for a pension under regulations of the Fund then in force.
Thus, plaintiff's sole claim appears to be that the 20/30 requirement in force from 1953 to 1972 was the result of arbitrary and capricious conduct on the part of the Trustees. Plaintiff alleges that this arbitrary and capricious conduct unlawfully deprived him of rights in the pension fund. However, the regulation which the plaintiff attacks has been examined a number of times and its validity sustained. The Court of Appeals for this Circuit has specifically acknowledged the authority of the Trustees to revise pension eligibility requirements and noted that flexibility of this kind seems especially necessary for the operation of the Fund. Gaydosh v. Lewis, 133 U.S. App. D.C. 274, 410 F.2d 262, 265 (D.C. Cir. 1969); Kosty v. Lewis, 115 U.S. App. D.C. 343, 319 F.2d 744, 748-749 (D.C. Cir. 1963). Moreover, the court in Lavella v. Boyle, 144 U.S. App. D.C. 35, 444 F.2d 910 (D.C. Cir. 1971) examined the 20/30 requirement and specifically stated that while it viewed the application of the rule in that case as unreasonable, it found no fault with the eligibility requirement itself. In that case the plaintiff, Lavella, like Agosti, met all the requirements except age when he retired due to lung disease. Prior to Lavella's attaining age 60 and thus becoming fully entitled to a pension, the 20/30 requirement was instituted by the Trustees. The court in Lavella held that a miner who completed 20 years service prior to the promulgation of the 20/30 requirement, and who retired due to a permanent occupationally-related disability had sufficiently vested rights which could not be cut off by a subsequent change in requirements. Therefore, the Trustees' actions were held arbitrary and capricious only in the specific application of the regulation to Lavella. The plaintiff here, however, does not meet the standard laid down in Lavella since he claims no permanent disability and admits in his reply of May 6, 1974, that the matter of permanent disability is not at issue.
The present case appears instead to be controlled by Assalone v. Carey, 154 U.S. App. D.C. 69, 473 F.2d 199 (D.C. Cir. 1972) and Gaydosh v. Lewis, 133 U.S. App. D.C. 274, 410 F.2d 262 (D.C. Cir. 1969). In both of those cases the miners met all the requirements then in effect except age when they retired from the coal industry. Before either plaintiff attained the requisite age of 60, the eligibility requirements were changed and neither was able to qualify for a pension upon application.
The court refused recovery since, unlike the claimant in Kosty v. Lewis, 115 U.S. App. D.C. 343, 319 F.2d 744 (D.C. Cir. 1963), neither met all of the requirements of Resolution 10, including age, at the time the Resolution was changed. See Assalone, supra, at 204; Gaydosh, supra, at 266. Moreover, it should be noted that neither suffered from a permanent occupational disability that prevented him from meeting the existing qualifications as was the case in Lavella.
The court in Gaydosh held that since the claimant's rights had not fully matured in all respects prior to the alteration of the eligibility requirements, the conduct of the Trustees in changing the requirements was not arbitrary or capricious as to Gaydosh. The court stated:
"Equity will estop the trustees from procedural gerrymandering in an effort to preclude applicants whose rights have fully matured under existing criteria by abruptly switching eligibility signposts without notice. On the other hand, equity will not interfere with reasonable applications of the trustees' discretion under the Trust Indenture. The function of the trustees, on the very face of the indenture, is to preserve the vitality of the fund and to effectively apply its worth to the benefit of as many intended employees as is economically possible. We will not, in the absences of vagarious conduct, disrupt this function, and we can discern no impropriety in that regard with respect to the situation before us." Gaydosh, supra, at 266.