               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT


                            No. 98-21080



ELMER F WILLIAMS, II,
                                            Plaintiff-Appellant,

                               versus

HOUSTON FIREFIGHTERS RELIEF AND
RETIREMENT FUND; DONNY R MYERS;
TOMMY R SHELTON; GEORGE LOWDERMILK;
MAXIE R PATTERSON; D GRADY PERDUE;
JERRY A BESSELMAN; PHILLIP J WEDGEWORTH;
ANDREA J GERBER; WINSTON JOHNSON;
J WILEY GEORGE; STRASBURGER & PRICE,
LLP; JONATHAN B CLAYTON,

                                            Defendants-Appellees.


          Appeals from the United States District Court
                for the Southern District of Texas
                           (H-98-CV-63)

                            July 19, 2000

Before REYNALDO G. GARZA, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

     Elmer R. Williams II appeals the district court’s grant of

summary judgment to defendants regarding Williams’ 28 U.S.C. § 1983

claims that his pension fund, the Houston Firefighters Relief and

Retirement Fund, denied him due process and equal protection by

rejecting his request for certain pension benefits.     Finding that


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
the Fund’s actions were based on a legislative act, we reject

Williams’s constitutional claims.                 We also find no error in the

district court’s denial of relief under Federal Rule of Civil

Procedure 60(b) based on new evidence.

                                            I

      Williams is a Houston firefighter and participant in the Fund.

The   Fund      is   created     by   state      statute     and   serves   Houston

firefighters only.1           Both participating Fund members and the City

of Houston contribute to the fund.                The Fund is administered by a

Board of Trustees comprised of two City officials, former firemen,

and local citizens.           It is given rulemaking authority under the

statute.

      Williams transferred from the Hollywood Park Fire Department

to the Houston Department and in 1995 sought prior service credit

from the Houston Fund. Williams and other firefighters based their

claim,     in    part,   on    successful       litigation   brought   by   another

firefighter named Glenn Holleman.                  In response, in July 1996,

before the Fund’s Board of Trustees evaluated Williams’s claim, the

Board made changes to the criteria for receiving prior service

credit.2        These changes made Williams and many other firefighters

ineligible for the benefit.           Williams was granted a hearing on his

      1
      TEX. REV. CIV. STAT. art. 6243e.2 (1996). This statute has
since been amended, but the pre-1997 statute is the version
applicable in Williams’s case.
      2
      Those requirements were subsequently codified by the Texas
legislature. See TEX. REV. CIV. STAT. art. 6243e.2(1) § 16 (2000).

                                            2
claim in December 1996, but he was not allowed to contest the new

guideline itself.

     Williams brought suit against the Fund, Board members and the

Board’s attorneys, Strasburger & Price, alleging procedural due

process and equal protection violations. In addition to this suit,

Williams appealed the Board’s decision to a Texas state district

court under the statute’s appeal provision.               That court deferred

its jurisdiction until 2003 or 2010, when Williams is eligible for

retirement.3     The   defendants      moved    for   summary    judgment,   and

Williams moved for partial summary judgment arguing collateral

estoppel based on the Holleman litigation.                The district court

granted summary judgment to the defendants.               After failing on a

motion   to   reconsider   and   two    60(b)    motions,    Williams   timely

appealed.

                                       II

     Williams argues that the denial of prior service credit

violated his right to procedural due process and that the Board

members were biased.4         Williams does not complain of the due

process afforded him at his December 1996 hearing, where his

individual claim was considered; there, he had notice, counsel, an

opportunity    to   present    evidence,       testify,    and   cross-examine


     3
      See Williams v. Houston Fireman’s Relief & Retirement Fund,
1999 WL 82441 (Tex. App.).
     4
      The defendants argue that none of Williams’s claims are ripe.
They confuse ripeness with exhaustion.

                                       3
witnesses, and a right to appeal to state court.              Instead, he

alleges that he was denied due process at the July hearing at which

the Board promulgated the new guidelines.

     Even   assuming   that   Williams’s    former   right   to   statutory

benefits was a legitimate claim of entitlement whose judicial

denial necessitated due process, the denial by the Fund’s Board was

not judicial but legislative. As such, the due process protections

desired by Williams did not attach.5       As a general matter, the fact

that the Board interpreted the Texas statute does not make the

creation of the guidelines judicial.        Their legislative authority

involved promulgating rules consistent with the meaning of the

statute, a task which involved interpretive functions.6

     In distinguishing the legislative from the judicial model,

courts have examined whether the governmental body was motivated by

deciding the best course for the group in general, or adjudicating

the rights of contending petitioners.7           Also relevant is the

breadth of discretion which the governmental body enjoys.8           Under

these two criteria, the Board’s July actions were more legislative

than judicial. The Board was exercising its statutory authority to



     5
      See Atkins v. Parker, 105 S. Ct. 2520, 2528-29 (1985); United
States v. LULAC, 793 F.2d 636, 648 (5th Cir. 1986).
     6
      See art. 6243e.2 § 2(j).
     7
      See Mahone v. Addicks Util. Dist. of Harris County, 836 F.2d
921, 934-35 (5th Cir. 1988).
     8
      See Mahone, 836 F.2d at 935.

                                   4
promulgate guidelines – rules that subsequently were codified in

the statute.     And the guidelines, while made in the knowledge of

the   pending    claims   before   the    Board,   had   general   future

applicability beyond those claims.        Williams’s argument as to the

bias of the Board’s members also fails because the Board was acting

legislatively.

                                   III

      Williams also contends that the Board’s decision denied him

equal protection under the law.          He argues that the guidelines

created two classes of firefighters: those coming from towns with

a prior service credit like Houston’s, and those coming from towns

without.

      As the categories are not a suspect class, the Board’s actions

need only reasonably relate to a legitimate state interest.             A

desire on the part of the Board to save money meets this standard.

After the Holleman litigation, the Fund may have faced significant

liability for which it had not planned if the City’s and firemen’s

contributions did not cover the amount of accrued benefit.         And if

the City would have been unable to make the contributions, the

health of the Fund might have been endangered.9

                                   IV




      9
      The Board also is not collaterally estopped from promulgating
Guidelines not applied to Holleman: collateral estoppel does not
apply to legislative acts.

                                    5
     Finally, the district court did not err in denying Williams

relief under Federal Rule of Civil Procedure 60(b).     The “new”

evidence relied upon by Williams -- an internal memorandum from a

consultant to the Board, and the deposition testimony of two Board

members taken in the state court case – does nothing to overcome

the legal barriers to Williams’s suit.      In addition, nothing

prevented Williams from taking these depositions while the federal

suit was still pending.   The new evidence did not warrant relief

from the judgment.

     AFFIRMED.




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