UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ERVIN MARTIN,
Plaintiff-Appellant,

and

LINDA J. MARTIN,
Plaintiff,

v.
                                                               No. 95-2413
BOARD OF TRUSTEES, SHEET METAL
WORKERS' NATIONAL PENSION FUND,
Plan A; ARTHUR MOORE; CLINTON O.
GOWAN, JR.; RONALD PALMERICK;
ROBERT D. CUSTER; ALAN J.
CHERMACK; BRUCE J. STOCKWELL;
MATTHEW B. HERNANDEZ,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-94-1374-A)

Argued: May 9, 1996

Decided: July 10, 1996

Before HALL and LUTTIG, Circuit Judges, and CHAPMAN,
Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: David Scott Greber, GREBER & SIMMS, Frederick,
Maryland, for Appellant. Stephen Mark Rosenblatt, Office of General
Counsel, SHEET METAL WORKERS' NATIONAL PENSION
FUND, Alexandria, Virginia, for Appellees. ON BRIEF: William P.
Fuller, GREBER & SIMMS, Frederick, Maryland, for Appellant.
Robert M. Wilansky, Edward J. O'Connell, III, Office of General
Counsel, SHEET METAL WORKERS' NATIONAL PENSION
FUND, Alexandria, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Ervin Martin brought this action under ERISA against
appellee Sheet Metal Workers' National Pension Fund Plan A ("the
Plan") alleging a denial of benefits because of the Plan's unlawful
cutback provisions. The Plan was subsequently amended, and Martin
was awarded his benefits by the Board of Trustees of the Plan. Find-
ing the appellant's claim moot, the District Court for the Eastern Dis-
trict of Virginia denied the appellant's motions for class certification
and summary judgment and granted the appellee's motion for sum-
mary judgment. We affirm.

I.

This case involves a series of amendments to the Plan, some of
which apparently violate ERISA's anti-cutback provisions, 29 U.S.C.
§ 1054(g). The anti-cutback provisions prohibit any amendment to a
plan which reduces accrued benefits.

The Plan was amended in 1986 ("the 1986 amendments") to pro-
vide that if a participant engaged in a single hour of nonsignatory

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sheet metal work (work that was not subject to a collective bargaining
agreement), all rights to an early retirement pension or vested pension
prior to age 65 were eliminated, and the amount of benefits payable
at age 65 was reduced by any benefit based on past service credit. The
1986 amendments violated the anti-cutback provisions by reducing
already accrued benefits.

In 1988, the 1986 amendments were repealed and the 1988 amend-
ments went into effect. The 1988 amendments lessened the harsh con-
sequences of performing nonsignatory work but did not eliminate
them. The 1988 amendments provided that early retirement would be
delayed six months for each quarter that a participant spent one or
more hour in nonsignatory work; they also delayed the right to a
vested pension.

The 1988 amendments were announced by a January 27, 1988 res-
olution by the Board of Trustees of the Plan:

          NOW, THEREFORE, BE IT RESOLVED that the Board of
          Trustees . . . hereby rescinds the 1986 amendments concern-
          ing work for nonsignatory, noncontributing employers and
          adopts amendments to the NPF Plan of Benefits effective
          September 1, 1988, as follows . . . [the 1988 amendments
          follow].

One of the main issues of contention is whether the 1986 amendments
were rescinded on January 27, 1988 and the 1988 amendments
adopted on September 1, 1988, or whether the 1986 amendments
were rescinded and the 1988 amendments were adopted on September
1, 1988.

The IRS reviewed the 1990 Plan, containing the 1988 amendments,
and concluded in a 1992 Technical Advice Memorandum ("the 1992
TAM") that the 1988 amendments did not violate the anti-cutback
rules. The IRS issued another TAM in 1994 ("the 1994 TAM") in
which it partially revoked the advice of the 1992 TAM and found that
the 1988 amendments did in fact violate the anti-cutback provisions.
The trustees adopted corrective amendments on December 22, 1994
("the 1994 amendments") which provided that any accrued benefits

                    3
that were accrued prior to September 1, 1988, would be paid accord-
ing to the terms of the Plan in effect on August 31, 1988.

Martin was a sheet metal worker and member of the national and
local sheet metal workers' unions from July 1966 until October 1988.
During this time, Martin accrued over twenty years of pension credits.
Martin began a nonsignatory job in October, 1988. In September,
1993, Martin asked for a statement of vested rights under the Plan. He
was informed that his early retirement and vested pension would be
eliminated or significantly delayed due to his nonsignatory work (the
effect of the 1988 amendments).

Martin appealed to the Plan on September 24, 1994. Less than one
month later, he filed this action in the district court. After the filing
of the civil suit, the Plan informed Martin that his appeal would be
heard at the next meeting of the Appeals Committee. The Appeals
Committee, citing special circumstances (the lawsuit), did not hear his
appeal at the next meeting. On April 12, 1995, Martin moved to cer-
tify the case as a class action. On May 4, 1995, the Plan revived Mar-
tin's appeal and decided that Martin was entitled to either an early
retirement or vested pension. By letter dated May 5, 1995, Martin was
informed of the Plan's decision.

The district court found that because Martin received all the relief
he could receive if he prevailed, his case was moot. The court denied
the certification of the class, denied Martin's motion for summary
judgment, denied Martin's request for attorney's fees, and granted the
Plan's motion for summary judgment.

II.

This court reviews a grant or denial of summary judgment de novo.
Nguyen v. CNA Corp., 44 F.3d 234, 236 (4th Cir. 1995). The denial
of attorney's fees is reviewed for an abuse of discretion. Quesinberry
v. Life Ins. Co. of North America, 987 F.2d 1017, 1028 (4th Cir.
1993). Denial of the certification of a class is reviewed for an abuse
of discretion. Central Wesleyan College v. W.R. Grace & Co., 6 F.3d
177, 185 (4th Cir. 1993).

                     4
Martin argues that the plain language of the Board of Trustees' res-
olution supports a finding that the 1986 amendments were not
repealed until September 1, 1988, instead of January 27, 1988, the
date of the resolution. Because the 1986 amendments were not
repealed, they were in effect on August 31, 1988. Therefore, the 1994
amendments that refer to the terms of the Plan in effect on August 31,
1988, refer to a Plan that contains the unlawful 1986 amendments.

The Plan argues that the 1986 amendments were repealed on the
date of the resolution. Consequently, the 1994 amendments refer back
to a Plan minus the 1986 amendments or the 1988 amendments.
Therefore, any problem or complaint that Martin or anyone similarly
situated had is no longer valid. The Plan maintains that anyone who
applies for early retirement benefits that accrued before September 1,
1988, will receive them. The Plan points out that as evidenced by the
1994 TAM, the 1994 amendments were for the express purpose of
correcting any problems with the anti-cutback rules.

The Plan has little or no incentive to abandon its current position
concerning the effect of the resolution. An interpretation such as Mar-
tin espouses would cause the Plan to be in violation of ERISA's anti-
cutback provisions and would jeopardize the Plan's tax qualified sta-
tus under section 401 of the Internal Revenue Code. We find that the
Plan has been amended to eliminate the anti-cutback provisions viola-
tion and that if the Plan did attempt to deny Martin his benefits upon
reaching age 55, it would be very easy for him to produce the order
of the district court, plus this opinion, to force the trustees to pay him.

As to the denial of class certification, this decision is within the
sound discretion of the district court. The court found that because
Martin had received all the relief he requested and because the Plan
had been amended to solve the problem with the anti-cutback provi-
sions, therefore eliminating the possibility for repetition, there was no
case or controversy for either Martin or any class he could represent.
Although some courts have allowed a class representative to continue
to represent the class after the representative's claim has become
moot, e.g., United States Parol Commission v. Geraghty, 445 U.S.
388 (1990), the potential class in the instant case has no claim for the
same reasons that Martin has no claim. We find that the district court
did not abuse its discretion in denying class certification.

                     5
We find no merit to the appellant's contention that the district court
abused its discretion in denying attorney's fees.

The decision of the district court is hereby

AFFIRMED.

                     6
