Morton v. Sheet Metal Workers' National Pension Fund, No. 1:2008cv00942 - Document 21 (E.D. Va. 2009)
Court Description: 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)
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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Alexandria Division ROBERT A. MORTON, HP ** II L IE ) Plaintiff Fxamcirt, ) v. ) I clerk, u.s. district court I Alexandria. viRr,iMiA_ 1:O8CV942 (LMB/TRJ) ) SHEET METAL WORKERS' PENSION NATIONAL ) FUND, ) ) Defendant. ) MEMORANDUM OPINION In this action brought under the Employee Retirement Income Security Act of 1974 the decision of the defendant, Pension Fund, ("ERISA"), plaintiff Robert Morton appeals the Sheet Metal Workers' National 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 to Fed. R. follow, Civ. P. the plaintiff's Motion for Judgment Pursuant 52, or in the Alternative, Judgment Pursuant to Fed. and denied in part, For the R. Civ. P. for Summary 56 will be granted in part and the defendant's Motion for Summary Judgment will be granted in part and denied in part, and the case 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 ("Pension Fund"), 13. 1999, On September 22, Morton was vested and was credited with 34 on August 9, 1999. RM notified that he was years and 8 months of and 33 years and 7 months of Future Service.2 service, 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. Nearly five years Id. 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, as of which 36 years and 11 months was future service 1 References to the administrative record will be designated "RM" in this Memorandum Opinion. 2 For background purposes, future service credit is defined in the Plan as "the periods of his Covered Employment subsequent 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, § 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. 3 Morton first indicated that he was applying for a pension effective September 1, date to September 29, 2004, 2004. but later changed his retirement RM 29-31, 35. credit. RM 36-37. contributions The letter also stated that certain from Morton's employer, between June and November 2003, Grove Accu-Fab Inc., 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, 55/3 0 Pension.4 appeal Id. but that he did not qualify for the The letter also alerted Morton to his rights under the Plan. Id. Morton apparently did not respond to the September letter, and on November 1, again. RM 67. 2004, In this letter, advise 2004. the Pension Fund informed Morton Id. The the Pension Fund if he did not needed new forms. Id. The 2004 the Pension Fund wrote Morton that it had not yet received the retirement forms to him on September 23, 20, that they sent letter asked Morton to intend to retire or if he letter also stated that Morton's file 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, 2005. RM 69. On May 3, 2005, Morton, through counsel, wrote the Pension Fund regarding his eligibility for the 55/30 Pension. In this letter, RM 70-71. 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, Fund wrote Morton's attorney to notify him that, the Pension after 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. 2, 2005, RM 75. On June 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 and $2,156.00 84. 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 entitled "Pension Detail," advised that "Plan Rules allow for limited work in Covered Employment after retirement enclosed Summary of Disqualifying Employment RM 85, 105. On another form, and Acknowledgment," entitled Morton was and that he had RM 87. for more details)." "Retirement Declaration Industry was September 30, "not worked in any Disqualifying Employment, as defined in Plan Rules, pension." {refer to the required to certify that his last date of employment in the Sheet Metal 2004 forms, after the effective date of my Morton also agreed to notify the Fund in writing "within 21 days of starting any work of any type that is, or may be, original). July, Disqualifying Employment." Id. (emphasis Morton signed this Form on June 29, in 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. Specifically, that he "must contact the Fund Office that he "return[ed] in original). the letter advised Morton in writing in the event" to Disqualifying Employment." Id. (emphasis 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, Champion Environmental Services, Inc. incident for the next he began working for ("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, 2007. RM 120. RM 124. Morton 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, § 8.06(d) (1) (E) . Id, it was disqualifying employment under Lastly, the Fund determined that Champion 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 under §§ 8.06(a)(2 & 3). Id, The letter notified Morton that 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. Id. (emphasis in original). 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 Champion Environmental Services, his pension." Id. to the decision, "Mr. Inc. RM Morton is not employed by and is fully eligible for Morton's counsel asked for documents related including "the SPD or Plan documents, the 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." Id. (capitalization of dialogue in orginial). After being notified that the Appeals Committee was meeting in late June, on June 12, Morton's counsel filed his formal notice of appeal 2008. RM 160-61. The appeal letter repeated that 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 the demolition and recycling industry, the sheet metal industry. Id. which was not related to 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" Almanac. Id. Sheet Metal in a study published in the Jobs Rated Morton also enclosed a copy of the website of the and Air Conditioning Contractors' Association, and a description National arguing that it established that the sheet metal industry had no relation to the demolition industry. Second, employee industry. Morton argued that for Champion were not RM 161. the Id. tasks he completed as an related to the sheet metal These tasks included delivering parts to job sites and changing motors and hydraulic lines on equipment and machines. Id. Morton argued that considered sheet metal work. the Id. this work could not be Finally, Morton argued that contributing employer to which the Fund was comparing Champion was geographically distant from Morton and Champion and was only tangentially related to company merely owned a the industry because a union subsidiary asbestos performed the same services as Champion. removal Id. company that Morton asked the Appeals Committee to reverse the earlier decision on these grounds. Id. On June 26, 2008, the Appeals Committee of met and considered Morton's appeal. 2008, the Pension Fund By a letter dated July 1, the Appeals Committee informed Morton's counsel that the committee had denied Morton's appeal of his suspension, finding 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 and 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 suspension under § 8.06(d)(1)(E) Metal Industry that for for "employment in the Sheet is not covered by a Collective Bargaining Agreement between the Union and the employer." The Committee 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 argument that the tasks he performed at Champion did not merit a suspension, but found that Morton's tasks, hydraulic lines and rebuilding equipment, the SMWIA Constitution. Id. described as changing were also covered by 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 he was subject to a suspension under §§ 8.06(a)(l) 8.06(a)(3). Id. and Morton was notified of his right to file a lawsuit under ERISA for review of the Appeals Committee decision. Id. On September 11, 2008, review of that decision, Morton timely filed for judicial seeking a judgment declaring that the Pension Fund must provide benefits under the Plan, back pay and pre-judgment interest from the denial date of December 1, reasonable attorneys' fees, and costs. 2007, Both parties have moved for judgment on the basis of the administrative record. II. Discussion A. Standard of Review5 When reviewing a denial of benefits under an ERISA plan, the Court must first determine whether the plan documents give the 5 This matter comes before the Court on 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 and the defendant's Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 56. In the Fourth Circuit, district courts generally 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 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. 10 plan administrator the discretion to make a benefits-eligibility determination. 320, 321-22 Woods v. (4th Cir. Prudential Ins. 2008). Co. of Am.. 528 F.3d A plan may confer discretion by either including "language which expressly creates discretionary authority" Id. or "terms which create discretion by implication." (quoting Feder v. 522-23 (4th Cir. discretion, under the Paul Revere Life Ins. 2000)). If Co., 228 the plan gives the administrator the Court reviews the plan administrator's decision deferential abuse of discretion standard. Otherwise, Here, F.3d 518, the decision is because reviewed de novo. the parties agree that Id. Id. the 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 standard, F.3d at 321-22. Under the substantial evidence." 1997) 326 is reasonable. Holland. 105 F.3d 158, 452 Motions Morton argues (4th Cir. 161 Substantial evidence is less than a preponderance of the Newport News Shipbuilding and Dry Dock Co. F.3d 449, B. See Brogan v. but it it is supported by (citations omitted). more than a scintilla, discretion "is the result of a deliberate, principled reasoning process and if evidence. of a decision will not be disturbed if A decision is reasonable if it (4th Cir. abuse See v. Cherry. 2003). for Summary Judgment that the evidence 11 establishes that the Pension 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 decision of the Pension Fund. 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 1. Plan. 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, disqualifying employment under § 8.06(d)(1)(E) was engaged in ("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. 6 Morton repeatedly states that the "Union" acted unreasonably, issue in this but only the actions of the Pension Fund are at civil action. 12 The Pension Fund concedes that the SMWIA Constitution does 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 to concede See Def.'s Mem. of Law in 6. 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. See, Bernstein v. (4th Cir. CapitalCare. Inc.. 70 13 F.3d 783, 790 e.g.. 1995). Because the Appeals Committee based its finding that Morton engaged in disqualifying employment under referring to the SMWIA Constitution, Association of Heat and Frost the § 8.06(d)(1)(E) by International Insulators and Allied Workers' affiliation with the Building & Construction Trades Department of the AFL-CIO, and a SMWIA collective bargaining agreement targeted at asbestos the abatement, none decision denying benefits under supported by substantial evidence. Committee abused its discretion, of which are § in 8.06(d)(1)(E) Accordingly, the that was record, was not the Appeals and its decision will therefore be reversed.7 In response out that to Morton's arguments, the Pension Fund points the decision to deny benefits was based on two independent provisions of Fund argues that even if decision relying on § § the 8.06{d){l). Court does 8.06(d)(1)(E) is Accordingly, not § 8.06(1)(d)(B) find that the supported by substantial evidence in the absence of the Constitution, suspend Morton under the Pension the decision to is supported by substantial evidence. 2. Suspension under Section 8.06(d) (1) (B) Morton attacks the decision to suspend benefits § 8.06(d)(1)(B), under 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, Contributing Employer as defined by the Plan.8 Morton argues that the evidence of PAS's {"PAS"), was a Specifically, remittance does not establish that PAS was obligated under a Collective Bargaining Agreement and that the computer printout shows making payments during parts of 2005 and 2006. responds that an employer would not contribute that PAS was not 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 Employer, as that The Court term is defined by the finds that the Appeals suspend Morton under § 8.06(d)(1)(B) evidence in the record. First, Committee's decision to is adequately supported by the parties do not dispute that Champion performed abatement services. Second, the evidence Plan. See also RM 127-131. in the record supports the Appeals Committee's finding that PAS engaged in lead and asbestos abatement and was making payments to the Pension Fund. 8 Section 1.10(a) RM 132- of the Plan defines a "contributing 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 Ex. 2. 134. Lastly, the evidence Pension Fund is that PAS was strong circumstantial evidence by a collective bargaining agreement These making payments that the it was bound required contributions. facts provide more than a scintilla of to conclude that to evidence upon which that Morton was working with an employer which was "in the same or related business as any Contributing Employer" under § 8.06(d)(1)(B). On this record, it was neither arbitrary nor capricious for the Appeals Committee no geographical to conclude that limitation. § 8.06(d)(1)(B) Section 8 . 06 (d) (1) (B) contained defines disqualifying employment as "employment with any employer in the same or related business as any Contributing Employer," and the plain language of the Plan does not include any geographic limitation in determining whether employment related business is disqualifying. national scope supports Moreover, the Pension Fund's finding no geographical limitation. the Pension Fund correctly argues, and not others, same or related businesses depending on where the proximity of a contributing employer. Appeals Committee's 3. As to interpret the section otherwise would allow some pensioners, the in the same or to work in they lived and Accordingly, the interpretation will be affirmed. Suspension of Benefits Under Sections 8.06(a)(l) and 8.06(a)(3) Although the Court under § 8.06(d)(1)(B) finds that the decision to suspend Morton was supported by substantial evidence, 16 the conclusion that the decision to suspend under § not supported by substantial evidence affects benefits the Pension Fund may suspend. 8.06(d)(1)(E) the was amount of 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). The suspension of benefits under § RM 146- 8.06(a)(1) affected by the Court's decision. However, Section 8.06(a)(3) That section states: is implicated. the is not suspension under 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 the decision to suspend benefits under § based on substantial evidence, not 8.06(d)(1)(E) the application of supported by substantial evidence, was not § 8.06(a)(3) is 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) Morton contends prohibits Specifically, and 29 C.F.R. Morton relies on 29 § 2530.203-3, which the Pension Fund from suspending his 17 benefit payments unless same industry, it shows Morton was re-employed in the 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 Appeals Committee in his June 12, 2008 appeal, and, thus, no evidence as to whether these regulations apply to Morton appears in the administrative record. The regulation at issue, 29 C.F.R. § 2530.203-3(a), states in relevant part: 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 (i.e.. age 65)." Def.'s Mem. of Law in 15. Morton responds 9 The October 16, that the regulations do apply because of the 2007 suspension letter advised Morton that 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 particular pension option he chose. The 55/30 pension provided Morton with a higher monthly payment of $3,502.00 until he was 62, $2,156.00 84. and then a lower monthly payment of 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. that the suspension affects because he has Morton argues the actuarial value of his benefits 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. 19 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 the denial of benefits based on § 8.06(d)(1)(B) Upon remand, of the Plan. 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." Accordingly, the parties's motions for summary judgment will be granted in part and denied in part, by an Order to be issued with this Memorandum Opinion. Entered this 32> day of June, 2009. Alexandria, Virginia j Leonie M. Brukema United States District Judge 20
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