11-2422-cv
Kammerer v. MPIPP

                    UNITED STATES COURT OF APPEALS
                        FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
RULINGS  BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER
THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY
ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

          At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 3rd day of July, two thousand twelve.

PRESENT:    RALPH K. WINTER,
            CHESTER J. STRAUB,
            DENNY CHIN,
                           Circuit Judges.

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KENNETH KAMMERER and THOMAS HALLIGAN,
on their own behalf and on behalf of
all others similarly situated,
               Plaintiffs-Appellants,

            -v.-                                          11-2422-cv

THE MOTION PICTURE INDUSTRY PENSION PLAN
and BOARD OF DIRECTORS OF THE MOTION
PICTURE INDUSTRY PENSION PLAN, as Plan
Administrator,
               Defendants-Appellees.*
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FOR PLAINTIFFS-APPELLANTS:    EDGAR PAUK, Law Offices of Edgar
                              Pauk, Brooklyn, New York (Robert
                              Bach, Law Office of Robert J. Bach,
                              Esq., New York, New York, on the
                              brief).

FOR DEFENDANTS-APPELLEES:             MYRON D. RUMELD (Anthony S. Cacace,
                                      on the brief), Proskauer Rose LLP,
                                      New York, New York.

      *
          The Clerk of the Court is directed to amend the
official caption in accordance with the above.
            Appeal from a judgment and order of the United States

District Court for the Southern District of New York (Scheindlin,

J.).
            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment and order of the district court are

AFFIRMED.

            Plaintiffs-appellants Kenneth Kammerer and Thomas

Halligan, motion picture studio mechanics, appeal from the

district court's:    (1) March 31, 2011, judgment entered pursuant

to its March 31, 2011, opinion and order granting summary

judgment to defendants-appellees Motion Picture Industry Pension

Plan and Board of Directors of the Motion Picture Industry

Pension Plan, as Plan Administrator (collectively, the "Plan")

and denying plaintiffs' motion for summary judgment, see Kammerer
v. Motion Picture Indus. Pension Plan, No. 10 Civ. 3224, 2011 WL

1311877 (S.D.N.Y. Mar. 31, 2011); and (2) May 17, 2011, order

denying plaintiffs' motion for reconsideration.

            We assume the parties' familiarity with the underlying

facts, the procedural history of the case, and the issues on

appeal.

            Plaintiffs sued defendants under the Employee

Retirement Income Security Act of 1974 ("ERISA"), as amended, 29

U.S.C. § 1001 et seq., alleging that they did not receive
sufficient pension credit for years in which they worked less

than full time.    On appeal, plaintiffs principally argue that the

district court erred in concluding that the Plan's use of a 200-

day year rather than a 150-day year was reasonable.

                                 -2-
          We review the district court's grant of summary

judgment de novo.    Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 59-

60 (2d Cir. 2010).   Where, as here, a plan confers "broad

discretionary authority" on the administrator to determine

eligibility, benefit determinations are reviewed under the

arbitrary and capricious standard.     Novella v. Westchester Cnty.,

661 F.3d 128, 140 (2d Cir. 2011) (citing Firestone Tire & Rubber

Co. v. Bruch, 489 U.S. 101, 115 (1989)).     Upon conducting an

independent review of the record, we conclude, substantially for

the reasons set forth in the district court's carefully-

considered decision, that the Plan's determination was not

arbitrary or capricious.

          Under § 204(b)(4)(B) of ERISA, 29 U.S.C.

§ 1054(b)(4)(B), an employee who works at least 1,000 hours a

year must be given pension credit for a partial year of service

of at least "a ratable portion of the accrued benefit to which he

would be entitled under the plan if his customary employment were

full time."   ERISA § 204(b)(4)(B), 29 U.S.C. § 1054(b)(4)(B).    A

critical question in the credit calculation is what amount of

service constitutes "a full year of participation."    See 29
C.F.R. § 2530.204-2(c).    Here, the Plan utilized a 200-day year

as "a full year of participation," while plaintiffs contend that,

in the circumstances here, ERISA requires that "a full year of

participation" be defined as 150 days.     The district court

concluded that the Plan's determination to use a 200-day year was

not "an unreasonable interpretation of the Plan."    Kammerer, 2011

WL 1311877, at *8.

                                 -3-
         Although the current version of the Plan does not

define a "year of participation" -- the definition having been

deleted in the version of the Plan adopted in 1995 -- the Plan

administrator's use of a 200-day rule was supported by the

following considerations:   at least three earlier versions of the

Plan used a 200-day rule; the 200-day benchmark continued to

appear in a provision setting forth the method for determining

credit for participants with fewer than thirty days of work but

with service elsewhere in the industry; and the statistical data

showed that a significant number of participants worked at least

200 days a year.   See Campenella v. Mason Tender's Dist. Council

Pension Plan, 299 F. Supp. 2d 274, 282-83 & n.5 (S.D.N.Y. 2004)

(discussing example of acceptable plan ranges, including one

under which a full year of participation was 2,000 hours or 200

days), aff'd, 132 F. App'x 855, 858 (2d Cir. 2005) (summary

order) (holding that, under arbitrary and capricious review,

where plan did not clearly define number of hours constituting

full year of participation, 1,820 hours (or 182 days) was
entirely reasonable).

          We have considered all of plaintiffs' remaining

arguments and conclude that they are without merit.   Accordingly,

the district court's judgment and order are AFFIRMED.



                               FOR THE COURT:
                               CATHERINE O'HAGAN WOLFE, CLERK




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