Militello v. Central States, Southeast & Southwest Areas Pension Fund

In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 02-3058
ANTHONY J. MILITELLO,
Plaintiff-Appellant,

v.

CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS
PENSION FUND, and THE BOARD OF TRUSTEES OF THE
CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS
PENSION FUND,
Defendants-Appellees.

____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 2884—Elaine E. Bucklo, Judge.
____________
ARGUED JANUARY 24, 2003—DECIDED MARCH 3, 2004
____________

Before RIPPLE, EVANS, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. As a retired truck driver,
Anthony J. Militello received pension benefits from the
Central States, Southeast and Southwest Areas Pension
Fund (“the Fund”). After learning that Militello ran his own
trucking company, the Fund’s Board of Trustees (“the
Trustees”) suspended his benefits and sent him a benefits
denial letter. Militello sued both the Fund and the Trustees
2 No. 02-3058

under the Employee Retirement Income Security Act
(“ERISA”) for unlawful suspension of benefits. The district
court granted defendants’ motion for summary judgment
and Militello appeals.
We affirm, finding that the district court appropriately
applied an “arbitrary and capricious” standard of review,
the administrative record and denial letter were satisfac-
tory and Militello received a “full and fair review.” We
further find that both federal regulations and the plan’s
language allow for suspension of benefits under these cir-
cumstances.

I. BACKGROUND
Anthony Militello participated in the Central States
Southeast and Southwest Areas Pension Fund by virtue of
his employment as a truck driver with Alco Express. After
working at Alco Express for thirty-one years, he retired on
March 24, 1996 at age fifty-three and promptly applied for
pension benefits. Militello stated in a letter to the Fund
that he owned trucks. A letter from Alco Express also
indicated to the Fund that Militello owned trucks and that
he did not have any control over the drivers or the equip-
ment. Based on this information, the Fund approved
Militello’s application and began to pay him benefits on
April 1, 1996.
On November 17, 1997, a representative from a local
union informed the Fund that Militello owned and operated
a trucking business that employed drivers. The Fund sent
Militello a letter, indicating that it had received information
that he was the “self-employed owner of a trucking com-
pany,” and requesting his 1996 federal income tax returns
and information regarding his day-to-day duties at the
company. Militello replied that he had no duties or drivers
and that he leased his equipment to American Motor Lines,
which hired and paid the drivers. Because he did not
No. 02-3058 3

submit a full copy of his tax returns, the Fund once again
requested the returns. The Fund received the requested tax
documents which revealed that in 1996, Militello listed his
business as “Trucking,” and spent almost $100,000 in fuel
expenses and over $20,000 for a driver bonus. The Fund’s
Reemployment Committee determined that Militello’s
ownership of the trucking business constituted prohibited
reemployment and gave Militello thirty days to terminate
his ownership or face suspension of benefits.
Militello appealed the Reemployment Committee’s de-
cision to the Benefits Claim Appeals Committee (“BCAC”)
which affirmed, stating in part that “[t]he committee made
its decision regarding your reemployment because work, in
any capacity, requiring the same skills as those used by
Fund participants while employed by contributing employ-
ers in the same metropolitan area in which you work is
considered Prohibited Reemployment.”
Militello appealed the BCAC’s decision to the Trustees
and the Trustees agreed with the earlier decisions, con-
cluding that Militello was engaged in Prohibited
Reemployment and that his retirement benefits would be
suspended. The Pension Processing Department sent a
letter to Militello informing him that he had received over-
payment of benefits from April 1996 through August 1998,
and that as a result, the $75,400 overpayment would
be deducted from future benefits.
Militello brought suit against the Fund and the Trustees
under ERISA, 29 U.S.C. § 1001 et seq., for unlawful termi-
nation of pension benefits. On cross-motions for summary
judgment, the district court entered judgment for the de-
fendants, holding that the appropriate standard of review
of the Trustees’ decision was “arbitrary and capricious,” the
Trustees’ decision to suspend Militello’s benefits was not
arbitrary and capricious, and the Fund could recoup the
$75,400 in benefits paid. Militello appeals these determina-
tions.
4 No. 02-3058

II. ANALYSIS
A. Standard of Review
Summary judgment is warranted only if there is “no
genuine issue as to any material fact.” Fritcher v. Health
Care Serv. Corp., 301 F.3d 811, 815 (7th Cir. 2002) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). We
review a grant of summary judgment de novo, viewing all
facts and drawing all reasonable inferences in Militello’s
favor. Id.
We must first address whether the district court applied
the correct standard of review to the Trustees’ decision to
suspend benefits. The standard of review depends on the
amount of discretion that plan documents afford the plan
administrator, in this case the Trustees.1 See Johnson v.
Allsteel, Inc., 259 F.3d 885, 889 (7th Cir. 2001). A denial of
benefits will be reviewed de novo “unless the benefit plan
gives the administrator or fiduciary discretionary authority
to determine eligibility for benefits or to construe the terms
of the plan.” Firestone Tire and Rubber Co. v. Bruch, 489
U.S. 101, 115 (1989). If the plan confers discretionary
authority, then a denial of benefits will be reviewed under
an arbitrary and capricious standard. See Hess v. Hartford
Life & Accident Ins. Co., 274 F.3d 456, 461 (7th Cir. 2001).
We have designated the following phrase as safe harbor
language that clearly gives the plan administrator broad
discretionary power and thus ensures deferential review:
“Benefits under this plan will be paid only if the plan ad-

1
The defendants assert that the Trustees are plan administra-
tors of the Fund under 29 U.S.C. § 1002(16)(B). They argue in a
short footnote that Militello’s case against the Trustees should be
dismissed because “[t]his court has repeatedly held that ERISA
permits suits to recover benefits only against the plan as an en-
tity.” The defendants’ underdeveloped argument, raised for the
first time on appeal, does not convince us that dismissal is war-
ranted.
No. 02-3058 5

ministrator decides in his discretion that the applicant is
entitled to them.” Herzberger v. Standard Ins. Co., 205 F.3d
327, 331 (7th Cir. 2000). While this language ensures
deferential review, that precise wording is not required. See
id. (noting that “the courts have consistently held that there
are no ‘magic words’ determining the scope of judicial re-
view of decisions to deny benefits”).
Here, Central States’ trust agreement contains numerous
references to the Trustees’ broad discretion. For instance,
Article V § 2 states that “Trustees are vested with discre-
tionary and final authority in making all [plan-related]
decisions, including Trustee decisions upon claims for
benefits by participants and beneficiaries of the Pension
Fund and other claimants, and including Trustee decisions
construing plan documents of the Pension Fund,” and the
plan makes clear that it incorporated the language of the
trust agreement. See Pension Plan, Article VII § 7.01
(“[T]he Board of Trustees has authority to control and
manage jointly the operation and administration of the
Pension Fund and of this Pension Plan in accordance with
the terms of the Trust Agreement and of this Pension
Plan and amendments thereof. . . .”) (emphasis added).
Because the trust agreement’s language confers substan-
tially the same discretion as the safe harbor language dis-
cussed above, we find it sufficient to trigger the arbitrary
and capricious standard of review. In light of this finding,
we need not make an independent determination as to
whether the language of the plan itself is sufficient to
trigger this standard.2

2
Citing Fritcher v. Health Care Service Corp., 301 F.3d 811 (7th
Cir. 2002) and Herzberger v. Standard Ins. Co., 205 F.3d 327
(7th Cir. 2000), Militello contends that the trust agreement is
irrelevant because it is not a plan document under ERISA.
Neither case supports Militello’s position. In Fritcher, we ruled
(continued...)
6 No. 02-3058

Under the arbitrary and capricious standard, an adminis-
trator’s decision will not be overturned if “(1) ‘it is possible
to offer a reasoned explanation, based on the evidence, for
a particular outcome,’ (2) the decision ‘is based on a rea-
sonable explanation of relevant plan documents,’ or (3) the
administrator ‘has based its decision on a consideration of
the relevant factors that encompass important aspects of
the problem.’ ” Hess, 274 F.3d at 461 (quoting Exbom v.
Central States, S.E. & S.W. Areas Health & Welfare Fund,
900 F.2d 1138, 1142-43 (7th Cir. 1990)); see also Trombetta
v. Cragin Fed. Bank for Sav. Employee Stock Ownership
Plan, 102 F.3d 1435, 1438 (7th Cir. 1996) (“Absent special
circumstances such as fraud or bad faith, the Committee’s
decision may not be deemed arbitrary and capricious so long
as it is possible to offer a reasoned explanation, based on
the evidence, for that decision.”). Additionally, because the
standard of review is deferential, we “consider only the
evidence that was before the administrator when it made
its decision.” Hess, 274 F.3d at 462; see Perlman v. Swiss

(...continued)
only that language in a “Benefit Booklet” did not compel deferen-
tial review, and that the “Administrative Services Agreement”
at issue was not a “plan document” for purposes of divining the
appropriate standard of review. See 301 F.3d at 816-17. In
Herzberger, we said only that “employees are entitled to know
what they are getting into” with respect to the standard of review.
See 205 F.3d at 333. We note that trust agreements are mentioned
in 29 U.S.C. § 1024(a)(6), (b)(2) & (b)(4), in conjunction with other
items that are clearly plan documents. Morever, both this circuit
and others have traditionally reviewed cases involving Central
States’ pension plan and its sister fund, the health and welfare
plan, under the arbitrary and capricious standard. See, e.g.,
Whisman v. Robbins, 55 F.3d 1140, 1144 (6th Cir. 1995); Exbom
v. Central States, S.E. & S.W. Areas Health & Welfare Fund, 900
F.2d 1138, 1142-43 (7th Cir. 1990). Militello has not provided us
with a compelling reason to deviate from these cases.
No. 02-3058 7

Bank Corp. Comprehensive Disability Prot. Plan, 195 F.3d
975, 981-82 (7th Cir. 1999).

B. The Trustees’ Decision
1. The Administrative Record
The administrative record upon which the Trustees’ de-
cision was based is a major bone of contention between the
parties. The tension is due in part to an affidavit submitted
by Albert E. Nelson, Benefits Director for the Fund, in
support of the summary judgment motion of the Fund
and the Trustees, indicating that the Trustees’ June 10,
1998 meeting minutes contain both an “agenda portion
(consecutively bates stamped CS0001-04) and an attach-
ments portion (consecutively bates stamped CS0005-75).”
(Nelson Aff. of Jan. 31, 2002 ¶ 26.) According to Nelson, the
attachments include the correspondence between the Fund
and Militello, Militello’s 1996 federal tax returns, and lease
agreements between Militello and American Motor Lines.
Militello argues that the administrative record should be
limited to the agenda portion of the minutes, because the
minutes make no reference to the attachments. He views
Nelson’s affidavit as an impermissible augmentation of the
administrative record, and further contends that because
Nelson is the Benefits Director and not a Trustee, Nelson is
not qualified to testify about the record’s contents.
Under the terms of the trust agreement, the Trustees are
required to “make and maintain a record of the actions of
the Trustees taken at any meeting thereof.” (Article VI, § 3,
CS 0231.) Nevertheless, we see no reason why Nelson, as
Benefits Director for the Fund and a regular attendee of the
Trustees’ meetings, would not be qualified to testify to the
contents of the administrative record and the nature of the
Trustees’ discussion. He has performed this function
adequately in the past, see Whisman v. Robbins, 810 F.
8 No. 02-3058

Supp. 936, 941 (S.D. Ohio 1992), rev’d on other grounds, 55
F.3d 1140 (6th Cir. 1995), and is specifically referenced in
the minutes.3
Moreover, the minutes suggest that the administrative
record consisted of both an agenda section and an attach-
ment section. The agenda section specifically acknowledges
receipt of several documents in the “background” section,
including Militello’s tax returns and truck leases.4 Ad-
ditionally, the “action” portion of the agenda references a
letter “to Mr. Militello from William J. Schaefer dated April
7, 1998 (attached page 28).”5 In any event, Militello cannot
have it both ways: although he complains that the attach-
ments cannot be considered part of the record, he cites to
certain attachments (namely, the leases) to bolster his
claim that he was not running a trucking business. There-
fore, we find no error in the district court’s determination
that the administrative record on appeal consists of both
the agenda section and the attachments.6

3
“After a full discussion, a motion was made, seconded and un-
animously carried, upon recommendation of Albert E. Nelson
and Staff, to determine that the above-described employment
of Anthony J. Militello by Anthony J. Militello Trucking is
Prohibited Reemployment and that his retirement pension pay-
ments are to be suspended.”
4
In his reply brief, Militello argues for the first time on appeal
that the Fund deleted letters that he submitted from the admin-
istrative record. We deem this argument waived. See United
States v. Feinberg, 89 F.3d 333, 340-41 (7th Cir. 1996).
5
Militello is quick to point out that the letter is not actually
attached at page 28. However, as the letter is the twenty-seventh
document following the minutes, we consider this to be a dis-
crepancy of no consequence.
6
Militello claims that based on Halpin v. W.W. Grainger,
Inc., 962 F.2d 685, 694 (7th Cir. 1992), the Trustees were required
to “identif[y] each item considered . . . and include[ ] the Commit-
(continued...)
No. 02-3058 9

After reviewing the entire record, it is clear that the
Trustees’ decision to suspend benefits cannot be character-
ized as arbitrary and capricious. Militello listed his busi-
ness as “Trucking” on his tax returns and also described
fuel expenses totaling nearly $100,000 and a driver bonus
exceeding $20,000. Based on this information (which was
consistent with the union representative’s statement that
Militello was running a trucking business that employed
drivers), it was not unreasonable for the Trustees to de-
termine that Militello was doing more than leasing.
Relying on the leases, Militello argues that he could not
be running a trucking business. The leases state that the
lessees shall “exercise the degree of control” required by the
Department of Transportation (“DOT”). According to the
DOT, lessees “shall have exclusive possession, control, and
use of the equipment for the duration of the lease,” and
“shall assume complete responsibility for the operation of
the equipment for the duration of the lease.” 49 C.F.R.
§ 376.12(c)(1). However, in his briefs, Militello did not
even attempt to explain how this language squares with his
tax returns.7

(...continued)
tee’s assessment of that item and the weight given to it.” This is
not the rule set forth in Halpin. In that case, we merely explained
that in Brown v. Retirement Committee of Briggs & Stratton
Retirement Plan, 797 F.2d 521, 535-36 (7th Cir. 1986), we
determined that a denial letter alone did not comply with the
statute. However, in Briggs, because the minutes of the meeting
were attached to the letter, and because the minutes “identified
each item considered” and “included the Committee’s assessment
of that item,” the combination of the letter and the minutes
revealed substantial compliance with 29 U.S.C. § 1133. See
Halpin, 962 F.2d at 694. Moreover, we specifically noted in Halpin
that “substantial compliance” with ERISA’s regulations is all that
is required. Id.
7
Only at oral argument did Militello attempt to reconcile the
DOT language with his 1996 tax returns by contending that
(continued...)
10 No. 02-3058

2. Plain Language
Next, Militello insists that the Trustees’ decision to
suspend benefits is contrary to the plain language of the
pension plan. Specifically, he alleges that nothing in the
plan suggests that benefits can be suspended based on
ownership of trucks.
We begin by examining the plan’s language. The plan
states that absent special circumstances not relevant here,
a “Pensioner shall have his benefit payments suspended for
any calendar month in which he works in ‘Prohibited
Reemployment.’ ” (Pension Plan § 4.13(a)). Prohibited
Reemployment is defined as
[e]mployment in any position, including a man-
agerial or supervisory position and including self-
employment, but not including government employ-
ment, either in the same industry in which the
Participant or Pensioner earned any Contributory
Service Credit while covered by the Pension Fund,
or in any other industry if the Participant or Pen-
sioner is in the same job classification as are other
Participants then employed by a Contributing
Employer located within the same standard metro-
politan statistical area.
(Pension Plan § 4.13(f)(3)).
Based on this language, we agree with Militello that
nothing in the plan allows the Trustees to bar him from
owning trucks if he wants to keep his pension. However,

(...continued)
his leases are “wet” leases as opposed to “dry,” and that under
the terms of a “wet” lease, the lessor pays fuel expenses and
bonuses. Unfortunately for Militello, he has not pointed us to any
language in the leases (or any other authority, for that matter)
explaining the difference between “wet” and “dry,” and his argu-
ment comes too late.
No. 02-3058 11

Militello’s benefits were not suspended merely because he
owned trucks; indeed, the Fund was told that he owned and
leased trucks when it initially approved his request
for benefits. Militello’s funds were suspended because the
Fund determined that he owned and operated a trucking
business employing drivers. It was not contrary to the
plan’s plain language for the Trustees to determine that
owning a trucking business that employed drivers violated
the plan’s prohibition against managing employees, super-
vising employees, or engaging in self-employment in the
trucking industry.

3. The Denial Letter
Militello also has numerous procedural complaints. For
instance, he alleges that the benefits denial letter issued by
the Trustees does not satisfy statutory and regulatory
requirements. ERISA dictates that specific reasons for
denial be communicated to the claimant. See 29 U.S.C.
§ 1133(1) (“[E]very employee benefit plan shall—(1) provide
adequate notice in writing to any participant or beneficiary
whose claim for benefits under the plan has been denied,
setting forth the specific reasons for such denial, written in
a manner calculated to be understood by the participant,
and (2) afford a reasonable opportunity to any participant
whose claim for benefits has been denied for a full and fair
review by the appropriate named fiduciary of the decision
denying the claim. . . .”); 29 C.F.R. § 2560.503-1(g)(1).8

8
According to the regulation, “[t]he notification shall set forth, in
a matter calculated to be understood by the claimant—(i) The
specific reason or reasons for the adverse determination; (ii) Ref-
erence to the specific plan provisions on which the determination
is based; (iii) A description of any additional material or inform-
ation necessary for the claimant to perfect the claim and an
explanation of why such material or information is necessary; (iv)
(continued...)
12 No. 02-3058

“Although the applicable regulations are specific in pro-
nouncing the requirements, strict compliance is not man-
dated. . . . Rather, substantial compliance with the reg-
ulations is sufficient. . . .” Tolle v. Carroll Touch, Inc., 23
F.3d 174, 180 (7th Cir. 1994) (citations omitted).
In this case, the Trustees’ denial letter stated that
Militello was not eligible “to receive pension benefits for any
period that [he is] the owner of Anthony Militello Trucking,”
and that the Trustees made this decision because “work, in
any capacity, requiring the same skills as those used by
Fund participants while employed by contributing employ-
ers in the same metropolitan area in which you work is
considered Prohibited Reemployment.” The letter also
indicated that in order to avoid the suspension of benefits,
Militello must “provide documentation verifying that [he] no
longer ha[d] any ownership in the Anthony Militello
Trucking Company” in the next thirty days. (Compl. Ex. B-
1.) Furthermore, it cited the specific plan provision Militello
had allegedly violated.
The district court properly determined that this letter
satisfied statutory and regulatory requirements. The letter
indicated, “in a manner calculated to be understood by the
participant,” that the Trustees found Militello ineligible for
pension benefits because his actions as owner of Anthony
Militello Trucking constituted prohibited reemployment.
Although the letter is sparse, the Trustees were required to
give only specific reasons, not “the reasoning behind the
reasons.” Gallo v. Amoco Corp., 102 F.3d 918, 923 (7th Cir.
1996) (“All [the plan administrator] has to give the appli-
cant is the reason for the denial of benefits; he does not
have to explain to him why it is a good reason. To require
that would turn plan administrators not just into arbi-

(...continued)
A description of the plan’s review procedures and the time limits
applicable to such procedures . . . .”
No. 02-3058 13

trators, for arbitrators are not usually required to justify
their decisions, but into judges, who are.”) (emphasis in
original).

4. Full and Fair Review
Militello argues that his claim was not afforded a “full
and fair review” for three reasons: (1) he was denied a step
in the appeal process articulated in the plan; (2) the
Trustees applied a non-uniform interpretation of the plan
in rejecting Militello’s claim; and (3) the Trustees failed to
adequately explain their decision.
With respect to Militello’s first contention, we agree that
the Fund did not follow the plan’s provisions to the letter.
The plan outlines a three-step appeal procedure for the
review of any claim that has been denied: (1) review by
the Benefits Claim Review Committee (the “Review
Committee”), (2) review by the BCAC, and (3) review by the
Board of Trustees. Militello’s case took a different route.
The Reemployment Committee, which is not mentioned in
the plan, initially decided to suspend Militello’s pension
benefits. Militello was then allowed to appeal to the BCAC,
and finally to the Trustees. Thus, Militello was only allowed
two appeals.9
We are troubled by the Fund’s inability to follow its own
rules. Nevertheless, we have stated that
[t]he persistent core requirements of review in-
tended to be full and fair include knowing what
9
The Fund defends this procedural irregularity on the ground
that the Reemployment Committee “is more qualified than
Central States’ Staff or the [Review Committee] to handle
Prohibited Reemployment claims. For all practical purposes, the
Reemployment Committee is the functional equivalent of the
[Review Committee].” Appellees’ Br. at 25 (citations omitted).
14 No. 02-3058

evidence the decision-maker relied upon, having an
opportunity to address the accuracy and reliability
of that evidence, and having the decision-maker
consider the evidence presented by both parties
prior to reaching and rendering his decision.
Halpin v. W.W. Grainger, Inc., 962 F.2d 685, 689 (7th Cir.
1992) (quoting Brown v. Ret. Comm. of Briggs & Stratton
Ret. Plan, 797 F.2d 521, 534 (7th Cir. 1986)). Militello does
not complain (at least not in his initial brief 10) that the
failure of the Fund to follow its appeal procedures deprived
him of any of these “core requirements.” Thus, we cannot
say that failure to follow the appeal process to the letter,
without more, necessarily deprived Militello of full and fair
review. Cf. Buttram v. Central States, S.E. & S.W. Areas
Health and Welfare Fund, 76 F.3d 896, 901 (8th Cir. 1996)
(“Although the procedural irregularities in this case [which
included failure to provide written notice of claim denial,
the absence of a second-level appeal, and a seven year gap
between application of benefits and a third-level appeal]
give us pause, they do not demonstrate that the actual
decision reached . . . was arbitrary or whimsical.”).
We next address Militello’s assertion that the Trustees
applied a non-uniform interpretation of the plan. To but-
tress this claim, he points to his submission of a letter to
the Fund stating the following: “The letter being written
requesting approval of My retirement after 31 years of ser-
vice, with the right to retain My equipment. This request
being previously approved is now being denied.” Militello’s
argument is not compelling. All that is alleged in these two
statements is that Militello was aware that the Fund was

10
We note that Militello has again raised new arguments in his
reply brief. To the extent that Militello’s arguments were not set
forth in his initial brief, we will not address them here. See
Feinberg, 89 F.3d at 340-41.
No. 02-3058 15

taking action to suspend his pension benefits; the letter
does not show that the Trustees applied a non-uniform
interpretation to Militello as opposed to other claimants.
Rather, the record suggests that the Fund’s understanding
of Militello’s situation had changed; the Fund believed that
he was operating a trucking business rather than simply
owning and leasing trucks. Based on these changed cir-
cumstances, the Fund was entitled to take action, including
reversal of an earlier decision to grant benefits. Put simply,
a reversal based on new information is not a non-uniform
interpretation.11
We finally turn to Militello’s contention that the Trustees
failed to explain their reasons for suspension, thus denying
him the opportunity to challenge the decision adequately.
Specifically, he claims that the Trustees never explained
what “skill” he was using that violated the plan’s
reemployment rules. As we stated earlier, we find that the
Trustees alerted Militello to the fact that they believed his
ownership of a trucking business violated the plan. Militello
was thus equipped to challenge their decision.12
11
Militello contends that the Fund was required to demonstrate
uniformity by pulling similar cases from its files. While such
thoroughness on the Fund’s part would certainly have been
appreciated, Militello cites no persuasive authority for this prop-
osition. 29 C.F.R. § 2560.503-1(b)(5), the regulation upon which
Militello relies, does not impose a blanket requirement for pension
funds to provide data on all related cases every time it denies
benefits.
12
Militello contends that Nelson’s affidavit offers a post hoc ra-
tionalization of the Trustees’ decision. Nelson’s affidavit gives
more of the “reasoning behind the reasons,” intimating that the
Trustees arrived at their decision largely based upon Militello
listing “Trucking” as his type of business on his tax returns, and
the payment of fuel expenses and a driver bonus. However, this
additional explanation is permissible under Gallo because Nelson
does not introduce new facts and his explanation is consistent
(continued...)
16 No. 02-3058

5. 29 U.S.C. § 2530.203-3
Militello argues that 29 C.F.R. § 2530.203-3 precludes the
Fund from suspending pension benefits due to self-employ-
ment. He fails to consider part (a) of the regulation which
specifically excludes claimants who have not attained
normal retirement age from its protection:
A plan may provide for the suspension of pension
benefits which commence prior to the attainment
of normal retirement age, or for the suspension
of that portion of pension benefits which exceeds
the normal retirement benefit, or both, for any re-
employment and without regard to the provisions of
section 203(a)(3)(B) and this regulation to the ex-
tent (but only to the extent) that suspension of such
benefits does not affect a retiree’s entitlement to
normal retirement benefits payable after attain-
ment of normal retirement age, or the actuarial
equivalent thereof.
29 C.F.R. § 2530.203-3(a) (emphasis added); see also
Whisman, 55 F.3d at 1146-47.
Militello retired at age fifty-three; now sixty-one years
old, he has still not attained the normal retirement age,
which is defined as sixty-five in the plan. Therefore, this
regulation does not pertain to Militello, and we easily
dispose of his claim.13

(...continued)
with the Trustees’ decision. See Gallo, 102 F.3d at 923 (“When
challenged in court, the plan administrator can defend his in-
terpretation with any arguments that bear upon its rationality,”
although he is prohibited from “augment[ing] the administrative
record with new facts bearing upon the application for bene-
fits. . . .”).
13
Finally, Militello argues that the Fund is not entitled to
recoupment of benefits already paid because he “was never pro-
vided with an opportunity to appeal the decision to seek recoup-
(continued...)
No. 02-3058 17

III. CONCLUSION
For the foregoing reasons, the district court’s decision is
AFFIRMED.

A true Copy:
Teste:

________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

(...continued)
ment, an issue which was not addressed in the administrative
process.” Not only did the district court consider this argument
waived, but on appeal, Militello does not cite to the record, a case,
a statute, or a regulation in his two-sentence argument in his
initial brief. Not surprisingly, we consider his claim waived as
well. See Tyler v. Runyon, 70 F.3d 458, 465 (7th Cir. 1995).

USCA-02-C-0072—3-3-04