Benjamin R. Burroughs v. Board of Trustees of the Pension Trust Fund for Operating Engineers, Benjamin R. Burroughs, Plaintiff-Cross-Appellee v. Board of Trustees of the Pension Trust Fund for Operating Engineers, Defendants-Cross-Appellants

542 F.2d 1128 93 L.R.R.M. (BNA) 2550 , 79 Lab.Cas. P 11,713 , 1 Employee Benefits Ca 1258 Benjamin R. BURROUGHS, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF the PENSION TRUST FUND FOR OPERATING ENGINEERS et al., Defendants-Appellees. Benjamin R. BURROUGHS, Plaintiff-Cross-Appellee, v. BOARD OF TRUSTEES Of the PENSION TRUST FUND FOR OPERATING ENGINEERS et al., Defendants-Cross-Appellants. Nos. 75-2897, 75-3289. United States Court of Appeals, Ninth Circuit. Oct. 4, 1976. William H. Carder (argued), San Francisco, Cal., for Benjamin R. burroughs. Thomas E. Stanton, Jr. (argued), San Francisco, Cal., for defendants-appellees. Before WRIGHT and TRASK, Circuit Judges, and WATERS, * District Judge. EUGENE A. WRIGHT, Circuit Judge: 1 This case involves two appeals. One is brought by the Board of Trustees of the Pension Trust Fund for Operating Engineers (hereinafter Trustees) from a judgment of the district court holding that the Trustees acted arbitrarily and capriciously in applying retroactively a break-in-employment rule to plaintiff Burroughs so as to deny him pension benefits. Burroughs appeals from the district court's failure to award him attorneys' fees. I. FACTS 2 The Pension…