UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANNE NAVEY CLARK, Executrix of
the Estate of Andrew J. Clark, Jr.,
deceased,
Plaintiff-Appellant,

v.

E. I. DUPONT DE NEMOURS AND
COMPANY, INCORPORATED, as Plan
Administrator; E. I. DUPONT NON-
CONTRIBUTORY GROUP LIFE
INSURANCE PLAN - PLAN #501; E. I.
DUPONT CONTRIBUTORY LIFE
INSURANCE PLAN - PLAN #501; E. I.
                                                     No. 95-2845
DUPONT DE NEMOURS & COMPANY,
INCORPORATED PENSION &
RETIREMENT PLAN (PLAN NO. 001);
E. I. DUPONT SEVERANCE PLAN -
PLAN #506; E. I. DUPONT MEDICAL
AND DENTAL BENEFIT PLAN - PLAN
#503AND PLAN #507; E. I. DUPONT
SAVINGS AND INVESTMENT PLAN -
PLAN #002; E. I. DUPONT VACATION
PAY PLAN; E. I. DUPONT HOLIDAY
PAY PLAN,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Chief District Judge.
(CA-94-51-D)

Argued: December 6, 1996

Decided: January 9, 1997
Before WILKINS, HAMILTON, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed in part and dismissed in part by unpublished per curiam
opinion.

_________________________________________________________________

COUNSEL

ARGUED: John Bertram Mann, LEVIT & MANN, Richmond, Vir-
ginia, for Appellant. James Patrick McElligott, Jr., MCGUIRE,
WOODS, BATTLE & BOOTHE, L.L.P., Richmond, Virginia, for
Appellees. ON BRIEF: Cynthia E. Hudson, Deanna L. Ruddock,
MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Richmond,
Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

This action involves two separate claims by Andrew Clark, Jr.
(Clark) against E.I. DuPont de Nemours & Company (DuPont).
Clark's first claim was for benefits pursuant to various DuPont health,
welfare, pension, and retirement plans (Plan or Plans) established pur-
suant to the Employee Retirement Income Security Act (ERISA), 29
U.S.C. §§ 1001-1461 (1996). The second claim was for non-
disclosure statutory damages due to DuPont's refusal to provide Clark
with requested Plan documents. See 29 U.S.C.§ 1024(b)(4). DuPont
moved for summary judgment pursuant to Federal Rule of Civil Pro-
cedure 56. The district court granted the motion, and Clark timely
appealed. Sadly, Clark died after filing his notice of appeal. His exec-
utrix, Anne Navey Clark, was substituted in his stead on February 9,

                    2
1996. For the reasons stated herein, we dismiss Clark's claim for ben-
efits under the Plans for lack of subject matter jurisdiction and affirm
the district court's grant of summary judgment in favor of DuPont on
Clark's claim for non-disclosure statutory damages.

I.

Clark was employed directly by DuPont from 1962 until 1970 as
a structural steel detailer in the construction division of DuPont's
plant in Martinsville, Virginia. DuPont terminated Clark in 1970 fol-
lowing the elimination of its construction division. Since that time,
DuPont has supplemented a minimal construction staff with leased
employees.

Following his termination in 1970, Carlton Construction Company
employed Clark from 1973 to 1975. Carlton Construction Company
performed occasional contract work at DuPont's Martinsville plant.
After leaving Carlton, Clark worked a few months for Engineers in
Industry, which also performed contract work for DuPont. In the sum-
mer of 1975, Clark was hired by Belcan Engineering Group, Inc.
(Belcan), a national employee leasing firm which had an extensive
employee leasing arrangement with DuPont at DuPont's Martinsville
plant.

It is undisputed that Clark was a Belcan employee, and he under-
stood that he was not on DuPont's payroll. In fact, after 1970, Clark
made inquiries to DuPont about returning to its employ. DuPont
informed him that it would not rehire him. Clark, as a Belcan
employee, submitted time sheets to Belcan. Those sheets merely
listed DuPont as the client for which services were performed. More-
over, the leasing agreement between Belcan and DuPont stated that
the leased workers were to be considered ". . . employees of [Belcan],
and that none . . . shall be regarded as employees of [DuPont] in any
instance." (J.A. 674). Clark participated in Belcan's own health bene-
fits program, and DuPont never made a contribution to any benefit
plan for Clark. In 1993, DuPont terminated its contract with Belcan
at its Martinsville plant. For his part, Clark did not wish to leave the
Martinsville area, so he ceased his employment with Belcan. Clark
then applied for unemployment benefits, listing Belcan as his former
employer. Subsequently, Clark applied for coverage under the Plans,

                    3
asserting that he remained a DuPont employee after 1970 while he
was nominally working for various contracting organizations, most
especially, Belcan.1 DuPont, through the administrator of its Plans
(Plan Administrator), denied Clark benefits on the ground that he had
not been a DuPont employee since 1970 and he was not eligible for
benefits under the plain language of the Plans themselves.

Clark later requested copies of the Plan documents. DuPont refused
to provide the requested documents, and Clark commenced this action
in the United States District Court for the Western District of Vir-
ginia. The district court granted DuPont's motion for summary judg-
ment on September 26, 1995, and Clark timely appealed.

II.

Summary judgment is appropriate when there is no genuine issue
of material fact to be decided by the trier of fact and the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see
Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.), cert. denied, 115 S. Ct.
67 (1994); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Any disputed fact or disagreement in the evidence must be
construed in the light most favorable to the non-movant. United States
v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam). We review
a district court's grant of summary judgment de novo. See Higgins v.
E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988).

III.

An action for benefits under a plan established pursuant to ERISA
may only be brought by a "participant" in or a"beneficiary" of an
ERISA plan. 29 U.S.C. § 1132(a)(1). ERISA defines "participant" as
"any employee or former employee of an employer .. . who is or may
become eligible to receive a benefit of any type from an employee
benefit plan . . . or whose beneficiaries may be eligible to receive any
such benefit." 29 U.S.C. § 1002(7). Therefore, an individual is a "par-
ticipant" in an ERISA plan if: (1) he is a common law employee of
the employer maintaining the plan, Nationwide Mut. Ins. Co. v.
_________________________________________________________________
1 Clark did not claim in his complaint that he was entitled to benefits
due to his employment with DuPont from 1962 to 1970.

                    4
Darden, 503 U.S. 318, 323-24 (1992); see Community for Creative
Non-Violence v. Reid, 490 U.S. 730, 739-40, 751-52 (1989), and (2)
he is, according to the language of the plan itself, eligible to receive
a benefit under the plan. An individual who fails on either prong lacks
standing to bring a claim for benefits under a plan established pursu-
ant to ERISA, and we, as a reviewing court, must dismiss the appeal
for lack of subject matter jurisdiction. See Stanton v. Gulf Oil Corp.,
792 F.2d 432, 434-35 (4th Cir. 1986).

When a plan administrator grants or denies benefits under a plan
established pursuant to ERISA, we conduct a three-part inquiry. First,
we review "de novo whether the plan's language prescribes the bene-
fit or whether it confers discretion on the [plan] administrator to
determine the benefit." Haley v. Paul Revere Life Ins. Co., 77 F.3d 84,
89 (4th Cir. 1996). Second, if the plan does indeed confer discretion,
we review de novo whether the plan administrator acted within the
scope of that discretion. Id. Finally, if the plan administrator acted
within the scope of his "contractually conferred discretion," we "re-
view the merits" of the plan administrator's decision for an abuse of
discretion. Id.

For purposes of deciding DuPont's motion for summary judgment,
the district court assumed that Clark was a common law employee of
DuPont. Thus, it only analyzed whether Clark was, according to the
language of the Plans, eligible to receive a benefit under the Plans.
The district court then determined that the Plan Administrator did not
abuse his discretion when he determined that Clark was not eligible
to receive a benefit under the Plans. We agree.

We have reviewed the language of the Plans de novo and find that
the Plans unmistakably confer discretionary authority upon the Plan
Administrator to make benefits determinations. We also find that
when the Plan Administrator denied Clark benefits he acted within the
scope of that authority. Clark essentially concedes both points.
Accordingly, we review the Plan Administrator's decision to deny
Clark benefits for abuse of discretion. Id.

The Plans may be divided into two groups. The first group consists
of a contributory group life insurance plan, a noncontributory group
life insurance plan, a career transition financial assistance plan, a

                    5
medical and dental assistance plan, and a vacation and holiday bene-
fits policy plan. Persons entitled to participate in those plans are
defined in each plan as ". . . any person designated by the Company
as a full time employee. Any full service employee on the roll [as of]
12/1/85 who continues to work at least 20 hours per week on a regular
basis will be considered a Full Service Employee." (J.A. 717).

The second group consists of a tax reform stock ownership plan
and a savings and investment plan. For the limited purpose of obtain-
ing favorable tax treatment under the Internal Revenue Code (I.R.C.),
DuPont counts all employees, both payroll and leased, as part of the
covered employees for those plans. See 26 U.S.C. § 414 (1996); see
also West v. Clarke Murphy, Jr. Self Employed Pension Plan, 99 F.3d
166, 169 (4th Cir. 1996).2 However, those plans expressly exclude
individuals "who must be treated as employees of the Company for
limited purposes under the `leased employee' provisions of Sec-
tion 414(n) of the [I.R.C.]" from the receipt of benefits. (J.A. 602,
614, 638-39).

The Plan Administrator has always limited eligibility for participa-
tion in any of the Plans by defining "on the roll" to exclude contract
and leased employees. Clark himself admitted that"if you're not on
the DuPont roll, you don't get those benefits." (J.A. 447). Clark was
not on the DuPont payroll when he commenced his lawsuit. Indeed,
he had not been on DuPont's payroll since his termination in 1970.
Thus, with respect to the first group of plans, Clark was not eligible
to reap any benefits because he was not a full time DuPont employee
and had not been on DuPont's payroll since 1970. With regard to the
second group of plans, Clark was not eligible to become a participant
while working for a contracting firm because he was a leased
employee and all leased employees were specifically excluded from
participation in that group of plans. In sum, the Plan Administrator
_________________________________________________________________
2 Several sections of the I.R.C., including § 414, deal with minimum
participation requirements, vesting, and funding standards that must be
satisfied in order for an employee pension benefit plan to receive favor-
able tax treatment by the IRS. Thus, solely for tax purposes, § 414
expands the scope of the term "employee" to include affiliated service
groups, such as leased employees.

                    6
did not abuse his discretion when he denied Clark benefits under the
Plans.

For his part, Clark asserts that, pursuant to ERISA, his participation
in at least the second group of plans was mandated. Specifically, he
maintains that it was a per se abuse of the Plan Administrator's dis-
cretion to exclude contract workers from participation in the second
group of plans when those same workers were accorded employee
status in order to secure beneficial tax treatment for DuPont. Viewed
in this context, Clark's claim is not so much that he is eligible to
receive a benefit under the language of the second group of plans, but
that he should be eligible according to ERISA. However, ERISA
actually mandates the opposite conclusion.

ERISA allows an employer to limit plan coverage to certain
employees, as long as said "discrimination" is not based on age or
length of service. See 29 U.S.C. § 1052(a); see also Abraham v.
Exxon Corp., 85 F.3d 1126, 1130 (5th Cir. 1996) (§ 1052(a) does
nothing more than forbid employers from denying participation in an
ERISA plan to an employee on the basis of age or length of service).
ERISA simply does not require an employer to provide benefits to
every individual in that company's employment. See Stanton, 792
F.2d at 434-35 (mere fact of employment does not entitle employee
to participation in a plan established pursuant to ERISA). Nor does
the I.R.C. definition of "employee" add any gloss to the ERISA defi-
nition of an "employee" or a "participant" in a benefit plan established
pursuant to ERISA. West, 99 F.3d at 169 ("Employee status under
ERISA is determined not by the tax code but by the common law of
agency."). In short, this court is not in a position to rewrite the Plans
at issue here to include additional employees. See Coleman v. Nation-
wide Life Ins. Co., 969 F.2d 54, 56-57 (4th Cir. 1992), cert. denied,
506 U.S. 1081 (1993) (participant and beneficiary status defined only
by the terms of the ERISA plan at issue). Accordingly, Clark's case
must be dismissed. See Stanton, 792 F.2d at 434-35.

IV.

We are left with Clark's claim for non-disclosure statutory dam-
ages.

                     7
Although Clark does not have standing to bring a claim against
DuPont for benefits under the Plans, he may have a viable claim for
non-disclosure statutory damages if he was erroneously denied Plan
documents. ERISA requires that, upon written request of any partici-
pant, a plan's administrator shall furnish a copy of the latest updated
summary plan description or other instruments under which the plan
is established or operated. 29 U.S.C. § 1024(b)(4). A plan administra-
tor who does not comply with a just request may, in the court's dis-
cretion, be liable for up to $100 per day from the date of such non-
compliance. 29 U.S.C. § 1132(c)(1)(B). The Supreme Court has inter-
preted the disclosure provisions as covering, among others, all former
employees with colorable claims that they will fulfill eligibility
requirements in the future. Firestone Tire & Rubber Co. v. Bruch, 489
U.S. 101, 117-18 (1989); see also Davis v. Featherstone, 97 F.3d 734,
736-38 (4th Cir. 1996) (colorable claim is arguable and not frivolous,
whether or not it would succeed on the merits). We review the district
court's refusal to award non-disclosure statutory damages for an
abuse of discretion. Glocker v. W.R. Grace & Co. , 974 F.2d 540, 544
(4th Cir. 1992).

We believe the district court did not abuse its discretion when it
denied Clark non-disclosure statutory damages because Clark did not
have a colorable claim for benefits under the Plans. Clark had knowl-
edge that he had not been a DuPont employee since 1970. Further-
more, under no circumstances could Clark be considered a "partici-
pant" under the Plans.

V.

In summary, Clark was not a "participant" because he was not eli-
gible to receive benefits under the plain language of the Plans.
Accordingly, both he and his executrix lack standing to bring this
action and we must dismiss that portion of his appeal for lack of sub-
ject matter jurisdiction. Further, the district court did not abuse its dis-
cretion when it denied Clark's non-disclosure statutory damages
claim, and we affirm that denial.

AFFIRMED IN PART AND DISMISSED IN PART

                     8
