UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HOWARD VERNATTER,
Plaintiff-Appellee,

v.

MICHAEL H. HOLLAND, Trustee;
DONALD PIERCE, JR., Trustee;
                                                                    No. 97-2647
ELLIOT A. SEGAL, Trustee; JOSEPH J.
STAHL, II, Trustee; UNITED MINE
WORKERS OF AMERICA HEALTH AND
RETIREMENT FUNDS,
Defendants-Appellants.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Elizabeth V. Hallanan, Senior District Judge.
(CA-96-1824-5)

Argued: December 3, 1998

Decided: March 12, 1999

Before WILKINSON, Chief Judge, MOTZ, Circuit Judge,
and WILLIAMS, United States District Judge for the
District of Maryland, sitting by designation.

_________________________________________________________________

Reversed and remanded with instructions by unpublished per curiam
opinion.

_________________________________________________________________

COUNSEL

ARGUED: Matilda Ann Brodnax, Assistant General Counsel, Office
of the General Counsel, UMWA HEALTH AND RETIREMENT
FUNDS, Washington, D.C., for Appellants. S.F. Raymond Smith,
RUNDLE & RUNDLE, L.C., Pineville, West Virginia, for Appellee.
ON BRIEF: Glenda S. Finch, Deputy General Counsel, Carolyn J.
O'Meara, Senior Associate Counsel, UMWA HEALTH AND
RETIREMENT FUNDS, Washington, D.C., for Appellants.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

This case is an appeal from an October 22, 1997 decision by the
Honorable Elizabeth Hallanan, United States District Court for the
Southern District of West Virginia. The case arises under Title I of
the Employee Retirement Income Security Act of 1974 ("ERISA"),
29 U.S.C. §§ 1001-1168. Appellants are the Trustees ("Trustees") of
the United Mine Workers of America ("UMWA") 1974 Pension Trust
("1974 Pension Trust" or "1974 Pension Plan"). Appellee, Howard
Vernatter brought his action against the Trustees to recover benefits
allegedly due to him pursuant to 29 U.S.C. §§ 1132(a)(1)(B),
1132(e)(1) and 1132(f). The district court granted summary judgment
in favor of Vernatter, finding that the Trustees had abused their dis-
cretion in determining that Vernatter had not established his eligibility
for the pension benefits. For the reasons set forth below, we reverse.

I

Before discussing the facts specific to this appeal, a brief discus-
sion of the eligibility requirements of the 1974 Pension Trust might
be helpful. The 1974 Pension Trust is one of many employee benefits
trusts, collectively called the United Mine Workers of America Health
and Retirement Funds. The eligibility requirements for disability ben-
efits under this Trust are found in Article II. C. of the 1974 Pension
Plan, which provides:

                    2
          A participant who (a) has at least 10 years of signatory ser-
          vice prior to retirement, and (b) becomes totally disabled as
          a result of a mine accident . . . shall, upon retirement (here-
          inafter "Disability Retirement"), be eligible for a pension
          while so disabled. A Participant shall be considered to be
          totally disabled only if by reason of such accident such Par-
          ticipant is subsequently determined to be eligible for Social
          Security Disability Insurance Benefits under Title II of the
          Social Security Act or its successor.

JA at 355. Therefore, in order to be eligible for the benefits a claimant
must establish: (1) that he has sustained injuries from a mine accident;
(2) that he is totally disabled, which is a determination made by the
Social Security Administration ("SSA"); and (3) that the mine acci-
dent is substantially responsible for his total disability. See Boyd v.
Trustees of the United Mine Workers of America Health and Retire-
ment Funds, 873 F.2d 57, 59 (4th Cir. 1989).

There is not one established definition of what constitutes a mine
accident. Instead, the Trustees apply the Plan's rules and regulations,
which are presented in a question and answer format ("Q & A"), to
make that determination. Q & A 252 provides the three characteristics
that must be present for the Trustees to find that a miner has been
"disabled as the result of a mine accident." JA at 394. It states that:

          The following three characteristics must be present: (1)
          Unexpectedness: The disability must have been unlooked
          for and unforeseen; (2) Definiteness: The disability must be
          traceable to a definite time, place, and occasion which
          occurred within the course of the mine worker's employ-
          ment. A progressive disease does not meet this test and
          therefore cannot be a disability that resulted from a mine
          accident; (3) Force and impact: The disability must have
          been caused by the exertion or impact of some external
          physical force or object against the body or by the exertion
          or impact of the body against some external physical object;
          i.e., not simply as a result of the mine worker's own physi-
          cal condition.

                    3
Id. Q & A 252 also provides a list of examples of mine accidents. It
is important for the purposes of this appeal to note that rock falls are
not specifically enumerated as mine accidents.

II

Howard Vernatter, is a member of the United Mine Workers of
America. Vernatter is also a participant in the 1974 Pension Plan.
Vernatter has claimed that he is entitled to disability benefits because
he is totality disabled. Initially, Vernatter claimed that his disability
stemmed from back and shoulder injuries sustained in two accidents
that occurred in 1980, while he was performing classified work for a
signatory employer. Later, Vernatter claimed that his disability, which
is mostly psychological in nature, stemmed from a facial injury that
he received in a rock fall in June of 1984.

Vernatter was determined to be totally disabled by Administrative
Law Judge ("ALJ") Virginia Mae Brown, of the SSA, in February of
1986. Judge Brown made reference to the alleged mine accident in
1984. She noted that "[d]uring an evaluation conducted [in September
1984] by D. Soulis, a psychiatrist . . ., the claimant said he had been
extremely anxious since being covered up by a rock slide the previous
June." JA at 181. Although Judge Brown found that Vernatter's back
and shoulder injuries were not debilitating, she found that he was suf-
fering from "severe post-traumatic stress disorder, anxiety, and
depression, the forgoing greatly compromising his ability to func-
tion." JA at 182-83.1 She stated that the

        anxiety and post traumatic stress related difficulties in con-
        nection with a June 1984 cave in in which [Vernatter] was
        nearly buried alive have greatly impaired his ability to
        acceptably interact with co-workers, supervisors, the public,
        or deal with even minimal stress encountered in a variety of
        routine, unskilled, entry level occupations.
_________________________________________________________________

1 Vernatter received Social Security disability benefits based on his
psychological problems as well as his chronic obstructive pulmonary dis-
ease and arthritis in his lower back. See JA at 19.

                     4
JA at 181.

In January 1988, Vernatter sought disability benefits based on the
1980 accidents. In June of 1989, the Trustees determined that Vernat-
ter was not totally disabled as a result of these accidents. The Trustees
acknowledged that Vernatter suffered from medical and psychologi-
cal problems, but found that these ailments were not the result of a
mine accident.

Afterward, Vernatter provided the Trustees with additional medical
records, and witness statements about the June 1984 incident. This
information included medical records from several doctors, see JA at
22-25, 31-36, 152-53, 240-43, and 244-45, and corroborating state-
ments from three co-workers who claimed to have witnessed the acci-
dent. See JA at 52-54. Vernatter had not filed a claim for West
Virginia Workers' Compensation benefits. Nor did he submit any
contemporaneous medical reports to establish that the injury occurred.
Vernatter maintained that he did not file an accident report because
his employer had informed him that there were not any forms avail-
able at the time of the incident. See JA at 51, 59. The Trustees recon-
sidered Vernatter's application, but determined that there was not
enough evidence to show that his disability was caused by a mine
accident as defined by Q & A 252.

Vernatter filed suit against the Trustees, claiming that they had
wrongfully denied his application for disability pension benefits based
on the 1984 incident, not the 1980 accidents. On August 6, 1996, the
Honorable David Faber, United States District Court of West Vir-
ginia, remanded the case to the Trustees so that they could review
new evidence produced by Vernatter. This evidence included an
audiogram which indicated that Vernatter had normal hearing, JA at
23, progress notes, dated April 25, 1995, which indicated that Vernat-
ter had an obstruction in his nose, JA at 24, and a February 7, 1986
evaluation, which referenced a nasal obstruction. JA at 25. The Trust-
ees, by a letter dated September 23, 1996, stated that they had
reviewed this evidence but found that it failed to establish that
Vernatter's disability was the result of a mining accident. The letter
stated that "[n]one of this information relates to injury received in a
mining accident, and none relates to the impairments determined to
be disabling by the Administrative Law Judge." JA at 19.

                     5
Thereafter, Vernatter again filed suit. After the parties filed cross
motions for summary judgment, the district court granted Vernatter's
motion, specifically finding that Richards v. United Mine Workers of
America, et al., 895 F.2d 133 (4th Cir. 1990), which also dealt with
the 1974 Pension Plan, was controlling. In that case, this Court held
that findings of the SSA "[are] entitled to great weight." Id. at 138.
As Judge Brown had referenced the 1984 accident in making her dis-
ability decision, the district court concluded that the ALJ had found
that this accident was the cause of the disability. The district court
stated that a "careful review of the ALJ's decision reveals that the
ALJ accepted as fact the occurrence of Plaintiff's alleged mining acci-
dent of June 1984. Further, the ALJ held that it was the June 1984
mining accident which, to the near exclusion of all other factors,
brought about Plaintiff's permanent disability. . . ." JA at 412. More-
over, the district court stated:

          The ALJ's determination is conclusive evidence of disabil-
          ity for purposes of the pension plan. Boyd v. Trustees of the
          UMWA Health & Retirement Funds, 873 F.2d [57], 59 [(4th
          Cir. 1989)]. . . . It seems only rational to maintain that, if the
          ALJ's determinations as to disability are conclusive, then
          the reasons relied on for the finding of disability should be
          treated as conclusive as well. . . . Therein is the significance
          for the weight given by the Fourth Circuit to the ALJ's
          determination of disability onset.

JA at 404.

The district court found that the Trustees had abused their discre-
tion by relying "solely upon the fact that there was neither an accident
report nor any contemporaneous medical records detailing the alleged
mining accident." JA at 414. The court stated that under Richards
"such deficiencies do not automatically trump all other evidence and
effectively terminate the requisite inquiry." Id. The district court
found that the Trustees' "decision further failed to examine any of the
evidence supporting the existence and disabling nature of the alleged
mining accident of June 1984, or offer any evidence which Defen-

                     6
dants may have relied upon to refute the same." JA at 413. The dis-
trict court, therefore, granted summary judgment in favor of Vernatter.2

III

The Trustees argue that the district court erred by granting sum-
mary judgment in favor of Vernatter, thus reversing the Trustees'
decision to deny Vernatter's application for disability benefits. They
maintain that they had substantial evidence to support their determi-
nation that no accident had occurred in June 1984, and therefore did
not abuse their discretion by denying the application. We agree.3
_________________________________________________________________
2 The parties subsequently requested an order remanding the case so
that the Trustees could address the issue of causation. The district court
found that such an action would be contrary to her reasoning in its Octo-
ber 22, 1997 opinion. The court stated that:

          The Court finds the determination suggested by the"Modified
          Order" to be illogical. If it is to be accepted that the alleged
          mining-accident actually occurred, and let it be remembered that
          a denial of the mining-accident's occurrence was the cornerstone
          of Defendant's argument, the Court does not see how it can turn
          its back on the ALJ's finding of causation. As the ALJ found
          Plaintiff disabled for psychological reasons alone, and pointed to
          the disputed mining-accident as the major cause of Plaintiff's
          psychological problems, the Court finds it virtually impossible,
          if the fact of the mining-accident is to be accepted, to legiti-
          mately determine that the issue of causation remains in doubt.

JA at 408. Therefore, on April 28, 1998, The district court issued a Mod-
ified Memorandum Opinion and Order, which reiterated its original find-
ings.
3 The Trustees also argue that even if the district court did not err in
finding that there was an accident, the district court should have
remanded the case back to them so that they could determine whether
there was a causal link between the accident and Vernatter's current dis-
ability. They argue that under the terms of the Plan, this determination
is within their purview, and thus the district court erred by holding that
they were bound to follow the findings of Judge Brown in terms of cau-
sation. Because we find that the Trustee's decision to deny pension bene-
fits was supported by substantial evidence, we do not need to address this
argument.

                    7
We review the district court's grant of summary judgment under
the de novo standard. Brogan v. Holland et al. , 105 F.3d 158, 161
(4th Cir. 1997). Under ERISA, if the pension plan gives the trustees
of the plan discretionary powers to determine eligibility, a reviewing
court must examine the trustees' decision concerning eligibility under
the abuse of discretion standard. Firestone Tire and Rubber Co. v.
Bruch, 489 U.S. 101, 111 (1989). This Court has previously held that
the 1974 Pension Plan affords its Trustees the discretion to determine
eligibility. See Boyd, 873 F.2d at 59; Lockhart v. United Mine Work-
ers of America 1974 Pension Trust, 5 F.3d 74 (4th Cir. 1993). There-
fore, the abuse of discretion standard will apply in this case.

In Richards, this Court held that the abuse of discretion standard
was synonymous with the arbitrary and capricious standard once used
by this Court. See Richards, 895 F.2d at 135. Under this standard of
review, the Trustees' decisions "will not be disturbed if they are rea-
sonable." Bernstein v. CapitalCare, Inc., 70 F.3d 783, 787 (4th Cir.
1995). Further, the Trustee's decision will not be disturbed if it "is the
result of a deliberate, principled reasoning process and if it is sup-
ported by substantial evidence." Id. at 788 (internal quotations omit-
ted). Moreover, if the record includes conflicting credible evidence,
the Court "cannot substitute [its] judgment for that of the [Trustees].
[The court's] review is at an end when [it] conclude[s] ... there is sub-
stantial evidence to support the [Trustees' decision]. . . ." Hamrick v.
Schweiker, 679 F.2d 1078, 1082 (4th Cir. 1982).

In the present case, there is substantial evidence to support the
Trustees' conclusion that Vernatter had not established that a mine
accident within the meaning of Q & A 252 had occurred. The record
contains several reports from doctors that vary in detail as to the
severity of, and even the date of, the alleged accident. The earliest
report that includes a reference to the June 1984 event is that of Dr.
Demosthenes Soulis. Dr. Soulis stated that on September 5, 1984,
Vernatter told him that "on June 8, 1984 he was covered up by rock
and sustained some cuts and bruises on his face and around his eyes."
JA at 317.

Arthur Ballas, a vocational consultant and psychologist, reported
on March 28, 1985 that Vernatter had suffered a"head injury" on
June 7, 1984. JA at 257. Ballas also reported that Vernatter told him

                     8
that he had stopped working because "a piece of rock fell on me and
scared me out [of the mines]." Id.

On April 7, 1985, Paul Crawford, another psychologist reported
that Vernatter informed him that he had injured his nose on June 7,
1984, when it "was struck by a rock which fell from the ceiling of a
mine." JA at 256. This date and depiction of the event was also
reported by Dr. Kwan Ho Lee on May 31, 1985. See JA at 244.

On June 5, 1985, Dr. R.A. Crawford, Jr. reported that Vernatter had
told him that "[o]n June 7, 1984 a rock fell from the mine top striking
him on the nose." JA at 240. Dr. Crawford also indicated that Vernat-
ter had not sought "medical treatment for this injury except that he
stopped work about July 1, 1984 due to nervousness and fear of
returning to work in underground coal mining." Id.

Vernatter told William Brezinski, a psychologist, on July 20, 1985,
that he was "struck by a piece of falling rock which hit him on the
forehead and lacerated his nose." JA at 242. Brezinski's report also
indicates that Vernatter informed him that after the incident, Vernatter
"was dazed for a few moments and stayed "shook up" for a long time
after that." Id.

In October 23, 1987, Vernatter told Dr. Nasreen Dar, a psychiatrist,
about the rock fall and claimed that his nose was broken by it. See JA
at 152. Finally, on July 13, 1995, Vernatter was examined by Dr.
Mohammed Ranavaya, a consultant in Occupational and Environmen-
tal Medicine. In a July 14, 1995 letter, Dr. Ranavaya stated:

          Mr. Vernatter reports that ever since that rock fall on his
          face in June 1984 in the mines his `nerves' are shot and he
          has developed nervousness/fear to return to work after the
          injury to his face. He states that he tried to return to work
          but he was so tense and scared that he could hardly do his
          job. He also states that he felt that he was going to die dur-
          ing the rock fall and the thought of going back to the mines
          gives him a chill down his spine.

JA at 32. Moreover, Dr. Ranavaya reported that Vernatter told him
that his face had been injured "on June 11, 1984 when he was covered

                    9
by a rock fall. According to him, he had black eyes and a broken nose
from this injury, but apparently he never went to the doctor for this."
JA at 33. Dr. Ranavaya found "evidence of facial injury in the past
which has resulted in the deformity of his nose and[a] deviated nasal
septum." JA at 35. He also found that Vernatter was suffering from
post-traumatic stress disorder. In making these determinations, how-
ever, Dr. Ranavaya relied solely on Vernatter's statements about the
alleged event as the cause of these injuries.

In fact all of the doctors, as well as ALJ Brown, who found that
Vernatter's post-traumatic stress disorder, anxiety and depression
were causally linked to the alleged June 1984 incident based their
opinions on information provided by Vernatter alone. However, as
has been shown, Vernatter provided three different dates for the acci-
dent: June 7, 8, and 11. As Q & A 252 requires a mine accident be
traceable to a "definite time, place, and occasion which occurred
within the course of the mine worker's employment," the Trustees
could reasonably find that the reports offered by Vernatter did not
establish that a mine accident had occurred. The reports also varied
in the severity of the event. Some indicated that a rock had simply
struck Vernatter's nose, others that his nose had been lacerated, and
still others that he had been given black eyes and a broken nose.
Given these contradictions, this Court believes that the Trustees rea-
sonably concluded that the reports lacked reliability. On the other
hand, the district court opined that these inconsistencies were minimal
and "rather insignificant." JA at 415. The district court, in attempting
to resolve the conflicting but credible evidence as presented by this
record, in effect substituted its judgment for that of the Trustees. This
is, of course, precluded under the abuse of discretion standard of
review. See Hamrick, 679 F.2d at 1082.

Moreover, the record also includes reports which do not reference
the alleged accident. For example, there is no mention of the incident
in either Dr. V.D. Modi's December 18, 1984 report or his September
29, 1987 report. See JA at 164-67, 321-24. Moreover, in his January
28, 1985 letter to the State of West Virginia Disability Determination
Section, Dr. I.A.K. Rana commented on Vernatter's depression due
to the death of his son. He, however, did not make any mention of the
alleged June 1984 accident. See JA at 272. Finally, there is a report
from Constantine G. Demopoulos, a vocational consultant and clinical

                     10
psychologist, dated September 17, 1984, which not only does not
mention the June 1984 incident, but also states that"[n]o facial disfig-
urement was indicated." JA at 320. Therefore, according to
Demopoulos, a mere three months after the alleged accident, Vernat-
ter did not have any visible signs of such an event.

The Trustees also note that not only did Vernatter not seek medical
treatment immediately after the incident, he worked overtime for
weeks afterward. See JA at 118. Moreover, the Trustees note that
Vernatter never reported the incident to the Workers' Compensation
Fund, although he spent three years (1984-1987) trying to get benefits
from it. See JA at 140, 142-47.

The only independent evidence submitted by Vernatter to support
his claims were three statements by former co-workers. These three
identical statements were are all signed on February 23, 1995. Each
assert that the co-worker "witnessed the mine accident on June 11,
1984 in which Howard Vernatter was involved." JA at 52-54. These
statements are very general in nature. They do not indicate whether
Vernatter was actually struck by a rock or merely present when a rock
fall occurred. In fact, they do not indicate what type of "mine acci-
dent" occurred. The district court stated that"[t]he [witness] state-
ments strike the court as evidence that something happened on that
day." JA at 417 (emphasis in original). While conceivably this may
be true, the 1974 Pension Plan requires more than just evidence that
something happened. Q & A 252 requires evidence of unexpected-
ness, definiteness, and force or impact upon the body.

The district court relied heavily on Richards and Boyd, and held
that Judge Brown's findings were to be given great weight. Further,
in its Order denying the parties Joint Motion Requesting Remand, the
district court stated that "when the ALJ makes specific findings,
absent legal error, they are not to be ignored by the party to whom
they are detrimental or inconvenient." JA at 409. We believe that the
reliance on Richards was misplaced.

In Richards, the plaintiff, Homer Richards had chest pains while he
was lifting heavy timbers at work, on January 30, 1981. 895 F.2d at
134. No accident report was filed, and there was not any independent
verification by the eyewitnesses to the event. The next day, January

                    11
31, 1981, while attending a wrestling match, Richards suffered severe
chest pains which were later diagnosed as symptoms of a heart attack.
The issue in the case was when Richards had suffered the heart attack,
at work, or at the match. Further, there was conflicting testimony by
two physicians. One found that the heart attack was caused by the
heavy lifting at work and the other did not. Id . at 135.

This Court found that "[a] reading of the Trustees' regulations
establishes that, once Richards shows that he suffered a heart attack
while lifting heavy objects in the mine, he qualifies for benefits if the
heart attack in turn caused his disability." Id. at 137. There was no
question that the heart attack had caused the disability, only whether
it had occurred at work. Because an at-work heart attack is specifi-
cally enumerated in Q & A 252, this Court found that it "preclude[d]
further inquiry into whether the heavy lifting was merely coincidental
to or instead actually caused the heart attack." Id.

In making the determination whether Richard's heart attack
occurred at work, this Court noted that there was conflicting evidence.
This Court held, however, that the SSA determination of the disability
onset date as January 30, 1981 tipped the scale in favor of finding that
the heart attack occurred on that date. This Court stated:

          Both the Social Security Administration and the Ohio
          Bureau of Workers' Compensation predicated their awards
          of benefits to Richards on a disability onset date of January
          30, 1981. . . . The social security finding as to the date of
          onset probably does not by itself decide the matter. None-
          theless, it appears that the social security determination that
          Richards' disability began on January 30, 1981 is entitled to
          great weight, reducing in the present case, the contrary evi-
          dence to insignificance.

Id. at 138.

The present case is distinguishable from Richards. In Richards, the
Trustees did not have to apply Q & A 252's three characteristics test
because a heart attack was specifically enumerated as a mine acci-
dent. In the instant case, however, Q & A 252 does not specifically
mention injuries stemming from rock falls. Nor does it specifically

                     12
state that any psychological disability that occurs after an injury due
to a rock fall is necessarily caused by that incident. Therefore, Vernat-
ter was required to establish that a mine accident, having the charac-
teristics of unexpectedness, definiteness, and force or impact upon the
body, had occurred.

Further, in Richards, unlike here, there was no question about cau-
sation. The real issue in Richards was the disability onset date. The
plain language of the 1974 Pension Plan delegates the authority to
determine whether the applicant is disabled to the SSA. "[A] Social
Security disability award conclusively establishes the medical disabil-
ity of the pension applicant." Robertson v. Connors, 842 F.2d 472,
475 (4th Cir. 1988). The disability award, however, does not conclu-
sively establish that the disability was the "result of a mine accident."
See Hale v. Trustees of the United Mine Workers Health & Retire-
ment Funds, 23 F.3d 899, 902 (4th Cir. 1994).

An ALJ, in making the determination about disability or the dis-
ability onset date, does not have to consider whether the disability
was caused by a mine accident as defined by Q & A 252. Instead, the
ALJ uses a five-step test, which focuses on the medical status of the
claimant. See Sullivan v. Zebley, 493 U.S. 521 (1990). Although, in
this case, Judge Brown's findings did indicate that Vernatter's disabil-
ity stemmed from the alleged June 1984 incident, she did not have to
apply the 1974 Pension Plan's definition of mine accident in making
the disability determination. Therefore, her findings that an accident
occurred, unlike her findings as to disability and disability onset date,
are not entitled to great weight.

Moreover, Article VIII. A of the 1974 Pension Plan states that
"[t]he Trustees or such other named fiduciaries as may be properly
designated shall have full and final determination as to all issues con-
cerning eligibility for benefits." JA at 376. Therefore, the findings as
to whether a mine accident has occurred within the meaning of the
1974 Pension Plan, and the determination as to causation are for the
Trustees, and not the SSA to make. See Hale, 23 F.3d at 902.

The Trustees had substantial evidence to reasonably conclude that
Vernatter had not submitted "credible information showing an injury
in the mines on a given date that involved force or impact against his

                     13
body as required by Q & A 252: "(1) the absence of an accident
report, (2) the lack of Worker's Compensation records, (3) the
absence of contemporaneous medical reports, (4) the inconsistencies
found in the existing medical reports, and (5) the fact that the only
independent sources of evidence supporting Vernatter's claim were
three brief unspecific statements by his coworkers. Appellants' Reply
Brief at 3. See Brogan, 105 F.3d at 163. Accordingly, we reverse and
remand this case to the district court with instructions to enter sum-
mary judgment in favor of the Trustees.

REVERSED AND REMANDED

                    14
