Morton v. Sheet Metal Workers' National Pension Fund

Filing 21

MEMORANDUM OPINION RE: Pltf's Motion for Judgment pursuant to FRCP 52, or in the Alternative, for Summary Judgment pursuant to FRCP 56 and Deft's Motion for Summary Judgment. Signed by District Judge Leonie M. Brinkema on 06/23/09. (pmil)

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA
Alexandria Division
)

HP ** II

L

IE

ROBERT A.

MORTON,

Plaintiff Fxamcirt,
v.
SHEET METAL WORKERS'
PENSION FUND,

)
)

I clerk, u.s. district court I Alexandria. viRr,iMiA_
1:O8CV942 (LMB/TRJ)

)
NATIONAL )
)

Defendant.

)
MEMORANDUM OPINION

)

In this action brought under the Employee Retirement Income
Security Act of the decision of Pension Fund, 1974 ("ERISA"), plaintiff Robert Morton appeals the Sheet Metal Workers' National

the defendant,

to suspend his pension payments based on its

finding that he engaged in disqualifying employment while receiving his pension. The parties have submitted the issue for

judgment on the basis of the administrative record.
reasons that follow,

For the

the plaintiff's Motion for Judgment Pursuant

to Fed.

R.

Civ.

P.

52,

or in the Alternative,

for Summary

Judgment Pursuant to Fed.

R.

Civ.

P.

56 will be granted in part

and denied in part,

and the defendant's Motion for Summary
and the case

Judgment will be granted in part and denied in part,

will be remanded to the defendant for further review.
I. Background

Plaintiff,

Robert Morton,

worked for over thirty-eight years

in the sheet metal industry before officially retiring in 2004.

According to the administrative record,1 Morton initiallyinquired about his pension rights with the Sheet Metal Workers' National Pension Fund
13. On September 22,

("Pension Fund"),
1999, Morton was

on August 9,

1999.

RM

notified that he was

vested and was credited with 34

years and 8 months of

service,

and 33 years and 7 months of Future Service.2

RM 16-17.

The

notification letter also advised him about various retirement
options under the Plan and his estimated benefits based on
different retirement ages. Id.

Nearly five years

later,

Morton notified the Fund that he

intended to retire in September of 2004.3
September 20, 2004,

By a letter dated

the Pension Fund advised Morton that he had

been credited with 38 years of pension credit between August 1965 and May 2003, of which 36 years and 11 months was future service

as

"RM"

1 References to the administrative record will be designated
in this Memorandum Opinion.

to the Contribution Date for which Pension Credit is granted to him in accordance with Article 4" of the Plan. See Plf.'s Ex. 2,

2 For background purposes, future service credit is defined in the Plan as "the periods of his Covered Employment subsequent
1.19. A participant receives a certain number of future

service credits a year based on the number of hours he works in covered employment during that year. Id. § 4.09. A participant will receive the maximum number of 12 months of future service credits per year if he works over a certain number of hours and will receive proportionately less credit for fewer hours worked in accordance with a schedule set out in the Plan. id.
effective September 1,
date to September 29,

§

3 Morton first indicated that he was applying for a pension
2004.

2004,

but later changed his retirement
RM 29-31, 35.

credit.

RM 36-37.

The letter also stated that certain Grove Accu-Fab Inc.,

contributions

from Morton's employer,

between June and November 2003,

were not considered in the

calculation of his pension because the company was delinquent in its payments. Id. Based on this credit calculation, the Pension

Fund informed Morton that he was entitled to receive Special
Early Retirement Benefits, but that he did not qualify for the

55/3 0 Pension.4
appeal

Id.

The letter also alerted Morton to his
Plan. Id. 20, 2004

rights under the

Morton apparently did not respond to the September

letter,

and on November 1,

2004,

the Pension Fund wrote Morton

again.

RM 67.

In this letter,

the Pension Fund informed Morton
that they sent

that it had not yet received the retirement forms to him on September 23, advise 2004. Id. The

letter asked Morton to

the Pension Fund if he did not Id. The

intend to retire or if he file

needed new forms.

letter also stated that Morton's

would be deactivated if he did not respond within six months.

Id.

On January 31,

2005,

the Pension Fund again notified Morton

that it had not received the forms and that his file would be

4 These qualifying issues are not directly relevant to the present dispute, but because both parties discuss them, they will In its motion for summary judgment, the be addressed briefly. Pension Fund explains that a 55/3 0 pension "is an early retirement pension that is unreduced on account of age for participants who, among other things, have attained the age of 55 and have 30 years of creditable service for work in covered
employment."
n.2.

Def.'s Mem.

of Law in Supp.

of Mot.

for Summ.

J.

3

deactivated if he did not return the forms.

RM 68.

Morton was

notified that his file had been deactivated on April 8,
69.

2005.

RM

On May 3,

2005,

Morton,

through counsel,

wrote the Pension

Fund regarding his eligibility for the 55/30 Pension.

RM 70-71.

In this letter,

Morton's counsel stated that the denial of the

55/3 0 Pension was improper because the Fund had taken action
against Grove Accu-Fab and received payment covering the
delinquency on October 19, 2004. RM 70. Counsel asked that

Morton receive credit for the payments from June through November
of 2 003, and that the Pension Fund reconsider its decision

denying the 55/30 Pension.

Id,.

On May 10,

2005,

the Pension
after

Fund wrote Morton's attorney to notify him that,

considering the information provided by the attorney, qualified for the 55/3 0 Pension,

Morton

as long as he retired by

December 2005 or earlier and was not working in Disqualifying Employment. RM 73. By a letter dated May 23, 2005, Morton

advised the Pension Fund that he had retired as of September 24,
2004 and that he wished to reactivate his file. RM 75. On June

2,

2005,

the Pension Fund notified Morton that he was entitled to

benefits beginning on June 1,

2005.

RM 76.

Morton then elected

to receive a 55/3 0 Level Income Pension that would pay him

$3,5 02.00 per month until he turned 62 years old,
after he turned 62. RM 84.

and $2,156.00

In the process of activating his pension,

Morton received a

number of warnings about engaging in employment while he was

receiving the pension.

One document among the enrollment advised that

forms,

entitled "Pension Detail,"

"Plan Rules allow for {refer to the

limited work in Covered Employment after retirement enclosed Summary of Disqualifying Employment
RM 85, 105. On another form, entitled

for more details)."

"Retirement Declaration

and Acknowledgment,"

Morton was

required to certify that his last Industry was September 30,

date of employment in the Sheet Metal
2004 and that he had

"not worked in any Disqualifying Employment,

as defined in Plan Rules,

after the effective date of my

pension."

RM 87.

Morton also agreed to notify the Fund in

writing "within 21 days of starting any work of any type that is,
or may be, Disqualifying Employment." Id. (emphasis in

original).
July,

Morton signed this Form on June 29,

2005.

Id.

In

Morton received a letter that congratulated him on his

retirement and included his

first pension check.

RM 82.

This

letter also informed Morton that he had certain responsibilities to the Pension Fund. that he "must contact Specifically, the letter advised Morton

the Fund Office

in writing in the event"

that he

"return[ed]

to Disqualifying Employment."

Id.

(emphasis

in original).

The record does not reflect that Morton ever

provided such notice to the Pension Fund.
Morton received his pension without two years. During that time, however, incident for the next

he began working for

Champion Environmental Services,

Inc.

("Champion"),

a company

that provided asbestos abatement services.

On August 27,

2007,

he received a letter from the Pension Fund requesting that he

sign a Social Security release in order for the Fund to confirm that he was still eligible for pension payments. signed the release on September 13,
dated October 16,

RM 120.

Morton

2007.

RM 124.

By a letter

2007, Morton was notified that his December

2007 pension payment was being suspended because his employment

with Champion constituted disqualifying employment under Section
8.06 of the Plan. RM 121-23. Specifically, the Pension Fund

found that because the abatement services work done by Champion
was also being done by contributing employers, it was

disqualifying employment under § 8.06(d){1)(B).

Id^

The Pension

Fund also found that Morton's work for Champion constituted work

in the sheet metal industry because it was work under the trade

jurisdiction of the Union under the SMWIA's Constitution, Art. 1,
§ (bb). Id. Accordingly, Id, it was disqualifying employment under the Fund determined that Champion

§ 8.06(d) (1) (E) .

Lastly,

had not signed a collective bargaining agreement with the Union.

Id^

Based on these determinations,

the Fund notified Morton that

he was required to reimburse the Fund for all of the retirement
payments he received while working for Champion and that once he

stopped working,

he would be subject to additional suspension Id, The letter notified Morton that

under §§ 8.06(a)(2 & 3).

the Fund would assume that he continued to work in disqualifying
employment until they were notified otherwise, in writing, and

ended by informing Morton of his appeal rights.
original).

Id.

(emphasis in

On April 3,

2008,

Morton,

through counsel,

gave notice to

the Fund that he was appealing its decision to suspend his

pension benefits because of his employment with Champion.
170. The letter also stated that "Mr.

RM

Morton is not employed by

Champion Environmental Services,

Inc.

and is fully eligible for

his pension."

Id.

Morton's counsel asked for documents related
"the SPD or Plan documents, the

to the decision,

including

internal Dialogue concerning this decision and all copies of
relevant materials including internal memos, surveillance

materials or reports and all materials used or usually used in

making this decision."
orginial).

Id.

(capitalization of dialogue in

After being notified that the Appeals Committee was meeting

in late June,
on June 12,

Morton's counsel filed his formal notice of appeal
RM 160-61. The appeal letter repeated that

2008.

Morton was no longer employed by Champion and was eligible for

his pension and also made substantive objections to the suspension. Id. First, Morton argued that his work at Champion

did not involve work in a related building trade as defined by
the Plan. Id,,. Specifically, he argued that he was working in
which was not related to

the demolition and recycling industry, the sheet metal industry. Id.

In support of this argument,

Morton relied on the list of union products on the union website,

which did not include demolition and recycling, of "sheet metal workers" Id.

and a description

in a study published in the Jobs Rated

Almanac.

Morton also enclosed a copy of the website of the
National

Sheet Metal

and Air Conditioning Contractors'

Association,

arguing that it established that the sheet metal
Id.
an

industry had no relation to the demolition industry.
Second, employee Morton argued that the

tasks he completed as

for Champion were not

related to the sheet metal

industry.

RM 161.

These tasks included delivering parts to job

sites and changing motors and hydraulic lines on equipment and
machines. Id. Morton argued that Id. this work could not be Finally, Morton argued that
comparing

considered sheet metal work.
the

contributing employer to which the Fund was

Champion was geographically distant from Morton and Champion and
was only tangentially related to the industry because a union
removal company that

company merely owned a

subsidiary asbestos

performed the same services as Champion.

Id.

Morton asked the

Appeals Committee to reverse the earlier decision on these
grounds. Id.

On June

26,

2008,

the Appeals Committee of

the Pension Fund

met and considered Morton's appeal.

By a letter dated July 1,

2008,

the Appeals Committee informed Morton's counsel that the

committee had denied Morton's appeal of his suspension,

finding and

that suspension was appropriate under both § 8.06(d)(1)(B)
§ 8.06(d)(1)(E). RM 146-48. As to the first ground for

suspension,

"employment with any employer in the same or related

business as any Contributing Employer"

under §

8.06(d)(1)(B),

the

Committee rejected Morton's argument that it was improper to
consider a Kansas company in deciding that Champion's work was
done by other contributing employers.
that the text of § 8.06(d)(1)

Id.

The Committee found

did not contain a geographical

limitation and that because the Pension Fund is a national fund, it was reasonable and fair to consider employers across the
country. Id.

The Appeals

Committee also considered the basis

for

suspension under § 8.06(d)(1)(E)
Metal Industry that

for "employment in the Sheet

is not covered by a Collective Bargaining The Committee

Agreement between the Union and the employer."

considered information from Champion's website,

which stated that

the company's business primarily involved asbestos abatement.

IcL.

The Appeals Committee concluded that this work constituted

sheet metal work as defined in the Plan because:

1) asbestos abatement is also performed by the International Association of Heat and Frost Insulators and Allied Workers, which is a related building trade, as evidenced by their affiliation with the Building & Construction Trades Department, of the AFL-CIO; 2) Article 1, § 5(bb) of the SMWIA Constitution claims jurisdiction over this work . . . and sheet metal workers and insulators are often found on the same job
sites; and,

3) for many years, the SMWIA had a collective bargaining form targeted at asbestos abatement. RM 146-48. The Appeals Committee also addressed Morton's
tasks he performed at Champion did not merit a

argument that the

suspension,

but

found that Morton's

tasks,

described as changing

hydraulic lines and rebuilding equipment,

were also covered by

the SMWIA Constitution.

Id.

Based on these findings,

the

Appeals Committee concluded that Morton's work was disqualifying

employment pursuant to §§ 8.06(d)(1)(B)
Plan,

and 8.06(d)(l)(E)

of the
and

and he was subject to a suspension under §§ 8.06(a)(l)

8.06(a)(3).

Id.

Morton was notified of his right to file a

lawsuit under ERISA for review of the Appeals Committee decision.
Id. On September 11, 2008, Morton timely filed for judicial

review of that decision,

seeking a judgment declaring that the
back pay and 2007,

Pension Fund must provide benefits under the Plan,

pre-judgment interest from the denial date of December 1,
reasonable attorneys' fees, and costs.

Both parties have moved

for judgment on the basis of the administrative record.
II. Discussion

A.

Standard of Review5 the

When reviewing a denial of benefits under an ERISA plan, Court must first determine whether the plan documents give the

for Judgment Pursuant to Fed. R. Civ. P. 52, or in the Alternative, for Summary Judgment Pursuant to Fed. R. Civ. P. 56 and the defendant's Motion for Summary Judgment Pursuant to Fed.

5 This matter comes before the Court on plaintiff's Motion

appropriate if the pleadings and evidence submitted by the parties "show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56.

decide ERISA claims on motions for summary judgment under Fed. R. Civ. P. 56, and the Court will resolve these motions under the familiar summary judgment standard. Summary judgment is

R.

Civ.

P.

56.

In the Fourth Circuit,

district courts generally

10

plan administrator the discretion to make a benefits-eligibility

determination.
320, 321-22

Woods v.

Prudential Ins.

Co.

of Am..

528 F.3d

(4th Cir.

2008).

A plan may confer discretion by

either including "language which expressly creates discretionary authority"
Id.

or "terms which create discretion by implication."
Paul Revere Life Ins. If Co., 228 F.3d 518,

(quoting Feder v. (4th Cir.

522-23

2000)).

the plan gives the administrator

discretion,
under the Otherwise,
Here,

the Court reviews the plan administrator's decision
Id.

deferential abuse of discretion standard. the decision is reviewed de novo.
because the parties agree that the

Id.
language of the

Plan granted discretion to the administrator to interpret

provisions of the Plan and determine eligibility for benefits,
the Court will review the decision for abuse of discretion.
Woods. 528 F.3d at 321-22. Under the abuse of discretion

See

standard,

a decision will not be disturbed if

it

is reasonable.

A decision is reasonable if it

"is the result of a deliberate,

principled reasoning process and if
substantial evidence."

it is supported by
Holland. 105 F.3d 158, 161

See Brogan v.

(4th Cir.

1997)

(citations omitted).
but

Substantial evidence is

more than a scintilla,

less than a preponderance of the

evidence.
326

Newport News Shipbuilding and Dry Dock Co.
452 (4th Cir. 2003).

v.

Cherry.

F.3d 449,

B.

Motions

for Summary Judgment
that the evidence establishes that the Pension

Morton argues

11

Fund6 acted unreasonably, arbitrarily,

capriciously,

and in bad

faith because the Pension Fund did not provide the necessary
materials to him and because the determination was wrong and against the weight of the record.
reverse, not remand,

Morton asks the Court to
the Pension Fund.

the decision of

The Pension Fund asks the Court to find that the Appeals

Committee did not abuse its discretion in deciding that Morton's
employment with Champion constituted disqualifying employment
under the Plan.

1.

Suspension under Section 8.06(d)(1)(E)

Morton first argues that the Pension Fund failed to provide

him with materials necessary to perfect his appeal,

focusing

mainly on the Pension Fund's failure to provide him with a copy
of the SMWIA Constitution. In referring to the Constitution

during its meeting and in its letter denying Morton's appeal and

affirming the suspension of benefits,

the Appeals Committee made

the Constitution relevant to its conclusion that Morton had

worked in the sheet metal industry,

and,

thus,

was engaged in

disqualifying employment under § 8.06(d)(1)(E)

("employment in

the Sheet Metal Industry that is not covered by a Collective

Bargaining Agreement between the Union and the employer").
Morton points out,

As

the SMWIA Constitution does not appear in the

administrative record.

unreasonably,

6 Morton repeatedly states that the "Union" acted

issue in this civil action.

but only the actions of the Pension Fund are at

12

The Pension Fund concedes

that

the SMWIA Constitution does to concede

not appear in the administrative record and appears
that the Court may not now rely on it

in determining whether its

decision was arbitrary or capricious.
Opp'n 6.

See Def.'s Mem.

of Law in

The Appeals Committee also based its decision to suspend
Morton's benefits under § 8.06(d)(1)(E) on two other findings

that are not supported by evidence in the administrative record.

First,

the Committee found that Morton's employment with Champion

constituted work in a related building trade because asbestos abatement was also performed by the International Association of
Heat and Frost Insulators and Allied Workers which is affiliated

with the Building & Construction Trades Department of the AFLCIO. The Committee also found that the SMWIA had a collective

bargaining agreement targeted at asbestos abatement for several
years. However, no information about the International

Association of Heat and Frost Insulators and Allied Workers and

its affiliation with the AFL-CIO or the SMWIA's collective bargaining agreement that targeted asbestos abatement appears in
the administrative record.

Evidence that was not presented to the Appeals Committee and

which is not included in the administrative record will not be
considered in determining whether the decision to suspend benefits was supported by substantial evidence.
Bernstein v. CapitalCare. Inc.. 70 F.3d 783, 790

See,

e.g..
1995).

(4th Cir.

13

Because

the Appeals

Committee based its

finding that Morton § 8.06(d)(1)(E) by

engaged in disqualifying employment under referring to the SMWIA Constitution, the

International

Association of Heat and Frost

Insulators and Allied Workers'

affiliation with the Building & Construction Trades Department of the AFL-CIO, and a SMWIA collective bargaining agreement
abatement, none of which are in the

that was
record,

targeted at asbestos

the

decision denying benefits under

§

8.06(d)(1)(E)

was not

supported by substantial evidence.

Accordingly,

the Appeals

Committee abused its be reversed.7
In response

discretion,

and its decision will

therefore

to Morton's

arguments,

the

Pension Fund points

out

that

the decision to deny benefits was based on two

independent provisions of
Fund argues that even if

§
the

8.06{d){l).
Court does

Accordingly,
not find that

the Pension
the

decision relying on §

8.06(d)(1)(E)

is

supported by substantial

evidence in the absence of the Constitution,
suspend Morton under
evidence.

the decision to

§

8.06(1)(d)(B)

is supported by substantial

2.

Suspension under Section 8.06(d) (1) (B) under

Morton attacks the decision to suspend benefits

§ 8.06(d)(1)(B),

arguing that the evidence in the record does not

7 This decision cures Morton's argument that he was denied a
full and fair review of his claim because the Pension Fund failed to provide him with all of the materials that supported that the decision to suspend benefits under § 8.06(d)(1)(E).
14

support a finding that Performance Abatement Services
the Kansas company to which Champion was compared, was

{"PAS"),
a

Contributing Employer as defined by the Plan.8
Morton argues that the evidence of PAS's

Specifically,

remittance does not

establish that PAS was obligated under a Collective Bargaining
Agreement and that the computer printout shows that PAS was not

making payments during parts of 2005 and 2006.
responds that an employer would not contribute

The Pension Fund
to the Fund unless

it was required to by a collective bargaining agreement and that this printout supports a finding that PAS was a Contributing

Employer.
not

The Fund also contends that the lapse of payments does

support a finding that PAS had ceased to be a Contributing
as that term is defined by the Plan.

Employer,

The Court

finds

that the Appeals

Committee's decision to

suspend Morton under §

8.06(d)(1)(B)

is adequately supported by

evidence in the record.

First,

the parties do not dispute that See also RM 127-131.
the Appeals

Champion performed abatement services.
Second, the evidence

in the record supports

Committee's finding that PAS engaged in lead and asbestos

abatement and was making payments to the Pension Fund.

RM 132-

employer" as an employer who: 1) has a Collective Bargaining Agreement with the Union requiring periodic contributions to the Fund created by the Trust Agreement; 2) participates in the Plan in accordance with the provisions of Article 2 hereof, and such other conditions or requirements as the Trustees may impose; and 3) whose status as a Contributing Employer has not been terminated by the Trustees for failing to comply with its
participation obligations. Plf.'s
15

8 Section 1.10(a)

of the Plan defines a "contributing

Ex.

2.

134.

Lastly,

the evidence

that

PAS

was

making payments

to the

Pension Fund is strong circumstantial evidence by a collective bargaining agreement These that

that

it was bound

required contributions.

facts provide more than a scintilla of evidence upon which
that Morton was working with an employer which was

to conclude

"in the same or related business as any Contributing Employer"
under § 8.06(d)(1)(B).

On this record,
the Appeals Committee
no geographical

it was neither arbitrary nor capricious for
to conclude that § 8.06(d)(1)(B) contained

limitation.

Section 8 . 06 (d) (1) (B)

defines

disqualifying employment as same or related business as

"employment with any employer in the any Contributing Employer," and the

plain language of the Plan does not include any geographic limitation in determining whether employment
related business is disqualifying. Moreover,

in the same or
the Pension Fund's

national scope supports

finding no geographical limitation.
to interpret the section and not others,

As

the Pension Fund correctly argues,

otherwise would allow some pensioners,
the

to work in

same or related businesses depending on where they lived and

the proximity of a contributing employer.
Appeals Committee's 3.

Accordingly,

the

interpretation will be affirmed. 8.06(a)(l) and

Suspension of Benefits Under Sections
8.06(a)(3)

Although the Court under § 8.06(d)(1)(B)

finds

that the decision to suspend Morton the

was supported by substantial evidence,

16

conclusion that the decision to suspend under §
not supported by substantial evidence affects

8.06(d)(1)(E)
amount of

was

the

benefits the Pension Fund may suspend.

Because it determined

that Morton had participated in disqualifying employment under

both §§ 8.06(d)(1)(B)

and 8.06(d)(1)(E),

the Appeals Committee

found that Morton was subject to suspension of his pension

benefits as set forth in §§
48, 204.

8.06(a)(1)

and 8.06(a)(3).
8.06(a)(1)

RM 146is not

The suspension of benefits under §

affected by the Court's decision.

However,

the

suspension under

Section 8.06(a)(3)

is implicated.

That section states:

In addition to any period provided in Section 8.06(a)(l) and (2), the monthly benefit shall be suspended for 6 consecutive months for
every calendar quarter in which the Pensioner

was engaged in Disqualifying Employment of the type described in Section 8.06(d)(1)(E).

Plf.'s Ex.

2

{emphasis added).

Because

the Court has found that 8.06(d)(1)(E) was not

the decision to suspend benefits under §

based on substantial evidence,
not

the application of

§ 8.06(a)(3)

is

supported by substantial evidence,

and the decision to

suspend benefits under this provision is reversed.

C.

Whether the Department of Labor Regulations Protect
Morton

Morton's final argument is that Department of Labor

regulations prevent the Pension Fund from suspending his benefits
under these circumstances.
U.S.C. § 1053(a)(3)(B)(ii)

Specifically,
and 29 C.F.R. §

Morton relies on 29
2530.203-3, which

Morton contends prohibits

the Pension Fund from suspending his

17

benefit payments unless

it shows Morton was re-employed in the

same industry,

same trade or craft,

and the same geographic area.

Morton also argues that the Pension Fund is required to resume

paying benefits to him because the regulations limit the length
of the suspension and the percentage of benefits that may be

suspended.9

Morton failed to raise these arguments before the
2008 appeal, and, thus, no

Appeals Committee in his June 12,

evidence as to whether these regulations apply to Morton appears
in the administrative record.

The regulation at issue,
in relevant part:

29 C.F.R.

§ 2530.203-3(a),

states

A plan may provide for the suspension of benefits which commence prior to the attainment of normal retirement
age . . . for any reemployment and without regard to the provisions of section 203(a)(3)(B) and this

regulation to the extent (but only to the extent) that suspension of such benefits does not affect a retiree's entitlement to normal retirement benefits payable after attainment of normal retirement age, or the actuarial
equivalent thereof.

Based on this provision of the regulation,

the Pension Fund

argues that the regulations do not apply to Morton because he has
not yet reached normal retirement age and because the suspension

"does not affect his entitlement to his normal retirement benefit
at Normal Retirement Age
Opp'n 15.

(i.e..

age 65)."

Def.'s Mem.

of Law in

Morton responds

that the regulations do apply because of the

the Fund intended to suspend his benefits under § 8.06 of the Plan and cited to the regulation now at issue. See RM 120-21.
18

9 The October 16,

2007 suspension letter advised Morton that

particular pension option he chose.

The

55/30 pension provided

Morton with a higher monthly payment of
62, 84. and then a lower monthly payment of

$3,502.00 until he was
$2,156.00 thereafter. RM

Had he not chosen this option and simply waited until

reaching the normal retirement age of 65 to receive his pension,
the monthly payment would have been $2,872.00. Morton argues

that the suspension affects

the actuarial value of his benefits

because he has

lost the benefit of the higher monthly payment of

$3,502.00 pension during the suspension and will receive only
$2,156.00 per month after he reaches age 62.

Morton did not explicitly make this argument about the actuarial value of his pension until he filed his Reply to
Defendant's Motion for Summary Judgment, and the Pension Fund did

not have the opportunity to directly respond to this argument in

its briefs,

although it was summarily addressed at oral argument,

with defense counsel asserting that Morton will in fact receive
the actuarial equivalent of the normal retirement benefits he was

entitled to receive after attainment of normal retirement age,
even though he did not receive all of the payments he expected to receive before reaching age 65. However, there is no evidence in

this record as to what the actuarial equivalent is or how it was
calculated. Thus, the Court cannot determine whether the

Department of Labor regulations are violated by the decision of
the Pension Fund.

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III.

Conclusion

For these reasons,

the decision of

the

Pension Fund will be

affirmed as to its conclusion under § 8.06(d)(1)(B), to its conclusion under § 8.06(d)(1)(E) ,

reversed as

and remanded to allow

for recalculation of the pension benefit to which Morton remains

entitled,

taking into consideration that the Court only affirmed
of the Plan.

the denial of benefits based on § 8.06(d)(1)(B)
Upon remand,

the Pension Fund must address whether the suspension

of benefits under §

8.06(d)(1)(B)

affects Morton's entitlement to

"normal retirement benefits payable after attainment of normal

retirement age,

or the actuarial equivalent thereof."
the parties's motions for summary judgment will
by an Order to be issued

Accordingly,

be granted in part and denied in part,
with this Memorandum Opinion.

Entered this 32> day of June, 2009.

Alexandria,

Virginia

j

Leonie M. Brukema United States District Judge

20