                                                                         FILED
                                                                          OCT 10 2018
                            NOT FOR PUBLICATION
                                                                     SUSAN M. SPRAUL, CLERK
                                                                        U.S. BKCY. APP. PANEL
                                                                        OF THE NINTH CIRCUIT



              UNITED STATES BANKRUPTCY APPELLATE PANEL
                        OF THE NINTH CIRCUIT

In re:                                               BAP No. CC-17-1375-LSF

BARBRA WILLIAMSON,                                   Bk. No. 9:14-bk-12772-DS

             Debtor.
BARBRA WILLIAMSON,

                      Appellant,

v.                                                   MEMORANDUM*

PARS,

                      Appellee.

                 Submitted Without Argument on September 27, 2018

                               Filed – October 10, 2018

                  Appeal from the United States Bankruptcy Court
                       for the Central District of California

             Honorable Deborah J. Saltzman, Bankruptcy Judge, Presiding



         *
        This disposition is not appropriate for publication. Although it may be cited for
whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential
value, see 9th Cir. BAP Rule 8024-1.
Appearances:        Michael D. Kwasigroch on brief for Appellant; Matthew
                    S. Walker of Pillsbury Winthrop Shaw Pittman LLP on
                    brief for Appellee.



Before: LAFFERTY, SPRAKER, and FARIS, Bankruptcy Judges.



                                 INTRODUCTION

      Debtor Barbra Williamson appeals the bankruptcy court’s order

denying her motion for sanctions under § 362(k)1 against Phase II Systems

dba Public Agency Retirement System (“PARS”) for violating the

automatic stay by offsetting a retirement benefit overpayment from

Ms. Williamson’s monthly benefit. The bankruptcy court denied the

motion because it found that the setoff constituted equitable recoupment,

which is not prohibited by the automatic stay.

      We AFFIRM.

                           FACTUAL BACKGROUND

      Ms. Williamson served on the city council and the planning

commission of the City of Simi Valley for more than 17 years. Upon her

retirement, she applied for benefits under the city’s Retirement



      1
      Unless specified otherwise, all chapter and section references are to the
Bankruptcy Code, 11 U.S.C. §§ 101-1532.

                                           2
Enhancement Plan (the “Plan”). The Plan provides a small supplement to

California Public Employees’ Retirement System (“CalPERS”) benefits for

eligible city employees, including city council members, the city manager,

and other senior city management officials.2 PARS, a privately held

California corporation, is the trust administrator for the Plan.

Ms. Williamson submitted to PARS an application for benefits that

correctly stated her final annual salary of $14,938.04, which would have

entitled Ms. Williamson to a monthly benefit of $99.87. But PARS sent

Ms. Williamson an enrollment packet that calculated her monthly Plan

benefit at $1,198.48 based on the mistaken assumption that $14,938.04 was

Ms. Williamson’s monthly salary. Ms. Williamson signed the enrollment

forms and returned them to PARS.

      In February 2013, Ms. Williamson began receiving monthly benefits

of $1,198.48. PARS discovered its mistake in approximately August of 2014

and wrote to Ms. Williamson requesting reimbursement of the

overpayment, which at that time totaled $21,972.20.

      Ms. Williamson filed her chapter 13 petition in December 2014, listing

PARS as a creditor. Nearly three years later, on October 25, 2017,

Ms. Williamson filed a “Motion for Contempt, Violation of the Automatic

Stay, Damages, Punitive Damages, Costs and Attorneys Fees, and


      2
        Ms. Williamson was on the city council at the time the Plan was approved and
voted in favor of approving it.

                                          3
Accounting for Sums Due the Debtor by Creditor PARS” (the “Motion”).

The Motion alleged that postpetition, PARS, with notice of the bankruptcy,

had withheld retirement benefits to offset the overpayment resulting from

PARS’ miscalculation of the proper monthly payment due

Ms. Williamson.3

      On November 15, 2017, PARS filed an opposition to the Motion,

arguing that its actions in offsetting the overpayment constituted

recoupment, which was not a violation of the automatic stay. PARS alleged

that Ms. Williamson should have realized she was being overpaid given

that she had been involved in the city council’s approval of the plan, was

one of only twenty people who benefitted from the plan, and knew that the

plan was intended to provide a small supplement to her CalPERS benefit of

$684.28 per month. PARS also noted that Ms. Williamson had signed

enrollment forms that included the calculation error, attaching a copy of

those forms to its supporting declaration.4 Ms. Williamson did not file a


      3
          Ms. Williamson stated in the Motion that the overpayment amount was $26,000.
It is not clear from the record why this amount differs from the $21,972.20 asserted by
PARS when it initially notified Ms. Williamson of the overpayment in August 2014.
      4
         Although not emphasized by the bankruptcy court or the parties, one of the
enrollment documents signed by Ms. Williamson, the Direct Deposit form, provides
that the Participant (Ms. Williamson) “authorizes and directs the Financial Institution to
refund any payments to the PARS Trustee to which the Participant or the Participant's
successors or estate, would not have been entitled under the Plan as a result of the
Participant's death or otherwise, and the same to the Participant's Account designated
                                                                            (continued...)

                                            4
reply or otherwise dispute any of the facts asserted by PARS.5

       At the conclusion of a hearing on November 30, 2017, the bankruptcy

court determined that the setoffs met the test for equitable recoupment and

thus did not violate the stay. Accordingly, it denied the Motion. The

bankruptcy court entered its order on December 6, 2017, and

Ms. Williamson timely appealed.

                                   JURISDICTION

       The bankruptcy court had jurisdiction pursuant to 28 U.S.C. §§ 1334

and 157(b)(1) and (b)(2)(O). We have jurisdiction under 28 U.S.C. § 158.

                                         ISSUE

       Did the bankruptcy court err in concluding that PARS’ postpetition

deduction of retirement benefit overpayments from Ms. Williamson’s

monthly benefit constituted equitable recoupment?

                             STANDARD OF REVIEW

       We review de novo the bankruptcy court’s application of undisputed

facts to the law concerning equitable recoupment. Aetna U.S. Healthcare, Inc.

       4
       (...continued)
above. Both Participant and any co-tenant on the Participant Account agree on behalf of
themselves, their heirs, executors, successors, and any trustee of his or he trust (if any)
to reimburse the PARS Trustee for such payments.”
       5
         At the hearing on the Motion, the bankruptcy court noted that, because she had
not filed a reply, Ms. Williamson had not disputed that she knew of the overpayment.
On appeal, Ms. Williamson asserts that she was unaware that PARS had miscalculated
her benefits. The bankruptcy court did not cite Ms. Williamson’s knowledge or lack
thereof as a basis for its ruling.

                                             5
v. Madigan (In re Madigan), 270 B.R. 749, 753 (9th Cir. BAP 2001) (citing Sims

v. U.S. Dep’t of Health & Human Servs. (In re TLC Hosps., Inc.), 224 F.3d 1008,

1011 n.7 (9th Cir. 2000)).

                                 DISCUSSION

A.    Equitable Recoupment

      Equitable recoupment is similar to setoff in that each permits a

creditor to deduct amounts owed to it by a debtor from amounts it owes to

the debtor. Nevertheless, the two doctrines “have differences with

important consequences in the bankruptcy context.” In re TLC Hosps., Inc.,

224 F.3d at 1011. Section 553 of the Bankruptcy Code preserves the right of

a creditor to offset a prepetition debt it owes to the debtor against that

creditor’s prepetition claim. Before exercising its right of setoff, the creditor

must obtain relief from the automatic stay. See Citizens Bank of Md. v.

Strumpf, 516 U.S. 16, 19 (1995); § 362(a)(7). Section 553 does not permit

setoff “across” the petition date; pre- and postpetition claims may not be

offset.

      Recoupment, on the other hand, is not provided for in the

Bankruptcy Code. Rather, it is a common law equitable doctrine which has

been defined as “the setting up of a demand arising from the same

transaction as the plaintiff's claim or cause of action, strictly for the

purpose of abatement or reduction of such claim.” Newbery Corp. v.

Fireman's Fund Ins. Co., 95 F.3d 1392, 1399 (9th Cir. 1996) (citation omitted)


                                        6
(emphasis in original). Unlike setoff, recoupment is not subject to the

automatic stay. In re TLC Hosps., Inc., 224 F.3d at 1011. Additionally,

recoupment “is not limited to prepetition claims and thus may be

employed to recover across the petition date.” Id. (citation omitted).

      In determining whether two events are part of the same transaction,

courts in the Ninth Circuit apply the “logical relationship” test, analogous

to the test used to determine compulsory counterclaims, i.e., whether the

counterclaim arises from the same aggregate set of operative facts as the

initial claim. In re Madigan, 270 B.R. at 755; see also Newbery Corp., 95 F.3d at

1399 (noting that recoupment has been analogized to both compulsory

counterclaims and affirmative defenses). In this context, the word

“transaction” is given a “liberal and flexible construction.” In re Madigan,

270 B.R. at 755 (citations omitted). A transaction may include “a series of

many occurrences, depending not so much upon the immediateness of

their connection as upon their logical relationship.” In re TLC Hosps., Inc.,

224 F.3d at 1012 (quoting Moore v. N.Y. Cotton Exch., 270 U.S. 593, 610

(1926)). In the final analysis, the obligations must be “sufficiently

interconnected so that it would be unjust to insist that one party fulfill its

obligation without requiring the same of the other party.” In re Madigan,

270 B.R. at 755.

      The bankruptcy court found that the logical relationship test was met

because the debt to PARS and the benefits owed Ms. Williamson arose


                                        7
from the same set of operative facts. Accordingly, PARS’ offset of amounts

it was owed by Ms. Williamson against her ongoing retirement benefits

constituted equitable recoupment and did not violate the automatic stay.

We see no error in the bankruptcy court’s analysis or conclusion that the

logical relationship test was met. The overpayment owed by

Ms. Williamson and the benefits owed to her by PARS arose from the

identical transaction and pension plan.

      Ms. Williamson does not seem to dispute that the logical relationship

test was satisfied here. Rather, she argues that the recoupment doctrine is

an impermissible court-created exception to the automatic stay; that the

cases permitting recoupment are distinguishable; and that California law

prohibits offset of pension benefits. We find these arguments unpersuasive.

B.    This Panel is bound to follow Ninth Circuit precedent.

      Ms. Williamson contends that the recoupment doctrine is an

impermissible exercise of judicial authority that usurps Congress’s power

to pass bankruptcy laws. Her argument is that (I) Article I, Section 8,

Clause 4 of the U.S. Constitution authorizes Congress to enact bankruptcy

laws; (ii) federal courts have no power to create judicial exceptions to the

automatic stay; and (iii) if Congress had intended recoupment to be an

exception to the stay, it would have included such a provision in § 362(b).

Ms. Williamson did not make this argument to the bankruptcy court, nor

did she provide any authority for it in her opening brief. Thus we are not


                                       8
obliged to consider it. See Kaass Law v. Wells Fargo Bank, N.A., 799 F.3d 1290,

1293 (9th Cir. 2015).

       In any event, we are bound to follow Ninth Circuit precedent unless

that precedent is overturned by the Supreme Court. Deitz v. Ford (In re

Deitz), 469 B.R. 11, 22 (9th Cir. BAP 2012) (citing United States v. Martinez-

Rodriguez, 472 F.3d 1087, 1093 (9th Cir. 2007)). As discussed above,

equitable recoupment is an established doctrine in the Ninth Circuit, and if

the logical relationship test is met, equitable recoupment does not violate

the automatic stay.6

       6
         In her reply brief, Ms. Williamson cited Judge Jury’s concurrence in Yellow
Express, LLC v. Dingley (In re Dingley), 514 B.R. 591 (9th Cir. BAP 2014), aff'd, 852 F.3d
1143 (9th Cir. 2017), as support for her argument. The Panel in that case reversed the
bankruptcy court's decision finding appellants in contempt for violating the automatic
stay by continuing, postpetition, prosecution of a state court contempt proceeding for
nonpayment of discovery sanctions. Id. at 600. In its decision, the Panel relied on David
v. Hooker, Ltd., 560 F.2d 412 (9th Cir. 1977), decided under the Bankruptcy Act, which
recognized an exception to the automatic stay for state court contempt proceedings. In a
concurrence, Judge Jury “reluctantly” joined the majority but opined that Hooker’s
judicially-created stay exception was “not consistent with the modern breadth of the
automatic stay espoused in Ninth Circuit case law and at odds with the plain language
of § 362(b).” In re Dingley, 514 B.R. at 601 (Jury, J., concurring). Judge Jury went on to
observe that applying such a rule effectively incorporated another exception into
§ 362(b), violating the Supreme Court’s pronouncement that “[w]here Congress
explicitly enumerates certain exceptions to a general prohibition, additional exceptions
are not to be implied, in the absence of evidence of a contrary legislative intent.” Id. at
603 (citing Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17 (1980)).

       The Ninth Circuit affirmed the Panel’s decision on different grounds, holding
that the conduct at issue fell within the statutorily enumerated exception to discharge
for government regulatory actions (§ 362(b)(4)). In re Dingley, 852 F.3d at 1147-48.
                                                                              (continued...)

                                             9
C.    Recoupment is a recognized doctrine in the Ninth Circuit, which
      applies the “logical relationship” test to determine whether mutual
      debts arise from the same transaction.

      Ms. Williamson’s next argument is difficult to decipher. The caption

to this argument in her opening brief is “The Recoupment Doctrine is an

Erroneous Law as a General Federal Rule.” She argues that case law

permitting recoupment in the bankruptcy context generally relates to

federal government benefits and a federal statutory right to setoff or

contracts providing for advance payments subject to future adjustment,

and case law expanding the doctrine to other situations is in error.

      Ms. Williamson cites Lee v. Schweiker, 739 F.2d 870 (3d Cir. 1984), as

“an analogous circumstance.” In Lee, the Third Circuit Court of Appeals

held that the recoupment doctrine did not apply to the setoff of social

security benefits against an overpayment to a debtor in bankruptcy. The

court, citing non-Ninth Circuit case law, observed that recoupment was

usually applied in the context of a contractual relationship but that social

welfare statutes do not create contractual rights, but rather constitute a

statutory entitlement whose purpose is to provide income to qualifying

individuals. Id. at 875-76. Lee, however, is inapposite because the Third

Circuit does not apply the logical relationship test–it applies a narrower


      6
       (...continued)
      Judge Jury’s concurrence does not state or imply that we should ignore binding
Ninth Circuit precedent.

                                         10
interpretation to the term “same transaction”than that utilized in the Ninth

Circuit. Newbery Corp., 95 F.3d at 1403; In re Madigan, 270 B.R. at 755-56.

And in the Ninth Circuit, recoupment is not limited to the contractual

context. In re Madigan, 270 B.R. at 758.

D.     Case law in the Ninth Circuit supports the bankruptcy court’s
       ruling.

       Ms. Williamson points out that in Madigan, cited by the bankruptcy

court, the Panel held that recoupment was inapplicable, and she argues,

without further explanation, that the analysis in Madigan “comports with

general analysis by other courts about the very limited application the

recoupment doctrine should have, if any.” But Madigan is distinguishable.

There, the Panel affirmed the bankruptcy court’s denial of an insurer’s

claim for recoupment from the debtor of excess disability benefits.

Although the benefits and overpayment arose from the same insurance

policy, there were two reimbursement agreements, two disability periods,

and two claims separated by a two-year period of employment and a

bankruptcy. The Panel held that, under these facts, even if the claims for

benefits arose from the same injury, the bankruptcy court properly applied

the logical relationship test to deny recoupment. In re Madigan, 270 B.R. at

761.

       Here, as noted, the pension benefits and overpayment arose from the

identical transaction; thus, Madigan is factually inapposite.


                                       11
E.    California law does not prohibit recoupment of retirement benefit
      overpayments.

      Ms. Williamson next argues that Beaumont v. Department of Veterans

Affairs (In re Beaumont), 586 F.3d 776 (10th Cir. 2009), cited by the

bankruptcy court, is distinguishable. In Beaumont, the Tenth Circuit Court

of Appeals upheld the bankruptcy court’s decision finding that the

Department of Veterans Affairs’ post-discharge withholding of disability

benefits from a debtor to recover an overpayment constituted equitable

recoupment because the obligations arose from the same transaction. 586

F.3d at 777. According to Ms. Williamson, the key distinguishing fact is that

this case involves pension benefits rather than military disability benefits

and that under California law, pension benefits are not subject to

recoupment because California law prohibits withholding of wages. She

asserts, without authority, that “[i]t is axiomatic that pension benefits are

deferred compensation.”

      Ms. Williamson then cites California State Employees’ Ass’n v.

California, 198 Cal. App. 3d 374 (1988), in which the California Court of

Appeals held that the state’s attachment and wage garnishment laws

prohibited the state from making deductions from the salaries of state

medical facility employees to recoup overpayments. Id. at 378.

Ms. Williamson also cites California Labor Code § 221, which provides: “It

shall be unlawful for any employer to collect or receive from an employee


                                       12
any part of wages theretofore paid by said employer to said employee.”

      But Ms. Williamson is incorrect that California courts treat pension

benefits the same as wages for purposes of recoupment. California cases

involving pension benefits have upheld recoupment of those benefits in

appropriate circumstances. See Krolikowski v. San Diego City Emps.’ Ret. Sys.,

24 Cal. App. 5th 537, 557 (2018) (holding that recoupment of state pension

benefit overpayment was not barred by statutes of limitations; exemptions

for levy and attachment of public retirement benefits; equitable estoppel; or

laches); Oakland v. Oakland Police & Fire Ret. Sys., 224 Cal. App. 4th 210, 249

(2014) (Oakland Police and Fire Retirement Board not barred by equitable

estoppel or laches from recouping benefits improperly paid to retirees).

      We are unpersuaded by any of Ms. Williamson’s arguments. The

bankruptcy court did not err in concluding that PARS’ withholding of her

pension benefits constituted equitable recoupment.

                               CONCLUSION

      For the reasons explained above, we AFFIRM.




                                       13
