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Angelastro v. IUE AFL-CIO Pension Fund

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY


November 30, 1998

MARGARET ANGELASTRO,
PLAINTIFF,
V.
IUE AFL-CIO PENSION FUND AND BOARD OF TRUSTEES OF IUE AFL-CIO PENSION FUND,
DEFENDANTS.

The opinion of the court was delivered by: Jerome B. Simandle U.S. District Judge

HONORABLE JEROME B. SIMANDLE

OPINION

SIMANDLE, District Judge

Plaintiff, Margaret Angelastro, a widow, seeks judicial review of the denial of a 100% disability pension claim arising from her late husband's employment under defendants' employee benefit plan under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(a). Defendants IUE AFL-CIO Pension Fund ("the Fund") and the Board of Trustees of the IUE AFL-CIO Pension Fund ("the Board") have moved to dismiss her Complaint for lack of subject matter jurisdiction for failure to exhaust administrative remedies and/or for failure to state a claim upon which relief can be granted, pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). This motion requires the court to address the circumstances under which an ERISA employee benefit plan may be found to have waived its requirements for timely administrative appeals of benefit denials when the plan has addressed such appeals on the merits and where it has failed to advise the claimant of appeal rights. For the reasons set forth below, the court denies defendants' motion to dismiss for lack of subject matter jurisdiction, finding that Mrs. Angelastro's Complaint is not barred for failure to exhaust administrative appeal remedies, but grants defendants' motion to dismiss for failure to state a claim upon which relief can be granted and should be dismissed, because on the merits Mrs. Angelastro's Complaint seeks pension benefits that are not available under the applicable plan.

BACKGROUND

Margaret Angelastro's late husband, Nicholas Angelastro, was a participant in the IUE AFL-CIO Pension Plan ("the Plan") who passed away on September 11, 1990. Several months before his death, knowing that he did not have long to live, Mr. Angelastro and his wife attempted to put his financial affairs in order.

To that end, Mr. Angelastro attempted to apply for a disability pension under § 5.04 of the Plan, which provides in pertinent part:

Section 5.04 - Disability Retirement Pension

(a) Eligibility

A Participant shall be eligible to receive a Disability Retirement Pension commencing on the date of entitlement to a Social Security Disability Pension . . . . (Lichten Aff., Ex. B at pg. 29.)

Mr. Angelastro intended to elect the 100% joint and survivor option under § 6.02 of the Plan, which would have enabled Mrs. Angelastro to continue to receive 100% of the disability pension benefit payable to Mr. Angelastro during his lifetime after Mr. Angelastro's death.

Mrs. Angelastro claims that Plan administrators refused to provide her husband with a disability pension application when he requested one, insisting that Mr. Angelastro could not apply for a disability pension until the Social Security Administration ruled on his pending application for Social Security disability benefits. Mrs. Angelastro concedes that § 5.04 "requires that Social Security disability benefits begin before an application for disability retirement can be approved," but argues that "[n]othing in the Plan Document barred applying for a disability retirement pension while awaiting the award of Social Security disability benefits." (Plaintiff's Mem. at pg. 3.)

Unfortunately, Mr. Angelastro passed away before the Social Security Administration ruled on his application for Social Security disability benefits. Shortly thereafter, Mrs. Angelastro contacted the Fund regarding her eligibility for pension benefits. *fn1 On September 24, 1990, the Fund responded with a letter setting forth a calculation of the Spouse's Pre-Retirement Survivor's Benefit to which the Fund determined Mrs. Angelastro was entitled under § 5.07(b) of the Plan, which permits a surviving spouse of a participant who, like Mr. Angelastro, was eligible for early retirement to collect 50% of the amount that would have been payable to the participant if he had retired under the Early Retirement Pension provision of § 5.02 of the Plan the day before he died and elected a 50% joint and survivor option. (Crandall Aff. at ¶¶ 3-4; Plaintiff's Mem., Ex. 1.)

On or about October 3, 1990, Mrs. Angelastro submitted an "Application for Survivor Annuitant's Pension Benefits Under the 50% Joint and Survivor Option." (Lichten Reply Aff., Ex. A.) In a letter dated October 22, 1990, the Fund advised Mrs. Angelastro that her application had been approved and enclosed her first monthly benefit check. (Lichten Reply Aff., Ex. B; Crandall Aff. at ¶ 5.) The $221.46 Spouse's Pre-Retirement Survivor's Benefit Mrs. Angelastro has received every month since October 1990, pursuant to § 5.07 of the Plan, is significantly smaller than the 100% joint and survivor payment she would have received under § 6.02(a) of the Plan if Plan administrators had eventually accepted and approved Mr. Angelastro's application for a disability pension under § 5.04 of the Plan.

In a letter to the Board dated September 4, 1991, *fn2 Mrs. Angelastro appealed the Fund's determination that she was entitled only to a 50% Pre-Retirement Survivor Pension instead of a 100% joint and survivor benefit. In a letter dated October 4, 1991, the Board acknowledged receipt of Mrs. Angelastro's appeal and expressed its belief that her application for benefits "was processed in accordance with the Plan's provision in effect," but noted that it had "decided to postpone a decision pending a feasibility study of the Pre-Retirement Survivor benefit to be performed by the Fund's actuary." (Complaint at ¶ 16 and Ex. A.) In a letter dated July 27, 1992, the Board confirmed its denial of Mrs. Angelastro's appeal. (Complaint at ¶ 17 and Ex. B.)

More than five years passed. On December 8, 1997, Mrs. Angelastro filed suit against the Fund and the Board under § 502(a)(1)(B) of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(a)(1)(B), in the Superior Court, Chancery Division, Camden County. Defendants removed the case to this court. Mrs. Angelastro alleges that the defendants "frustrated" and "interfered with" her husband's ability to elect a 100% joint and survivor option before his death by "refusing to provide the requested forms." (Complaint at ¶¶ 8-9, 13.) Mrs. Angelastro further alleges that the defendants "have acted in disregard of the provision of [the Plan], and/or arbitrarily and capriciously in their interpretation and implementation of the provisions of [the Plan]." (Id. at ¶ 19.) Mrs. Angelastro seeks a declaration that her husband elected the 100% joint and survivor option before his death and that she is entitled to receive pension benefits at that rate, a permanent injunction requiring the Board to award her back and future pension benefits at that rate, plus interest, attorneys fees and costs, and such other relief as the court deems appropriate.

DISCUSSION

A. Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction

As a threshold matter, the court must address defendants' contention that it lacks subject matter jurisdiction in this case because Mrs. Angelastro failed to exhaust the administrative remedies available to her under the Plan. See 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 at pg. 209-10 (2d ed. 1990)(when a Rule 12(b) motion "is based on more than one ground, the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined").

Federal courts generally will not hear an ERISA claim for denial of benefits "where the party bringing the action has failed to exhaust administrative remedies." Wolf v. National Shopmen Pension Fund, 728 F.2d 182, 185 (3d Cir. 1984). "When a plan participant claims that he or she has unjustly been denied benefits, it is appropriate to require participants first to address their complaints to the fiduciaries to whom Congress, in Section 503, assigned the primary responsibility for evaluating claims for benefits." Zipf v. American Telephone and Telegraph Co., 799 F.2d 889, 892 (3d Cir. 1986). The policy of requiring exhaustion of administrative remedies before permitting such actions to proceed in a federal district court

ensures that the appeals procedures mandated by Congress will be employed, permits officials of benefit plans to meet the responsibilities properly entrusted to them, encourages the consistent treatment of claims for benefits, minimizes the costs and delays of claim settlement in a non-adversarial setting, and creates a record of the plan's rationales for denial of the claim. Id.

Section 503 of ERISA requires every employee benefit plan to establish a procedure for administrative review of denied claims for pension benefits:

In accordance with regulations of the Secretary, every 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 U.S.C. § 1133.

In accordance with § 503, the Department of Labor has adopted a regulation governing the administrative claims procedure. See 29 C.F.R. § 2560.503-1(a) through (j). Among other things, the regulation defines a "claim" as "a request for a plan benefit by a participant or beneficiary" and provides that a claim "is filed when the requirements of a reasonable claim filing procedure of a plan have been met." See 29 C.F.R. § 2560.503-1(d). The regulation also provides that "[i]f a claim is wholly or partially denied," the plan must provide written notice to the claimant setting forth the specific reason or reasons for denial, specific reference to the plan provision or provisions on which the denial is based, a description of any additional information or material needed to perfect the claim and an explanation of why it is needed, and appropriate information about the steps the claimant can take to obtain administrative review of the denial. See 29 C.F.R. § 2560.503-1(e) and (f). The regulation permits a plan to establish a reasonable time limit of at least sixty days within which a claimant must file a request for administrative review of a denied claim. See 29 C.F.R. § 2560.503- 1(g)(3).

In the instant case, defendants claim that Mrs. Angelastro failed to exhaust administrative remedies under the plan because she did not: (1) file an appeal with the Board "within ninety (90) days after the receipt of written notification" of the initial determination of her application for pension benefits, as required under § 9.04 of the Plan, and/or (2) "submit [an] appeal from an adverse decision of the Trustees to an arbitrator selected by the American Arbitration Association" within sixty days of the Board's decision, as required under § 9.05 of the Plan. (Lichten Aff., Ex. B at 54, 55.)

Relying on Epright v. Environmental Resources Management, Inc., 81 F.3d 335, 342 (3d Cir. 1996)("When a letter terminating or denying Plan benefits does not explain the proper steps for pursuing review of the termination or denial, the Plan's time bar for such a review is not triggered"), Mrs. Angelastro responds to defendants' first contention by arguing that because defendants did not send her written notification of their denial of her claim for a 100% joint and survivor benefit advising her of the steps she could take to obtain administrative review of the denial, as required by 29 C.F.R. § 2560.503-1(e) and (f), the ninety day time limitation of § 9.04 of the Plan never began to run. Mrs. Angelastro further maintains that she satisfied the exhaustion requirement, as defined by the Third Circuit in Wolf, because she "gave the Trustees the opportunity to decide whether her claim [for a 100% joint and survivor benefit] was meritorious" in her September 4, 1991 letter and the Board "decided with finality that her claim lacked merit," as reflected by its October 4, 1991 and July 27, 1992 letters. Wolf, 728 F.2d at 186-87.

Defendants counter by correctly noting that because they approved the only formal application for a pension benefit Mrs. Angelastro ever submitted (the October 3, 1990 "Application for Survivor Annuitant's Pension Benefits Under the 50% Joint and Survivor Option"), there was no occasion on October 22, 1990 for them to send Mrs. Angelastro written notification of a denial of a claim for benefits in accordance with 29 C.F.R. § 2560.503-1(e) and (f). Defendants characterize Mrs. Angelastro's September 4, 1991 letter as an untimely appeal from an entirely favorable determination (the October 22, 1990 approval and award of a Spouse's Pre-Retirement Survivor's pension) with which Mrs. Angelastro was simply dissatisfied, and urge the court to enforce the ninety day time limit of § 9.04.

The court agrees that Mrs. Angelastro's appeal on September 4, 1991 was untimely. Numerous courts have held that a claimant's failure to timely initiate administrative review of a denied claim for pension benefits precludes judicial review of the claim. See, e.g., Moffitt v. Whittle Communications, L.P., 895 F. Supp. 961, 969 (E.D. Tenn. 1995)("[a] claimant's failure to comply with a reasonable time constraint imposed by a plan for administrative review of denial of a claim precludes judicial review of the claim"). The court sees no reason to reach a different result where the claimant is simply dissatisfied with an entirely favorable determination. In this regard, the court notes that § 9.04 of the Plan expressly provides that "[a]ny Participant, Participating Employer or Beneficiary who is dissatisfied with the Trustees' determination or rejection of benefit entitlement, shall have the right to appeal to the Board of Trustees." (Lichten Aff., Ex. B at 54)(emphasis added).

The court finds, however, that the Board waived its right to raise the ninety-day time restriction of § 9.04 in this court by actually considering the merits of Mrs. Angelastro's untimely appeal in September 1991. The October 4, 1991 letter from the Fund's Administrator, even if it can be construed as a denial, which is doubtful, *fn3 indicates that Mrs. Angelastro's appeal was considered by the Board at its October 1, 1991 meeting with "much discussion." On this point, the court declines to follow Moffitt, where the court observed that "[the plan's] review of the claim after receiving [the plaintiff's] long-past-due request for reconsideration of the denial of his claim could only have been for the plaintiff's benefit." Moffitt, 895 F. Supp. at 970. Unlike in Moffitt, where the plan cited the untimeliness of the claimant's appeal as one of the grounds for its denial, the Board never even mentioned the untimeliness of Mrs. Angelastro's appeal until the instant motion years later. Further, the Board kept the appeal alive by announcing in the October 4, 1991 letter that it would "postpone a decision," see n.3, supra. In other words, the Board itself perceived no untimeliness problem. Insofar as one of the primary policies underlying the exhaustion requirement is to permit "the fiduciaries to whom Congress, in Section 503, assigned the primary responsibilities for evaluating claims for benefits" the first opportunity "to meet the responsibilities properly entrusted to them," Zipf, 799 F.2d at 892, the court does not believe it is asking too much of plan administrators to fairly and evenhandedly enforce reasonable time limitations imposed by an employee benefit plan before requesting a court to do so.

Accordingly, the court holds that Mrs. Angelastro's failure to appeal from the Board's October 22, 1990 determination of her application for pension benefits within ninety days of her receipt of that determination, as required under § 9.04 of the Plan, does not preclude judicial review of her claim due to the Board's failure to enforce the time limitation when the Board considered Mrs. Angelastro's appeal upon the merits. The court further holds that Mrs. Angelastro exhausted the administrative appeal available under § 9.04 in accordance with Wolf when she "gave the Trustees the opportunity to decide whether her claim [for a 100% joint and survivor benefit] was meritorious" in her September 4, 1991 letter and the Board "decided with finality that her claim lacked merit," as reflected by its October 4, 1991 and July 27, 1992 letters. *fn4 Wolf, 728 F.2d at 186-87. The question remains, however, whether Mrs. Angelastro's failure to request arbitration of the Board's July 27, 1992 denial of her administrative appeal within sixty days of the Board's decision, as required under § 9.05 of the Plan, constitutes a failure to exhaust that precludes judicial review of her claim.

The Third Circuit has recognized that "claims to establish or enforce rights to benefits under 29 U.S.C. § 1132(a) that are independent of claims based on violations of the substantive portions of ERISA are subject to arbitration." Barrowclough v. Kidder, Peabody & Co., Inc., 752 F.2d 923, 939 (3d Cir. 1985), overruled in part by Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, 7 F.3d 1110, 1112 (3d Cir. 1993) (overruling Barrowclough only "insofar as it held that arbitration of statutory ERISA claims is precluded"). The court had no occasion in Barrowclough to "decide whether arbitration is required in order to exhaust internal remedies under 29 U.S.C. § 1133," Barrowclough, 752 F.2d at 939 n.15, and it has not addressed the question since, but a number of courts in other jurisdictions have held that the exhaustion requirement extends to mandatory arbitration provisions of employee benefit plans. See, e.g., Challenger v. Local Union No. 1 of the Int'l Bridge, Structural and Ornamental Ironworkers, AFL-CIO, 619 F.2d 645, 647 (7th Cir. 1980)(claimant "has only those rights to pension benefits that arose out of the contract between his union and his employers" and "the method of settling the dispute is as much a part of the contract as the payment of benefits under the pension plan"); Mahan v. Reynolds Metals Co., 569 F. Supp. 483, 487 (E.D. Ark. 1983), aff'd, 739 F.2d 388 (8th Cir. 1984)("exhaustion of administrative procedures, including arbitration, is required before an employee may commence an ERISA suit in federal court").

In the present case, it is undisputed that Mrs. Angelastro never requested arbitration of the Board's denial of her administrative appeal, let alone within sixty days of the Board's decision, as required under § 9.05 of the Plan. Mrs. Angelastro argues, however, that because the Board did not advise her of her right to request arbitration in either its October 4, 1991 letter or its July 27, 1992 letter, the sixty-day time limit of § 9.05 was not triggered and the Board is barred from enforcing it. She further argues that if any remedy is available to defendants as a result of her failure to request arbitration, it is an order compelling arbitration, not dismissal for failure to exhaust administrative remedies. *fn5

The court agrees that defendants are barred from enforcing the sixty-day time limitation of § 9.05 as a result of the Board's failure to advise Mrs. Angelastro of her right to request arbitration in either its October 4, 1991 letter or its July 27, 1992 letter. Although 29 C.F.R. § 2560.503-1(h)(3), which prescribes the contents of the written notice of the decision on administrative appeal a plan must provide a claimant, does not require that a plan inform a claimant of the existence of additional levels of review, the court finds that such notice should be provided when a plan interposes a second mandatory level of appeal that must be exhausted before a claimant can obtain judicial review of her claim. Where an ERISA beneficiary of an employee benefit plan will otherwise lose the right to judicial review of the denial of benefits if arbitration is not timely requested, the plan must so advise the claimant if the plan is later to raise claimant's non- compliance as a default barring judicial review. The court finds that such a requirement is supported by 29 C.F.R. § 2560.503-1(f)(4), which analogously requires a plan to set forth "[a]ppropriate information as to the steps to be taken if the participant or beneficiary wishes to submit his or her claim for review" in the notice informing a claimant of the denial of a claim for benefits.

The usual remedy when a plan fails to adequately advise a claimant of her right to administrative review of a denial of benefits is not excuse from the exhaustion requirement, but remand for an out-of- time administrative review. See Counts v. American General Life and Accident Ins. Co., 111 F.3d 105, 108 (11th Cir. 1997). In this case, however, the court finds that the circumstances do not warrant remand for arbitration of Mrs. Angelastro's claim for a 100% joint and survivor pension benefit, because such arbitration would be futile.

"Although the exhaustion requirement is strictly enforced, courts have recognized an exception when resort to the administrative process would be futile." Berger v. Edgewater Steel Co., 911 F.2d 911, 916 (3d Cir. 1990), cert. denied, 499 U.S. 920 (1991). Courts generally have applied the futility exception only where it appears "certain" that a claimant will not succeed on administrative review of a plan's initial denial of a claim for benefits. See, e.g., Robyns v. Reliance Standard Life Ins. Co., 130 F.3d 1231, 1238 (7th Cir. 1997). For the reasons set forth below, the court finds that remand of Mrs. Angelastro's claim for a 100% joint and survivor pension benefit for arbitration is certain to result in a decision in favor of defendants and against Mrs. Angelastro. Accordingly, the court excuses Mrs. Angelastro's failure to exhaust administrative remedies on the ground of futility and denies defendants' motion to dismiss her Complaint for lack of subject matter jurisdiction.

B. Defendants' Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted

Having determined that Mrs. Angelastro's failure to exhaust administrative remedies does not require dismissal for lack of subject matter jurisdiction, the court now turns to defendants' motion to dismiss Mrs. Angelastro's Complaint for failure to state a claim upon which relief can be granted.

A motion to dismiss a complaint for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6) does not attack the merits of a case, but merely tests the legal sufficiency of a plaintiff's complaint. See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). When considering such a motion, a district court must accept as true all well-pleaded allegations in the complaint and view them in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Jordan v. Fox Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994); Hakimoglu v. Trump Taj Mahal Assoc., 876 F. Supp. 625, 628-29 (D.N.J. 1994), aff'd, 70 F.3d 291 (3d Cir. 1995). A district court also must accept as true any and all reasonable inferences derived from those facts. See Oshiver v. Levin Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994); Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Glenside West Corp. v. Exxon Co., U.S.A., 761 F. Supp. 1100, 1107 (D.N.J. 1991). A district court may not dismiss a complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

Normally, a motion to dismiss under Rule 12(b)(6) does not permit reference to matters outside the pleadings; an exception exists, however, for contracts, benefit plans or other documents upon which plaintiff's claim is based and as to which no dispute of authenticity or materiality exists. Thus, a district court must focus primarily on the complaint itself, including any exhibits that may be attached and made a part thereof. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F. 2d 808, 812 (3d Cir. 1990)(permitting consideration of exhibits attached to complaint on motion to dismiss); see also 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 at pg. 299 (2d ed. 1990)("In determining whether to grant a Rule 12(b)(6) motion, the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account"). A district court generally may not consider matters outside the pleadings on a motion to dismiss under Rule 12(b)(6) without converting the motion to one for summary judgment under Rule 56. See Hilfirty v. Shipman, 91 F.3d 573, 578 (3d Cir. 1996). However, a district court "may consider an undisputedly authentic document that a defendant attached to a motion to dismiss if the plaintiff's claims are based on the document." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc,, 998 F.2d 1192, 1196 (3d Cir. 1993), cert. denied, 510 U.S. 1042 (1994).

In this case, defendants have submitted a copy of the Plan in support of their motion to dismiss because Mrs. Angelastro did not attach a copy of the Plan as an exhibit to her Complaint. Under Pension Benefit, the court may consider the Plan in deciding defendants' motion even though it was not attached as an exhibit to Mrs. Angelastro's Complaint because Mrs. Angelastro's claims are based on the Plan and she has not disputed the authenticity of the copy submitted by defendants.

Having considered her Complaint and the Plan in the light most favorable to Mrs. Angelastro, the court is convinced that Mrs. Angelastro can prove no set of facts in support of her claim that would entitle her to relief. Mrs. Angelastro concedes that § 5.04 of the Plan "requires that Social Security disability benefits begin before an application for disability retirement can be approved." (Plaintiff's Mem. at pg. 3.) Mrs. Angelastro also acknowledges that at the time he requested an application for disability retirement under § 5.04 of the Plan from Plan administrators, Mr. Angelastro was "awaiting a formal Social Security determination and the award of Social Security disability benefits." (Id. at pg. 2.) Mrs. Angelastro does not allege in her Complaint that the Social Security Administration approved her husband's application and awarded him Social Security disability benefits before his death on September 11, 1990, nor does she refute defendants' claim to the contrary in her memorandum of law in opposition to defendants' motion to dismiss. It is thus undisputed that Mr. Angelastro never received an award of Social Security disability benefits.

Under these circumstances, defendants' alleged refusal to provide Mr. Angelastro with an application for disability retirement under § 5.04 of the Plan, even if assumed true for purposes of this motion, is simply not actionable. Section 5.04(a) of the Plan provides that a participant becomes "eligible to receive a Disability Retirement Pension commencing on the date of entitlement to a Social Security Disability Pension . . . ." (Lichten Aff., Ex. B at pg. 29.) Mr. Angelastro never established his entitlement to a Social Security disability pension because he passed away while his application was pending. As a result of his failure to establish his entitlement to a Social Security disability pension, Mr. Angelastro never became eligible to receive a disability retirement pension under § 5.04 of the Plan. Thus, the alleged refusal by Plan administrators to provide Mr. Angelastro with an application for disability retirement under § 5.04 is immaterial because Plan administrators could only have denied his premature application in any event.

Furthermore, any election of a 100% joint and survivor option Mr. Angelastro might have made on an application for disability retirement under § 5.04 of the Plan submitted before he had established his entitlement to a Social Security disability pension would not have been effective. Section 6.01 of the Plan provides that "[i]f, on the Participant's Benefit Commencement Date, he is legally married and has not elected in writing another form of payment, his pension will be reduced and paid as a joint and survivor pension providing that fifty percent (50%) of his reduced pension will be continued to his surviving spouse." (Lichten Aff., Ex. B at pg. 37.) Section 1.06 of the Plan defines "Benefit Commencement Date" as "the effective date of the commencement of pension benefit payments to a Participant or Spouse." (Lichten Aff., Ex. B at pg. 3.) Mr. Angelastro intended to avoid the default 50% joint and survivor provision of § 6.01 by electing, in conjunction with an application for disability retirement under § 5.04, the 100% joint and survivor option provided under § 6.02(a), which permits a Participant to elect "a reduced pension benefit payable to the Pensioner during his lifetime and, upon his death, a percentage of such reduced pension benefit payable to the Spouse." (Lichten Aff., Ex. B at pg. 38.) However, because Mr. Angelastro died before he established his eligibility to receive a disability pension under § 5.04, i.e., before the "Benefit Commencement Date" of that "reduced pension benefit payable to the Pensioner during his lifetime," he could not have made an effective election of the 100% joint and survivor option under § 6.02(a), which only permits the continuation of "a reduced pension benefit payable to the Pensioner during his lifetime" to his spouse upon his death.

Section 5.07(a) of the Plan provides that "[t]he Spouse of a Participant who dies on or after August 23, 1984, prior to age sixty- five (65) and prior to his Benefit Commencement Date shall be eligible to receive a Spouse Pre-Retirement Survivor Pension." (Lichten Aff., Ex. B at pg. 33.) This is the benefit Mrs. Angelastro has received since 1990, and it appears to be the only benefit she is eligible to receive under the Plan. Accordingly, the court finds that Mrs. Angelastro's Complaint fails to state a claim upon which relief can be granted.

CONCLUSION

For the foregoing reasons, the court denies defendants' motion to dismiss plaintiff's Complaint for lack of subject matter jurisdiction, but grants defendants' motion to dismiss plaintiff's Complaint for failure to state a claim upon which relief can be granted. The accompanying Order will be entered.

ORDER

THIS MATTER having come before the court on defendants' motion to dismiss plaintiff's Complaint for lack of subject matter jurisdiction and/or for failure to state a claim upon which relief can be granted, pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6), and the court having considered the moving papers and the opposition thereto, and for the reasons stated in the accompanying Opinion;

IT IS on this day of November, 1998, hereby ORDERED that defendants' motion to dismiss plaintiff's Complaint for lack of subject matter jurisdiction is DENIED; and

IT IS FURTHER ORDERED that defendants' motion to dismiss plaintiff's Complaint for failure to state a claim upon which relief can be granted is GRANTED; and

IT IS FURTHER ORDERED that plaintiff's Complaint is hereby DISMISSED.

JEROME B. SIMANDLE U.S. District Judge


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