UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Laborer’s District Council

Pension Fund for Baltimore 

and Vicinity; and James L.

Fisher, Trustee,

Plaintiffs

v. Civil No. 05-cv-144-SM

Opinion No. 2007 DNH 022

Daniel J. Regan,

Defendant

O R D E R

Laborers’ District Council Pension Fund for Baltimore and

Vicinity (“Laborers’” or “the Fund”), and its trustee, James L.

Fisher, bring this suit against Daniel J. Regan to recover

pension benefits paid to Regan, but to which he was allegedly not

entitled. Count I is based upon a restitution theory of recovery

and Count II on unjust enrichment.

Laborers’ moves for summary judgment. For the reasons set

forth below, Laborers’ motion is denied.

The Legal Standard

Summary judgment is appropriate when the record demonstrates

“that there is no genuine issue as to any material fact and that

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the moving party is entitled to a judgment as a matter of law.”

FED. R. CIV. P. 56(C). In considering a motion for summary

judgment, the court must view the record “in the light most

hospitable” to the nonmoving party. Euromodas, Inc. v. Zanella,

Ltd., 368 F.3d 11, 17 (1st Cir. 2004) (citing Houlton Citizens’

Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999);

Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)). An

issue is “‘genuine’ if the parties’ positions on the issue are

supported by conflicting evidence.” Int’l Ass’n of Machinists &

Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196,

200 (1st Cir. 1996) (citing Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250 (1986)). An issue is “‘material’ if it potentially

affects the outcome of the suit.” Id. at 199-200. 

In support of its summary judgment motion, the moving party

must “identify[] those portions of [the record] which . . .

demonstrate the absence of a genuine issue of a material fact.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the

moving party successfully demonstrates the lack of a genuine

issue of material fact, “the burden shifts to the nonmoving party

. . . to demonstrate that a trier of fact reasonably could find

in [its] favor.” DeNovellis v. Shalala, 124 F.3d 298, 306 (1st

Cir. 1997) (citing Celotex, 477 U.S. at 322-25). Once the burden

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shifts, the nonmoving party “may not rest upon mere allegation or

denials of his [or her] pleading, but must set forth specific

facts showing that there is a genuine issue for trial.” 

Anderson, 477 U.S. at 256.

Background

The facts, described in the light most favorable to Regan,

are as follows.

Regan, a construction worker, joined the International

Laborers’ Union (“the Union”) in 1966 and remained a member until

1986. During that time he participated in the Union’s retirement

benefits plan, administered by the Fund and governed by the

Employee Retirement Income Security Act of 1974, 29 U.S.C.

§ 1132(a) (“ERISA”). In August of 2003, Regan applied for early

retirement benefits. The Fund completed a Pension Application

Worksheet and determined that Regan was entitled to a one-time

payment of $3,482.02. 

Regan subsequently received an election form that noted he

would receive a “lump sum payout” of his pension entitlement. 

The form also required Regan to indicate whether he wanted to

roll over his pension benefit into another retirement account,

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explaining that a cash payout would be subject to a 20% federal

income tax withholding. Regan signed and returned the form,

opting for the cash payout.

On October 1, 2003, the Fund issued a check in the amount of

$2,785.62, representing Regan’s pension benefit less withholding

of $696.40, which amount was remitted to the Internal Revenue

Service (“IRS”). Due to an administrative error, Regan also

received monthly checks for the same amount, beginning on

November 1, 2003, and continuing until July 2004, when the error

was discovered and corrective action taken. Over the nine-month

period the Fund paid $31,338.18 on Regan’s behalf ($25,070.58 was

paid to Regan directly, while the remaining $6,267.60 was

remitted to the IRS).

On July 30, 2004, Regan was formally notified by letter of

the error. The letter requested Regan to repay, or make

arrangements to repay, the full value of the erroneous

disbursements by September 1, 2004. Regan refused to pay and

this suit followed on April 22, 2005.

Case 1:05-cv-00144-SM Document 17 Filed 02/20/07 Page 4 of 11
1 At page 5 of his objection to the Fund’s Motion for

Summary Judgment, Regan explains that “[a]s an ordinary

individual, [he] is not confident that he was paid the correct

benefits or not. Consequently, he demands proof that he was

actually overpaid.” Regan also notes that the amount of the

alleged overpayment is in dispute “as [Regan] believes [the Fund]

has collected $6,267.60 in alleged overpayments by filing a

corrected 1099 form for the 2003 tax year and failing to send the

withholding taxes to the IRS for the 2004 tax year.” Aside from

these two passing and unsupported references, the objection

focuses exclusively on the issue of whether the Fund is entitled

to recover the erroneous payments.

5

Discussion

Laborers’ moves for summary judgment asserting that “it

cannot be disputed that an overpayment was made to Regan.” 

(Pl.’s Mot. Summ. J. 4.) Regan objects to summary judgment, but

does not vigorously contest that the monthly payments were made

in error.1 Regan also does not contest that, under the plan, the

Fund has a legal right to seek reimbursement. Instead, he

challenges the propriety of equitable relief, claiming,

essentially, that requiring him to repay the amount of the

overpayment would be unfair at this point because he has

detrimentally changed his position (spent the money) based upon

reasonably relying upon the fact that the Fund correctly

determined that he was due the money that it sent him.

Under 29 U.S.C. § 1132(a)(3)(A) a fiduciary of an ERISAgoverned plan is authorized to obtain “other appropriate

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equitable relief.” As explained in Tynan v. Am. Airlines, Inc.

Pilot Ret. Benefit Program, 2005 DNH 127, *10-11 (D.N.H. 2005),

the scope of this court’s equitable authority in an ERISA context

is not well-defined. It would appear, however, that injunctive

relief of the type that plaintiff seeks is available. See

generally Mertens v. Hewitt Assocs., 508 U.S. 248 (1993)

(narrowly interpreting the phrase “other appropriate equitable

relief,” as used in 29 U.S.C. § 1132(a) to include only “those

categories of relief that were typically available in equity

(such as injunction, mandamus, and restitution . . . ).”)

(emphasis in original). See also Wells v. U.S. Steel & Carnegie

Pension Fund, Inc., 950 F.2d 1244, 1251 (6th Cir. 1991)

(“Although the Plan language permits recoupment, this court is

concerned with the possible inequitable impact recoupment may

have on the individual retirees. . . . We thus remand this case

to the district court to consider whether, under principles of

equity or trust law, relief is unwarranted); Butler v. Aetna U.S.

Healthcare, Inc., 109 F. Supp. 2d 856, 862 (S.D. Ohio 2000)

(“[W]ithout question, the plan grants [defendant] a legal right

to withhold [plaintiff’s] entire monthly benefit award until it

recoups the overpayment caused by her retroactive receipt of

Social Security Disability benefits . . . [H]owever, . . .

equitable principles may limit an ERISA fiduciary’s legal right

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to recoup an overpayment of benefits.”) (emphasis in original). 

So, for purposes of resolving plaintiff’s claim, the court

assumes that it has the equitable authority to determine whether

the Fund may recover the excess payments made to Regan.

The Fund correctly points out that, generally speaking,

“[w]hen a trustee overpays a beneficiary the trustee is entitled

to recover the excess payment, even when it was the product of

unilateral mistake on the part of the trustee.” Hoffa v.

Fitzsimmons, 673 F.2d 1345, 1354 (D.C. Cir. 1982). But, as Regan

notes, “such recovery may not be permitted where the beneficiary

has changed his position in detrimental reliance on the

correctness of the overpayment; in such cases the beneficiary is

entitled to retain part or all of the overpayment to the extent

necessary to avoid injustice.” Id. at 1354 n. 27. There appears

to be no dispute that Regan changed his position in reliance on

the correctness of what turned out to be a series of

overpayments. The outcome of this motion thus turns on whether

Regan reasonably believed that he was entitled to the payments he

received.

The Fund asserts that Regan knew or should have known that

the excess payments were erroneous, because the amount was

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incommensurate with the 2.8 years of work he had performed under

the Union’s Baltimore local. Regan, however, says he was

applying for reciprocal pension benefits based upon not only his

2.8 years of work in Baltimore, but all laboring work he

performed over some twenty years, irrespective of location,

falling within the Union’s jurisdiction.

The Fund invokes this court’s opinion in Tynan as support

for its position. Tynan invoked a pension plan beneficiary who

sought to enjoin the plan’s administrator from collecting

overpayments he received over a six year period. 2005 DNH 127,

*4. Tynan argued, just as Regan argues, that he reasonably

believed he was entitled to the full amount of each check he

received. Id. at *9. This court found Tynan’s asserted belief

to be legally unreasonable, because he had been notified, in

writing, of the precise amount of his anticipated monthly pension

benefit and he had been paid the proper amount during the first

month of his retirement, after which the higher, erroneous

payments began. Id. at *12. That sudden change in payment

amount, the court determined, “could not have escaped [Tynan’s]

notice.” Id.

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Regan was also notified in writing of the amount of his

pension, as well as the fact it would be a “lump sum payout.” 

But unlike Tynan, the written communication between Regan and the

Fund was complicated by the Fund’s continued use of “reciprocal

benefits” language. In 1994, for example, Regan received a

letter from the Fund indicating that, upon retirement, the Fund

would “work up a reciprocal pension benefit” for him. (Def.’s

Mot. Opp. Summ. J., Ex. 3.) Such correspondence allegedly

encouraged Regan to believe that the benefits for which he

applied would be based on not only upon his laboring work in

Baltimore, but also on the entirety of his service under the

Union’s jurisdiction — approximately twenty years of work. 

Moreover, Regan prepared an estimate of his entitlement and

determined that over the period during which he worked in the

Baltimore jurisdiction, $10,295 had been contributed to the Fund

on his behalf, which, he concluded, should have “increased in

value to over $50,000” by the time the erroneous payments were

made. (Regan Aff. ¶ 21.)

The Fund disputes both Regan’s calculations and his

interpretation of the “reciprocal benefits” language, pointing

out that he was already receiving pension benefit payments from a

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Massachusetts pension fund that took into account 11.75 years of

service that Regan now claims should be included in determining

the value of his pension benefits from the Fund. The Fund also

explains that Regan’s calculations are inaccurate because they

are based on erroneous numbers that do not accurately reflect the

economic relationship between the Fund’s contributions and

distributions.

But even if Regan’s calculations are inaccurate, the mere

fact that he may have prepared the estimate suggests that he may

have reasonably believed that he was entitled to the erroneous

payments. So, while there was “[n]othing in [Tynan’s] filings,

except his general denial of any knowledge of the error . . . ,”

Tynan, 2005 DNH 127, *12, here Regan plainly states that he did

not recognize the overpayments as erroneous because his

interpretation of the reciprocity arrangement between Union

locals, and his own, albeit rudimentary, calculations, led him to

believe his benefit entitlement was consistent with the amount

she was receiving.

Put simply, Regan is a construction laborer afflicted with

medical and mental challenges, (Def.’s Obj. Mot. Summ. J., Ex.

11), he is unversed in the complexities of pension plans or

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benefits administration. When he contacted Laborers’ seeking

clarification of his pension entitlement, he was advised that he

would be entitled to a reciprocal pension, from which says he

inferred that his total benefit would reflect the totality of his

union work experience, and not merely the 2.8 years he worked in

the Baltimore locale. As a result of communications from

Laborers’ as well as his own calculations, Regan says he honestly

believed he was entitled to the payments that he received, and,

has now altered his position to the point that repayment would be

inequitable. Whether that belief was reasonable under the

circumstances poses a question of material fact - one that is

genuinely disputed, and, therefore, precludes summary judgment. 

Accordingly, the Fund’s motion for summary judgment is denied.

Conclusion

For the foregoing reasons, plaintiff’s motion for summary

judgment (document no. 10) is denied.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

February 20, 2007

cc: William D. Pandolph, Esq.

Janine Gawryl, Esq.

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