Bolton

I.

Annie Bolton’s effort to obtain benefits from the Construction Laborers’ Pension Trust for Southern California (Plan) dates back to January of 1987 when, as the widow of Plan participant Levi Bolton, she applied to the Plan for survivor benefits. The factual background of Bolton’s case is set out in Bolton v. Construction Laborers’ Pension Trust for Southern California, 954 F.2d 1437, 1438-39 (9th Cir.1991) (Bolton I). In that decisión, we concluded that for Plan participants like Levi who otherwise completed the fifteen years of credited service required for their pension rights to vest, the Plan’s “break-in-service” rule applied only to voluntary breaks in service. 1 We held that the Plan acted arbitrarily in applying the rule to Levi before determining whether or not his break was voluntary.

Our decision in Bolton I was based partly on the fact that the break-in-service rule is designed to encourage competent employees to remain in the industry by penalizing them for choosing to work in non-covered employment for an extended period. The rule’s underlying purpose is not served, we reasoned, if it is applied to employees who are forced out of the industry because of lack of…