UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: June 14, 1974.
JOSEPH DE LORAINE, PLAINTIFF-APPELLANT,
MEBA PENSION TRUST, REPRESENTING THE NATIONAL MARINE ENGINEERS' BENEFICIAL ASSOCIATION, AND MILDRED E. KILLOUGH, INDIVIDUALLY AND IN HER CAPACITY AS ADMINISTRATOR OF THE MEBA PENSION TRUST, DEFENDANTS-APPELLEES
Appeal from judgment of United States District Court for the Southern District of New York, Harold R. Tyler, Jr., J., which dismissed complaints purporting to assert claims under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., and section 302 of the Taft-Hartley Act, 29 U.S.C. § 186. Judgment affirmed.
Anderson, Feinberg and Mansfield, Circuit Judges.
FEINBERG, Circuit Judge:
Plaintiff Joseph de Loraine, a marine engineer, voluntarily retired from his trade in 1964 after 20 years service. He was then 46 years old. At the time, plaintiff signed a statement which described his retirement as permanent and recognized that any return to employment in the maritime industry without permission of the Trustees would entail forfeiture of his pension rights.*fn1 Plaintiff thereafter received regular pension payments from defendant MEBA Pension Trust. In 1968, during a period of increased demand for marine engineers resulting from the Viet Nam war, the Trustees granted plaintiff and others permission to return to work. In December 1970, citing the cessation of this demand, the Trustees adopted a blanket resolution withdrawing for all the 1968 grant of permission;*fn2 plaintiff, fearing the loss of his pension, retired once again. After unsuccessfully pursuing state administrative remedies,*fn3 he sought redress in the United States District Court for the Southern District of New York. The principal theory of his complaint was that the 1970 resolution violated the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., because it was motivated by his union's desire to replace older engineers with younger workers who would enrich the union's coffers by paying high training school and initiation fees.*fn4 Judge Harold R. Tyler, Jr., granted defendants' motion for summary judgment and dismissed the complaint. 355 F. Supp. 89 (1973). Plaintiff thereafter filed an amended complaint, alleging that because the 1970 resolution was improperly motivated, the pension fund was not being administered in accordance with the requirements of section 302 of the Taft-Hartley Act, 29 U.S.C. § 186. In an unpublished opinion, Judge Tyler dismissed the amended complaint for lack of subject matter jurisdiction, holding that it asserted at most a breach by the Trustees of their fiduciary responsibilities under state law.*fn5
We affirm the decisions of the district court. The Age Discrimination in Employment Act provides that it shall not be unlawful for a labor organization "to observe the terms of . . . any bona fide employee benefit plan such as a . . . pension . . . plan, which is not a subterfuge to evade the purposes of this chapter . . . ." 29 U.S.C. § 623(f) (2). MEBA Pension Trust was established in 1955, long before the passage of the Act, and pays substantial benefits to a broad class of workers. Thus, the Trust is certainly not itself a subterfuge to evade the purposes of the statute. We put to one side whether this does not end plaintiff's claim under the Act and assume arguendo that the Act applies to improper administration of a bona fide pension plan. Even on this assumption, however, plaintiff's action must fail. He was not, because of his age, forced to retire in 1964; he did so voluntarily. And he does not contend that the Trustees acted illegally in making complete withdrawal from the industry a prerequisite to a pension.*fn6 That condition was equally imposed upon all and its legitimate purpose -- to protect the pension fund from exhaustion by those who would use their benefits as unemployment insurance or to support extended sabbaticals -- is readily apparent. Nor does he deny that the "complete withdrawal" policy, suspended during a period of peak wartime demand for marine engineers, was reinstated at a time when that demand ceased. Against this background, plaintiff even on a motion for summary judgment had the burden of setting forth some facts to show that the blanket reinstatement of the original unattacked policy was discriminatory. As Judge Tyler properly held, 355 F. Supp. at 92, plaintiff failed to do so,*fn7 offering instead "mere conclusory allegations."*fn8
This reasoning also requires dismissal of the Taft-Hartley Act claim of the amended complaint, although Judge Tyler dismissed it on a different basis.*fn9 Plaintiff contends that the Trustees, in adopting the 1970 resolution, were administering the pension plan for the institutional benefit of the union, rather than "for the sole and exclusive benefit of the employees" as required by section 302(c) (5) of the Act, 29 U.S.C. § 186(c) (5). This contention, however, requires very much the same showing of improper motivation as the Age Discrimination Act claim and rests upon virtually the same inadequately substantiated allegations.*fn10 Consequently, we hold that plaintiff has failed to raise any genuine issue of material fact necesitating trial of his Taft-Hartley Act claim.