UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TOYE WHEELER,
Plaintiff-Appellant,

v.
                                                               No. 98-2173
WESTMORELAND RETIREMENT PLAN;
COMMITTEE OF THE WESTMORELAND
RETIREMENT PLAN,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
Glen M. Williams, Senior District Judge.
(CA-95-150-A)

Argued: March 2, 1999

Decided: June 8, 1999

Before ERVIN, Circuit Judge,
VOORHEES, United States District Judge for the
Western District of North Carolina, sitting by designation,
and FABER, United States District Judge for the
Southern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: James A. Holifield, Jr., KENNEDY, MONTGOMERY &
FINLEY, P.C., Knoxville, Tennessee, for Appellant. Brian D.
Pedrow, BALLARD, SPAHR, ANDREWS & INGERSOLL, L.L.P.,
Philadelphia, Pennsylvania, for Appellees. ON BRIEF: Charles Rich-
ard Jessee, JESSEE & READ, P.C., Abingdon, Virginia, for Appel-
lant. Gayle B. Stein, BALLARD, SPAHR, ANDREWS &
INGERSOLL, L.L.P., Philadelphia, Pennsylvania; Carol Connor
Flowe, Marc A. Tenenbaum, ARENT, FOX, KINTNER, PLOTKIN
& KAHN, P.L.L.C., Washington, D.C.; W. Challen Walling, Mark E.
Frye, PENN, STUART & ESKRIDGE, Bristol, Virginia, for Appel-
lees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

On August 28, 1995, Toye Wheeler ("Wheeler"), filed a complaint
against the Westmoreland Coal Company and Affiliated Coal Compa-
nies Employees' Retirement Plan ("Plan") and the Administrative
Committee of the Plan ("Committee"), seeking to reverse the Com-
mittee's decision not to include years of service while represented by
the United Mine Workers of America ("UMWA") in benefits Wheeler
is to receive under the Plan.

On June 1, 1998, Judge Glen M. Williams heard oral argument on
the parties' cross-motions for summary judgment. Judge Williams
granted summary judgment to the defendants in an order dated July
22, 1998. Plaintiff appeals that decision.

I.

The district court made the following factual findings. From 1968
to August of 1977, Wheeler was employed by Westmoreland Coal
Company ("Westmoreland") and represented by the UMWA. During
this time, Westmoreland made contributions to the UMWA Retire-

                    2
ment Fund on Wheeler's behalf. In August of 1977, Wheeler trans-
ferred from his UMWA-represented position to a non-union salaried
position with Westmoreland. Prior to the effective date of ERISA,
December 1, 1976, Westmoreland had a practice of granting benefit
credit to transferring employees for years spent while represented by
the UMWA. Before ERISA, employees who transferred from a union
to a non-union position risked losing retirement benefits accrued
while represented by the UMWA. Wheeler became a participant in
the Plan upon his transfer in August of 1977.

The parties dispute whether Wheeler was assured by Westmoreland
employee Mr. Freddie Allison that Wheeler would be credited for his
years of UMWA-represented service. After his transfer, Wheeler
received benefit statements which estimated his accrued benefit.
Some of these reports included his time spent in a union position.

Wheeler was terminated from employment with Westmoreland on
October 2, 1992, and was informed on October 22, 1992, that the Plan
would not credit him with the time spent in the union position. Whee-
ler currently receives pension benefits from the UMWA for his nine
(9) years of UMWA-represented employment, and from the Plan for
his fifteen (15) years of non-union employment.

Wheeler submitted an ERISA claim requesting reconsideration of
the benefits decision seeking benefits from Westmoreland for twenty-
four (24) years of service while simultaneously receiving benefits
from the UMWA for nine (9) of those years. The Committee denied
the request, citing the 1984 Plan which provided benefits only for ser-
vice in a salaried position. This Plan description also noted that
employees transferring on or after December 1, 1976 (the effective
date of ERISA), would not receive credit, though those transferring
prior to that date would receive credit.* Wheeler appealed. The Com-
mittee again denied benefits for the union years, noting that erroneous
_________________________________________________________________
*Four employees who transferred after December 1, 1976, did receive
credit for their union service. The appellees claim that this benefit was
an error, but because these former employees were already receiving
benefits it would create a great hardship to now reduce those benefits to
their proper amounts. Wheeler was not receiving benefits when the Com-
mittee made its decision.

                    3
benefit statements and the alleged comments by employee Allison
could not create a modification in the Plan. Wheeler then filed this
complaint in district court.

II.

The court conducts a de novo review of the district court's grant
of summary judgment. See United McGill v. Stinnett, 154 F.3d 168,
170 (4th Cir. 1998). Factual determinations are reviewed under the
clearly erroneous standard. See Leimback v. Allen, 976 F.2d 912, 917
(4th Cir. 1992). Questions of law are reviewed de novo. See id. The
issue presented on appeal ultimately involves a question of law,
though the court may review the lower court's underlying factual
determinations for clear error.

III.

Wheeler argues that the District Court erred because he was a
member of an "informal plan" that counted the nine years of union
service in the calculation of benefits under the Plan. This Court has
noted that "[a]n informal plan may exist independent of, and in addi-
tion to, a formal plan as long as the informal plan meets all of the ele-
ments outlined in Donovan." Elmore v. Cone Mills Corp., 23 F.3d
855, 861 (4th Cir. 1994). In Donovan v. Dillingham, the Eleventh Cir-
cuit ruled that an informal plan could exist "if from the surrounding
circumstances a reasonable person can ascertain the intended benefits,
a class of beneficiaries, the source of financing, and procedures for
receiving benefits." 688 F.2d 1367, 1373 (11th Cir. 1982).

Judge Williams found that, while the first three criteria were "argu-
ably satisfied, no employee could discern the procedures for receiving
benefits by studying the evidence presented by Wheeler." (J.A. at
1452.) Wheeler argues that this final prong has been met. Wheeler
contends that a member of the Committee, Mr. Glenn Pierce,
described the procedure for obtaining benefits for union service under
the Plan. However, the process described in Mr. Pierce's deposition
is for someone retiring prior to the effective date of ERISA, and the
process described by Mr. Pierce was that of the formal 1970 Plan, not
an informal plan. (See J.A. at 881.)

                    4
Wheeler next points to the affidavit of Hubert Blevins who trans-
ferred from a union to a non-union position in 1973 and retired in
1985. Mr. Blevins was credited for his union time. Mr. Blevins trans-
ferred prior to the effective date of ERISA when the appellees had a
practice in place of crediting union time to compensate for the loss
of benefits that would have been imposed by the UMWA prior to the
enactment of ERISA.

Wheeler also complains that the district court repeatedly used the
term "practice" to describe Westmoreland's crediting of time spent in
a union position prior to December 1, 1976, for the purpose of calcu-
lating benefits under the Plan. Wheeler contends that ERISA does not
authorize retirement benefit "practices." Apparently, therefore, this
practice must be an informal plan. Wheeler ignores the fact that the
practice terminated on the effective date of ERISA. Even if Wheeler
is correct that ERISA does not authorize "practices," that argument is
irrelevant here where the practice ended with the beginning of
ERISA.

In Elmore, when this court found that an informal plan could exist
under Donovan, we cited Henglein v. Informal Plan for Plant Shut-
down Benefits for Salaried Employees, 974 F.2d 391, 400 (3d Cir.
1992), for the proposition that an informal plan could exist alongside
a formal plan in the absence of an integration clause. See Elmore, 23
F.3d at 861. In this case, the formal plan contains such a clause which
excludes the possibility of an informal plan. (See J.A. at 35.) Whee-
ler's contention that there was an informal plan is without merit.

Next, Wheeler contends that he became eligible to be included in
the 1970 Plan on December 1, 1977. The district court accepted this
position because the effective language between the 1970 and 1976
Plans was unchanged. Wheeler contends that the appellees could then
modify the 1970 Plan without a writing, and did so with Mr. Allison's
oral representation. Wheeler also contends that appellees modified the
Plan in a memorandum by C. A. Ivery. (See J.A. at 1236.)

First, Mr. Allison's alleged representations were made after the
enactment of ERISA. Wheeler admits that ERISA case law prohibits
oral modifications. See Biggers v. Wittek Indus. , 4 F.3d 291, 295 (4th
Cir. 1993) (oral and informal modifications inadequate to alter written

                    5
terms of plan); Coleman v. Nationwide Life Ins. Co., 969 F.2d 54, 58-
59 (4th Cir. 1992) (plan modifications must be in writing and in con-
formity with formal amendment procedures).

Second, the March 11, 1970 internal, non-public memorandum by
Mr. Ivery merely recounts the practice in place at the time, and specif-
ically notes that this practice is outside of the Plan. "[T]his question
arose at the time the pension plan was put into affect [sic] and the
decision was made at that time to give credit for service in union sta-
tus . . . ." (J.A. at 1236 (emphasis added).) Clearly, if Westmoreland
had intended for this to be part of the actual Plan, it would have put
these terms in the Plan at that time.

Wheeler's contention that the 1970 Plan was modified to incorpo-
rate the practice, and that Wheeler is thus covered by this modifica-
tion, clearly lacks merit.

We therefore conclude that there was not an informal plan, that the
1970 Plan was not modified to incorporate the pre-ERISA practice of
crediting union service for non-union pension benefits, and that appel-
lant did not have vested pension benefits based on combined union
and non-union years of service. Accordingly, the decision of the dis-
trict court is

AFFIRMED.

                    6
