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3d 52
73 A.F.T.R.2d 94-1127, 62 USLW 2508,
17 Employee Benefits Cas. 2249
Herbert New (argued) Herbert New & David W. New, P.C., Clifton, NJ,
for appellant.
Alan C. Antonucci (argued), Cedar Grove, NJ, for appellee.
Before: BECKER and STAPLETON, Circuit Judges, and RESTANI,
Court of International Trade Judge.*
OPINION OF THE COURT
RESTANI, Judge.
This matter is before the court following our remand to the United States
District Court for the District of New Jersey to consider Velis v. Kardanis, 949
F.2d 78 (3d Cir.1991), with respect to appellant's garnishment of appellee's
bank account containing disability benefits. Trucking Employees of North
Jersey Welfare Fund, Inc. v. Colville, 986 F.2d 1410 (3d Cir.1993) ("Colville
III "). The district court found Velis inapplicable to the facts of this case. This
appeal ensued and we now reverse on the basis of Velis.
I.
2
The Fund brought the instant action in the United States District Court for the
District of New Jersey for restitution of the overpayments. Colville
counterclaimed for release of his retirement benefits. On May 28, 1991, the
district court granted the Fund judgment in the amount of $44,000 plus interest,
but declined to place a constructive trust on the withheld benefits in favor of the
Fund. Colville I, at 10, App. at 30. Further, the district court, sua sponte,
ordered release of the withheld funds. Id. at 12, App. at 32. No appeal was
taken from this judgment.
II.
We have appellate jurisdiction under 28 U.S.C. Sec. 1291 (1988) to review the
final order of the district court. The district court had jurisdiction pursuant to 29
U.S.C. Sec. 1132(e) (ERISA) (1988) and 28 U.S.C. Sec. 1331 (1988). We
exercise plenary review, as the only issues before us are legal in nature.
Williams v. New Castle County, 970 F.2d 1260, 1264 (3d Cir.1992).
III.
7
Citing to its unappealed opinion in Colville I, the district court stated that under
Guidry, the anti-alienation provision "erects a general bar to the garnishment of
pension benefits from plans covered by ERISA." Colville II, at 2, App. at 47.
The district court then concluded that the monies in Colville's personal bank
account were essentially the same funds as those covered by the anti-alienation
provision. Thus, the court held the funds continued to be protected for the same
reasons as if they had remained undistributed. Id., at 5, App. at 50.
10
12
13
We, on the other hand, do not find the reasoning of Velis to be limited solely to
the situation where funds have been distributed and then immediately invested
in non-liquid assets. The distinction the district court draws in finding Velis
inapplicable to the facts presented here appears to be unworkable. Investments,
as opposed to more readily accessible funds, such as those in a bank account,
may or may not be a source of a stream of income that could be used for current
living expenses that was envisioned in Patterson. Under the theory employed
by the district court, would annuity or dividend-paying stock investments be
subject to the anti-alienation provision, or would they be subject to execution
and claims of creditors in bankruptcy? The reasoning of the district court leaves
this question unanswerable. Accordingly, we reject the narrow view of Velis
adopted by the district court.
14
Additionally, the Court of Appeals for the Tenth Circuit recently reached the
same conclusion as we reach here. Following remand by the Supreme Court,
the pension benefits at issue in Guidry were paid into a bank account opened
specifically to receive these funds. Guidry, 10 F.3d at 704. The creditor union
garnished the bank account to satisfy a judgment against the pension
beneficiary based on embezzlement of union funds. Id. at 703-704. The Tenth
Circuit concluded that the anti-alienation provision, as interpreted by
Department of Treasury regulations, applies only to actions against the plan, not
to actions against the beneficiary. See id. at 709-710, 716.
15
18
Not having the benefit of the Tenth Circuit's opinion in Guidry, 10 F.3d 700,
the district court in the instant case did not address this reasoning on remand.
Rather, the court discussed in detail only one clause of the regulation, which
provides in part:
19 terms "assignment" and "alienation" do not include ... (iii) [a]ny arrangement
[t]he
for the recovery by the plan of overpayments of benefits previously made to a
participant.
20
The district court determined this clause was inapplicable because it applied
only to funds still in the hands of the pension trust. Id. at 7-8, App. at 9-10. The
court also noted that it found the entire regulation to be so restricted. Id. at 8,
App. at 10. Whatever the applicability of clause 13(c)(2)(iii), the Treasury
Department and the Tenth Circuit have found the regulation as a whole, and
particularly 26 C.F.R. Sec. 1.401(a)-13(c)(1), to address broader issues,
including the one now before this court. We agree with their view.
21
Another potentially instructive decision, and one to which the parties here cite
extensively, is Coar v. Kazimir, 990 F.2d 1413 (3d Cir.), cert. denied, --- U.S. ---, 114 S.Ct. 179, 126 L.Ed.2d 138 (1993), decided in the week following the
district court's opinion in Colville IV. In Coar, a former trustee of a pension
fund breached his fiduciary duty to that same fund. 990 F.2d at 1414. The
pension fund then attempted to recoup from the fiduciary's pension benefits the
losses occasioned by his misconduct. Id. at 1414-15. The district court in Coar
prohibited recoupment by means of equitable setoff, based upon its construction
of the anti-alienation provision. Id. at 1415. We reversed, finding Guidry
inapplicable where ERISA's remedial provision, Sec. 409(a), is brought into
play. Id. at 1420.
22
The majority in Coar stated that the anti-alienation provision, and Guidry,
shield "only the beneficiaries' interest under the pension plan from third-party
creditors." Id. at 1420-21. The concurring opinion in Coar would have expressly
limited the holding to breaches by fiduciaries. See id. at 1425. We need not
address the breadth of Coar, or the competing policies discussed therein in
order to resolve this matter. The district court's order resulting in payout of the
funds in this case was never appealed. As the funds are no longer in the hands
of the pension plan trustee, Velis, rather than Coar, controls.
IV.
23
For the foregoing reasons, the judgment of the district court will be reversed,
and the case will be remanded for the district court to order turnover of the
account funds that are the subject of execution of the appealed judgment.
breach ... and shall be subject to such other equitable or remedial relief as the
court may deem appropriate."