                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-2024

D ONALD C. P ERRY and W ILLIAM W ILK,

                                                Plaintiffs-Appellants,
                                  v.


S HEET M ETAL W ORKERS’ L OCAL N O . 73 P ENSION F UND,

                                                 Defendant-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
           No. 07 C 635—Jeffrey N. Cole, Magistrate Judge.



    A RGUED JANUARY 12, 2009—D ECIDED O CTOBER 27, 2009




   Before E ASTERBROOK, Chief Judge, and W ILLIAMS and
S YKES, Circuit Judges.
  W ILLIAMS, Circuit Judge. Donald Perry and William Wilk
maintain they should have received pension credit
from the Sheet Metal Workers’ Local No. 73 Pension Fund
for the time they spent as instructors at a Chicago trade
school. They emphasize that James Slovey, who worked
at the same school at the same time they did, received
2                                              No. 08-2024

the credit they seek. We affirm the grant of summary
judgment in favor of the pension fund, however, as the
plan language provides for pension credit only if an
employer has made contributions to the fund on an em-
ployee’s behalf. Contributions were made to the pension
fund on behalf of Slovey, who served as the Apprentice
Coordinator, but not on behalf of instructors Perry and
Wilk. The pension fund therefore complied with the
terms of the plan when it declined to award Perry and
Wilk the pension credit they seek. This case also gives
us occasion to remind litigants that if the district court
does not enter a proper Rule 58 judgment, the parties
should ask the district court to do so.


                   I. BACKGROUND
  Donald Perry and William Wilk are participants in the
Sheet Metal Workers’ Local No. 73 Pension Fund (“Pension
Fund”). From 1984 through October 1993, both were
instructors in an apprenticeship training program at the
City of Chicago’s Washburne Trade School. Neither
received pension credit from the Pension Fund for time
spent as an instructor at Washburne.
  Perry wrote a letter to the Pension Fund in Novem-
ber 2005 asking for 8.25 years of pension credit for his
time at Washburne. The Pension Fund denied his re-
quest. Perry then wrote a letter appealing the decision. He
pointed out that James Slovey had also worked at
Washburne at the same time and that Slovey received
pension credit for his time at Washburne.
No. 08-2024                                               3

  The Pension Fund’s trustees discussed Perry’s appeal
at a July 2006 meeting. As the Pension Fund explained in
a letter to Perry, it denied his appeal because Washburne
Trade School was his employer for the work in question.
Washburne was never a “Contributing Employer” under
the terms of the plan, nor had the plan been amended
to include Washburne retroactively as a Contributing
Employer. The letter further explained that Slovey, in
contrast, was employed as the Apprentice Coordinator
and had received credit because of contributions made
by the Sheet Metal Workers’ Local 73 Joint Apprentice-
ship and Journeymen’s Training Fund (not to be
confused with the defendant Pension Fund, a separate
entity), which was a “Contributing Employer” under the
plan’s terms. The letter also stated that the Pension Fund
would provide Perry, upon request and free of charge,
access to and copies of all documents, records, and other
information relevant to his claim. Perry did not request
any documents. Wilk wrote a letter similar to Perry’s
initial letter and also did not receive credit for his years
at Washburne. The Pension Fund has no record of re-
sponding to the letter or of any further correspondence
from Wilk.
  After Perry’s appeal to the Pension Fund was denied,
Perry and Wilk filed suit in federal court under ERISA,
alleging they had been denied benefits in violation of
29 U.S.C. § 1132(a)(1)(B). The Pension Fund moved for
summary judgment and attached an affidavit from
Joseph Ohm, the Pension Fund’s administrator. Ohm
stated in the affidavit that the Apprentice Fund made
contributions to the Pension Fund on Slovey’s behalf for
4                                              No. 08-2024

his service at Washburne pursuant to a participation
agreement between the Apprentice Fund and the
Pension Fund. Ohm did not attach a copy of the actual
participation agreement, nor is one in the record. Ohm
also stated in the affidavit that the Pension Fund had no
record of any participation agreement or other agree-
ment that obligated the Apprentice Fund to make con-
tributions to the Pension Fund on behalf of Perry or Wilk
for their service at Washburne.
  The district court granted summary judgment to the
Pension Fund in a sixteen-page memorandum opinion
entered on March 24, 2008. The district court docket
also contains minute entries on March 24 and 26, 2008, but
there is no judgment on form AO450, the form often
used to ensure a proper judgment is in place that
satisfies Federal Rule of Civil Procedure 58. On April 24,
2008, Perry and Wilk filed their notice of appeal, which
stated they were appealing from “the Judgment and
Memorandum Opinion and Order granting Defendant’s
motion for summary judgment and denying Plaintiffs’
motion for summary judgment entered on March 24, 2008.”


                      II. ANALYSIS
    A. Jurisdiction
  The threshold issue in this case, as in any case, is
whether we have jurisdiction. There is no question that
this appeal is from a final decision. See 28 U.S.C. § 1291.
Instead, the jurisdictional question here centers around
the timeliness of the notice of appeal. With exceptions not
No. 08-2024                                               5

relevant in this case, the Federal Rules of Appellate
Procedure provide that a notice of appeal in a civil case
must be filed with the district court clerk “within 30 days
after the judgment or order appealed from is entered.” Fed.
R. App. P. 4(a)(1)(A); see also 28 U.S.C. § 2107(a). Here,
the district court’s memorandum opinion granting sum-
mary judgment to the Pension Fund was entered on
March 24, 2008. Because Perry and Wilk did not file
their notice of appeal until April 24, 2008, more than
thirty days after the entry of the memorandum opinion,
the Pension Fund argues the notice was filed too late and
that we should therefore dismiss the case. See Bowles v.
Russell, 551 U.S. 205, 214 (2007) (timely filing of a notice
of appeal in a civil case is a jurisdictional requirement).
  But the analysis is not that simple. As we said, Appellate
Rule 4(a)(1)(A) measures the time to file a notice of
appeal from the date when “the judgment or order ap-
pealed from is entered.” The Rules elaborate on entry of a
judgment or order in Appellate Rule 4(a)(7), which con-
tains different requirements depending on whether
Federal Rule of Civil Procedure 58(a) mandates a
separate document. The grant of a motion for summary
judgment is not one of the exceptions to the separate
document requirement listed in Rule 58(a), so a separate
document was required in this case to have a proper
Rule 58 judgment. Appellate Rule 4(a)(7)(a)(ii) provides
that when a separate document is required, the judg-
ment is entered for Rule 4 purposes when the judgment
is entered in the civil docket and the earlier of these
events occurs:
6                                                  No. 08-2024

      • the judgment or order is set forth on a separate
        document, or
      • 150 days have run from entry of the judgment or
        order in the civil docket under Federal Rule of
        Civil Procedure 79(a).
   A question, then, is whether the judgment was set forth
on a “separate document.” The March 24 sixteen-page
memorandum opinion resolved all claims and detailed
the grant of summary judgment in the Fund’s favor, but
it does not set forth the judgment on a separate document
and so does not satisfy the “separate document” require-
ment. There are two other potentially relevant events, a
minute entry on March 24 1 and another minute entry on
March 26.2 We have suggested before that some minute



1
    The March 24, 2008 minute entry states:
      The defendant’s motion for summary judgment is
      granted, and the plaintiffs’ motion for judgment is
      denied. Enter Memorandum Opinion and Order.
At the bottom of the minute entry is a box for “Courtroom
Deputy Initials,” and that box contains three typed initials.
2
    The March 26, 2008 minute entry states:
      Notification of Docket Entry
          This docket entry was made by the Clerk on
          Wednesday, March 26, 2008:
          MINUTE entry before Judge Honorable Jeffrey
          Cole: Pursuant to the minute order and memo-
          randum opinion and order entered on 3/24/08
                                                  (continued...)
No. 08-2024                                                  7

entries might satisfy the “separate document” requirement.
See Nocula v. UGS Corp., 520 F.3d 719, 724 (7th Cir.
2008); Am. Nat’l Bank & Trust Co. of Chi. v. Sec’y of Hous. &
Urban Dev., 946 F.2d 1286, 1289 (7th Cir. 1991); cf. Rush
Univ. Med. Ctr. v. Leavitt, 535 F.3d 735, 737 (7th Cir. 2008).
But the Fund expressly disavowed any argument that
a minute entry constituted the judgment on a separate
document that started the running of the notice of
appeal clock, so we will not consider such an argument
here. (And, of course, there is more to Rule 58 than the
separate document rule in subpart (a). See, e.g., Fed. R. Civ.
P. 58(b)(1) (stating, “the clerk must, without awaiting
the court’s direction, promptly prepare, sign, and enter
the judgment” (emphasis added) when, among other
things, “the court denies all relief.” )).
  When a judgment is not set forth on a separate docu-
ment even though Rule 58(a) requires that it be, Appellate
Rule 4(a)(7)(ii) says the judgment is treated as entered
150 days after its entry on the civil docket. That means
that the time to file a notice of appeal starts to run then.
See Fed. R. App. P. 4(a)(1)(A); see also Employers Ins. of
Wausau v. Titan Int’l, Inc., 400 F.3d 486, 488 (7th Cir. 2005).
The 2002 Advisory Committee notes to the rule explain
that prior to its amendment, there had been a circuit



2
    (...continued)
           granting defendant’s motion for summary
           judgment this civil case is terminated. Mailed
           notice.
Three typed initials follow that text as well.
8                                                No. 08-2024

split on the following question: “When a judgment or
order is required to be set forth on a separate document
under Fed. R. Civ. P. 58 but is not, does the time to
appeal the judgment or order—or the time to bring
post-judgment motions, such as a motion for a new trial
under Fed. R. Civ. P. 59—ever begin to run?” Rules
4(a)(7)(A) and Federal Rule of Civil Procedure 58 were
amended to impose a time cap:
    Under the amendments, a judgment or order is
    generally treated as entered when it is entered in
    the civil docket pursuant to Fed. R. Civ. P. 79(a).
    There is one exception: When Fed. R. Civ. P.
    58(a)(1) requires the judgment or order to be set
    forth on a separate document, that judgment or
    order is not treated as entered until it is set forth
    on a separate document (in addition to being
    entered in the civil docket) or until the expiration
    of 150 days after its entry in the civil docket,
    whichever occurs first. This cap will ensure that
    parties will not be given forever to appeal (or to
    bring a postjudgment motion) when a court fails
    to set forth a judgment or order on a separate
    document in violation of Fed. R. Civ. P. 58(a)(1).
Fed. R. App. P. 4 advisory committee’s note (2002).
   So the 30-day time limit to file a notice of appeal did not
begin to run until 150 days after March 24, 2008, and the
notice of appeal Perry and Wilk filed on April 24, 2008
was timely. See Fed. R. App. P. 4(a)(2) (notice of appeal
filed after decision but before entry of judgment treated
as filed on date of and after entry); McDonald v. Household
No. 08-2024                                               9

Int’l, Inc., 425 F.3d 424, 426-27 (7th Cir. 2005). We
conclude this discussion by reminding litigants that if
the court has not entered a proper Rule 58 judgment on a
separate document, the parties should ask the court to
do so. The rules specifically contemplate this: “[a] party
may request that judgment be set out in a separate docu-
ment as required by Rule 58(a),” Fed. R. Civ. P. 58(d), and
there is good reason to do so. “[T]he document clarifies
what the ultimate result is, benefiting both the parties
(for purposes of enforcement and clarity of legal obliga-
tion) and the judicial system (for providing a clear time
period for taking an appeal).” Kunz v. DeFelice, 538 F.3d
667, 673 (7th Cir. 2008). Satisfied that we have jurisdic-
tion, we proceed to the merits.


  B. Summary judgment was proper.
  Our review of a district court’s grant of summary
judgment is de novo, Narducci v. Moore, 572 F.3d 313, 318
(7th Cir. 2009), and we construe all facts in the record in
the light most favorable to the non-moving party, Trade
Fin. Partners, LLC v. AAR Corp., 573 F.3d 401, 406 (7th Cir.
2009). Summary judgment is proper where there is no
genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c).
  Although our review of the district court’s decision is
de novo, the language of the plan determines what defer-
ence, if any, we afford to the plan administrator’s deter-
mination. The Supreme Court held that “a denial of
benefits challenged under § 1132(a)(1)(B) is to be
10                                              No. 08-2024

reviewed under a de novo standard unless the benefit
plan gives the administrator or fiduciary discretionary
authority to determine eligibility for benefits or to
construe the terms of the plan.” Firestone Tire and Rubber
Co. v. Bruch, 489 U.S. 101, 115 (1989). Here, the plan gave
the administrator discretionary authority in both situa-
tions, and the parties agree that our review of the denial
of pension credit in this case asks whether that decision
was arbitrary and capricious. See Fischer v. Liberty Life
Assur. Co., 576 F.3d 369, 375 (7th Cir. 2009); Speciale v.
Blue Cross & Blue Shield Ass’n, 538 F.3d 615, 621 (7th
Cir. 2008).
  Perry and Wilk brought a claim under 29 U.S.C.
§ 1132(a)(1)(B), which allows a suit “to recover benefits
due to him under the terms of his plan, to enforce his
rights under the terms of the plan, or to clarify his rights
to future benefits under the terms of the plan.” ERISA
requires fiduciaries to discharge their duties “in accor-
dance with the documents and instruments governing
the plan,” 29 U.S.C. § 1104(a)(1)(D), and our inquiry
therefore requires that we determine whether the
Pension Fund complied with the plan’s provisions re-
garding the award of pension credits. See Riordan v.
Commonwealth Edison Co., 128 F.3d 549, 552 (7th Cir. 1997).
  The plan states that a participant “shall receive Pension
Credits on the basis of his hours of Work in Covered
Employment . . . .” The plan then defines “Covered Em-
ployment” as “employment of an Employee by an Em-
ployer for which contributions are required to be paid to
the Fund . . . .” And the term “Employee” is defined as “a
No. 08-2024                                              11

person who is an employee of an Employer and who is
covered by a collective bargaining agreement or any
written agreement requiring Employer contributions to
be made to this Pension Fund.” No employer was ever
required to make contributions to the Pension Fund on
behalf of Perry or Wilk for their time at Washburne. Nor
did any collective bargaining or participation agree-
ment require that such contributions be made. Therefore,
the Pension Fund acted in accordance with the language
of the plan when it concluded Perry and Wilk were not
entitled to pension credit for the period requested.
   Instead of focusing on the language of the plan, Perry
and Wilk maintain there is information missing from
the record that precludes the entry of summary judgment
against them. They emphasize on appeal that the par-
ticipation agreement that covered Slovey is not in the
record. That a participation agreement covered Slovey
but not Perry and Wilk is not in dispute, however. Perry
and Wilk acknowledged the participation agreement’s
existence in their response to the Pension Fund’s motion
for summary judgment, arguing only that the fact that
the participation agreement covered Slovey but not
them was unfair. See Pls.’ Resp. to Def.’s Mot. for Summ.
J. at 3-6. That seems to be their argument on appeal as
well, as they argue that the Pension Fund needed to
provide a thorough explanation as to why Perry and Wilk
were excluded from the participation agreement that
covered Slovey and why Slovey received credit and not
them.
  It is not enough, though, to point out that pension credit
or benefits have been awarded to another person. See
12                                                   No. 08-2024

McNab v. Gen. Motors Corp., 162 F.3d 959, 961 (7th Cir.
1998). It is possible, for example, that a fund might errone-
ously award benefits to a participant, but that would not
mean that it was bound to repeat its error with others
who came along. See id. In addition, ERISA fiduciaries
have broad discretion to design their plans. See King v.
Nat’l Human Res. Comm., Inc., 218 F.3d 719, 723 (7th Cir.
2000); Ames v. American Nat’l Can Co., 170 F.3d 751 (7th Cir.
1999) (explaining that employer could design plan how
it wished for business reasons, and ERISA provided no
relief for employees whose group did not receive certain
benefits under employer’s transitional programs). And
although a premise of Perry and Wilk’s argument is that
Slovey was “similarly situated” to them, Slovey coordi-
nated the apprentice program and directed Perry and
Wilk, while Perry and Wilk were simply instructors.
They did not all have the same role at the school.3


3
  Perry and Wilk also cite to 29 U.S.C. § 186(c)(5)(B), a provision
in the Labor Management Relations Act (“LMRA”). Their
complaint does not list a claim under the LMRA. Nonetheless,
that provision does not require that the Pension Fund provide
a detailed explanation for why it covered Slovey but not Perry
and Wilk. Section 302 of the LMRA generally forbids employer
payments to representatives of employees (unions). See 29 U.S.C.
§ 186(a); Bricklayers Local 21 of Ill. Apprenticeship and Training
Program, 385 F.3d 761 (7th Cir. 2004). There is an exception for
payments to an employee trust fund where “the detailed basis
on which such payments are to be made is specified in a
written agreement with the employer” and payments are made
in conformity with those terms. 29 U.S.C. § 186(c)(5)(B); see
                                                     (continued...)
No. 08-2024                                              13

  We close by turning again to the document that
matters, the plan. See McNab, 162 F.3d at 961. The plan
makes clear that the only persons who receive pension
credit are persons for whom a written agreement required
that the employer make contributions to the Pension
Fund on their behalf. There is no triable issue that Perry
and Wilk were so covered, so granting summary judg-
ment to the Pension Fund was proper.


                   III. CONCLUSION
  The district court’s grant of summary judgment is
A FFIRMED.




3
  (...continued)
Mazzei v. Rock-N-Around Trucking, Inc., 246 F.3d 856, 961-62
(7th Cir. 2001). Nothing in section 302, however, requires a
benefit plan to explain why it covers some employees and not
others.



                          10-27-09
