plaintiff’s application for re tirement benefits. Give n that the defendants are “the sole judges of the standard of proof re quired in any case” arising out of the Plan, id. , Ex. 13 (1971 Plan) § 4.5; see also id. , Ex. 41 (International Painters and Allied Tr ades Industry Pension Plan (“International Painters Plan”) § 2.03(a) (conferring upon th e Merged Plan “full discretion and authority to determine all questions of fact or law arising in the administration, interpretation, and application of the [p]lan”); id. , Ex. 42 (Merger Agreement) § 5.03 (providing that all “rights and duties in relation to th e [Local 963 Plan] shall be assumed by the” International Brotherhood of Painters and AlliedTrades Union and Industry Pension Fund), and that their decisions are entitled to significant deference under Firestone and its progeny, the Court must therefore provide the defendants with th e opportunity to address th is issue in the first instance. See Saffle v. Sierra Pac. Power Co. Barg aining Unit Long Term Disability Plan , 85 F.3d 455, 461 (9th Cir. 1996), quotedin Doe v. Mamsi Life and Health Ins. Co. , 471 F. Supp. 2d 139, 149 (D.D.C. 2007) (Huvelle, J.) (concluding that “r emand for reevaluation of the merits of a claim is the correct course to fo llow when an ERISA plan administ rator, with discretion to apply a plan, has misconstrued the [p]lan and applied a wr ong standard to a benefits determination”). Furthermore, if the defendants c onclude that the 1971 Plan, rather than the 1993 Pl an, applies to the facts of this case, then the defendants must also make a “full and fair assessment of [the plaintiff’s] claims” using the standards set forth in the 1971 Plan for determining whether the plaintiff has a vested pension under the Local 9 63 Plan, and the defendants must also provide a “clear communication to the claima nt of the specific reasons for benefit denials,” if any, under18 the terms of that version of the plan. Black & Decker Disability Plan v. Nord , 538 U.S. 822, 825 (2003) (citing 29 U.S.C. § 1133 a nd 29 C.F.R. § 2560.503-1 (2002)). 4 For these reasons, the

4 Indeed, the defendants should make certain on remand to heed the Supreme Court’s mandate under Nord , as their breakdown of the plaintiff’s service cred its in their March 3, 2008 letter fell woefully short of the standard for clear communication and specificity as set fo rth under the ERISA. For instance, the defendants provided the following analysis of their conclusion that the plaintiff is entitled to only 3.3 years in past service credits: Section 4.1(a) of the 1993 Local 963 Plan gives past service credit for any plan year that began before 10/1/65 with work under a Local 9 63 Collective Bargaining Agreement. . . . The [defendants’] membership records and book from [the plaintiff] show that he joined the union on August 1, 1962. The term “plan year” is not defined in the extant Local 963 documents but the 1973 printout record implies the use of a calendar year for past service (as well as future service), thus drops [sic] early 1965 and includes part year credit from October 1, 1965 to December 31, 1965 in the past service column (based on the future service rate of 1/10 year for 160 hours in a normal work month in the document) to yield 3.3 y ears of past service cred it. The simple elapsed time from August 1, 1962 to October 1, 1965 does not yield 3.3 years. Id. at 4. The defendants appeared to conclude (althou gh it is not entirely clear from the explanation above) that three-tenths of the plaintiff’s past service credits were derived from his service from October 1, 1965 to December 31, 1965. And, the defendants also seemed to suggest that the plaintiff was not awarded past service credits for at least a portion of 1965, even though there is no explanation whatsoever as to why his covered employment during that period was “drop[ped]” from the calculation of his past service credits. Other than those conclusions, however, there is nothing in the paragraph abovethat provides a clear explanation as to how the defendants reached their conclusion that the plaintiff was entitled to another three years of past service credit. In fact, it should be noted that under the defendants’ somewhat incoherent explanation, the Court would have to conclude that the defendants’ application of Section 4.1(a) to the plaintiff’s application for benefits would not be consistent with a reasonable interpretation of the 1993 Pl an. As it stands now, the Court believes that the defendants’ application of Section 4.1(a) to the facts of this case presents three issues. First, as the 1993 Plan makes clear, credits earned between October 1, 1965, and December 31, 1965, constitute future service credits, not past service credits. See id. , Ex. 40 (the 1993 Plan) § 4.1(a) (defining past service, inter alia, to include employment that “begins before October 1, 1965”); id. at § 4.1(b) (setting forth the standards for calculating “[f]uture [b]enefit [s]ervice [for] [s]ervice [o]n and [a]fter October 1, 1965”). Thus, the defendants’ explanation that three-tenths of the plaintiff’s past service credits were earned after October 1, 1 965, is clearly in error. Second, as alluded to above, the defendants fail to explain why the plaintiff’s covered employment in “early 1965” wa s “drop[ped]” from their calculation of the plaintiff’s past serv ice credits; indeed, exactly what time period the defendants intended to encompass in the term “early 1965” is anyone’s guess. Third, and most im portantly, the defendants’ interpretation would result in the plaintiff having to forfeit compensation that may have been rightfully earned by him during the “early 1965” time period. The parties do not dispute the fa ct that in 1965, the plain tiff was employed and covered under the Local 963 Plan. See Defs.’ Stmt. of Facts, Ex. A (Ian P. James Work History) at 2. Thus, the plaintiff is entitled to any service credits that he should have been aw arded under the Local 963 Plan for work performed during this period or, at the very least, and explanation as to wh y he is no longer entitled to those credits. As the Supreme Court noted, “the future retirement benefits of active wo rkers are part and parcel of their overall compensation,” Allied Chem. & Alkali Workers Local Union No. 1 v. Pittsburgh Plate Glass Co. , 404 U.S. 157, 180 (1971), and the defendants cannot, and should not, expect this Court to uphold an interpretation of the 1993 Plan that would strip the plaintiff of rightfully-earned compensation absent any evidence that warrants that result. Accordingly, the defendants, on remand, should take notice of the Court’s observations in making a “full and fair assessment of [the plaintiff’s] claims” and to provide th e plaintiff with a “clear communication . . . of the specific reasons” for their decision. Black & Decker Disability Plan v. Nord , 538 U.S. 822, 825 (2003) (citing 29 U.S.C. § 1133 and 29 C.F.R. § 2560.503-1 (2002)).19 Court will remand the matter to the defendants (and, more specifically, the Board of Trustees for the Merged Plan) for further consideration of the plaintiff’s application for benefits consistent with the observations findings set forth in this Memorandum Opinion.
B. The Plaintiff’s Claim for Access to Plan Documents The plaintiff also asserts that he is entitle d to damages because the “[p]laintiff has never received a clear explanation of the [d]efendants’ calculations [or] copies of all relevant pension plans.” Compl. ¶ 10. It is true that the de fendants, as administrators of a multi-employer pension plan, have a statutory duty to furnis h “a copy of the latest updated summary, plan description, and the latest annual report, any te rminal report, the bargaining agreement, trust agreement, contract, or other in struments under which the plan is established and operated” upon written request “of any particip ant or beneficiary.” 29 U.S.C. § 1024(b)(4). The defendants must also furnish, upon written request by a pa rticipant or benefici ary, a pension benefit statement including the total benefits accrued and nonforfeitable benefits already accrued or, if not accrued, the date on which they will become nonforfeitable. 29 U.S.C. § 1025(a). But, as these provisions make clear, an administrator only owes a duty to produce such documentation to “participants and beneficiaries” as defined under these statutes. Put differently, if the plaintiff does not qualify as a “participant ” or a “beneficiary,” then the plaintiff lacks the statutory standing to sue for damages. The plaintiff does not, and cannot, seek da mages under these provisions on the grounds that he is a “beneficiary” because he ha s not alleged to have been “designated by a participant . . . who is or may become entitled to a benefit ther eunder.” 29 U.S.C. § 1002(8) (emphasis added). Whether or not the plaintiff is a “participant” under 29 U.S.C. § 1002(7), however, is a closer20 question. In Firestone , the Supreme Court grappled with the question of who constitutes a “participant” under the ERISA, and therefore who may sue under Section 1132(c). 489 U.S. at 115-18. The Court concluded that “the term ‘participant’ is natura lly read to mean ‘employees in, or reasonably expected to be in, currently covered employment,’ or former employees who ‘have . . . a reasonable expectation of returning to covered employment’ or who have ‘a colorable claim’ to vested benefits.” Id. at 117 (internal citations omitted). The plaintiff is not a current employee, nor has he establ ished (or even asserted) that he is a former employee who has a reasonable expectation to once again work for an employer who will c ontribute to the Local 963 Plan. Thus, the only avenue available to the pl aintiff to prevail under Section 1332(c) is for him to establish that he has “a colorable cl aim” to vested benefits. Under Firestone , this means that the “claimant must have a colo rable claim that (1) he or she will prevail in a suit for benefits, or that (2) eligibility requiremen ts will be fulfilled in the future.” 489 U.S. at 117-18. There is no reason at this point to think that the defendant’s eligibility requirements will be fulfilled in the future, as again, he has not even alleged any inte ntion of returning to covered employment. As for whether he has a colorable claim to prevail in a suit for benefits, this is a more difficult question to answer without knowi ng which of the two Local 963 Plan s applies to his application for benefits, and, as the Court i ndicated above, this issu e is one for the defendants to address in the first instance. Thus, at this juncture, the Court must defer its decision on this issue until after the defendants have issued a revised decision regarding the plaintiff’s eligibility for a vested pension under the Local 963 Plan.21 C. The Plaintiff’s Suit for Access to Employee Documents The plaintiff asserts that pursuant to 29 U.S.C § 1059(a)(1), it was the defendants’ responsibility to mainta in the plaintiff’s employment and union records, Pl.’s Mem. at 6. However, the plain text of the statute to which he cites does not apply to the defendants, but rather to the plaintiff’s former employers. See 29 U.S.C. § 1059(a)(1) (requiring that an “employer . . . maintain records with respect to each of his employees” (emphasis added)). Indeed, many of the cases construing Section 10 59(a)(1) concern the trus tees of multi-employer pension plans, such as the defendant in this cas e, suing an employer for failure to comply with Section 1059(a)(1). See, e.g. , Trustees of Chicago Painters a nd Decorators Pension, Health, and Welfare, and Deferred Savings Plan Trust Funds v. Royal Int’ l Drywall and Decorating, Inc. , 493 F.3d 782, 786 (7th Cir. 2007) (finding that the time sheets maintained by the employer were “not enough to comply with [S ection 1059] unless the time sheets are sufficient to determine the actual hours worked” by its employees); Trustees of Painters Union Deposit Fund v. Ybarra
Const. Co. , 113 Fed. Appx. 664, 667 (6th Cir. 2004) (no ting that Section 1059(a)(1) “imposes a clear duty on the employer to ma intain adequate records” of its employees) (quoting Mich. Laborers’ Health Care Fund v. Grimaldi Concrete, Inc. , 30 F.3d 692, 695 (6th Cir. 1994)). Of course, the defendants must “dischar ge [their] duties with respect to a plan solely in the interest of the participants and . . . with the care, skill, prudence, and diligence under circumstances then prevailing that a prudent man acting in a li ke capacity . . . would use,” 29 U.S.C. § 1104(a)(1)(B), and this may include a duty to procure the plaintiff’s em ployment and union records from his employers, cf. Cent. States, S.E. and S.W. Ar eas Pension Fund v. Cent. Transp.,
Inc. , 472 U.S. 559, 571 (1985) (“ERISA clearly assumes that . . . trustees will take steps to22 identify all participants and beneficiaries.”). But, the plaintiff does not cite, and the Court is unaware of, any statutory or case authority that places the burden on the trustees to maintain employment or union records of pension plan participants. 5 The Court, therefore, must grant summary judgment in favor of the defendants as to this count.
D. The Plaintiff’s Retaliation Claims The ERISA provides that it is “unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled.” 29 U.S.C. § 1140. Additionally, the statute provide s that “[i]t shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discrimina te against any person because he has given information or has testified or is about to testify in any inquiry or proceeding.” Id. In relying on these provisions, the plai ntiff asserts that the defendants, “[i]n retaliation against the [p]laintiff for filing the in stant lawsuit, . . . rejected the [p]laintiff’s acceptance and reduced the offered pension.” Comp l. ¶ 28. Additionally, the plaintiff claims that “the [d]efendants have retaliated against [one of his] witness[es], Harold Schwartz, who was named in discovery as a witness who would te stify in favor o[f] the [p]laintiff.” Id. As discussed below, howver, these claims must be dismissed. When faced with claims of retaliation agai nst individuals under the ERISA, the District of Columbia Circuit has indicated that the Court should “treat such a claim akin to a Title VII case using the classic Burdine framework.” Andes v. Ford Motor Co. , 70 F.3d 1332, 1337 (D.C. Cir. 1995) (citing Texas Dep’t of Cmty Affairs v. Burdine , 450 U.S. 248 (1981)). That

5 Even assuming that the defendants had a duty under the ERISA to maintain the plaintiff’s employment and union records once they came into possession of such records, the plaintiff fails to provide any evidence that the defendants breached that duty. The pl aintiff has not provided an y evidence that the documen ts he seeks ever existed or were possessed at some point by the defendants, and thus, it is impossible for the Court to conclude that the defendants violated any duty to maintain the plaintiff’s records.23 framework, initially articulated by the Suprem e Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), requires an initial prima faci e showing of retaliati on by the plaintiff, followed by the burden shifting to the defendant to proffer a le gitimate, non-retaliatory reason for its action, culminating in the plaintiff then having an opportunity to demonstrate that the defendant’s proffered reason was either not true or a pretext for retaliation. Id. at 802-04. To establish a prima facie case in the Title VII contex t, a plaintiff has to de monstrate that “(1) [he engaged in] protected activity; (2 ) the employer’s action ha[d] an adverse impact on [him]; and (3) a causal relationship between the protected activity and the adverse action [existed].” Paquin v. Fed. Nat’l Mortgage Ass’n , 119 F.3d 23, 31 (D.C. Cir. 1997). However, the District of Columbia Circuit has more recently made clear, ag ain in Title VII cases, that once an employer has proffered a legitimate, non-re taliatory explanation for its action, courts should then focus only on whether the plaintiff “produced sufficient evidence for a reasonable jury to find that the employer’s asserted . . . reason was not the actu al reason and that the employer intentionally [retaliated] against the employee [for an unlawful reason].” Brady v. Office of Sergeant at Arms , 520 F.3d 490, 494 (D.C. Cir. 2008). Although this rece nt clarification has not been extended to claims under the ERISA, the Court concludes that si nce the circuit court has indicated that claims brought under Section 1140 alleging retaliation against individuals should be an alyzed under the Title VII framework, see Andes , 70 F.3d at 1337, the circuit’s more recent decisions discussing the method of analysis of Title VII claims ha ve equal force to claims brought under Section 1140. Therefore, the Court looks to whether the pl aintiff has demonstrated that the defendants’ proferred reason for its acti on is a pretext. Brady , 520 F.3d at 494.24 There is no evidence, however, that the defe ndants retaliated against the plaintiff because he asserted his right to a pension. Other than rep eat his allegations of th e defendants’ efforts to deny him a vested pension, see, e.g. , Pl.’s Mem. at 9 (asserting thatthe defendants have “refused to provide” the plaintiff with a description of how the retracted pension benefit was calculated), the plaintiff has done nothing to call into questio n the defendants’ proferred justification for its reduction or elimination of his pension. About the only colorable claim of retaliation that he presents in his C is that the defendants retali ated against him by “reduc[ing] the amount of benefits offered to the [p]laintiff” in a June 19, 2008 letter. Compl. ¶ 18. In fact, the defendants’ calculation of the plaintiff’s benefi ts in its August 16, 2007 letter was erroneous on its face. In that letter, the defendants determined that the plaintiff was entitled to $54.00 per month based on 3.3 years of past service creditat a rate of $1.50 per month, and that he was entitled to $355.68 based on 6.2 years of future service cr edit at a rate of $4.94 per month. Id. Simple arithmetic, however, makes clear that multiplying 3.3 years of pa st service credit to a rate of $1.50 yields a benefit of $4.95 a month, and that multiplying 6.2 year s of future service cr edit at a rate of $4.94 a month yields a benefit of $30.69. Accordi ngly, no reasonable jury could find that the defendants’ June 19, 2008 letterwas an act of retaliation against the plaintiff. As for the plaintiff’s assertion of alleged retaliation agai nst his proposed witness, Mr. Schwartz, Pl.’s Mem. at 5, the Court can easily reso lve this claim in favor of the defendants. As the defendants correctly note, there is a “general prohibition on the litigant raising another person’s legal rights,” Allen v. Wright , 468 U.S. 737, 751 (1984), and the plaintiff’s failure to identify any injury to himself resulting from th e alleged retaliatory reduc tion of Mr. Schwartz’s pension dooms this part of his retaliation claim. Thus, the Court must grant summary judgment25 in favor of the defendants with regards to the plaintiff’s claim of re taliation by the defendants against himself and Mr. Schwartz.
E. The Plaintiff’s Breach-of-Contract Claim Finally, the plaintiff “asserts common law breach[- ]of[-]contract [claims] on the part of both [d]efendants.” Compl. ¶ 44. Although the de fendants did not address the plaintiff’s breachof-contract claim, and normally the Court might consider the argument conceded, see Buggs v. Powell , 293 F. Supp. 2d 135, 141 (D.D.C. 2003) (Walt on, J.) (“[W]hen a [party] files an opposition to a dispositive motion and addresses only certain arguments . . . , a court may treat those arguments that the [party] failed to address as conceded”), here, the Court will not do so because it has no authority to entertain the plai ntiff’s breach-of-contract claim due to preemption by the ERISA, see Aetna Health Inc. v. Davila , 542 U.S. 200, 208-13 (2004) (“any state-law cause of action that duplicates, supplements, or supplants the ERISA civil enforcement remedy conflicts with the clear congressional intent to make the ERISA remedy exclusive and is therefore preempted”). Indeed, the breach-of-contract claim asserted by the plaintiff is no different in character from the br each-of-contract claim raised in Metro. Life Ins. Co. v. Taylor , 481 U.S. 58, 62 (1987), where the Supreme Court held that [u]nder our decision in Pilot Life Ins. Co. v. Dedeaux , 481 U.S. 41 [(1987)]. . . Taylor's common law contract and tort claims are pre-empted by ERISA. This lawsuit “relate[s] to [an] employee bene fit plan.” § 514(a), 29 U.S.C. § 1144(a). It is based upon common law of general a pplication that is not a law regulating insurance. Accordingly, the suit is pr e-empted by [29 U.S.C. § 1144(a)] and is not saved by [§ 1144(b)(2)(A)]. Moreover, as a suit by a bene ficiary to recover benefits from a covered plan, it falls di rectly under [29 U.S.C. § 1132(a)(1)(B)], which provides an exclusive federal cause of action for resolution of such disputes.26 (internal citations omitted). Accordingly, the defendants’ motion for su mmary judgment as to the plaintiff’s breach-of-contract claim is granted. IV. CONCLUSION For the foregoing reasons, the Court denies the plaintiff’s and defendants’ motion for summary judgment in part and without prejud ice, and remand the case to the defendants for further consideration of the plaintiff’s applicat ion for benefits, deny the plaintiff’s motion for summary judgment in part and with prejudice, and grant the defendants’ motion for summary judgment in part. Specifically, the Court denies both the plainti ff and defendants’ claims without prejudice in regards to the defe ndants’ determination of benef its under the Local 963 Plan, and, furthermore, the Court remands this matter to the defendants for further consideration of the plaintiff’s application for retirement benefits consistent with this Memorandum Opinion. Likewise, the Court also denies without prejudice the plaintiffs’ claim that the defendants failed to produce plan documents, althou gh the Court grants the summary judgment in favor of the defendants in regards to the plaintiffs’ claim th at the defendants failed to provide employment and union records. Lastly, the defendants’ moti on for summary judgment with respect to the plaintiff’s retaliation and breach of contract claims is also granted. SO ORDERED this 30th day of April, 2010. 6

REGGIE B. WALTON United States District Judge

6 An order was issued on March 31, 2010 (1) denying the plaintiff’s and defendants’ motion for summary judgment in part and without prejudice, and rema nding the case to the defendants for fu rther consideration of the plaintiff’s application for benefits, (2) denying the plaintiff’s motion for summary judgment in part and with prejudice; and (3) granting the defendants’ motion for summary judgment in part. An amended order will accompany the issuance of this memorandum opinion to reflect that the March 31, 2010 Order is vacated, and that the amended order is now final.