                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


PAUL HOUSTON; JOHN J. MOSA; JOHN       
DOES,
              Plaintiffs-Appellants,
                 v.
BUILDING TRADES WELFARE
FUND FOR THE OHIO VALLEY; KIM
CARFAGNA, as Trustee; JAMES E.
BROWN, as Trustee; NICK KARRAS, as             No. 03-2078
Trustee; MATT MANSUETTO, as
Trustee; RAY PARR, as Trustee; JOHN
STOFFER, as Trustee; CHARLES
VOGLER, as Trustee; JOYCE BURCH,
Administrator; GARY KOSKY, as
Trustee,
               Defendants-Appellees.
                                       
           Appeal from the United States District Court
     for the Northern District of West Virginia, at Wheeling.
              Frederick P. Stamp, Jr., District Judge.
                           (CA-02-88-5)

                       Argued: June 3, 2004

                      Decided: August 4, 2004

     Before WIDENER and DUNCAN, Circuit Judges, and
   Louise W. FLANAGAN, United States District Judge for the
    Eastern District of North Carolina, sitting by designation.



Affirmed by unpublished per curiam opinion.
2               HOUSTON v. BUILDING TRADES WELFARE
                             COUNSEL

ARGUED: William Anthony Kolibash, PHILLIPS, GARDILL, KAI-
SER & ALTMEYER, Wheeling, West Virginia, for Appellants. Ron-
ald G. Macala, MACALA, BAASTEN, MCKINLEY & PIATT,
L.L.C., Canton, Ohio, for Appellees. ON BRIEF: Yolanda G. Lam-
bert, SCHRADER, BYRD & COMPANION, P.L.L.C., Wheeling,
West Virginia, for Appellees.



Unpublished opinions are not binding precedent in this circuit.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


                              OPINION

PER CURIAM:

   Plaintiffs-appellants Paul Houston, John J. Mosa, and an unidenti-
fied number of "John Does" (collectively "Appellants") brought suit
against the Building Trades Welfare Fund for the Ohio Valley
("Building Trades Fund" or "the Fund"), several of its trustees, and
its administrator (collectively "Appellees") pursuant to the Employee
Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq.,
to recover allegedly forfeited benefits and for breach of fiduciary
duty. After the parties filed cross-motions for summary judgment, the
district court held that Appellants were not "participants" as that term
is used in 29 U.S.C. § 1132(a) and thus lacked standing to bring their
claims under ERISA. We affirm.

                                   I.

   The Building Trades Fund is a multi-employer benefits plan estab-
lished by various labor unions and employer associations to provide
health and welfare benefits to eligible union members. A Board of
Trustees governs the Fund pursuant to an Agreement and Declaration
of Trust ("Trust Agreement"). From October 2001 through March
2002, defendants-appellees Kim Carfagna, James E. Brown, Nick
                 HOUSTON v. BUILDING TRADES WELFARE                       3
Karras, Matt Mansuetto, Ray Parr, John Stoffer, Charles Vogler, and
Gary Kosky were serving as trustees. The Board has delegated
responsibility for the day-to-day operations of the Fund to the plan
administrator, defendant-appellee Joyce Burch.

   The terms under which the Fund provides health and welfare bene-
fits are described in the Summary Plan Description ("SPD"). To be
eligible for benefits, an individual must be working in "covered
employment" — i.e., employment pursuant to a collective bargaining
agreement ("CBA") entered into between a local union supporting the
Fund and an employer that is a signatory to that CBA, and which obli-
gates the employer to make contributions to the Fund. An employer
contributes a dollar amount, set by the CBA, for each hour that a par-
ticipant works in covered employment. Contributions in excess of the
quarterly requirement are placed in the participant’s "credit bank,"
and are used to offset shortfalls during quarters in which the partici-
pant is not generating sufficient contributions. In this way, the credit
bank permits participants to maintain benefits year-round despite the
seasonal nature of construction work. If a union withdraws from the
Fund, the Trust Agreement and SPD allow its members to remain eli-
gible for benefits provided (1) that the union "gives notice to the Fund
of it’s [sic] withdrawal at least 120 days in advance" and (2) "any
required changes to the applicable Collective Bargaining Agreement
are made and the Fund Office is notified of such changes, 120 days
prior to the effective date of the withdrawal." J.A. 215 (SPD); see also
J.A. 607 (Trust Agreement).

   At the October 31, 2001 meeting of the Board of Trustees, Rich
Wilson, a trustee and representative of Bricklayers Locals 1 and 15
of West Virginia, and appellant Houston, an "alternate trustee"1 and
  1
    According to Amendment 8 to the Trust Agreement, an alternate
trustee represents an employer or union, but takes part in the decision
making process only if the trustee that would normally represent that
employer or union is absent. The record is unclear when Houston became
an alternate trustee. His deposition testimony indicates that he was
elected an "alternate trustee" in the spring of 2001, J.A. 88, yet the Trust
Agreement was only amended to create the position of alternate trustee
at the October 31 meeting. The minutes for that meeting record Hous-
ton’s presence not as a trustee, but merely as representative for Bricklay-
ers Local 9.
4               HOUSTON v. BUILDING TRADES WELFARE
representative of Bricklayers Local 9 of Ohio, gave notice that their
unions would be withdrawing from the Building Trades Fund effec-
tive March 1, 2002 (120 days from the October 31 Board meeting).
Neither Wilson nor Houston gave the Board notice that their CBAs
had been amended to reflect the withdrawals. In fact, the withdrawing
unions did not amend their CBAs until February 2002, after they
reached an agreement with the Ohio Bricklayers Health and Welfare
Fund ("Ohio Bricklayers Fund") to provide benefits beginning June
1, 2002. Sometime in March, copies of these amended CBAs were
sent to the Building Trades Fund.

   On March 5, 2002, the Board of Trustees held its next meeting. At
this meeting, the Board elected to extend benefits for otherwise eligi-
ble members of the withdrawing unions. This extension effectively
meant that the members could continue to draw on their credit banks
until June 1, 2002. Individuals with credits still in their credit banks
on June 1 would forfeit them. The Board sent a notice to all members
of the withdrawing unions advising them of the extension and of the
subsequent forfeiture. Houston, Mosa, and the John Does are mem-
bers of Locals 1, 9, and 15, respectively, with credits remaining in
their credit banks on June 1, 2002.

                                   II.

   On July 23, 2002, Appellants filed the instant action. In their com-
plaint, they asserted that Appellees violated ERISA by denying them
the outstanding credits in their credit banks and sought equitable relief
to have those credits transferred to the Ohio Bricklayers Fund. They
also alleged that the Appellees breached their fiduciary duties in mak-
ing various decisions relating to the unions’ withdrawal. After con-
ducting discovery, the parties filed cross-motions for summary
judgment.

   In their motion, Appellees argued that Appellants lacked standing
to bring claims under ERISA because they were not participants in
the Building Trades Fund at the time they filed the instant lawsuit. To
have standing under ERISA, a plaintiff must be a "participant," "bene-
ficiary," or "fiduciary" of the plan. 29 U.S.C. § 1132; Sonoco Prods.
Co. v. Physicians Health Plan, Inc., 338 F.3d 366, 372 (4th Cir.
                HOUSTON v. BUILDING TRADES WELFARE                      5
                                      2
2003). To qualify as a "participant," a plaintiff must demonstrate that
he is an "employee or former employee of an employer, or [a] mem-
ber or former member of an employee organization, who is or may
become eligible to receive a benefit of any type from an employee
benefit plan which covers employees of such employer or members
of such organization." 29 U.S.C. § 1002(7). A person "may become
eligible to receive a benefit" if he has a "colorable claim" either that
he "will prevail in a suit for benefits" or that "eligibility requirements
will be fulfilled in the future." Firestone Tire & Rubber Co. v. Bruch,
489 U.S. 101, 117-18 (1989). Whether someone is a participant must
be determined as of the time the lawsuit is filed. See, e.g., Harris v.
Provident Life & Accident Ins. Co., 26 F.3d 930, 933 (9th Cir. 1994);
Raymond v. Mobil Oil Corp., 983 F.2d 1528, 1534-35 (10th Cir.
1993).

   Applying the Firestone test, the district court found that Appellants
did not have a colorable claim. According to the court, the Board’s
decision to terminate coverage was consistent with the goals of the
plan — forfeiture of benefits upon a union’s withdrawal deters unions
from withdrawing from the Fund and thereby protects the Fund’s
integrity. Houston v. Bldg. Trades Welfare Fund of the Ohio Valley,
No. 5:02CV88, slip op. at 8 (N.D.W. Va. Aug. 5, 2003) (citing Fagan
v. Nat’l Stabilization Agreement of the Sheet Metal Indus. Trust Fund,
60 F.3d 175, 181 (4th Cir. 1995)). Because the withdrawing unions
failed to provide notice that "‘the requisite changes in the applicable
bargaining agreement[s]’" had been made, id. at 9 (quoting Trust
Agreement amend. 6 (J.A. 607)), Appellants were not, and were not
able to become, eligible for coverage after June 1, 2002 (more than
seven weeks before the filing of this action). As such, Appellants
were not participants of the Fund and therefore lacked standing to
bring their ERISA claims. Id.

  Appellants filed a timely appeal. We review the district court’s
determination that the Appellants lacked standing de novo. Smith v.
Pennington, 352 F.3d 884, 888 (4th Cir. 2003).
  2
   Appellants did not assert that they have standing as beneficiaries or
as fiduciaries. Even if we considered Houston, as an alternate trustee, a
fiduciary, he has not brought his claims in his fiduciary capacity. See
Sonoco Prods. Co., 338 F.3d at 372.
6               HOUSTON v. BUILDING TRADES WELFARE
                                   III.

   On appeal, Appellants do not dispute that they failed to provide the
120-day notice "of any required" CBA amendments pursuant to the
SPD and Trust Agreement. Rather, they argue that their failure is
either excusable or irrelevant. As to Local 15, they assert that the fail-
ure to provide notice should be excused because the amendment could
not be completed until Jim Brown, the management representative
responsible for negotiating with Local 15, signed off on the amend-
ment. Brown was unavailable for six weeks during early 2002 and
thus could not authorize any amendment. As to Locals 1 and 9, they
contend that no amendments were required because the CBA simply
required the employer to make contributions to "a Welfare Fund," not
the Building Trades Fund in particular. According to Appellants,
because no amendment was required, no notice was required. These
arguments are without merit.

   First, the CBA for Local 15 specifically required employer contri-
butions to be sent to the Building Trades Fund. There is consequently
no dispute that Local 15 was required to amend its CBA to effect the
change to the Ohio Bricklayers Fund. Even if we accepted the Appel-
lants’ assertion that Brown’s unavailability for six weeks sometime in
early 2002 excused their failure to amend Local 15’s CBA during
those six weeks, the notice of changes to the CBA had to be provided
to the Fund on or before October 31, 2001, months before Brown’s
alleged unavailability. Because Local 15 failed to satisfy the notice
requirement, its members were not entitled to continuing eligibility
with the Building Trades Fund and thus the "John Doe" plaintiffs
have not asserted a colorable claim.

   Second, although it only referred to "a Welfare Fund," J.A. 174, the
CBA for Locals 1 and 9 did require an amendment to direct contribu-
tions to the new employee benefits plan. The relevant portion of the
CBA originally stated that "the Employer agrees to pay [a negotiated
amount] per hour paid for employees as and for a Welfare Fund. Said
payments to be reported on a combined fund reporting form and sent
to: Bricklayers Local #1 Combined Fund" or, for Local 9, to the
Bricklayers Local Union #9 Combined Fund. J.A. 174, 175. After the
withdrawing unions chose the Ohio Bricklayers Fund, Locals 1 and
9 amended their CBA to require that contributions "be sent to the
                 HOUSTON v. BUILDING TRADES WELFARE                       7
Ohio Bricklayers Health & Welfare Fund." J.A. 195 (Local 1); J.A.
196 (Local 9). Thus, Appellants’ assertion that Locals 1 and 9 were
not required to amend their CBA is belied by the fact that they did
amend it. As with Local 15, the failure to provide the Building Trades
Fund with notice of these amendments 120 days prior to the unions’
withdrawal means that the members of Locals 1 and 9 were not enti-
tled to benefits after June 1, 2002.

   Because the withdrawing unions were required to provide notice of
these required amendments 120 days prior to withdrawing from the
Fund, their failure to do so is fatal to Appellants’ argument that they
"may become eligible to receive a benefit." 29 U.S.C. § 1002(7).
Appellants’ assertions of error being meritless, we affirm the judg-
ment of the district court for the reasons stated in its opinion and order.3

                                    IV.

  For the foregoing reasons, the judgment of the district court is

                                                             AFFIRMED.
  3
   We do not address the district court’s alternative holding that the
Appellees were entitled to summary judgment on the merits. See Hous-
ton, slip op. at 10-15.
