John R. PECKHAM and W.T. Woolum v. BOARD OF TRUSTEES OF the INTERNATIONAL BROTHERHOOD AND ALLIED TRADES UNION and Industry National Pension Fund, 724 F.2d 100

SUPPLEMENTAL OPINION ON REHEARING In its petition for rehearing the Board of Trustees for the first time raises the issue whether we have jurisdiction to consider this case. We hold that we do have authority to grant the relief ordered. We need not decide whether an employer, qua employer, may bring an action to enforce a return of contributions mistakenly paid. Compare Fenton Industries, Inc. v. National Shopmen Pension Fund, 674 F.2d 1300 (9th Cir.1982), with Crown Cork and Seal Co. v. Teamsters Pension Fund, 549 F.Supp. 307 (E.D.Pa.1982), aff’d mem. 720 F.2d 661 (3d Cir.1983).

See also Pressrooms Unions—Printers League Income Security Fund v. Continental Assurance Co., 700 F.2d 889 (2d Cir.1983). Plaintiffs Peckham and Woolum were named participants in the trust; they brought suit to recover pension rights in their capacities as participants. Although our earlier opinion held they were not entitled to retirement benefits, we are satisfied that we retain jurisdiction to prevent unjust enrichment of the fund for the amounts these individuals paid into the fund for their own accounts. See Prop.Treas.Reg. § 1.401(a)-3, Ex. (1).

Relying on Prop.Treas.Reg. § 1.401(a)-3(6)(2)(ii)(A), the Board also challenges our award of interest on the mistaken contributions we have ordered refunded. This proposed tax regulation states that plans may not return earnings attributable to excess contributions or over-payments. The purpose of the regulation being promulgated is to establish uniform rules applicable to all qualified retirement plans.

The prohibition against refunding earnings attributable to excess contributions or overpayments is apparently aimed at discouraging excess contributions and recognizes that the plan incurs administrative costs in calculating overpayments and making refunds. Acknowledging that our order requiring the payment of interest is inconsistent with the proposed treasury regulation, we bow to the expertise of the Service and its desire for uniform rules. We therefore rescind that portion of our opinion directing the Board to pay the plaintiffs interest on the mistaken contributions that we ordered refunded.

With this modification, the opinion is reaffirmed.