Titus v. Operating Engineers' Local 324 Pension Fund

Filing 34

OPINION and ORDER Denying Plaintiff's Procedural Challenge to the 14 Scheduling Order and Granting Defendant's 19 Motion for Partial Judgment on the Pleadings - Signed by District Judge Gershwin A. Drain. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT E. TITUS, JR.,
Plaintiff,

Case No. 16-cv-10951

v.

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

OPERATING ENGINEERS’ LOCAL 324
PENSION PLAN,

UNITED STATES MAGISTRATE JUDGE
ANTHONY P. PATTI

Defendant.
OPINION AND ORDER DENYING PLAINTIFF’S PROCEDURAL CHALLENGE TO THE
SCHEDULING ORDER [14] AND GRANTING DEFENDANT’S MOTION FOR PARTIAL
JUDGMENT ON THE PLEADINGS [19]
I. Introduction
This is a denial of benefits case under the Employee Retirement Income
Security Act (“ERISA”). This action contests the Operating Engineers’ Local 324
Pension Fund’s (hereinafter “the Pension Plan”) determination suspending Robert
Titus’ (“Plaintiff”) pension benefits. Plaintiff’s Complaint asserts three claims: (1)
illegal suspension of benefits [Count I], (2) failure to provide a full and fair review
[Count II], and (3) recovery of suspended benefits [Count III]. Pending before the
Court are two motions: Plaintiff’s Procedural Challenge to the Scheduling Order
[14] and Defendant’s Motion for Partial Judgment on the Pleadings [19]. The
Motions are interrelated and fully briefed. The critical issue in this case is whether
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Counts I and II of the Complaint fail as a matter of law. The Court finds that
Counts I and II fail to state valid claims under ERISA § 502(a)(3). For the
following reasons, the Court will DENY Plaintiff’s Procedural Challenge to the
Scheduling Order [14] and GRANT Defendant’s Motion for Partial Judgment on
the Pleadings [19].
II. Facts
Robert Titus (“Plaintiff” or “Titus”) worked for Connelly Crane, a crane
rental company. Dkt. No. 14, p. 8 (Pg. ID 473). Plaintiff operated and maintained
construction cranes. Plaintiff became a member of the Operating Engineers’ Local
324 Pension Plan (“the Pension Plan”) in August 1978. Dkt. No. 1, p. 3 (Pg. ID 3).
The Pension Plan offers a Service Pension for active participants who are at least
55 years old and have at least 30 years of credited service. Id. In February 2014,
Plaintiff became eligible for a Service Pension. Id., p. 4 (Pg. ID 4). That same
month, Plaintiff explored retiring and pursuing his own sales and consulting
company (BJ Crane Consulting). Id. There were risks to starting his own company.
Plaintiff knew he might lose his retirement income. Id. Plaintiff sought to embark
on running his own company only if he could still receive his pension benefits. Id.,
p. 5 (Pg. ID 5). According to ERISA and its regulations:
“A right to an accrued benefit derived from employer contributions
shall not be treated as forfeitable solely because the plan provides that
the payment of benefits is suspended for such period as the employee
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is employed, subsequent to the commencement of payment of such
benefits-(i) in the case of a plan other than a multiemployer plan, by an
employer who maintains the plan under which such benefits were
being paid; and
(ii) in the case of a multiemployer plan, in the same industry, in the
same trade or craft, and the same geographic area covered by the plan,
as when such benefits commenced.
The Secretary shall prescribe such regulations as may be necessary to
carry out the purposes of this subparagraph, including regulations with
respect to the meaning of the term ‘employed’.”
29 U.S.C. § 1053 (a)(3)(B).
“Status determination. If a plan provides for benefits suspension, the
plan shall adopt a procedure, and so inform employees, whereunder an
employee may request, and the plan administrator in a reasonable
amount of time will render, a determination of whether specific
contemplated employment will be section 203(a)(3)(B) service for
purposes of plan provisions concerning suspension of benefits.
Requests for status determinations may be considered in accordance
with the claims procedure adopted by the plan pursuant to section 503
of the Act and applicable regulations.”
29 C.F.R. § 2530.203-3 (b)(6).
In February 2014, Plaintiff requested a Status Determination from the
Pension Plan regarding whether his proposed new business would result in
suspension of his retirement benefits. Dkt. No. 1, p. 6 (Pg. ID 6). Plaintiff spoke
with the Pension Plan’s Manager, Duane Menter. Dkt. No. 14, p. 9 (Pg. ID 474).
Menter informed the Plaintiff that establishing BJ Crane Consulting and working
as a sales representative and consultant would not result in the loss of his
retirement benefits provided that he was not operating and maintaining cranes (also
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called bargaining unit work) or paid directly by his former employer. Id., p. 10 (Pg.
ID 475). The conversation with Menter was later confirmed in a letter:
“As Mr. Titus described this opportunity to me, he would be
establishing a consulting company, recognized by the IRS and with a
unique Tax Identification Number and as proprietor of this Consulting
Company would be doing work within the construction industry. I
explained to him that as long as he was not personally working for an
employer obligated to contribute to the Local 324 Pension and that the
work he would be performing would not be that which would be
covered under a Collective Bargaining Agreement (Bargaining Unit
Work) that he would not be in violation of the Pension Fund’s rules
regarding retirees who return to work.”
Dkt. No. 14-2.
According to the Plaintiff, the Pension Plan also allowed retirees to perform
less than 40 hours per month of bargaining unit work without having their
retirement benefits suspended. Dkt. No. 14, p. 10 (Pg. ID 475). Plaintiff relied on
his conversation with Mr. Menter, retired, applied for a Service Pension, and
opened BJ Crane Consulting. Id., p. 11 (Pg. ID 476). Plaintiff maintains that he did
occasional bargaining unit work, but never exceeding 40 hours per month. Id.
On February 6, 2015, approximately ten months after starting BJ Crane
Consulting, the Pension Plan informed the Plaintiff that his retirement benefits
were being suspended. Dkt. No. 14-6, p. 2 (Pg. ID 508). According to the Pension
Plan, Plaintiff was working “forty (40) or more hours in the same trade or craft in
which [he was] employed while participating in the [Pension Plan].” Id.

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On March 16, 2016 Plaintiff filed the present action. Plaintiff alleges that the
Pension Plan violated ERISA by suspending his retirement benefits without
providing him a valid Status Determination. Dkt. No. 14, p. 11 (Pg. ID 476).
Plaintiff’s Complaint asserts three claims: (1) illegal suspension of benefits
[Count I], (2) failure to provide a full and fair review [Count II], and (3) recovery
of suspended benefits [Count III]. Pending before the Court are two motions:
Plaintiff’s Procedural Challenge to the Scheduling Order, Dkt. No. 14, and
Defendant’s Motion for Partial Judgment on the Pleadings, Dkt. No. 19.
Defendant’s Motion for Partial Judgment challenges the sufficiency of Counts I
and II. Plaintiff’s Motion seeks to have Count I of the Complaint scheduled as a
usual civil matter, not just a review of an ERISA denial of benefits. For the sake of
efficiency, the Court will take up Defendant’s Motion first.
III. Standard of Review for Judgment on the Pleadings
Federal Rule of Civil Procedure 12(c) authorizes either Party to move for
judgment on the pleadings “[a]fter the pleadings are closed—but early enough not
to delay trial.” Fed. R. Civ. P. 12(c). Motions for judgment on the pleadings are
analyzed under the same de novo standard as motions to dismiss under Rule
12(b)(6). Warrior Sports, Inc. v. Nat’l Collegiate Athletic Ass’n, 623 F.3d 281, 284
(6th Cir. 2010). “For purposes of a motion for judgment on the pleadings, all wellpleaded material allegations of the pleadings of the opposing party must be taken
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as true, and the motion may be granted only if the moving party is nevertheless
clearly entitled to judgment.” Id.
In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court
explained that “a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. Factual allegations must
be enough to raise a right to relief above the speculative level[.]” Id. at 555. A
plaintiff’s factual allegations, while “assumed to be true, must do more than create
speculation or suspicion of a legally cognizable cause of action; they must show
entitlement to relief.” LULAC v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007)
(emphasis in original) (citing Twombly, 550 U.S. at 555). “To state a valid claim, a
complaint must contain either direct or inferential allegations respecting all the
material elements to sustain recovery under some viable legal theory.” Bredesen,
500 F.3d at 527 (citing Twombly, 550 U.S. at 562).
When deciding a 12(c) motion for judgment on the pleadings, as a general
rule, matters outside the pleadings may not be considered unless the motion is
converted to one for summary judgment under Fed. R. Civ. P. 56. See Weiner v.
Klais & Co., 108 F.3d 86, 88 (6th Cir. 1997). The Court may, however, consider
“the Complaint and any exhibits attached thereto, public records, items appearing
in the record of the case, and exhibits attached to defendant’s motion to dismiss so
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long as they are referred to in the Complaint and are central to the claims contained
therein.” Id. at 89; see also Chebowski v. Kelsey-Hayes Salaried Pension Plan, No.
15-13092, 2016 WL 5477335, at *3 (E.D. Mich. Sept. 29, 2016) (Hood, C.J.).
III. ERISA Remedial Provisions
ERISA has six remedial provisions. The remedial provisions relevant to this
action are § 502(a)(1)(B) and § 502(a)(3), which state:
“A civil action may be brought—
(1) by a participant or beneficiary—
(A) for the relief provided for in subsection (c) of this
section, or
(B) to recover benefits due to him under the terms of his
plan, to enforce his rights under the terms of the plan, or
to clarify his rights to future benefits under the terms of
the plan;
(2) by the Secretary, or by a participant, beneficiary or fiduciary
for appropriate relief under section 1109 of this title;
(3) by a participant, beneficiary, or fiduciary (A) to enjoin any
act or practice which violates any provision of this subchapter
or the terms of the plan, or (B) to obtain other appropriate
equitable relief (i) to redress such violations or (ii) to enforce
any provisions of this subchapter or the terms of the plan;”
29 U.S.C. § 1132(a) (emphasis added).
IV. Discussion and Analysis
Defendant requests the Court dismiss Count I and Count II of the Complaint.
A. Count I
Count I alleges that the ERISA statute was violated. Accordingly, Count I
“seeks equitable relief [pursuant to §502(a)(3)] to remedy a statutory violation by
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reformation of the Defendant Pension Plan, or by estopping the Pension Plan from
acting in violation of the ERISA statute.” Dkt. No. 14, p. 7 (Pg. ID 472) (emphasis
added). The Defendant argues that Count I is invalid as a matter of law because:
(1) Count I is a repackaged claim for individual pension benefits and (2) Count I
fails to state a valid claim under § 502(a)(3).
1. Repackaging and the Interplay Between ERISA § 502(a)(1)(B) and
ERISA § 502(a)(3)
The Supreme Court, in Varity Corp. v. Howe, 516 U.S. 489 (1996), spoke to
the interplay between § 502(a)(1)(B) and § 502(a)(3). “As the [Supreme] Court
explained, § 502(a)(3) ‘functions as a safety net, offering appropriate equitable
relief for injuries caused by violations that § 502 does not elsewhere adequately
remedy.’ ” Rochow v. Life Ins. Co. of N. Am., 780 F.3d 364, 371 (6th Cir. 2015),
cert. denied, 136 S. Ct. 480, (2015) (quoting Varity Corp. v. Howe, 516 U.S. 489,
513 (1996)). “[W]here Congress elsewhere provided adequate relief for a
beneficiary’s injury, there will likely be no need for further equitable relief, in
which case such relief normally would not be appropriate.” Id. (emphasis in
original) (quoting Howe). “ERISA remedies are concerned with the adequacy of
relief to redress the claimant’s injury, not the nature of the defendant’s
wrongdoing.” Id. Therefore, absent a showing that the relief under § 502(a)(1)(B)
is inadequate, there is no trigger for equitable relief under § 502(a)(3). Id.

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Claimants may not repackage a § 502(a)(1)(B) claim as a § 502(a)(3) claim
to obtain equitable relief. “Impermissible repackaging is implicated whenever, in
addition to the particular adequate remedy provided by Congress, a duplicative or
redundant remedy is pursued to redress the same injury.” Rochow, 780 F.3d 364,
373. If a plaintiff is “able to avail himself of an adequate remedy for [Defendant’s]
wrongful denial of benefits pursuant to § 502(a)(1)(B), he cannot obtain additional
relief for that same injury under § 502(a)(3).” Id. However, if the need for
§ 502(a)(3) relief implicates a different injury, injunctive relief may be proper. See
Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 718 (6th Cir. 2005)
(distinguishing between denial of individual claims and a plan-wide mishandling
of claims as two distinct injuries). Hill v. Blue Cross & Blue Shield of Mich.,
409 F.3d 710 (6th Cir. 2005) is informative in the present case.
In Hill, the plaintiff brought claims under § 502(a)(3) and § 502(a)(1)(B).
The Sixth Circuit allowed the plaintiff to proceed with both claims, despite
arguments that the § 502(a)(3) claim was an impermissible repackaged §
502(a)(1)(B) claim. In determining that Hill’s § 502(a)(3) claim was distinct from
his § 502(a)(1)(B) claim, the Sixth Circuit focused on the relief sought to redress
the injuries, not the defendant’s wrongdoing. Hill’s § 502(a)(3) claim sought
injunctive relief to redress defective procedures which allegedly injured
participants throughout the benefits plan. On the other hand, Hill’s § 502(a)(1)(B)
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claim sought monetary compensation to redress the denial of Hill’s benefits. The
Sixth Circuit held that, “an award of benefits to a particular Program participant
based on an improperly denied claim … will not change the fact that [Defendant]
is using an allegedly improper methodology for handing [all claims]. Only
injunctive relief of the type available under

§ [502](a)(3) will provide

the complete relief sought by Plaintiffs by requiring [Defendant] to alter the
manner in which it administers all the Program’s claims[.]” Hill, 409 F.3d 718.
Therefore, Hill recognized an exception to Varity when a claimant seeks relief for
two distinct injuries.
At first glance, the Plaintiff seems to be seeking equitable relief similar to
the Hill exception.1 In Count I, the § 502(a)(3) claim, Plaintiff “seeks equitable
relief to remedy a statutory violation by reformation of the Defendant Pension
Plan, or by estopping the Pension Plan from acting in violation of the ERISA
statute.” Dkt. No. 14, p. 7 (Pg. ID 472). This pleading is reminiscent of the
pleading in Hill, which sought injunctive relief to remedy injuries to all program
participants. In Count III, the § 502(a)(1)(B) claim, Plaintiff seeks to redress his
individual plan benefits. Plaintiff contends that its § 502(a)(1)(B) claim “focuses
upon whether the language of the Pension Plan was interpreted or applied in an

1

Hill is the strongest case in favor of Plaintiff’s argument that it should be allowed
equitable relief under § 502(a)(3), but the Plaintiff never even mentions this case.
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arbitrary and capricious manner, regardless of whether that language is legal or
illegal.” Dkt. No. 24, p. 21 (Pg. ID 1013).
The Defendants argue that Plaintiff’s § 502(a)(3) claim is barred because it
is a mere repackaging of the Plaintiff’s § 502(a)(1)(B) claim. The Court agrees.
Similar to the Sixth Circuit’s analysis in Hill, this Court must focus on the relief
sought to redress the alleged injuries. The equitable claim in Hill sought to redress
plan-wide injuries to program participants. This was illustrated in Hill’s complaint
which alleged a violation of fiduciary duty to “Program members” by processing
claims in in the interest of the plan sponsor, “rather than the Program
beneficiaries.” Hill, 409 F.3d 716. In this case, Count I seeks equitable relief to
redress denial of Plaintiff’s own benefits, not alleged injuries to other people. This
is evident in Plaintiff’s prayer for relief, which states:
“ERISA § 502(a)(3) authorizes an action by a participant ‘(A) to
enjoin any act or practice which violates any provision of this title . . .
or (B) to obtain other appropriate equitable relief (i) to redress such
violations or (ii) to enforce any provision of this title . . . .’
Wherefore, Plaintiff Robert Titus respectfully prays that the court
order that (1) the Pension Plan be enjoined from suspending Robert
Titus’ Service Pension benefits in contradiction to the Status
Determination made by the Pension Plan in February, 2014, (2) the
Pension Plan be reformed under ERISA § 502(a)(3) to require that
Robert Titus’ Service Pension benefit only be suspended in
accordance with the Status Determination made in February, 2014,
and (3) the Pension Plan be interpreted as providing that Robert Titus
is permitted to perform sales representation and consulting work for
BJ’s Crane Consulting without having his Service Pension benefit
suspended.”
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Dkt. No. 1, p. 15–16 (Pg. ID 15–16) (emphasis added).
The language in Count I expressly requests § 502(a)(3) injunctive relief, but
only against the suspension of benefits to the Plaintiff. The Court compared the
language in Count I to the relief requested in Count III. Count III seeks relief
pursuant § 502(a)(1)(B) and states:
“Additionally, in the light of the equitable relief which should
properly be granted under Count I of the Complaint, Robert Titus’
rights to receive future benefits should be clarified to provide that his
Service Pension benefits are not subject to suspension as the result of
his work as a sales representative and consultant for BJ’s Crane
Consulting, LLC. Wherefore, Plaintiff Robert Titus respectfully prays
that judgment be entered against the Defendant Operating Engineers’
Local 324 Pension Plan, as follows:
1. clarifying that the Service Pension benefits of Plaintiff
Robert Titus are not subject to suspension for work performed
by Robert Titus as a sales representative and consultant for
BJ’s Crane Consulting, and
2. clarifying that Plaintiff Robert Titus is entitled to Service
Pension benefits for any month in which he performs less than
40 hours of work covered by the collective bargaining
agreement within the State of Michigan, including primary
pension benefits and full health care status with subsidized
insurance premiums,
3. clarifying that Plaintiff Robert Titus is not obligated to
repay Service Pension benefits already paid to him,
4. awarding Robert Titus Service Pension benefits in the
amount of any benefit which has been suspended by the
Pension Plan since his retirement in March, 2014, including
primary benefits and health insurance premium subsidizes,
and
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5. awarding Plaintiff Robert Titus prejudgment interest, his
court costs, and his attorney fees.”
Dkt. No. 1, p. 18–19 (Pg. ID 18–19) (emphasis added).
The language in Count I mirrors the language in Count III. Count I and
Count III seek to redress the same injury—denial of Plaintiff’s individual benefits.
Therefore the Hill exception does not apply. Accordingly, Count I is barred
because it is an impermissible repackaging of Count III.
Titus relies almost exclusively on CIGNA Corp. v. Amara, 563 U.S. 421
(2011), to support his argument that he may seek an equitable remedy under
§ 502(a)(3) to reform the Plan. Titus argues that a “claim at law under ERISA
§ 502(a)(3) [is] separate and distinct from a claim at law under ERISA
§ 502(a)(1)(B).” Dkt. No. 24, p. 20 (Pg. ID 1012). This argument confuses the
issue. There is no dispute that “appropriate equitable relief” may be obtained under
§ 502(a)(3) to redress an ERISA violation. The issue here, however, is whether
Titus seeks to redress a distinct injury that is remediable under § 502(a)(3).
In Amara, Titus contends, the Supreme Court found that “equitable relief
under § 502(a)(3) was available when a participant sought to remedy a violation of
an ERISA obligation.” Dkt. No. 24, p. 20 (Pg. ID 1012). This argument misses a
critical fact. Amara involved a class action brought by employees against their
employer and pension plan and sought to reform a recent change to the benefit
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pension plan. CIGNA Corp. v. Amara, 563 U.S. 421, 438 (2011). In Amara, the
Supreme Court held that there was no authority under § 502(a)(1)(B) to reform the
plan. Id. Because § 502(a)(1)(B) did not authorize relief, the Supreme Court used
§ 502(a)(3) to redress ERISA violations. Amara therefore reinforces the principal
that § 502(a)(3) is available as a safety net, only when § 502(a)(1)(B) cannot
provide appropriate relief. Here, unlike the case in Amara, Plaintiff is seeking
relief (his individual pension benefits) that can be adequately remedied by §
502(a)(1)(B) relief. Therefore, Titus’ reliance on Amara is to no avail.
Later, Titus insists that Count I is not a mere repackaging of Count III
because the two claims “raise very different questions and require significantly
different proofs.” Dkt. No. 24, p. 21 (Pg. ID 1013). Again, the Plaintiff misses the
point. Proofs are immaterial to the repackaging inquiry. The dispositive factor is
not evidence of the defendant’s wrongdoing, but rather the adequacy of relief to
redress the claimant’s injuries. See Rochow, 780 F.3d 364, 371.
Therefore, because Count I and Count III seek to redress the same injury and
because the Plaintiff fails to demonstrate that relief under § 502(a)(1)(B) is
inadequate, Count I is a repackaging of Count III which must be barred.
2. Count I Fails to State a § 502(a)(3) Claim
Even if Count I was not barred as an impermissible repackaging, it would
nevertheless be dismissed because it fails to state a § 502(a)(3) claim.
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Titus’ claim of equitable estoppel rests upon federal common law derived
from ERISA. See Trombly v. Fid. Workplace Servs. LLC, No. 11-13477, 2013 WL
866456, at *21–22 (E.D. Mich. Mar. 7, 2013) (citing Bloemker v. Laborers’ Local
265 Pension Fund, 605 F.3d 436, 440 (6th Cir. 2010) (recognizing the existence of
a federal common law claim of equitable estoppel in the context of ERISA pension
benefits)). “The elements of a traditional equitable estoppel claim are as follows:
(1) conduct or language amounting to a representation of material fact; (2)
awareness of the true facts by the party to be estopped; (3) an intention on the part
of the party to be estopped that the representation be acted on, or conduct toward
the party asserting the estoppel such that the latter has a right to believe that the
former’s conduct is so intended; (4) unawareness of the true facts by the party
asserting the estoppel; and (5) detrimental and justifiable reliance by the party
asserting estoppel on the representation.” Chebowski v. Kelsey-Hayes Salaried
Pension Plan, No. 15-13092, 2016 WL 5477335, at *3–4 (E.D. Mich. Sept. 29,
2016) (Hood, C.J.) (citing Armistead v. Vernitron Corp., 944 F.2d 1287, 1298 (6th
Cir. 1991).
In the context of ERISA, principles of estoppel are rarely applied to vary the
terms of unambiguous plan documents because a “party’s reliance can seldom, if
ever, be reasonable or justifiable if it is inconsistent with the clear and
unambiguous terms of plan documents available to or furnished to the party.” Id.
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(quoting Sprague v. General Motors Corp., 133 F.3d 388, 404 (6th Cir. 1998)).
“However, a plaintiff can invoke equitable estoppel in the case of unambiguous
pension plan provisions where the plaintiff can demonstrate the aforementioned
traditional elements of estoppel, ‘including that the defendant engaged in intended
deception or such gross negligence as to amount to constructive fraud, plus (1) a
written representation; (2) plan provisions which, although unambiguous, did not
allow for individual calculation of benefits; and (3) extraordinary circumstances in
which the balance of equities strongly favors the application of estoppel.’ ”
Bloemker,

605

F.3d

at

444

(emphasis added). “The Sixth Circuit imposed these additional requirements in the
context of ERISA pension plans in order to address the concern that estoppel
claims could undermine the financial integrity of ERISA pension plans and
prejudice the rights and legitimate expectations of third parties to retirement
income.” Chebowski, at *3–4.
In this case, the Plaintiff fails to establish the additional requirements to
impose equitable estoppel in an ERISA case. The Plaintiff does not allege that the
Defendant engaged in any form of intentional deception or gross negligence, as
required by Bloemker. Indeed the words “deception” and “gross negligence” do not
appear in the Plaintiff’s Complaint, Motion, Response or Reply. Rather than
pleading the heightened standard for equitable estoppel articulated in Bloemaker,
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Plaintiff again relies on Amara to argue that the heightened standard, somehow,
does not apply.
According to the Plaintiff, “Bloemker was decided before Amara” and
Amara “decided that the normal rules of equity apply under § 502(a)(3) … [not]
any heighted or exceptional showing by a participant.” Dkt. No. 24, p. 27 (Pg. ID
1019). Plaintiff argues that the Bloemker requirements apply only when
misrepresentations are made by low level employees answering questions over the
telephone. Id. Though novel, this argument is not supported by the law. Bloemker
itself, along with more recent Sixth Circuit decisions apply the heightened showing
for misrepresentations made by employees at every level. See Bloemker, 605 F.3d
at 439, Deschamps v. Bridgestone Americas, Inc. Salaried Employees Ret. Plan,
840 F.3d 267, 271 (6th Cir. 2016).
In addition to failing to allege intentional deception or gross negligence,
Plaintiff later fails to sufficiently allege the extraordinary circumstances, as
required by Bloemker. According to the Plaintiff, “loss of benefits which a
participant would have received absent a pension plan’s misrepresentation is
exactly the type of extraordinary circumstances recognized in Bloemker.” Dkt. No.
24, p. 28 (Pg. ID 1020). Plaintiff is incorrect. To accept Plaintiff’s argument would
allow equitable estoppel for even innocent miscalculations. That result would

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undermine the integrity of ERISA pension plans, which Bloemker sought to
protect. See Bloemker,
605 F.3d 436, 441.
Despite Plaintiff’s argument to the contrary, Bloemker remains applicable
here. Plaintiff has failed to establish the heightened requirements for estoppel in an
ERISA case. Therefore, Count I fails to state an actionable estoppel claim pursuant
to § 502(a)(3).
B. Count II
Turning next to Count II, Defendant argues that Count II should be
dismissed because: (1) it is a repackaged claim for individual pension benefits, (2)
it seeks a remedy that is available under § 502(a)(1)(B), and (3) it is without legal
merit.
Count II alleges a failure to provide a full and fair review. Count II asks the
Court to “vacate the decision of the Defendant Pension Plan, and that the
Defendant Pension Plan be ordered to conduct a hearing on all future benefit
reviews when requested by a participant in accordance with the Pension Plan’s
review procedure.” Dkt. No. 1, p. 17 (Pg. ID 17). Count II requests two separate
actions from the Court: (1) to vacate the Plan’s decision and (2) to compel the Plan
to conduct a hearing for all participants. A separate analysis is appropriate for each
action.
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First, because Count II seeks reversal of Plaintiff’s benefits determination,
this portion of Count II is barred because it seeks a duplicative remedy for an
injury that can be addressed by relief under § 502(a)(1)(b). See Elliott v. Metro.
Life Ins. Co., 473 F.3d 613 (6th Cir. 2006) (affirming the district court’s ability
under § 501(a)(1)(B) to remand a Plan’s decision back to the Plan administrator for
a full and fair review); see also Varity, Rochow, and Hill, as discussed infra.
The remaining portion of Count II seeks to redress an alleged injury to all
participants, plan-wide. At first glance, this again seems like the Plaintiff is
attempting to trigger the Hill exception. According to the Plaintiff, the Court
should compel a hearing for all participants who are denied benefits because the
Pension Plan “specifically provides for a ‘hearing’.” Dkt. No. 24, p. 28 (Pg. ID
1020). The Plaintiff argues that “failure to grant a hearing in accordance with the
Pension Plan’s [documents] is a valid claim for violation of ERISA’s due process
requirement.” Dkt. No. 24, p. 29 (Pg. ID 1021). However, there is a fatal flaw in
the Plaintiff’s argument—the facts do not support it. The Plan’s description says,
“if a hearing is desired, it should be so indicated in your application request for
review.” Dkt. No. 21-5. The Pension Plan mentions, but does not require a hearing.
Section 502(a)(3) does not authorize “appropriate equitable relief” at large,
but only “appropriate equitable relief” for the purpose of “redressing any violations
or enforcing any provisions of ERISA or an ERISA plan.” See Mertens v. Hewitt
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Associates, 508 U.S. 248, 253 (1993). In this case, Plaintiff concedes that ERISA
does not require a hearing. Dkt. No. 24, p. 29 (Pg. ID 1021). Moreover, even with
the facts construed in Plaintiff’s favor, the Pension Plan’s plain language simply
does not require a hearing. Therefore, because a hearing is not required under
ERISA or the plain language of the Defendant’s Plan, there is no factual basis for
the remaining portion of Count II. Thus, Count II must be dismissed.
V. Conclusion
For the foregoing reasons, Counts I and II of the Complaint are nonactionable as a matter of law. The Court will GRANT Plaintiff’s Motion for
Judgment on the Pleadings [19] and DENY Defendant’s Procedural Challenge to
the Scheduling Order [14].

SO ORDERED.
Dated: February 27, 2017
s/Gershwin A. Drain________
HON. GERSHWIN A. DRAIN
United States District Court Judge

Detroit, MI

I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, February 27, 2017, by electronic and/or ordinary mail.

/s/Felicia Moses for Tanya Bankston
Case Manager, [phone]

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