THORPE v. INDIANA ELECTRICAL WORKERS PENSION TRUST FUND, I.B.E.W.

Filing 49

OPINION AND ORDER-ORDER granting 33 Plaintiff's Motion for Summary Judgment and denying 36 Fund's Cross-Motion for Summary Judgment. The court ORDERS defendant to pay Mr. Thorpe all benefits that it withheld since August 1, 2018 and ORDERS defendant to reinstate Mr. Thorpe's monthly payments of $1,872.23 per month. Signed by Judge Robert L. Miller, Jr on 9/8/2021. (CBU)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DAVID L. THORPE,
Plaintiff
v.
INDIANA ELECTRICAL WORKERS
PENSION TRUST FUND, I.B.E.W.,
Defendant

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Cause No. 1:19-CV-2988 RLM-MPB

OPINION AND ORDER
This dispute arises out of a disagreement regarding the payment of
retirement benefits from a multi-employer pension plan governed by ERISA.
David L. Thorpe brings a claim for pension benefits and rights under the
Employee Retirement Income Security Act of 1974 against the Indiana Electrical
Workers Pension Trust Fund, I.B.E.W. The parties’ cross motions for summary
judgment are before the court. For the reasons set forth below, the court GRANTS
the plaintiff’s motion for summary judgment and DENIES the defendant’s motion
for summary judgment.

I. BACKGROUND
These are the undisputed facts. Mr. Thorpe has been a participant in the
defendant pension fund since 1978. Mr. Thorpe and his wife, Kathleen Thorpe,
divorced in 2006. During their divorce proceedings, a court entered a qualified

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domestic relations order (QDRO) that divided Mr. Thorpe’s pension benefits
between him and Ms. Thorpe. The order said that it was assigning “a portion of
Participant’s benefits under the IBEW Pension Trust Fund (the Plan) to Alternate
Payee in recognition of the existence of Alternate Payee’s marital rights in
Participants’ vested defined benefit pension plan.” Mr. Thorpe is the plan
participant, and Ms. Thorpe is the alternate payee. The order went on to say:
If Participant and Alternate Payee survive until Participant’s Earliest
Retirement Age, Alternate Payee is assigned an amount equal to the
actuarial equivalent of sixty percent (60%) of Participant’s monthly
accrued benefit determined as of November 30, 2004. Benefits
accruing to the Participant as compensation for services rendered
after November 30, 2004 are not subject to this order. Alternate
Payee shall have the right to elect to receive benefit payments under
the Plan on or after the date on which Participant attains the Earliest
Retirement age (but not taking into account the present value of any
employer subsidy for early retirement). Alternate Payee shall have
the right to elect any form of benefits permitted by the Plan as of the
date Alternate Payee elects to begin receiving benefits as if such
Alternate Payee were a participant in the Plan; provided, however,
Alternate Payee is prohibited from selecting a qualified joint and
survivor annuity with respect to any subsequent spouse of Alternate
Payee.
The order said that all benefits payable under the plan were payable to Mr.
Thorpe except those payable to Ms. Thorpe, and that Mr. Thorpe had sole
discretion to determine how to receive those benefits, subject only to the plan’s
requirements. It also said:
In the event Participant elects to retire under the Plan prior to
normal retirement age and by reason of such early retirement the
Plan provides an early retirement subsidy, then Alternate Payee’s
benefit shall be recomputed to provide Alternate Payee with
proportionate part of such subsidy on the percentage of the accrued

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benefit to Alternate Payee hereunder and the Participant’s total
accrued benefit at the time of retirement.
A copy of the order was mailed to the plan administrator for the fund’s board of
trustees.
Mr. and Ms. Thorpe survived past Mr. Thorpe’s early retirement age. Mr.
Thorpe elected to retire in May 2008. He was 55 years old and had over 30 years
of service, so he was eligible for early retirement and an early retirement subsidy.
The fund’s administrative manager provided Mr. Thorpe with a benefit
calculation. Mr. Thorpe could receive a single life annuity of $3,939.98 per
month, or a single life annuity with a 10-year certain option of $3,847.00 per
month. Mr. Thorpe selected the 10-year certain option. Both parties agree that
the fund’s records acknowledged the existence of Mr. Thorpe’s qualified domestic
relations order.
The parties also agree that Mr. Thorpe later sought confirmation that his
benefit calculation was correct. Mr. Thorpe alleges that he called the fund office
to ask specifically whether the benefit calculation it had provided him took the
domestic relations order into account. The fund asked its actuarial service to
calculate Mr. Thorpe’s benefits pursuant to the order. The actuarial service sent
a calculation to Carolyn Lyons at the fund’s administrative office that said Ms.
Thorpe was entitled to either $1,988.59 per month or $1,941.86 per month,
depending on whether she selected a 5- or 10-year certain annuity. The service
said that Mr. Thorpe’s benefit should be reduced accordingly, and that he was

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entitled to $1,872.23 per month under the 10-year certain option. Ms. Lyons
then consulted with the fund’s counsel at the time, Frederick Dennerline. She
wrote a note in Mr. Thorpe’s file on July 24, 2008 that said, “Per Rick Dennerline.
He read through the QDRO and it does NOT say that we have to segregate the
money for the QDRO payable to Kathleen. Until she applies for the Benefit, he
get[s] 100% of his benefit.” The plan paid Mr. Thorpe $3,847 per month for ten
years.
Ms. Thorpe applied for a benefit from the plan in April 2018. The fund’s
administrative staff contacted plan counsel, who in turn contacted the fund’s
actuarial service. The actuarial service prepared a report that said Ms. Thorpe
was eligible for either $2,199.29 or $2,058.10 per month, depending on whether
she selected a 5- or 10-year certain annuity. The actuary noted that this
calculation didn’t include a portion of Mr. Thorpe’s early retirement benefit, and
that if Ms. Thorpe had elected to receive benefits in 2008 when Mr. Thorpe
elected to receive them, she would’ve been entitled to either $1,988.59 per month
or $1,941.86 per month. The actuary also said that based on its calculations,
Mr. Thorpe’s accrued benefit should have been reduced to $1,872.23 per month,
beginning May 1, 2008, with a 10-year certain option. It determined that Mr.
Thorpe had been overpaid $236,972.40 without interest over the course of 120
months.
The fund sent Mr. Thorpe a draft letter through its counsel in April 2018
and a final letter in June 2018, both of which said Mr. Thorpe had been overpaid
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since May 1, 2008. The letter said that Mr. Thorpe should have been receiving
$1,872.23 per month, and that under the authority of Section 11.07 of the
pension plan, the fund would offset the overpayment by withholding half of Mr.
Thorpe’s recalculated monthly pension payment per month. Mr. Thorpe would
receive $936.12 per month. The fund says that the trustees relied on Section
11.07 of the 2014 Plan Document to make their determination.
Mr. Thorpe appealed the fund’s determination and recoupment plan with
the assistance of counsel in October 2018. The fund denied his appeal, and this
suit followed.

II. STANDARD OF REVIEW
Summary judgment is appropriate when “the pleadings, depositions,
answers to the interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
A genuine issue of material fact exists whenever “there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In deciding
whether a genuine issue of material fact exists, we accept the non-movant’s
evidence as true and draw all inferences in his favor. Id. at 255. The existence of
an alleged factual dispute, by itself, won’t defeat a summary judgment motion;
“instead, the nonmovant must present definite, competent evidence in
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rebuttal,” Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012),
and “must affirmatively demonstrate, by specific factual allegations, that there
is a genuine issue of material fact that requires trial.” Hemsworth v.
Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir. 2007); see also Fed. R. Civ.
P. 56(e)(2).

III. ANALYSIS
A. Arbitrary and Capricious Review Under ERISA
Mr. Thorpe claims that the fund’s administrator improperly decided to
withhold money from his pension to recoup ten years of payments. He asks the
court to award him all past-due benefits – the money the fund has withheld since
2018 to recoup the alleged overpayment – and to order the fund to reinstate his
monthly benefit to the amount the fund recalculated once Ms. Thorpe elected to
receive her benefits. Both parties argue that they are entitled to summary
judgment on Mr. Thorpe’s claim.
Mr. Thorpe argues that the fund’s decision was arbitrary and capricious
as a matter of law because (1) the fund couldn’t use Section 11.07 of the 2014
Plan Document to recoup its overpayment because that document didn’t apply
to him; (2) no overpayment occurred because the Application Committee
reasonably interpreted the Plan in 2008; (3) the fund invokes an equitable
remedy to recoup the alleged overpayment, but equities don’t weigh in favor of

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recoupment; and (4) laches and estoppel bar the fund from relief. He concludes
that he is entitled to judgment in his favor.
The fund argues that Mr. Thorpe was overpaid because he received
benefits to which he wasn’t entitled – the portion of his pension benefits that
were assigned to Ms. Thorpe under the QDRO. It argues that it had the duty and
the right to recoup the overpayments Mr. Thorpe received, and that its
recoupment decision was in accordance with the law and the plan documents.
The pension plan at issue is governed by the Employee Retirement Income
Security Act and affords the administrator discretionary authority to interpret
and apply the terms of the plan. Accordingly, the parties agree that the arbitrary
and capricious standard of review applies to this dispute. Geiger v. Aetna Life
Ins. Co., 845 F.3d 357, 362 (7th Cir. 2017). “A plan administrator’s decision may
not be deemed arbitrary and capricious so long as it is possible to offer a
reasoned explanation, based on the evidence, for that decision.” Id. (internal
quotations omitted). Under this standard, the court only overturns a plan
administrator’s decision if it’s downright unreasonable. Herman v. Cent. States,
Se. & Sw. Areas Pension Fund, 423 F.3d 684, 692 (7th Cir. 2005). Although this
standard allows deference to plan administrators, a plan administrator’s
decision is arbitrary and capricious if the decision “controvert[s] the plain
meaning of a plan.” Swaback v. Am. Info. Techs. Corp., 103 F.3d 535, 540 (7th
Cir. 1996). The administrator must articulate an explanation that is satisfactory
in light of the relevant facts; that is, an explanation that gives specific reasons
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for the denial. Id. at 692-693. “The administrator of a pension fund does not act
arbitrarily and capriciously when he changes a previous decision because the
facts known to the plan have changed; ‘[p]ut simply, a reversal based on new
information is not a non-uniform interpretation.’” Id. at 693 (quoting Militello v.
Cent. States, Se. & Sw. Areas Pension Fund, 360 F.3d 681, 690 (7th Cir.)).

B. The Fund’s Decision to Recoup Funds by Offsetting Mr. Thorpe’s Payments
The fund first argues that Mr. Thorpe was overpaid. The court doesn’t need
to reach the issue of whether Mr. Thorpe was overpaid or by how much, because
even if he received a greater share of his pension benefits than he was entitled
to under the terms of the QDRO, the fund hasn’t raised any authority that shows
it has the power to recoup that overpayment. Because the plan documents that
were relevant to Mr. Thorpe didn’t empower the fund to recoup payments to Mr.
Thorpe, its decision to recoup funds from Mr. Thorpe was arbitrary and
capricious. Mr. Thorpe is entitled to summary judgment.
In administering a pension plan, the administrator must act “in
accordance with the documents and instruments governing the plan.” 29 U.S.C.
§ 1104(a)(1)(D). The pension plan must also provide for benefits in accordance
with a QDRO, meaning that a QDRO essentially becomes part of the plan
documents. See 29 U.S.C. § 1056(d)(3)(A) (“Each pension plan shall provide for
the payment of benefits in accordance with the applicable requirements of any
qualified domestic relations order.”); Kennedy v. Plan Adm’r for DuPont Sav. &
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Inv. Plan, 555 U.S. 285, 301-302 (2009). The Thorpes’ QDRO explains that Mr.
Thorpe is responsible for paying Ms. Thorpe any benefits that he receives under
the plan that belong to her:
All payments due to Alternate Payee shall be made directly to
Alternate Payee by the Plan. However, Participant is designated a
constructive trustee for any benefits under the Plan due to Alternate
Payee and inadvertently or mistakenly paid to Participant.
Participant is ordered to pay the benefit defined above directly to
Alternate Payee within three days after receipt by Participant.
The clear terms of the plan documents, including the QDRO, don’t allow
the plan to recoup an alleged overpayment, and an administrator cannot ignore
the plain meaning of plan documents. Swaback v. Am. Info. Techs. Corp., 103
F.3d 535, 540 (7th Cir. 1996). The plan argues that an ERISA plan should, like
any contract, be interpreted based on its explicit terms and “the implicit ones
needed to make the explicit terms effective.” But the fund doesn’t address the
explicit terms in the QDRO that make Mr. Thorpe a trustee of any funds
mistakenly paid to him instead of to Ms. Thorpe.
Next, the fund argues that it could recoup an overpayment from Mr.
Thorpe under the terms of the 2014 Plan Document the fund was using. This
argument ignores the terms of the QDRO designating Mr. Thorpe as a trustee.
And even if the QDRO didn’t have the constructive trust provision, the fund’s
argument fails because the 2014 Plan Document doesn’t apply to Mr. Thorpe.
The 2014 Plan Document contains more general recoupment language in Section

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11.07, but the 2014 Plan Document’s own terms make clear that it does not
apply to Mr. Thorpe.
The fund argues as an initial matter that Mr. Thorpe didn’t raise his
argument about the applicability of the 2014 Plan Document during the
administrative proceedings, so his argument is waived on review. It contends
that Mr. Thorpe was required to exhaust not only his claims during
administrative proceedings, but also all issues relating to his claims.
Courts favor exhaustion of plan remedies because the plan’s review
process may resolve disputes, clarify facts, and encourage the private resolution
of internal employment disputes. Stark v. PPM Am., Inc., 354 F.3d 666, 671 (7th
Cir. 2004) (internal citations omitted). The fund cites the circuit court’s decision
in Senese v. Chicago Area I.B. of T. Pension Fund for the proposition that an
argument in an ERISA case that isn’t presented in the pleadings or for
administrative review is waived. 237 F.3d 819, 823 (7th Cir. 2001). The circuit
court explicitly “decline[d] to explore the merits” of issue exhaustion in that case
and instead found that the district court properly rejected the plaintiff’s
argument on other grounds. 1 Id. The fund also cites Dougherty v. Indiana Bell
Telephone Co. for the proposition that the Seventh Circuit requires issue
exhaustion. 440 F.3d 910, 919 (7th Cir. 2006). In that case, the circuit court
held that the plaintiff hadn’t exhausted her administrative remedies under an

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Counsel’s mischaracterization of the circuit court’s holding troubles the court.

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ERISA-governed plan because the claims she raised in the administrative
process were sickness benefit claims, and the claims she raised on review in
federal court were job accident benefit claims. Id. Neither case establishes ERISA
issue exhaustion in this circuit.
Every circuit court that has considered extending issue exhaustion to
ERISA cases has declined to do so. Wolf v. Nat’l Shopmen Pension Fund, 728
F.2d 182, 186 (3d Cir. 1984) (“Section 502(a) of ERISA does not require either
issue or theory exhaustion; it requires only claim exhaustion.”) (emphasis in
original); Wallace v. Oakwood Healthcare, Inc., 954 F.3d 879, 892, n.7 (6th Cir.
2020) (“[This Court has held that a claimant is not required to exhaust her issues
because of the non-adversarial nature of ERISA proceedings.”) (internal
quotation omitted); Vaught v. Scottsdale Healthcare Corp. Health Plan, 546 F.3d
620, 632 (9th Cir. 2008) (declining to find an issue exhaustion requirement
“[b]ecause ERISA and its implementing regulations create an inquisitorial, rather
than adversarial process, and because the [explanation of benefits] does not
notify a claimant that issue exhaustion is required[.]”) (citing Sims v. Apfel, 530
U.S. 103, 107 (2000)); Forrester v. Metro. Life Ins. Co., 232 F. App’x 758, 761
(10th Cir. 2007) (holding that the circuit requires claim exhaustion in ERISA
cases, “[b]ut we have not extended this rule to bar subsidiary arguments urged
on judicial review in support of a claim itself fully exhausted in the administrative
process (i.e., issue exhaustion).”). Our court of appeals hasn’t extended the rule

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for claim exhaustion to issue exhaustion, and neither will this court. Mr. Thorpe
can raise the issue of whether the 2014 Plan Document applied to him.
The fund argues that even if issue exhaustion isn’t required, the 2014 Plan
Document controlled Mr. Thorpe’s claim because Mr. Thorpe “implicitly
conceded” during his administrative review that the 2016 Plan Document
controlled. As the court already stated, Mr. Thorpe wasn’t required to exhaust
all issues in his administrative review, so his decision to raise the argument at
this stage rather than during administrative review doesn’t imply a concession.
The fund further says that a plan can be amended before benefits vest, and Mr.
Thorpe didn’t have a right to Ms. Thorpe’s benefits under the QDRO, so the
benefits at issue hadn’t vested and the 2008 Plan Document couldn’t have
applied to them. The fund doesn’t cite any controlling authority that says one
part of a benefit under an ERISA-governed plan can vest while part remains
unvested, so this argument doesn’t create a genuine dispute of fact. Mr. Thorpe
retired in 2008, and based on the undisputed facts, that is the year his benefits
vested.
Next, the fund argues that the preamble to the 2014 Plan Document
doesn’t prevent the plan from applying new provisions to Mr. Thorpe. The
preamble says, in relevant part:
The Pension Plan was subsequently amended, and effective on July
1, 1976, July 1, 1984, July 1, 1989, July 1, 2000 and July 1, 2009.
Effective July 1, 2014, the Trustees adopt this amended and
restated Plan as set forth herein. Except as specifically provided
herein, the provisions of this amended and restated Plan shall apply
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only to those Participants who work (1) or more Hours of Service on
or after July 1, 2014.
[Doc. No. 34, p. 6]. It is undisputed that Mr. Thorpe didn’t work one or more
hours on or after July 1, 2014. The fund doesn’t point to anything in Section
11.07, Article XI, or anywhere else in the 2014 Plan Document that provides that
Section 11.07 applies to plan participants who didn’t work on or after July 1,
2014. The fund explains how, under a plain reading of the preamble, it’s clear
that the “administrative” aspects of the 2014 Plan Document, including those
related to recoupment, apply to Mr. Thorpe. But a plain reading of the 2014 Plan
Document dictates that Section 11.07 doesn’t apply to Mr. Thorpe and no
reasonable juror could conclude otherwise. Cheney v. Standard Ins. Co., 831
F.3d 445, 450 (7th Cir. 2016) (“Finally, we apply federal common law to interpret
the policy terms and draw on general principles of contract interpretation, at
least to the extent that those principles are consistent with ERISA.”) (internal
quotations omitted); Schultz v. Aviall, Inc. Long Term Disability Plan, 670 F.3d
834, 838 (7th Cir. 2012) (“Plan language is given its plain and ordinary meaning,
and the plan must be read as a whole, considering separate provisions in light
of one another and in the context of the entire agreement.”). Because the 2014
Plan Document doesn’t apply to Mr. Thorpe, the fund can’t rely on 2014
provisions; to do so would be arbitrary and capricious.
Third, the fund argues that even if the 2000 Plan Document controlled,
recoupment was reasonable. It cites the Internal Revenue Code’s requirement

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that pension benefits be distributed in accordance with the pension plan. The
fund concludes that when the IRS’s procedures and the preamble to the 2000
Plan Document are read together, “[I]t is clear that the Plan’s intent and purpose
is to only pay those benefits which are provided for in Plan documents.” The
fund’s intention not to overpay plan participants doesn’t establish that its
decision to recoup an alleged overpayment from Mr. Thorpe was reasonable as a
matter of law, particularly when the cited authority is read in combination with
the constructive trust provision of the QDRO, as well as other provisions that
contemplated recoupment, discussed later.
Relatedly, the fund argues that recoupment was reasonable because
ERISA authorizes any plan to engage in self-help recoupment. See Northcutt v.
Gen. Motors Hourly-Rate Emps. Pension Plan, 467 F.3d 1031 (7th Cir. 2006).
The holding of Northcutt was not so broad. In Northcutt, the court held that
ERISA doesn’t categorically preclude contractual agreements to offset future
benefits. Id. Recoupment was allowed because the plan included provisions that
expressly allowed for recoupment and those provisions did not conflict with the
structure and purpose of ERISA’s judicial remedies. Id. at 1034-1038
(interpreting ERISA § 502(a), 29 U.S.C. § 1132(a)). Under Northcutt, a plan may
enforce its recoupment provisions if it has any, but the plan doesn’t have a freestanding right to recoupment, as the fund suggests.
Fourth, the fund argues that the plan administrators have discretion
under the 2000 Plan Document to recoup the alleged overpayment. It cites
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Section 11.07 of the 2000 Plan Document, which says in part: “The Trustees
may recover any payments made to a Participant, Beneficiary or other payee
under circumstances where it is determined that such Participant, Beneficiary
or payee has committed fraud in obtaining benefits from the Fund.” [Doc. No.
34, p. 347]. The fund argues that “that section does not limit [the authority to
recover payments] to only those instances where fraud occurred.” No reasonable
juror could conclude that under a plain reading of Section 11.07 of the 2000
Plan Document, the fund can recover for any other reason than fraud.
Furthermore, ERISA plans are to be read so that “[a]ll language of a plan should
be given effect without rendering any terms superfluous.” Schultz v. Aviall, Inc.
Long Term Disability Plan, 670 F.3d 834, 838 (7th Cir. 2012). To read a general
power to recoup into the plan would render Section 11.07 superfluous.
Fifth, the fund argues that it has “a duty to attempt to recover the
overpayment and return that amount to the trust fund.” The only controlling
authority the fund cites is the Supreme Court’s explanation that “ERISA clearly
assumes that trustees will act to ensure that a plan receives all funds to which
it is entitled, so that those funds can be used on behalf of participants and
beneficiaries[.]” Cent. States, Se. & Sw. Areas Pension Fund v. Cent. Transp.,
Inc., 472 U.S. 559, 571-572 (1985). The Court wasn’t discussing a plan trustee’s
ability or authority to recoup overpaid funds in Central States v. Central
Transport. Further, nothing in that case persuades the court that the fund’s duty
to act in the interest of its participants implies authority to recoup payments,
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especially in instances where a QDRO provision creates a constructive trust. The
fund also cites a nonbinding case for the proposition that “specific recoupment
language” in the plan document isn’t necessary. See Pilger v. Sweeney, 725 F.3d
922, 926 (8th Cir. 2013) (finding that specific recoupment language isn’t
necessary when a plan document contains “broad language” granting a pension
plan “discretion to take remedial action.”). The fund doesn’t cite any language
giving it discretion to take remedial action.
Finally, the fund argues that Mr. Thorpe can’t show that he has a “right”
to a continuing benefit without offset since he was never entitled to receive
benefits assigned to Ms. Thorpe. Even if that is correct, the QDRO’s terms clearly
establish responsibility for any overpaid benefit that needs to be offset; Mr.
Thorpe is the one who must hold in trust and disburse benefits that belonged to
Ms. Thorpe but were mistakenly paid to him. Mr. Thorpe argues in his
supplemental brief that to hold otherwise would mean the plan could recoup any
overpayment, and so could Ms. Thorpe, making him liable to both parties for the
same money. The fund responds that the QDRO constructive trust provision only
applies to benefits that are “due” to Ms. Thorpe, and none were due to her until
she elected to receive benefits. On the one hand, Mr. Thorpe might be doubly
liable if the funds were due to Ms. Thorpe and he was required to hold them in
trust. On the other hand, if Ms. Thorpe’s assigned benefits weren’t due to her
until she elected for benefits, the fund still hasn’t shown how it had the authority
to engage in self-help that was not explicitly or implicitly authorized by the plan
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documents. In either case, allowing the fund to recoup alleged overpayments
would contradict plan documents.

IV. CONCLUSION
Despite the broad discretion given to plan administrators under ERISA, a
plan administrator’s decision that controverts the plain meaning of a plan is
arbitrary and capricious, Swaback v. Am. Info. Techs. Corp., 103 F.3d 535, 540
(7th Cir. 1996), and so is a decision based on documents that are irrelevant to
the question at hand. See Speciale v. Blue Cross & Blue Shield Ass’n, 538 F.3d
615, 621 (7th Cir. 2008). The fund either relies on the 2014 Plan Documents,
which are irrelevant to Mr. Thorpe, or interprets the 2000 Plan Documents
contrary to their plain meaning. The fund’s decision to recoup funds was
arbitrary and capricious, so the court GRANTS Mr. Thorpe’s motion for summary
judgment [Doc. No. 33] and DENIES the fund’s cross-motion for summary
judgment [Doc. No. 36]. The court ORDERS defendant to pay Mr. Thorpe all
benefits that it withheld since August 1, 2018 and ORDERS defendant to
reinstate Mr. Thorpe’s monthly payments of $1,872.23 per month.
SO ORDERED.
ENTERED: September 7, 2021

/s/ Robert L. Miller, Jr.
Judge, United States District Court

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Distribution: all electronically
Registered counsel of record

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