NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 13-1377

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DAVID HATCHIGIAN,

Appellant,

v.

INTERNATIONAL BROTHERHOOD OF ELECTRICAL

WORKERS, LOCAL UNION NO. 98, HEALTH & 

WELFARE FUND; BOARD OF TRUSTEES OF LOCAL 

UNION NO. 98 HEALTH & WELFARE FUND

__________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 11-cv-05177)

District Judge: Honorable Ronald L. Buckwalter

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Submitted Pursuant to Third Circuit LAR 34.1(a)

July 23, 2013

Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges

(Opinion filed: July 24, 2013)

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OPINION

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PER CURIAM

Appellant David Hatchigian appeals from an order of the District Court granting 

summary judgment to the defendants. For the reasons that follow, we will affirm.

The International Brotherhood of Electrical Workers, Local Union No. 98 Health 

and Welfare Fund is a trust fund established to fund health care benefits for the members 
2

of IBEW Local Union No. 98. Hatchigian, a union member since 1968, was a participant 

in the Fund. On August 17, 2007, Hatchigian received notice that his health care benefits 

were being terminated because he did not meet the minimum requirement of 350 hours 

worked during the previous quarter. The notice also informed him that he could choose 

to elect continuing coverage through self-payment, pursuant to the Consolidated 

Omnibus Budget Reconciliation Act (“COBRA”).

Hatchigian appealed the termination of his benefits to the Trustees of the Fund, 

contending that he was eligible for continued coverage under Article IV, Section E of the 

Health and Welfare Benefits Plan. Section E, entitled “Supplemental Coverage Under 

Emergency Economic Conditions,” provides for continuing coverage to employees “who 

are on work layoff and cannot find work opportunities due to economic conditions.” 

Section E notes that such supplemental coverage is available “[t]o the extent the Trustees 

determine that the Plan’s assets are sufficient and economic conditions warrant.” Section 

E states that, upon a determination that the Plan’s assets are sufficient and economic 

conditions warrant, the Fund “will” provide supplemental coverage. 

Hatchigian’s appeal was denied in a November 29, 2007 letter sent from Frank M. 

Vaccaro and Associates, administrators of the Fund, with an explanation that the Trustees 

had not made a determination that economic conditions warranted the continuation of 

coverage in 2007 for union members who were unemployed. Hatchigian sent an 

amended communication to the Fund, reiterating his contention that he was eligible for 

supplemental coverage under Section E. This second appeal was considered and denied 

by the Trustees at their January 2008 meeting, and Hatchigian was subsequently notified 

of the decision. Hatchigian’s COBRA coverage was terminated for the August 2007 
3

benefits quarter because he did not pay the required premium. Hatchigian did not receive 

coverage for eight additional quarters prior to his retirement. Following his retirement, 

Hatchigian was restored to long-term coverage.

On August 15, 2011, Hatchigian, through counsel, brought suit in the United 

States District Court for the Eastern District of Pennsylvania against the Trustees and the 

union, alleging violations of the Employee Retirement Income Security Act of 1974, 29 

U.S.C. § 1001 et seq. (“ERISA”), and the Labor Management Relations Act of 1947 

(“LMRA”), 29 U.S.C. § 141 et seq. Hatchigian sought to recover money damages in 

excess of $23,000 for the benefit quarters between August 1, 2007 and June 1, 2010. 

Hatchigian deposed several Trustees, after which the defendants moved for summary 

judgment, Fed. R. Civ. Pro. 56(a). Hatchigian opposed the motion. In his opposition he 

acknowledged deposition testimony to the effect that, although not insolvent, the Fund 

was losing money during the relevant time period. However, Hatchigian then 

supplemented his opposition with an exhibit showing union unemployment statistics for 

2007. Based on this exhibit, Hatchigian contended that there was not full employment in 

2007, and that unemployment was on the rise in the first two quarters of 2007.

In an order entered on January 15, 2013, the District Court granted the defendants’ 

motion and awarded summary judgment to the defendants on both counts of the 

complaint. With respect to Hatchigian’s ERISA claim, the District Court concluded that 

there was not enough in the summary judgment record to indicate a triable issue with 

respect to whether the Trustees had acted in an arbitrary and capricious manner in failing 

to extend supplemental coverage to unemployed union members for the August 2007 
4

benefits quarter. See Hatchigian v. I.B.E.W. Local 98, Health and Welfare Fund, 2013 

WL 159814, at *5 (E.D. Pa. January 15, 2013).

Hatchigian appeals pro se. We have jurisdiction under 28 U.S.C. § 1291. We 

review a District Court’s grant of summary judgment de novo. See Alcoa, Inc. v. United 

States, 509 F.3d 173, 175 (3d Cir. 2007). Hatchigian contends that the District Court 

erred in awarding summary judgment to the defendants on his ERISA claim by failing to 

consider the Trustees’ duty to monitor the daily “no-work” lists prior to rendering a 

supplemental coverage determination, and by placing undue emphasis on the issue of the 

Fund’s financial health. Hatchigian has not argued that the District Court’s disposition of 

his LMRA claim was in error and thus this issue is waived. See Wisniewski v. JohnsManville Corp., 812 F.2d 81, 88 (3d Cir. 1987) (issue not addressed in brief is deemed 

waived on appeal).

We will affirm. Summary judgment is proper where the summary judgment 

record “shows that there is no genuine dispute as to any material fact and that the movant 

is entitled to judgment as a matter of law.” Fed. R. Civ. Pro. 56(a). The moving party 

has the initial burden of identifying evidence that it believes shows an absence of a 

genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In 

addition, we are required to view the facts in the light most favorable to the non-moving 

party, and make all reasonable inferences in his favor. See Armbruster v. Unisys Corp., 

32 F.3d 768, 777 (3d Cir. 1994). But, “[w]here the record taken as a whole could not 

lead a rational trier of fact to find for the non-moving party, there is no genuine issue for 

trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A 
5

genuine issue of material fact is one that could change the outcome of the litigation. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). 

When evaluating challenges to the denial of benefits in actions brought under 

ERISA, 29 U.S.C. § 1132(a)(1)(B), district courts are to review the plan administrator’s 

decision under a de novo standard of review, unless the plan grants discretionary 

authority to the administrator or fiduciary to determine eligibility for benefits or interpret 

the terms of the plan. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). 

When discretionary authority is given to an administrator of a plan, a deferential standard 

– the “arbitrary and capricious” standard – is applied. See id. at 111. See also Estate of 

Schwing v. The Lilly Health Plan, 562 F.3d 522, 525 (3d Cir. 2009) (“[C]ourts reviewing 

the decisions of ERISA plan administrators or fiduciaries ... should apply a deferential 

abuse of discretion standard of review across the board[.]”). Hatchigian does not dispute 

that the deferential “arbitrary and capricious” standard applies to his ERISA claim.1 

When the arbitrary and capricious standard applies, a court should uphold the plan 

administrator or fiduciary’s determination to deny benefits unless it was clear error or not 

rational. See Gillis v. Hoechst Celanese Corp., 4 F.3d 1137, 1141 (3d Cir. 1993). 

Review is thus narrow, and a court is not free to substitute its judgment for that of the 

 

1

Even if Hatchigian disputes the issue, see Appellant’s Brief, at 20, the summary 

judgment record does not support an inference that the Trustees labored under a conflict 

of interest in his case. See James v. Int’l Painters & Allied Trades Indus. Pension Plan, 

710 F. Supp.2d 16, 24 (D.D.C. 2010) (“[A]s a multi-employer pension fund, as is the case 

here, the defendants do not pay beneficiaries from their own funds . . . and thus the Court 

need not be concerned about conflicts of interest.). Cf. Estate of Schwing, 562 F.3d at 

525 (when abuse of discretion standard apples, any conflict of interest is but one of 

several factors that may be considered in determining whether the administrator or 

fiduciary abused its discretion).
6

plan administrator or fiduciary in determining eligibility for plan benefits. Doroshow v. 

Hartford Life & Accident Ins. Co., 574 F.3d 230, 234 (3d Cir. 2009). 

Hatchigian argued in opposing the defendants’ summary judgment motion that he 

failed to meet his hours during the August 2007 work quarter due to a shortage of work, 

but he was willing and able to work, and thus the Trustees acted in an arbitrary and 

capricious manner in failing to invoke Section E supplemental coverage for this period. 

In support of his argument, he relied on a written statement the Fund provided to the 

United States Department of Labor concerning when it decides to invoke Section E 

supplemental coverage.

2

In this statement, counsel for the Fund stated:

In determining whether or not to provide supplemental coverage, the 

Trustees review the overall work hours and employment opportunities 

available to participants as a whole. Supplemental coverage is extended 

only when the Trustees conclude that a sufficient number of participants are 

unable to find work opportunities due to economic conditions and through 

no fault of their own. There is no magic formula used in making that 

determination. Rather it is a decision made based on the facts and 

circumstances at the time[.]

(Defendants’ Motion for Summary Judgment, Ex. “3,” Letter dated July 22, 2008 from 

William T. Josem to Ellen W. Fontenot.)

The Trustees thus represented to the Labor Department that supplemental 

coverage will be extended when a “sufficient number of participants are unable to find 

work opportunities due to economic conditions.” And yet, Hatchigian argues on appeal, 

they admitted in deposition testimony, that they failed to consider the daily out-of-work 

lists. By failing to consider the daily out-of-work lists before deciding not to invoke 

Section E supplemental coverage for the August 2007 benefits quarter, the Trustees acted 

in an arbitrary and capricious manner in denying supplemental coverage.

 

2

The Department of Labor contacted the Fund after receiving a letter from Hatchigian.
7

We agree with the District Court that there was no genuine issue of material fact 

with respect to whether the Fund Trustees acted in an arbitrary and capricious manner in 

deciding not to extend Section E supplemental coverage during the August 2007 benefits

quarter. As a threshold matter, the parties do not dispute that Section E on supplemental 

coverage is a discretionary provision, and, that when supplemental coverage is triggered 

under this provision, it is triggered for all participants who otherwise would qualify for 

such coverage, and not just Hatchigian. Section E plainly leaves it to the individual 

judgment of the Trustees whether or not to extend supplemental coverage for any given 

benefit quarter. Hatchigian points to no language in the provision, set forth in the margin

with the emphasis in the original,

3

to support an assertion that it will automatically go 

 

3 Article IV, Section E 

 Supplemental Coverage Under Emergency Economic Conditions

To the extent the Trustees determine that the Plan’s assets are sufficient, the 

Trustees may provide for benefits for individuals who are on work layoff and 

cannot find work opportunities due to economic conditions. Upon determination 

by the Trustees that the Plan’s assets are sufficient and economic conditions 

warrant, the Fund will provide supplemental coverage. Accordingly, you will be 

eligible for continued benefits even if you are unemployed and do not make 

contributions to the Plan if you meet all the conditions outlined below: You must 

have held eligibility status under the Plan for not less than four continuous 

previous quarters immediately prior to your last work layoff. You will be entitled 

to participate in the supplemental program only so long as you remain ready, 

willing and available to work for a contributing employer.

* * * *

PLEASE NOTE THAT THE TRUSTEES HAVE THE POWER AND DUTY 

TO TERMINATE COVERAGE OR TO REVISE THE CONDITIONS FOR 

COVERAGE UNDER THIS PROVISION AT ANY TIME THEY 

DETERMINE THAT SUCH TERMINATION OR REVISION IS 

NECESSARY TO PRESERVE THE FUND'S ASSETS OR THAT 

ECONOMIC CONDITIONS HAVE CHANGED. THE TRUSTEES WILL 

RENEW OR CANCEL THIS PROVISION ON A QUARTERLY BASIS OR 

AS MAY OTHERWISE BE NECESSARY.
8

into effect for all union member electricians on the no-work lists, as he argues. See

Appellant’s Brief, at 9. 

Moreover, nothing in the summary judgment record shows that the Trustees 

ignored the unemployment factor. Although Hatchigian may have demonstrated for 

summary judgment purposes that the daily out-of work lists were useful objective 

information, he argues that they were the only true barometer of unemployment 

throughout the union. He did not, however, support this allegation, as required by the 

summary judgment rule, Fed. R. Civ. Pro. 56(e), or come forward with evidence to show 

that the Trustees, who were equally divided between union and management 

representatives, did not have direct and personal knowledge about whether union 

unemployment was high and work opportunities few from April 2007 through June 2007, 

the period relating to the August 2007 benefits quarter. Furthermore, as explained by the 

District Court, “the Trustees decided to extend Supplemental Coverage under Section E

in May 2009 upon a determination that the Fund’s assets were sufficient and a sufficient 

number of employees were out of work – demonstrating that there are circumstances 

under which they will decide to do so.” Hatchigian, 2013 WL 159814, at *5. 

In addition, Section E plainly permits the Trustees to consider the Fund’s assets. 

Although the Fund was not insolvent, it had recently lost some of its value. Trustee 

Burrows testified that the $37 million Fund had in prior years been worth $52 million. It 

was reasonable for the Trustees to decide that the simple fact of cash on hand did not 

warrant extending Section E supplemental coverage against a background of declining 

assets. Accordingly, as held by the District Court, there was no triable ERISA issue with 

respect to whether the Trustees failed in their duty to properly balance the work 
9

opportunities, the long-term viability of the Fund, and the number of affected participants 

in arriving at their Section E adverse supplemental coverage decision with respect to the 

August 2007 benefits quarter.

For the foregoing reasons, we will affirm the order of the District Court awarding 

summary judgment to the defendants.