                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2230
                                   ___________

Thomas Eisenrich,                     *
                                      *
            Appellee,                 *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * District of Minnesota.
Minneapolis Retail Meat Cutters and   *
Food Handlers Pension Plan,           *
                                      *
            Appellant.                *
                                 ___________

                             Submitted: December 12, 2008
                                Filed: July 31, 2009
                                 ___________

Before COLLOTON and SHEPHERD, Circuit Judges, and GOLDBERG,* Judge.
                          ___________

COLLOTON, Circuit Judge.

       After retiring from his job as a meat cutter, Thomas Eisenrich began receiving
monthly benefits from the Minneapolis Retail Meat Cutters and Food Handlers
Pension Plan (“Plan”). When Eisenrich later began to work as an independent
distributor for a baked goods company, however, the Plan stopped paying his monthly
benefits, asserting that his new employment made him ineligible. Eisenrich brought
suit against the Plan under the Employee Retirement Income Security Act of 1974

      *
       The Honorable Richard W. Goldberg, Judge of the United States Court of
International Trade, sitting by designation.
(“ERISA”), 29 U.S.C. § 1001 et seq., alleging that his benefits were wrongfully
suspended. The district court granted summary judgment for Eisenrich and awarded
him attorneys’ fees. The Plan appeals. We affirm the grant of summary judgment but
reverse the award of attorneys’ fees.

                                          I.

      The Minneapolis Retail Meat Cutters and Food Handlers Pension Plan is a
pension fund created by agreement between Minneapolis-area employers in the retail
food and meat industry and the Amalgamated Meat Cutters and Butcher Workmen of
North America, District Local 653. As part of the agreement, the employers are
required to contribute to the pension fund on behalf of their employees represented by
the union. When these employees retire, they become eligible to receive from the
fund a monthly pension benefit.

       Like most employee pension funds, the Plan is subject to the requirements of
ERISA. Under ERISA, pension plans must provide that “an employee’s right to his
normal retirement benefit is nonforfeitable upon the attainment of normal retirement
age.” 29 U.S.C. § 1053(a). Consistent with this requirement, however, multiemployer
plans may condition benefits on an employee’s promise not to engage in certain kinds
of employment after retirement. If a retiree returns to work “in the same industry, in
the same trade or craft, and the same geographic area covered by the plan,” ERISA
allows the retiree’s benefits to be suspended for as long as he remains in that
employment. Id. § 1053(a)(3)(B)(ii). Incorporating these terms, the Plan provides
that a retiree’s “monthly benefit will be suspended for any month for which he was
paid for at least 64 hours in Disqualifying Employment” – namely, employment in “an
industry . . . covered by the Plan,” in “the geographic area covered by the Plan,” and
in “a trade or craft in which [he] worked under the Plan at any time.”




                                         -2-
       As a meat cutter for thirty years, Eisenrich was a member of the union and a
participant in the Plan. After he retired in 2001, Eisenrich began receiving pension
benefits of approximately $1600 per month. The Plan suspended his monthly benefits
in March 2002, after he accepted a position supervising the meat department at a
Target store. According to the Plan, Eisenrich’s job in the meat department was
disqualifying, because it was in the same industry, in the same trade or craft, and in
the same geographic area as his previous job as a meat cutter. In May 2004, Eisenrich
informed the Plan that he had left his position at Target and that he intended to begin
work as an independent distributor, or “sales development associate,” for Pepperidge
Farm, a baked goods company. The Plan resumed monthly benefit payments the next
month.

       In 2005, the Plan asked all retirees who were receiving monthly benefits to
complete a form describing any employment in which they were then engaged.
Eisenrich submitted an affidavit confirming that he was working an average of 160
hours per month as a distributor for Pepperidge Farm, delivering and merchandising
the company’s products. Concerned that Eisenrich was engaged in disqualifying
employment, the Plan researched Eisenrich’s position on Pepperidge Farm’s website,
where it verified that “sales development associates” were involved in merchandising
the company’s products. The Plan also hired a private investigator to document
Eisenrich’s work activities. After conducting over eighty-three hours of surveillance,
the investigator reported observing Eisenrich deliver boxes of Pepperidge Farm baked
goods to retail stores in the geographic area covered by the Plan.

       Based on Eisenrich’s affidavit, Pepperidge Farm’s website, and the private
investigator’s report, the Plan concluded that Eisenrich was working in the same
industry, in the same trade or craft, and in the same geographic area as when he was
a meat cutter. In January 2006, the Plan informed Eisenrich that it was suspending his
benefits, retroactive to July 1, 2005, the date he submitted his affidavit. Eisenrich
appealed to the Plan’s Board of Trustees, which upheld the decision to suspend his

                                         -3-
benefits. When Eisenrich requested arbitration, the Board concluded that he had no
right to arbitration under the terms of the Plan.

       Eisenrich brought suit against the Plan under section 502(a)(1)(B) of ERISA,
which allows actions by a plan participant or beneficiary “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.” 29 U.S.C.
§ 1132(a)(1)(B). Eisenrich sought an order compelling arbitration, claiming that the
Plan wrongfully denied his right to appeal the Board’s decision to an arbitrator. In the
alternative, Eisenrich sought reinstatement of his monthly benefits and recovery of
benefits wrongfully suspended. He alleged that he was not engaged in disqualifying
employment, and that even if he was, the Plan was equitably estopped from
suspending his benefits because it resumed payments after learning of his Pepperidge
Farm distributorship in May 2004.

       The district court dismissed Eisenrich’s arbitration claim, concluding that the
terms of the Plan afforded him no right to arbitration. Proceeding to the merits of the
Plan’s decision to suspend Eisenrich’s benefits, the district court determined that
Eisenrich’s job as an independent distributor for Pepperidge Farm was not in the same
“trade or craft” as his previous job as a meat cutter. Eisenrich v. Minneapolis Retail
Meat Cutters & Food Handlers Pension Plan, 544 F. Supp. 2d 848, 858 (D. Minn.
2008). The court sua sponte granted summary judgment for Eisenrich on the ground
that he was not engaged in disqualifying employment, and dismissed his equitable
estoppel claim as moot. Id. Finding, among other things, that the Plan’s decision to
suspend Eisenrich’s benefits “patently lacked merit,” the court exercised its discretion
under ERISA to award Eisenrich $25,800 in attorneys’ fees.




                                          -4-
                                          II.

       The Plan argues that the district court erred in granting summary judgment for
Eisenrich. We review the district court’s decision de novo, and we will affirm the
grant of summary judgment if, viewing the evidence in the light most favorable to the
Plan, there is no genuine issue of material fact and Eisenrich is entitled to judgment
as a matter of law. See Fed. R. Civ. P. 56(c); West v. Local 710, Int’l Bhd. of
Teamsters Pension Plan, 528 F.3d 1082, 1085 (8th Cir. 2008).

        The question before us is whether the Plan wrongfully suspended Eisenrich’s
monthly pension benefits. The Plan’s trust agreement gives the Plan’s trustees “full
and exclusive authority to determine all questions of coverage and eligibility,” as well
as “full power to construe” the terms and provisions of the agreement and “the by-
laws and regulations issued thereunder.” Accordingly, we review the Plan’s decision
to suspend Eisenrich’s benefits for abuse of discretion. Firestone Tire & Rubber Co.
v. Bruch, 489 U.S. 101, 111 (1989). We will not disturb the Plan’s decision so long
as it is based on a reasonable interpretation of the Plan’s terms and is supported by
substantial evidence in the record before the Plan’s administrators. King v. Hartford
Life & Accident Ins. Co., 414 F.3d 994, 999 (8th Cir. 2005) (en banc).

       Under the Plan, a participant’s benefits may be suspended in any month he
works at least sixty-four hours in “an industry . . . covered by the Plan,” in “the
geographic area covered by the Plan,” and in “a trade or craft in which the Participant
worked under the Plan at any time.” Eisenrich does not dispute that as an independent
distributor for Pepperidge Farm, he works more than sixty-four hours per month in
“an industry . . . covered by the Plan” and in “the geographic area covered by the
Plan.” Nor does he dispute that he was previously employed under the Plan in the
“trade or craft” of meat cutting. Whether the Plan abused its discretion in suspending
Eisenrich’s benefits thus turns on whether his current employment as an independent
distributor is in the same “trade or craft” as his previous employment as a meat cutter.

                                          -5-
       The Plan maintains that its decision to suspend Eisenrich’s benefits rests on a
reasonable interpretation of the Plan’s language. According to the Plan, a “trade or
craft” refers to the skills typically performed by current employees within a certain
occupation. On this view, the “trade or craft in which [Eisenrich] worked under the
Plan” refers to the skills generally used by meat cutters today, not the skills actually
used by Eisenrich himself. Based on the description of “meat cutter” in the union’s
collective bargaining agreement, the Plan contends that present-day meat cutters are
involved in stocking shelves, rotating products in displays, and ordering new products
– activities in which they use merchandising and other retail skills. The Plan asserts
that independent distributors, like Eisenrich, use those same skills in filling purchase
orders and arranging goods on shelves. Because the skills used by meat cutters and
those used by independent distributors overlap, the Plan argues, Eisenrich is working
in the same “trade or craft” as he was before.

       Eisenrich contends that the Plan’s interpretation of “trade or craft” is
impermissible because it conflicts with the substantive requirements of ERISA. See
Finley v. Special Agents Mut. Benefit Ass’n, 957 F.2d 617, 621 (8th Cir. 1992).
According to Eisenrich, ERISA defines a retiree’s “trade or craft” in terms of the skills
the retiree actually used while employed, and because the Plan adopted a contrary
definition, his benefits were suspended in violation of ERISA’s requirement that they
not be forfeitable. If Eisenrich is correct, then the Plan necessarily abused its
discretion. Because the Plan may not disregard federal law, any decision that is
“erroneous as a matter of law” is an abuse of discretion and cannot stand. Hill v.
AT&T Corp., 125 F.3d 646, 650 (8th Cir. 1997).

       Whether the Plan’s decision is erroneous as a matter of law is a question we
review de novo. See Winer v. Edison Bros. Stores Pension Plan, 593 F.2d 307, 312
(8th Cir. 1979). Although we must defer to the Plan’s reasonable interpretation of the
Plan itself, we owe no deference to the Plan’s interpretation of controlling law. See
Wilkins v. Mason Tenders Dist. Council Pension Fund, 445 F.3d 572, 581 (2d Cir.

                                          -6-
2006); Penn v. Howe-Baker Eng’rs, Inc., 898 F.2d 1096, 1100 & n.3 (5th Cir. 1990);
Holt v. Winpisinger, 811 F.2d 1532, 1535-36 (D.C. Cir. 1987). ERISA’s definition
of “trade or craft” is a matter of what Congress (or an agency exercising rulemaking
authority delegated by Congress) meant, and “we must treat this as we would any
other question of statutory construction.” Riley v. MEBA Pension Trust, 570 F.2d 406,
410 (2d Cir. 1977).

      Beginning with the plain language of the statute, we observe that section 203(a)
of ERISA requires each pension plan to “provide that an employee’s right to his
normal retirement benefit is nonforfeitable upon the attainment of normal retirement
age.” 29 U.S.C. § 1053(a). Against the background of this general requirement,
section 203(a)(3)(B) provides that in the case of a multiemployer plan:

      A right to an accrued benefit derived from employer contributions shall
      not be treated as forfeitable solely because the plan provides that the
      payment of benefits is suspended for such period as the employee is
      employed, subsequent to the commencement of payment of such benefits
      . . . , in the same industry, in the same trade or craft, and the same
      geographic area covered by the plan, as when such benefits commenced.

Id. § 1053(a)(3)(B) (emphasis added). In short, consistent with ERISA’s
nonforfeitability requirement, multiemployer plans may suspend the benefits of
retirees who return to work in the same industry, in the same trade or craft, and in the
same geographic area in which they worked before they retired.

       ERISA does not define “trade” or “craft,” or elaborate on what it means for a
job to be “in the same trade or craft” as another. Its language does not resolve
whether an employee’s “trade or craft” is defined by what the employee actually did
in his former job, or what employees with the same job title typically do. Nor does
the statute’s history or purpose shed much light on the issue. In allowing plans to
suspend the benefits of retirees who accept certain kinds of postretirement

                                          -7-
employment, “Congress seems to have been motivated at least in part by a desire ‘to
protect participants against their pension plan being used, in effect, to subsidize low-
wage employers who hire plan retirees to compete with, and undercut the wages and
working conditions of employees covered by the plan.’” Cent. Laborers’ Pension
Fund v. Heinz, 541 U.S. 739, 742 n.1 (2004) (quoting 120 Cong. Rec. 29,930 (1974)
(statement of Sen. Williams regarding section 203(a)(3)(B))). But assuming that
Congress sought to prevent the “evil of ‘doubledipping,’ i.e., a pensioner’s taking a
job that would otherwise have been available to a member of the union who had not
retired,” Riley, 570 F.2d at 410, the statute does not speak to the precise question at
issue. The meaning of “trade or craft” in ERISA is ambiguous.

      Where Congress has delegated authority to an agency to implement an
ambiguous statute, we are required to accept the agency’s statutory interpretation, so
long as it is reasonable. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 844 (1984); see also United States v. Mead Corp., 533 U.S. 218, 226-27
(2001). Here, Congress has authorized the Department of Labor to “prescribe such
regulations as may be necessary to carry out the purposes” of section 203(a)(3)(B).
29 U.S.C. § 1053(a)(3)(B). Pursuant to this authority, the Department issued a
regulation defining “trade or craft” as:

      (A) a skill or skills, learned during a significant period of training or
      practice, which is applicable in occupations in some industry, (B) a skill
      or skills relating to selling, retailing, managerial, clerical or professional
      occupations, or (C) supervisory activities relating to a skill or skills
      described in (A) or (B).

29 C.F.R. § 2530.203-3(c)(2)(ii). This regulation further states that “the determination
whether a particular job classification, job description or industrial occupation
constitutes or is included in a trade or craft shall be based on the facts and
circumstances of each case.” Id. (emphasis added). We understand this language to
prohibit a plan from deciding whether a retiree worked in a “trade or craft” based

                                           -8-
solely on the retiree’s “job classification, job description or industrial occupation.”
Because a plan must rely on the “facts and circumstances of each case,” it must
consider the “skill or skills” actually used by the retiree in his job.

       This reading of the regulation accords with the Department’s own
understanding, which itself is entitled to substantial deference. See Gonzales v.
Oregon, 546 U.S. 243, 255 (2006); Auer v. Robbins, 519 U.S. 452, 461 (1997). In
commentary published with the regulation at the time of its promulgation, the
Department explained that “it is the use by the retiree of [particular] skills . . . , rather
than performance of duties under any specified job description or classification, which
is important for determining whether there is employment in the same trade or craft
under section 203(a)(3)(B).” 46 Fed. Reg. 8894, 8900 (Jan. 27, 1981). According to
the Department, the analysis should be “functional”: “a retiree would be employed
in the same trade or craft if post-retirement employment required the use of the same
skills as preretirement employment, regardless of whether, for example, the
preretirement employment was as a ‘bricklayer’ and the post-retirement employment
was as a ‘mason.’” Id. The Department’s commentary confirms that examining the
“facts and circumstances of each case” means looking beyond the skills typically
associated with a particular job. Under the “functional” approach embraced by the
regulation, a plan must look to the skills put to “use by the retiree,” not by other
employees in his occupation.

       We conclude that the Department of Labor’s regulation represents a reasonable
interpretation of “trade or craft” and is entitled to deference under Chevron.
Therefore, a retiree’s “trade or craft” should be defined by the skills he actually used
while employed. In this case, there is no disagreement on the skills Eisenrich actually
used while employed as a meat cutter. Eisenrich represented to the Board that his
meat-cutting position involved “cutting meat, grinding meat, wrapping meat, and
making meat products,” as well as “occasionally dealing with store customers.” The
Plan does not dispute that these were the skills actually used by Eisenrich as a meat

                                            -9-
cutter. Nor does it dispute that none of these skills is currently used by Eisenrich as
an independent distributor for Pepperidge Farm. Indeed, the record shows that
Eisenrich’s current position involves driving a truck, delivering goods, stocking
shelves, and occasionally interacting with store employees. Eisenrich is not working
in the “same trade or craft” as he was before, because he does not use any skills as an
independent distributor that he used as a meat cutter.

       The Plan reached a contrary conclusion, based on an interpretation of “trade of
craft” that conflicts with the Department of Labor’s authoritative construction of
ERISA. Applying its interpretation, the Plan suspended Eisenrich’s benefits, and
impermissibly treated them as forfeitable under section 203(a), even though he is not
employed “in the same trade or craft” within the meaning of section 203(a)(3)(B)(ii).
Because the Plan’s decision to suspend Eisenrich’s benefits is erroneous as a matter
of law, and thus an abuse of discretion, we affirm the district court’s grant of summary
judgment for Eisenrich.

                                          III.

       The Plan also argues that the district court erred in awarding Eisenrich
attorneys’ fees. Section 502(g)(1) of ERISA provides that “the court in its discretion
may allow a reasonable attorney’s fee and costs of action to either party.” 29 U.S.C.
§ 1132(g)(1). In exercising that discretion, a court should consider a number of
factors, including:

      (1) the degree of culpability or bad faith of the opposing party; (2) the
      ability of the opposing party to pay attorney fees; (3) whether an award
      of attorney fees against the opposing party might have a future deterrent
      effect under similar circumstances; (4) whether the parties requesting
      attorney fees sought to benefit all participants and beneficiaries of a plan
      or to resolve a significant legal question regarding ERISA itself; and (5)
      the relative merits of the parties’ positions.


                                         -10-
Martin v. Ark. Blue Cross & Blue Shield, 299 F.3d 966, 969 n.4 (8th Cir. 2002) (en
banc). These factors, drawn from Lawrence v. Westerhaus, 749 F.2d 494, 496 (8th
Cir. 1984) (per curiam), serve as “general guidelines for determining when a fee is
appropriate.” Martin, 299 F.3d at 972.

        In awarding Eisenrich attorneys’ fees, the district court considered the factors
set forth in Westerhaus. Its evaluation of those factors, however, turned largely on a
single consideration: the district court’s view that the Plan’s decision to suspend
Eisenrich’s benefits could not be justified. Thus, the court began its discussion with
the fifth factor, finding that the Plan’s “position in this matter patently lacked merit.”
Discussing next the first factor, the court reasoned that the Plan’s “insistence on its
untenable (and ultimately unsuccessful) position smacks of bad faith.” The court
pointed as evidence to the fact that the Plan adopted “an indefensible reading of the
Plan’s terms,” long after it first learned about Eisenrich’s employment as an
independent distributor, as well as the fact that Eisenrich had sued the Plan
successfully in a previous dispute. After mentioning the second factor – and noting
that the Plan provided “no evidence” that it was unable to pay a fee award – the court
proceeded to the third, expressing its belief that an award would deter the Plan “from
adopting such an overbroad and unwarranted reading of the Plan’s terms in the
future.” The court concluded that taken together, the Westerhaus factors justified an
award of attorneys’ fees to Eisenrich.

       We conclude that the district court abused its discretion in awarding Eisenrich
attorneys’ fees. In our view, the Plan’s position is not as “untenable,” “indefensible,”
“overbroad,” or “unwarranted” as the district court thought. The relative merits of the
parties’ arguments are more evenly balanced than the court described. Although the
Plan’s position is mistaken, it is not egregiously so. ERISA itself is unclear about the
meaning of “trade or craft,” and there is little or no federal case law that explores the
legal question raised in this dispute. We confront a question of first impression, with
reasonable arguments on both sides, and it is only after a careful review of

                                          -11-
administrative rulemaking and regulatory history that we reach a decision in favor of
Eisenrich. Under these circumstances, we believe that the district court committed a
clear error of judgment in viewing the Plan’s position in such negative terms, and in
relying so heavily on that view in weighing the relevant factors. See Maune v. IBEW,
Local No. 1, Health & Welfare Fund, 83 F.3d 959, 964 (8th Cir. 1996). We therefore
reverse the district court’s award of attorneys’ fees to Eisenrich.

                                   *      *       *

      For the foregoing reasons, the judgment of the district court is affirmed in part
and reversed in part.
                      ______________________________




                                         -12-
