Foster Art Service, Inc. Pension Trust Plan; Kennethenright; Janice Gutman; Eileen Sunner,plaintiffs-counter-defendants-appellees, v. Terri v. Wolfe, Defendant-counter-claimant-appellant, 955 F.2d 47 (9th Cir. 1992)

MEMORANDUM^* 

A. "Trust principles make a deferential standard of review appropriate when a trustee exercises discretionary powers." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111 (1989). The Foster Art Pension Plan, article III, grants plan fiduciaries broad discretionary power to administer the plan and interpret its provisions, and we cannot say that the interpretation of the plan adopted by the fiduciaries was an abuse of discretion. Id.¹ 

B. The fiduciaries properly applied 26 U.S.C. § 415 to limit the death benefit owed to Wolfe. See Treas.Reg. § 1.415-3 (1991); Final Regulations, Limitations on Benefits and Contributions Under Qualified Plans, 46 Fed.Reg. 1687 (1981).²  The fiduciaries did not err in applying section 415 at the time benefits were paid, even though payment occurred after the normal retirement date. See Treas.Reg. § 1.415-3(b); 46 Fed.Reg. at 1688 & 1701.

C. The district court did not abuse its discretion in holding that the Foster Art Pension Plan was entitled to restitution of its overpayment to Wolfe under Provident Life & Acc. Ins. Co. v. Waller, 906 F.2d 985, 993-94 (4th Cir.), cert. denied, 111 S. Ct. 512 (1990). See also Restatement of the Law of Restitution § 1 (1937). Wolfe received the excessive benefits as a mid-litigation payment that she should not have dissipated prior to learning the outcome of the litigation. Id. §§ 69(1), 142(1) (change in circumstances diminishes right to receive restitution only if change would make full restitution inequitable).

D. We decline to exercise our discretion to address any of the issues raised by Wolfe for the first time on appeal. See Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir. 1985).

E. We also decline to exercise our discretion to award attorneys' fees to the plaintiffs under 29 U.S.C. § 1132(g) (1988). See Williams v. Caterpillar, Inc., 944 F.2d 658, 667-68 (9th Cir. 1991).

AFFIRMED.