In the

United States Court of Appeals
              For the Seventh Circuit

No. 12-1995

D ONALD J. T OMPKINS,

                       Plaintiff/Counter-Defendant-Appellant,

                               v.

C ENTRAL L ABORERS’ P ENSION F UND,

                        Defendant/Counter-Plaintiff-Appellee.



           Appeal from the United States District Court
                for the Central District of Illinois.
            No. 4:09-cv-004004—Sara Darrow, Judge.



    A RGUED O CTOBER 31, 2012—D ECIDED M ARCH 13, 2013




   Before E ASTERBROOK, Chief Judge, and W ILLIAMS and
S YKES, Circuit Judges.
  W ILLIAMS, Circuit Judge. The Central Laborers’ Pension
Fund (the “Fund”) terminated Donald J. Tompkins’s
disability benefits because he became employed
full-time and, therefore, no longer had a “total and per-
manent disability.” Tompkins, who brought this action
2                                             No. 12-1995

under the Employee Retirement Income Security Act
(“ERISA”), 29 U.S.C. §§ 1001 et seq., challenges the
Fund’s interpretation of its definition of “total and per-
manent disability.” The Fund, which acknowledges that
the relevant definition provision is ambiguous, argues
that its interpretation is entitled to deference under the
arbitrary-and-capricious standard of review. We agree.
Despite Tompkins’s arguments to the contrary, the
Fund based its decision to terminate his benefits on a
reasonable interpretation of the definition provision.
And because none of Tompkins’s remaining argu-
ments challenging that decision has merit, we affirm
the district court’s decision granting summary judg-
ment in the Fund’s favor.


                  I. BACKGROUND
  Tompkins, who began working as a laborer in Illinois
in 1978, is a participant in the Fund, a not-for-profit,
multi-employer pension fund established and admin-
istered pursuant to ERISA. In July 1999, Tompkins filed
an application for a disability pension from the Fund
based on chronic asthmatic bronchitis, which he at-
tributed to working with cement dust for twenty-two
years. At that time the Fund was administered pursuant
to the Summary Plan Description, Revised and Effective
July 1, 1995 (“Revised SPD”) and the Restated Plan
Rules and Regulations-Amended and Restated Effective
October 1, 1994 (“First Restated Plan”). The Fund did not
mail or otherwise provide the First Restated Plan to
Tompkins or any other Fund participants, but Tompkins
No. 12-1995                                              3

did receive a copy of the Revised SPD, which provided in
relevant part that “[d]isability benefits are payable for
life, assuming, of course, that you remain totally and
permanently disabled.” The Revised SPD also referred
participants to the provisions of the First Restated
Plan, which defined “total and permanent disability”
and explained when the Fund could terminate or
suspend benefits.
  Amendment 7 to the First Restated Plan, which
became effective in November 1998, included the fol-
lowing provision:
   A Total and Permanent Disability shall mean that
   the Employee is totally and permanently unable
   as a result of bodily injury or disease to engage
   in any further employment or gainful pursuit as
   a Laborer or other Building Trades Crafts employ-
   ment in the construction industry for remunera-
   tion or profit, regardless of the amount, or
   unable to engage in further employment or
   gainful pursuit of non-Laborer or other non-
   Building Trades Crafts employment for which
   the employment is considered full-time and a
   primary source of income. For such non-Laborer
   or other non-Building Trades Crafts employment,
   provided a physician, selected by the trustees,
   considers the disability to be total and permanent,
   the Participant may earn up to $14,000 per cal-
   endar year in non-Laborer or other non-Building
   Trades Crafts employment and be considered
   totally and permanently disabled for purposes
4                                               No. 12-1995

    of Section 3.10. Such disability must be considered
    total and permanent and will continue during
    the remainder of the Participant’s life. The
    trustees shall be the full and final judges of Total
    and Permanent Disability and of entitlement to
    a Disability Pension hereunder.
The Fund did not provide Amendment 7 to Tompkins
or any other plan participant.
   Tompkins’s application for a disability pension in-
cluded an acknowledgment that he agreed to be bound
by all the Fund’s rules and regulations, although he
did not inquire about those rules or make any effort to
find out what they were at the time he applied or before
filing this lawsuit. In August 1999, the Fund approved
Tompkins for “total and permanent disability” benefits
in the amount of $2,115.43 per month, retroactive to
January 1, 1999. The first time Tompkins received his
monthly benefit, he was required to sign a Retirement
Declaration that provided notice of disqualifying em-
ployment for plan participants receiving retirement
pensions but did not include the rules and regulations
specific to disability pensioners.
  Tompkins received monthly disability benefits
through May 2007. In June, the Fund sent him a letter
suspending his disability pension, claiming that his
full-time employment at Wilman Construction in 2005
and 2006 led the Fund “to believe that [he] no longer
[met] the Fund’s definition of ‘total and permanent dis-
ability.’ ” The Fund found that Tompkins began working
forty hours per week beginning in July 2005 and earned
No. 12-1995                                             5

$10,550 that year and $22,100 in 2006. The letter
informed Tompkins that he had been overpaid $48,654.89
in benefits from July 2005 through May 2007 and that
the Fund would seek to recover that amount through
its recovery process.
  The Fund based its decision to terminate Tompkins’s
disability benefits on Section 3.10’s definition of “total
and permanent disability.” Tompkins, who disputed
the Fund’s interpretation of the definition, appealed the
Fund’s decision. He made three arguments. First, he
asserted that his 2005 work did not violate Section 3.10
because the work was “non-laborer” employment that
earned him less than $14,000. He also argued that the
overpayment provisions should only apply once he
earned $14,000 for the year. And finally, he asserted
that he was not notified of the requirement to remain
“totally and permanently disabled” to continue re-
ceiving disability benefits.
  After the Fund unanimously denied his appeal in
2008, Tompkins filed a complaint in federal court. In
an amended complaint, he alleged: the Fund contro-
verted the plain meaning of the Plan by failing to apply
the $14,000 provision to his full-time employment as a
non-laborer; the Fund breached its fiduciary duty by
failing to provide him with proper notice of the rules
governing suspension of his benefits; and the Fund vio-
lated ERISA’s anti-cutback rule. The Fund filed a coun-
terclaim for fraudulent concealment, alleging that
Tompkins hid his full-time employment between 2005
and 2007. Both parties filed motions for summary judg-
6                                                No. 12-1995

ment. The district court granted the Fund’s motion on
all of Tompkins’s claims and held a two-day bench trial
on the Fund’s counterclaim. After finding that there
was no evidence that Tompkins intended to deceive the
Fund into paying him benefits, the court ruled in favor
of Tompkins on the Fund’s counterclaim. Tompkins
appeals the district court’s summary judgment decisions
on his claims that the Fund controverted the plain
meaning of Section 3.10 and breached its fiduciary duty.


                      II. ANALYSIS
  We review a district court’s summary judgment deci-
sions de novo. Edwards v. Briggs & Stratton Ret. Plan, 

, 359 (7th Cir. 2011). When we consider a
district court decision following cross-motions for sum-
mary judgment, “our review of the record requires
that we construe all inferences in favor of the party
against whom the motion under consideration is
made.” Hendricks-Robinson v. Excel Corp., 

,
692 (7th Cir. 1998).


A. The Arbitrary-and-Capricious Standard Applies
  A district court reviews the denial of ERISA benefits
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 & Rubber Co. v. Bruch, 

, 115
(1989). When the terms of a plan provide for such discre-
tion, judicial review of the administrator’s decision
No. 12-1995                                              7

is limited to an arbitrary-and-capricious standard,
under which an administrator’s decision will be upheld
“as long as (1) it is possible to offer a reasoned explana-
tion, based on the evidence, for a particular outcome,
(2) the decision is based on a reasonable explanation of
relevant plan documents, or (3) the administrator has
based its decision on a consideration of the relevant
factors that encompass the important aspects of the
problem.” Hess v. Hartford Life & Accident Ins. Co., 

 (7th Cir. 2004) (internal quotation omitted).
   The parties agree that the Plan grants the Fund’s
trustees discretionary authority to interpret and apply
its terms. Tompkins, however, relies on recent language
from the Supreme Court to argue that the arbi-
trary-and-capricious standard of review should not
apply. In Conkright v. Frommert, the Court stated that
“[u]nder trust law, a trustee may be stripped of defer-
ence when he does not exercise his discretion honestly
and fairly.” 

, 1651 (2010) (internal quota-
tion marks omitted).
  Tompkins first suggests that a heightened standard
of review is warranted under Conkright because the
Fund acted in bad faith by failing to disclose three docu-
ments to him: an internal memo sent in 1997 from one
of the Fund’s consultants to an attorney stating that
the general consensus was that the definition of “total
and permanent disability” was too restrictive; a 1997
letter sent from the same consultant to an attorney de-
scribing an amendment to the plan that would allow
a disabled person to earn up to $14,000 in non-construc-
8                                              No. 12-1995

tion work and continue to be eligible for disability
benefits; and a proposed—but not adopted—2005 draft
amendment to the plan that considered incorporating
language that Tompkins argues would have only been
necessary if his interpretation of the $14,000 provision
were accurate. Tompkins alleges that because these
documents support his view that the $14,000 provision
applied to part-time and full-time work in non-laborer
employment, the Fund acted in bad faith by not
disclosing them to him prior to or during his April 2008
appeal hearing.
   Tompkins’s bad-faith argument is meritless. After its
adverse benefit termination, the Fund was required to
provide Tompkins with copies of “documents, records,
and other information relevant to [his] claim for bene-
fits.” 29 C.F.R. § 2560.503-1(j)(3). And information is
“relevant” if it: “(i) [w]as relied upon in making the
benefit determination; (ii) [w]as submitted, considered,
or generated in the course of making the benefit deter-
mination . . .; (iii) [d]emonstrates compliance with the
administrative processes and safeguards required . . . in
making the benefit determination; or (iv) [i]n the case
of a group health plan or a plan providing disability
benefits, constitutes a statement of policy or guidance
with respect to the plan concerning the denied treatment
option or benefit . . . .” Id. § 2560.503.1(m)(8). Tompkins
does not argue that any of the documents he identifies
were relevant under any of these bases of relevance.
Rather, he asserts that they were available to the
trustees at the time they denied his benefits, and, col-
lectively, they show that the Fund acted in bad faith. But
No. 12-1995                                                   9

we will not characterize the Fund as acting in bad
faith because it did not disclose documents it had no
obligation to disclose.
  Tompkins next attempts to convince us that the Fund
is not entitled to the arbitrary-and-capricious standard
of review because a conflict of interest influenced its
decision to terminate his disability benefits. “[A] benefits
determination by a plan administrator is a fiduciary act,
one in which the administrator owes a special duty
of loyalty to the plan beneficiaries.” Raybourne v. Cigna
Life Ins. Co. of N.Y., 

, 1081-82 (7th Cir. 2012).
And “if a plan gives discretionary authority to an ad-
ministrator or fiduciary who is operating under a
conflict of interest, that conflict must be weighed . . . .” Id.
at 1082. We held that a conflicts analysis was not
necessary when the plan at issue was a multi-employer
welfare plan whose trustees consisted of an equal
number of union and employer representatives, whose
union representatives had “no discernible incentive to
rule against an applicant,” and whose trustees were
unanimous in their ruling. Manny v. Cent. States, Se. and
Sw. Areas Pension & Health & Welfare Funds, 

,
243 (7th Cir. 2004). Tompkins argues that a conflicts
analysis is required here because the trustees, who
ruled unanimously and who are split evenly among
union and employer representatives, had an incentive
to rule against him, as evidenced by the fact that they
evaluated his claims at the same time they were
concerned about the cost of the retirement plan.
Tompkins’s evidence of a conflict of interest is minimal
at best—a 2004 presentation emailed by the Fund’s con-
10                                              No. 12-1995

sultant to its executive director that included a recom-
mendation that the Fund “ensure all disability pensioners
are disabled” and a 2010 letter to participants and bene-
ficiaries giving notice that the decline in financial
markets put the fund in “endangered status” for the
2009 plan year.
  We have previously held that “the arbitrary-
and-capricious standard may be a range, not a point” and
that “[t]here may be in effect a sliding scale of judicial
review of trustees’ decisions—more penetrating the
greater is the suspicion of partiality, less penetrating the
smaller that suspicion is.” Van Boxel v. Journal Co. Emps.
Pension Trust, 

, 1052-53 (7th Cir. 1987). The
suspicion of partiality raised by Tompkins’s claim is
negligible, in part because his evidence either predated
the termination decision by four years or did not exist
until nearly two years after it. Furthermore, there is
no reason to suspect from that evidence—or any other
evidence presented by Tompkins—that the Fund was
motivated to improperly administer disability pensions
around the time it made the decision to terminate
his benefits. Tompkins’s arguments are simply not suf-
ficient to change the applicable standard of review. The
range of the arbitrary-and-capricious standard leaves
us more than enough room to take Tompkins’s concerns
into account while still granting the Fund’s trustees
the appropriate amount of deference.
  On appeal, Tompkins argues that the district court
should have addressed the conflict-of-interest issue
before responding to his claims that the Fund was acting
No. 12-1995                                              11

in bad faith. This argument fails for several reasons.
First, Tompkins did not argue for a particular sequence
of review to the district court, and at summary judg-
ment, he presented his bad-faith argument before his
conflict-of-interest one. Additionally, he provides no
authority for his argument that the district court
should have considered the alleged conflict of interest
first. Instead, he merely cites language stating that “a
majority of the Supreme Court Justices consider the
potential conflict of interest of a plan administrator (or
its staff) serious enough to be given weight in judicial
review of the denial of benefits.” Marrs v. Motorola, Inc.,

, 788 (7th Cir. 2009). But Marrs does
nothing to advance Tompkins’s cause, since it does
not address the order in which a district court must
consider arguments relevant to the selection of a
standard of review. And ultimately, the order makes
no difference. Tompkins’s evidence of bad faith and
conflict of interest is insufficient to raise suspicions
about the trustees’ actions that warrant raising the ap-
plicable standard of review, regardless of which chal-
lenge we consider first.


B. The Fund Did Not Act in an Arbitrary or Capricious
   Manner
  The parties dispute the relevance of the phrase “[f]or
such” in this excerpt from Section 3.10 (emphasis added):
   A Total and Permanent Disability shall mean that
   the Employee is totally and permanently. . . unable
   to engage in further employment or gainful
12                                                No. 12-1995

     pursuit of non-Laborer . . . employment for which
     the employment is considered full-time and a
     primary source of income. For such non-Laborer . . .
     employment, . . . the Participant may earn up to
     $14,000 per calendar year in non-Laborer . . .
     employment and be considered totally and per-
     manently disabled . . . .
Under Tompkins’s reading of this provision, the “for
such” prefatory phrase, which allows pensioners to
earn up to $14,000 through non-laborer employment,
refers to all the language that precedes it (i.e., “non-Laborer
employment for which the employment is considered
full-time and a primary source of income”), such that
a person employed full-time can remain “totally and
permanently disabled” if he earns less than $14,000. In
contrast, the Fund interprets the “for such” language as
a general reference to the type of work allowed in
the $14,000 provision such that a participant can earn
up to $14,000 through non-laborer employment and
remain “totally and permanently disabled,” but he
cannot do so if he is employed as a laborer. According
to the Fund, the $14,000 provision does not address
the length of time the pensioner works; instead, it
argues that the first sentence of Section 3.10 ac-
complishes this by prohibiting a “totally and perma-
nently disabled” participant from engaging in full-time
non-laborer employment. According to the Fund, it
intended the $14,000 provision to allow permanently
disabled participants to maintain part-time employ-
ment without losing their disability pensions.
No. 12-1995                                               13

   Tompkins asks us to find the meaning of the $14,000
provision so plain that the Fund acted arbitrarily and
capriciously when it relied on it to terminate his bene-
fits. See Hess v. Hartford Life & Accident Ins. Co., 

, 461 (7th Cir. 2001) (“In some cases, the plain lan-
guage or structure of the plan or simple common
sense will require the court to pronounce an administra-
tor’s determination arbitrary and capricious.”). The
Fund responds that the language in the $14,000 provi-
sion is ambiguous. We agree. There are certainly more
efficient ways to communicate the Fund’s definition
of “total and permanent disability.” And the “for such”
preface seems unnecessarily confusing. In addition,
Tompkins’s need to resort to extrinsic evidence, such
as the 1997 memo and letter and the 2005 draft amend-
ment, also suggests that the provision is, in fact, ambigu-
ous. See Swaback v. Am. Info. Techs. Corp., 

, 541 (7th Cir. 1996) (with ERISA plans, “[e]xtrinsic
evidence should not be used where the contract is unam-
biguous” (quoting GCIU Emp’r Ret. Fund v. Chi. Tribune
Co., 

, 865 (7th Cir. 1995)). Because of that
ambiguity, the Fund’s interpretation of the $14,000 pro-
vision is entitled to deference. That interpretation rests
on a reasoned understanding of “total and permanent
disability”: once a participant is engaged in full-time
employment, regardless of how much he makes, he is
no longer totally and permanently disabled. Given the
required level of deference to the Fund’s interpreta-
tion of its own plan, we cannot say the Fund acted arbi-
trarily or capriciously when it denied Tompkins bene-
fits for the time he was employed full-time.
14                                           No. 12-1995

C. The Fund Did Not Breach Its Fiduciary Duty
  Breaches of fiduciary duty occur when fiduciaries
“mislead plan participants or misrepresent the terms
or administration of a plan.” Anweiler v. Am. Elec. Power
Serv. Corp., 

, 991 (7th Cir. 1993). However,
“while there is a duty to provide accurate information
under ERISA, negligence in fulfilling that duty is not
actionable.” Vallone v. CNA Fin. Corp., 

, 642
(7th Cir. 2004). Rather, there must have been an intent
to “disadvantage or deceive” plan participants. Vallone,
375 F.3d at 642.
  ERISA requires trustees to discharge their duties “in
accordance with the documents and instruments gov-
erning the plan . . . .” (the “plan document rule”). 29
U.S.C. § 1104(a)(1)(D). Tompkins argues that the Fund
breached this duty by not providing him with the Plan
Rules Governing Suspension, a document he argues set
limits on his subsequent employment. Although the
Plan acknowledges its failure to provide Tompkins with
this document, Tompkins’s argument nonetheless fails
because the Plan Rules Governing Suspension does not
apply to disability benefits; rather, it details the sus-
pension of regular pension benefits, as evidenced by its
prohibition on pensioners receiving “any type of com-
pensation” and the ability of pensioners to begin
receiving benefits again after terminating disqualifying
employment. It would not be logical for these provisions
to apply to someone who is totally and permanently dis-
abled. And given the deference that courts must give
funds interpreting their own plan documents, it was not
No. 12-1995                                             15

arbitrary or capricious for the Fund to fail to give
Tompkins a document that it believed did not apply to
him.
  Tompkins also argues that the Fund breached its fidu-
ciary duties of care, skill, prudence, and diligence by
providing him with incorrect or insufficient notice of
the terms of his disability benefits, pointing specifically
to the Retirement Declaration that was not tailored to
disability beneficiaries. Assuming that the Fund pro-
vided inaccurate information to Tompkins by giving
him the Retirement Declaration rather than one tailored
to disability pensioners, there is no evidence of intent
to deceive or disadvantage him. First, it was the
Fund’s standard practice to provide that declaration
to disability pensioners. And more importantly, the re-
quirement that disability pensioners like Tompkins
remain “totally and permanently disabled” was set out
elsewhere, including in the Revised SPD, which
Tompkins received.
   Finally, Tompkins suggests that the Fund breached
its duty by not suspending his benefits in January 2004,
when it discovered that he had earned $7,144.00 in
2001 and $4,037.50 in 2002. This argument is meritless.
When the Fund asked Tompkins to explain the nature
of his 2001 and 2002 work, he responded that he worked
eight to ten hours a week repairing nail guns and per-
forming light office duties. This work was neither
full-time nor connected to more than $14,000 in com-
pensation, so it would not have triggered the termina-
tion of benefits under either interpretation of the
16                                          No. 12-1995

$14,000 provision. Thus, the Fund’s failure to terminate
his benefits was not a breach of its fiduciary duty.


                  III. CONCLUSION
 For the reasons set forth above, we A FFIRM the judg-
ment of the district court.




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