                                                                  FILED
                                                      United States Court of Appeals
                                                              Tenth Circuit

                                                             July 29, 2015
                                     PUBLISH             Elisabeth A. Shumaker
                                                             Clerk of Court
                 UNITED STATES COURT OF APPEALS

                              TENTH CIRCUIT



JOSEPH E. MARTINEZ, and JENNIE
DARLENE MARTINEZ, as the spouse
of Joseph E. Martinez,

            Plaintiffs-Appellants,
v.                                                  No. 14-1315
THE PLUMBERS & PIPEFITTERS
NATIONAL PENSION PLAN, THE
PLUMBERS & PIPEFITTERS
NATIONAL PENSION FUND, and
THE BOARD OF TRUSTEES OF
THE PLUMBERS & PIPEFITTERS
NATIONAL PENSION FUND,

            Defendants-Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                (D.C. NO. 1:12-CV-01063-MSK-MJW)


Dennis P. Walker, Boesen Law, LLC, Denver, Colorado, for Appellants.

R. Richard Hopp, O’Donoghue & O’Donoghue LLP, Washington, DC, for
Appellees.


Before TYMKOVICH, MATHESON, and MORITZ, Circuit Judges.


TYMKOVICH, Circuit Judge.
      Joseph Martinez was a long-term participant in the Plumbers and Pipefitters

National Pension Plan, a multiemployer defined benefit pension plan governed by

the Employee Retirement Income Security Act. Following some health problems,

Martinez retired from plumbing in 2004 at age 56 and took advantage of the

Plan’s early retirement pension. After a few years in retirement, he felt well

enough to resume working, and his pension was suspended during that time

according to rules that prohibit retirement benefits during disqualifying

employment. When he retired again in 2009, he asked the National Pension Fund

to allow him to convert the pension benefits he previously elected from an early

retirement pension to a disability pension—a change that would entitle him to

higher monthly payments.

      The Fund denied the conversion and the district court upheld the denial.

We agree that the Plan language is unambiguous and allows Plan participants to

apply for and receive only one type of pension benefit for life absent several

clearly delineated exceptions, none of which apply to Martinez.

      Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we affirm the

Fund’s denial of Martinez’s claim for disability benefits.

               I. Standard of Review and Plan Provisions

      After discussing the standard of review that guides us, we explain the Plan

language in some detail and how it was applied to Martinez’s request for a

disability pension.

                                        -2-
      A. Standard of Review

      Our review is of the Fund’s decision to deny Martinez benefits. Holcomb

v. Unum Life Ins. Co. of Am., 578 F.3d 1187, 1192 (10th Cir. 2009). We accord

no deference to the district court’s judgment. Accordingly, like the district court,

we must determine the proper standard of review to apply to the Fund’s denial of

benefits. LaAsmar v. Phelps Dodge Corp. Life, Accidental Death &

Dismemberment & Dependent Life Ins. Plan, 605 F.3d 789, 796 (10th Cir. 2010).

      In a suit to recover benefits under the Employee Retirement Income

Security Act’s (ERISA) enforcement provision, 29 U.S.C. § 1132(a)(1)(B), 1 our

review is de novo “unless the benefit plan gives the administrator or fiduciary

discretionary authority to determine eligibility for benefits or to construe the

terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115

(1989); see also Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111 (2008). In that

case, we apply a deferential standard of review and “ask[] only whether the denial

of benefits was arbitrary and capricious.” Weber v. GE Grp. Life Assurance Co.,

541 F.3d 1002, 1010 (10th Cir. 2008).

      There is no question here that the Plan delegates such authority to the

Trustees of the Fund and that a deferential standard of review is warranted. See


      1
         29 U.S.C. § 1132(a)(1)(B) provides a cause of action for a plan
participant “to recover benefits due to him under the terms of his plan, to enforce
his rights under the terms of the plan, or to clarify his rights to future benefits
under the terms of the plan.”

                                         -3-
Foster v. PPG Indus., Inc., 693 F.3d 1226, 1232 (10th Cir. 2013). The Plan

reserves to the Trustees the discretion “to construe the terms of the Plan, to

resolve any ambiguities, and to determine any questions which may arise with the

Plan’s application or administration, including but not limited to determination of

eligibility for benefits.” Aple. App. 167 (Section 9.03); id. at 174 (Section

10.06).

       Martinez urges that even if the review would otherwise be deferential,

procedural irregularities in the administrative appeal process warrant a lesser

standard of deference. We have applied de novo review where deferential review

would otherwise be required in the face of serious procedural irregularities.

LaAsmar, 605 F.3d at 797; see, e.g., Rasenack ex rel. Tribolet v. AIG Life Ins.

Co., 585 F.3d 1311, 1317–18 (10th Cir. 2009). It is unnecessary for us to

determine whether the Fund in fact violated ERISA’s procedural requirements or

whether any of the alleged violations would be serious enough to warrant de novo

review because, even considering the Fund’s denial of benefits de novo, we would

affirm. 2

       2
         To the extent Martinez means to argue for additional remedies relating to
the alleged procedural violations, the argument would fail because he has not
identified how he was prejudiced. “Not every procedural defect will upset the
decision of plan representatives,” Sage v. Automation, Inc. Pension Plan & Trust,
845 F.2d 885, 895 (10th Cir. 1988), and Martinez has not alleged, nor can we
think of any “purpose [that] would be served by a further, but procedurally
correct, review” of his claim. Id.; see also Brimer v. Life Ins. Co. of N. Am., 462
F. App’x 804, 808–09 (10th Cir. 2012) (requiring a showing of prejudice for
                                                                        (continued...)

                                         -4-
      B. Plan Provisions and Martinez’s Election

      The Plan offers seven types of pensions for which participants may apply

upon retirement depending on the eligibility requirements. A participant who has

not yet reached the normal retirement age of 65 is eligible for a disability pension

if he is permanently and totally disabled and has accrued a certain number of

employment hours and pension credit. The Plan deems a participant permanently

and totally disabled only if the Social Security Administration (SSA) has awarded

him social security disability benefits.

      For a participant who wishes to begin receiving monthly benefits but has

not yet received a decision from the SSA that would entitle him to a disability

pension, the Plan offers the option of applying for a contingent early retirement

pension. To be eligible, an applicant must be awaiting an SSA determination and

otherwise be eligible for an early retirement pension. This is the situation in

which Martinez found himself when he retired in 2004—awaiting a disability

determination from the SSA. He decided to proceed with the application process

and apply for a contingent early retirement pension.

      The “contingent” aspect of the contingent early retirement pension refers to

what happens to the pension when the SSA issues its decision. Before the


      2
       (...continued)
remand); id. at 809 (citing DiGregorio v. Hartford Comprehensive Emp. Benefit
Serv. Co., 423 F.3d 6, 16 (1st Cir. 2005) (“Claimant must demonstrate how a
plan’s flawed procedure prejudiced review of her claim.”)).

                                           -5-
decision issues, a contingent early retirement pensioner receives monthly benefits

in the amount of an early retirement pension. When the decision issues, the

pension is automatically adjusted in one of two ways. If the SSA issues a

favorable determination, the pension is adjusted to a disability pension and “the

Participant shall thereafter receive the amount of the Disability Pension and be

considered a Disability Pensioner.” Aple. App. 158 (Section 4.16(b)(i)). If the

SSA denies benefits, however, “the Participant shall thereafter receive the amount

of the Early Retirement Pension and be considered an Early Retirement

Pensioner.” Id. (Section 4.16(b)(ii)). The Plan provides that “[s]uch

adjustments”—meaning the adjustment to a disability or early retirement

pension—“shall be made automatically and the Participant shall not otherwise be

entitled to change the form of benefit.” Id. (Section 4.16(b)(iii)).

      Martinez does not contend that he did not have access to the Plan

provisions governing the operation of a contingent early retirement pension

before he made the election on his application. Moreover, before finalizing an

application for a contingent early retirement pension, the Fund requires applicants

to sign a form titled Contingent Early Retirement Pension—Declaration of

Understanding. Martinez executed this form, which provided, in pertinent part:

             I understand that if I am denied a disability award from the
             [SSA], either upon appeal or choosing not to appeal:

             •      I will be considered an Early Retirement Pensioner,
                    retaining the same Effective Date of Benefits as

                                          -6-
                   established for my Contingent Early Retirement
                   Pension as if the benefit had always been an Early
                   Retirement Pension.

            •      An adjustment will be made in my benefit to change
                   from the Disability form to the non-Disability form,

            •      I shall not otherwise be entitled to change the form
                   of benefit I originally elected, and

            •      I shall become a permanent Early Retirement
                   Pensioner regardless of whether I subsequently
                   receive a disability award from the [SSA].

            ....

            I have read and understood the above provisions stated in
            Section 4.16 of the Plan and their effect upon my receipt
            of the Contingent Early Retirement Pension.

Id. at 48 (emphasis added). After receiving his application and the executed

forms, the Fund approved his contingent early retirement pension and set an

effective date of November 1, 2004.

      On January 1, 2005, the SSA denied Martinez’s application for disability

benefits. He notified the Fund of the denial and his decision not to appeal. The

Fund sent him a letter notifying him that his pension would be converted to an

early retirement pension in accordance with Section 4.16 of the Plan. Martinez

did not appeal that determination, and he received early retirement pension

benefits until June 2006. At that time, in need of additional income, he decided

he was able enough to return to work.




                                        -7-
       The Plan specifically addresses the scenario in which a pensioner returns to

work after retiring and applying for benefits. For any months spent working in

disqualifying employment and for an additional six-month period following the

end of such employment, the Plan provides that “[t]he monthly benefit shall be

suspended.” Id. at 171 (Section 9.07(a)). When a participant provides notice that

he is returning to retirement, the Plan provides that “[b]enefits shall be resumed

for months after the last month for which benefits were suspended.” Id. at 172

(Section 9.07(g)).

       The Plan also allows the Board of Trustees to grant waivers of the

suspension of benefits for defined periods of time. The first year Martinez

returned to work he did so under such a waiver. Accordingly, for one year,

Martinez worked and continued to receive his early retirement pension benefits.

At the close of the waiver period, Martinez notified the Fund of his decision to

continue working. In a letter, he wrote:

             This letter is to inform you of my decision to terminate my
             Pension status, as of July 1, 2007, to return to the work
             force. I understand that a 30 day notice is required in
             writing prior to returning to work and canceling my
             pension eligibility, to avoid penalties. Due to an auto
             accident in the year 2000, I was forced into early
             retirement however, over the past few years, I have
             somewhat recovered from my injuries, and although there
             are limitations to my abilities, I feel at this time I am able
             to return to the work force.

Id. at 58.


                                           -8-
      The Fund sent Martinez a letter explaining that because he was returning to

disqualifying employment, his benefits would be “suspended” effective July 1 and

he would be subject to a further six-month suspension of benefits upon his “re-

retirement.” Id. at 60. Enclosed with the letter was a Resumption of Benefits

form, which he was instructed to submit when he stopped his work in

disqualifying employment. Also attached was a form titled, Summary of the Plan

Provisions on Suspension of Benefits Due to a Return to Work. As its title

indicates, the form explained in accordance with the relevant Plan provisions that

pension payments are “suspended” for the period of time a pensioner returns to

work and instructed, “[w]hen you stop working and want to retire again, you must

notify the Fund in writing. Failure to give such notice will delay the resumption

of payment of your benefit.” 3 Id. at 63.

      In early 2008, Martinez requested an estimate of what his pension pay

would be if he “return[ed] to retirement.” Id. at 65. On April 1, the Fund

responded and again explained that because he returned to work before the age of

65, he was subject to an additional six-month suspension upon his “re-

retirement.” Id. at 66. Thus, his benefits would be “reinstated” on the first

calendar day of the seventh month after he “re-retire[d].” Id. The Fund again

      3
         Martinez had also signed a Retirement Declaration prior to finalizing his
selection of the contingent early retirement pension, which declared that he
understood his “benefits will be suspended for any months in which I return to
work [before age 65] for any amount of hours in Disqualifying Employment, plus
an additional six months.” Aple. App. 46.

                                            -9-
enclosed the Summary of Provisions on Suspension of Benefits and a Resumption

of Benefits form.

      In October of the following year, Martinez submitted the following

question through the Fund’s website: “Given the state of the [economy] I am

considering retiring at age 61 which will be in a few days. My question is, what

will my monthly income be if I was to choose 100% benefit for my wife.” App.

118. A letter in response from the Fund stated:

             This letter is to acknowledge receipt of your inquiry. . . .
             Due to a large number of requests for information we have
             received, it may take us 4 to 6 weeks to respond to your
             inquiry. . . . Your Effective Date of Benefits is established
             as the first of the month following receipt of your
             Application of Benefits or the first of the month after you
             cease working. If it is your intention to retire within the
             next 4 months, contact the Fund Office to request an
             Application for Benefits to allow adequate time for
             processing.

Id. at 149. Martinez then submitted another question to the website, stating: “I

[received] your [response] letter about my recent inquiry about retirement status.

I am [planning] on early retirement due to the work picture in our industry. I turn

61 years old tomorrow and would like to request an application for [retirement] as

soon as possible[.]” Aple. App. 72. In response, the Fund mailed Martinez an

Application for Benefits (not a Resumption of Benefits form).

      These October exchanges are the only suggestion in the record that

Martinez might qualify to retire anew and submit a second application for


                                         -10-
benefits. But any apparent confusion was cleared up in subsequent interactions

between Martinez and the Fund because on December 1, the Fund sent Martinez a

letter stating, “In your recent telephone call to the . . . Fund, you advised that you

plan to re-retire in the near future. You would like for the . . . Fund to reinstate

payment of your pension benefit.” Id. at 74. Enclosed was a Resumption of

Benefits form (not an Application for Benefits) and instructions to complete the

form in order to reinstate his benefits. The letter explained that “[u]pon receipt of

this form, the Fund will advise you of the date your benefit can be reinstated and

any adjustments or increases to your benefit that you may be entitled to receive

based on your age or additional pension credit earned.” Id. Martinez submitted

the Resumption of Benefits form, and the Fund reinstated his early retirement

pension benefits six months later on June 1, 2010.

      In July, Martinez submitted a second application to the SSA for disability

benefits. This time, the SSA issued a favorable determination finding that he was

disabled as of April 2009. Martinez submitted the SSA’s determination to the

Fund and requested that his early retirement pension be converted to a disability

pension—a change that would result in an increase of several hundred dollars in

his monthly benefits. The Fund denied the request on the ground that the Plan

“provides the terms and conditions under which the benefit of a Participant who is

receiving an Early Retirement Pension may be adjusted to a Disability Pension,”

and Martinez did not fit those conditions. Id. at 88.

                                          -11-
      To understand the basis of the Fund’s decision, we must pause and review

the Plan provisions addressing a participant’s entitlement to change the type of

pension he is receiving. Section 4.19 of the Plan, titled Non-Duplication of

Benefits, provides that “[a] person shall be entitled to only one type of pension

benefit” with two exceptions: (1) “a Disability Pension recipient who recovers

may be entitled to a different type of pension”; and (2) “a Contingent Early

Retirement Pension or an Early Retirement Pension may be adjusted in

accordance with Section 4.16.” Id. at 159.

      The first exception recognizes the possibility that a disability pensioner

may recover from his disability and lose his status as permanently and totally

disabled. If that happens, the disability pension ends, and the participant may

return to work and later be eligible to receive a different type of pension.

      The second exception can be further broken down into two parts:

(1) adjustment to a disability pension from a contingent early retirement pension,

and (2) adjustment to a disability pension from an early retirement pension. The

former refers to the automatic adjustment to a disability pension provided for in

Section 4.16(b)(i) when a contingent early retirement pensioner receives a

favorable determination from the SSA. The latter refers to Section 4.16(c), which

provides adjustments in two circumstances:

             (c)    Notwithstanding the above, the pension of a
                    Participant who is receiving an Early Retirement


                                         -12-
                   Pension may be adjusted to a Disability Pension as
                   follows:

                   (i)    If the Participant failed to elect the
                          Contingent Early Retirement Pension on his
                          application as required by Section 4.16(a),
                          but otherwise met the requirements of this
                          Section 4.16 at the time of his application, his
                          pension will be adjusted as set forth above in
                          Section 4.16(b)(i).

                   (ii)   If the Participant had not applied for a Social
                          Security Disability Award at the time of his
                          initial application, but subsequently submits
                          a favorable determination by the [SSA] on his
                          eligibility for a Disability Award and
                          otherwise meets the requirements of Section
                          4.12, his pension may be adjusted if the date
                          of disability as determined in accordance with
                          Section 9.05(b)(ii) is on or before the
                          Effective Date of Benefits of the Initial Early
                          Retirement Pension.

Id. at 158.

      Because Martinez’s pension had already been adjusted to an early

retirement pension at the time he requested the switch to a disability pension, the

Fund relied on Section 4.16(c) in denying his request. Specifically, the Fund

found Martinez did not qualify for an adjustment because his “Effective Date of

Benefits with the Fund was November 1, 2004” and the SSA determined he was

disabled as of April 2009. Id. at 88.

      As was his right under the Plan, Martinez appealed the adverse benefit

determination to the Board of Trustees. He made three arguments: (1) because he


                                         -13-
now meets the eligibility requirements for a disability pension, he is entitled to

disability benefits; (2) the SSA’s favorable determination should trigger an

automatic adjustment of his pension under Section 4.16(b)(i); and (3) he is

entitled to an adjustment under Section 4.16(c)(ii) because his return to

employment had terminated his pension and his 2009 retirement resulted in a new

effective date of benefits in 2010. The Trustees affirmed the denial of benefits.

They maintained that when the SSA denied Martinez’s first application for a

disability award and his contingent early retirement pension was automatically

adjusted to an early retirement pension, his “benefit [would] thereafter [be] in the

amount of the Early Retirement Pension and [he would be] considered an Early

Retirement Pensioner.” Id. at 115. The Trustees rejected the claim that

Martinez’s return to employment terminated his pension, instead finding that his

early retirement pension was merely suspended and then reinstated when he

stopped working again in 2009. Pursuant to Sections 4.16 and 4.19, the Trustees

concluded he was not entitled to convert his early retirement pension to a

disability pension.

      Martinez and his wife, who is a co-beneficiary of Martinez’s benefits, next

sought review in state court under 29 U.S.C. § 1132(a)(1)(B), to recover the

disability benefits he alleged were due to him under the Plan. The Fund removed

the suit to federal court and the district court affirmed the Trustees’ decision.




                                         -14-
The court held the Plan was unambiguous and did not permit Martinez to convert

his pension.

                                II. Discussion

      Martinez presents two arguments as to why he is entitled to a disability

pension. First, he contends the Plan is unambiguous and its plain language

entitles him to disability benefits. Second, he submits that even if he would not

otherwise be entitled to benefits, the Fund misled him about benefit eligibility and

should be equitably estopped from denying him a disability pension.

      For the reasons discussed below, neither argument is persuasive.

      A. The Plan Does Not Permit Martinez to Convert His Early Retirement
         Pension to a Disability Pension

      In reviewing ERISA policies, “[o]ur first task is to determine whether the

policy is ambiguous.” Rasenack, 585 F.3d at 1318. In making that

determination, “we consider the common and ordinary meaning as a reasonable

person in the position of the plan participant would have understood the words to

mean.” Id. (quoting Miller v. Monumental Life Ins. Co., 502 F.3d 1245, 1249

(10th Cir. 2007)). Both the Fund and Martinez contend (with different outcomes)

that there is no ambiguity in the relevant Plan provisions. See Reply Br. at 6

(“The Plan language is unambiguous.” (emphasis in original)). Our review

confirms the absence of ambiguity. Thus, we construe the Plan as a matter of law

and compare the plain meaning to the rationale asserted by the Trustees in


                                        -15-
denying Martinez’s appeal. Finding no deviation between the two, we affirm the

denial of benefits.

      Martinez’s first argument rests on the 2010 SSA decision that he was

disabled as of April 2009. He says that because he now satisfies the eligibility

requirements for a disability pension, the affirmative language used in the

Plan—“A Participant shall be entitled”—requires that he be paid disability

benefits. Aple. App. 157 (Section 4.12) (emphasis added); see also id. (Section

4.15) (“Payment of the Disability Pension shall commence . . . .” (emphasis

added)). The Fund does not dispute that if Martinez were now to submit an initial

application for a disability pension he would be eligible. But that is not what he

did. Rather, he already retired and became an early retirement pensioner and thus

the Fund contends his present eligibility is irrelevant. And absent proof that he

qualifies for an adjustment in the type of pension under one of the exceptions

recognized by the Plan, he must continue to receive an early retirement pension.

      We agree with the Fund. To accept Martinez’s argument would require us

to ignore how the Plan operates as a whole. Our review of plan documents in

ERISA appeals is not of individual provisions in isolation, but of the plan

documents as a whole. See Miller, 502 F.3d at 1250. Here, the Plan is structured

so that a participant must submit a written application to begin receiving benefits,

and upon a determination of eligibility, the participant “shall be entitled upon

Retirement to receive the monthly benefits provided for the remainder of his life,

                                         -16-
subject to the provisions of th[e] Plan.” Id. at 168 (Section 9.05). Martinez

retired in 2004, submitted an application for a contingent early retirement

pension, and was approved to begin receiving benefits with an effective date of

November 1, 2004. When the SSA denied his application for disability benefits,

the Fund automatically adjusted his contingent early retirement pension to an

early retirement pension, and the Plan provides that he “shall thereafter receive

the amount of the Early Retirement Pension and be considered an Early

Retirement Pensioner.” Id. at 158 (Section 4.16(b)(ii)). Thus, the question

cannot be framed as whether Martinez now satisfies the eligibility requirements

for a disability pension. The question is whether, as an early retirement

pensioner, the Plan authorizes Martinez to adjust his pension to a disability

pension. The Trustees concluded it does not, and we reach the same conclusion.

      As noted above, Section 4.19 provides that a participant “shall be entitled

to only one type of pension benefit” with two exceptions. Id. at 159 (emphasis

added). The common and ordinary meaning of this provision is that if a

participant does not fit within either exception, he will receive only one type of

pension. Martinez makes two arguments for a different reading of Section 4.19,

neither of which are persuasive. First, he contends that Section 4.19 only

prohibits a participant from receiving two types of pension benefits at the same

time, but not consecutively. This reading cannot be squared with the two listed

exceptions to Section 4.19, neither of which addresses a circumstance in which a

                                         -17-
participant is entitled to two pensions at the same time, but instead circumstances

in which a participant may be entitled to switch from one type of pension to

another.

      Martinez also contends that Section 4.19 cannot mean that one “pension

‘type’ is permanently applicable” because the Plan contemplates participants

receiving different types of pensions at different times. Reply Br. at 13.

Tellingly, however, the only example he provides of this is a disability pensioner

who recovers and is later entitled to select a different type of pension—one of the

two exceptions listed in Section 4.19. Finding no ambiguity in this provision, we

conclude that Martinez is not entitled to convert his early retirement pension

unless he fits within an exception to Section 4.19.

      As a fallback argument, Martinez gives two reasons he is entitled to an

adjustment under the second exception listed in Section 4.19, which provides “a

Contingent Early Retirement Pension or an Early Retirement Pension may be

adjusted in accordance with Section 4.16.” Aple. App. 159. First, he contends

that the SSA’s disability determination should trigger Section 4.16(b)(i), which

provides that “[u]pon determination of eligibility for a Disability Pension, the

Participant shall thereafter receive the amount of a Disability Pension and be

considered a Disability Pensioner.” Id. at 158. Martinez again picks isolated

language without acknowledging the context in which the language is found.

Section 4.16(b)(i) addresses the adjustment made to a contingent early retirement

                                        -18-
pension upon the SSA’s determination of eligibility. Martinez is no longer a

contingent early retirement pensioner, having already had his pension adjusted to

an early retirement pension when the SSA denied his first application. Section

4.16(b)(i) has no relevance to Martinez’s present ability to convert his early

retirement pension to a disability pension.

      His second argument is that he is entitled to a disability pension adjustment

under Section 4.16(c)(ii), which provides:

             If the Participant had not applied for a Social Security
             Disability Award at the time of his initial application, but
             subsequently submits a favorable determination by the
             [SSA] on his eligibility for a Disability Award and
             otherwise meets the requirements of Section 4.12, his
             pension may be adjusted if the date of disability as
             determined in accordance with Section 9.05(b)(ii) is on or
             before the Effective Date of Benefits of the Initial Early
             Retirement Pension.

Id. The Trustees rejected the contention that Martinez was eligible for an

adjustment under this provision because his date of disability in 2009 was not on

or before the effective date of benefits of November 1, 2004. Martinez concedes

that if the 2004 retirement is used, this provision cannot apply to him. Instead, he

argues that there was a second effective date of benefits in 2010 corresponding to

his second retirement in 2009 and that the Trustees erred in “mismatching” these

dates. Aplt. Br. at 26. Because he had not submitted his second application for

disability benefits to the SSA when he retired again in 2009 and his date of




                                         -19-
disability preceded the purported 2010 effective date of benefits, he contends the

prerequisites for an adjustment under Section 4.16(c)(ii) are met.

      For this argument to have merit, Martinez must be correct that his return to

disqualifying employment terminated his early retirement pension and that his

return to retirement in 2009 effected a second, independent retirement with a new

effective date of benefits. This argument has no support in the Plan, however.

Section 9.07 addresses the precise circumstance in which a pensioner returns to

work in disqualifying employment. The Plan states that “[t]he monthly benefit

shall be suspended for any month in which the Participant is employed in

Disqualifying Employment” plus an additional six-month suspension for

participants under the age of 65. Aple. App. 171 (emphasis added). At the end of

the disqualifying employment and the six-month suspension, the Plan provides

that “[b]enefits shall be resumed.” Id. at 172.

      There is no ambiguity here. The Plan defines “suspension of benefits” as a

“non-entitlement of benefits for the month.” Id. (Section 9.07(c) – Definition of

Suspension) (emphasis added). The common and ordinary meaning of “suspend”

and “resume” as a reasonable person in the position of a Plan participant would

have understood them is that Martinez’s benefits would be temporarily withheld

while he returned to work and the same benefits would subsequently be resumed

when he again stopped working. There is no support for the contention that the

Plan language is susceptible to more than one meaning, much less that such an

                                        -20-
alternative meaning would equate a suspension of benefits with a termination of

benefits.

      As recounted in detail above, when Martinez made the decision to return to

work, the Fund explained that his early retirement pension would be suspended

and then the same benefits would be reinstated when he stopped working with

adjustments to account for any difference in age and additional accrued pension

credit. Notably, when Martinez left work again in 2009, he did not submit a new

application for benefits, but instead submitted a resumption of benefits form to

the Fund. The Fund then reinstated his benefits after the additional six-month

suspension passed on June 1, 2010. 4 This June date is not, as Martinez contends,

a new effective date of benefits, but rather the date his early retirement pension,

with an effective date of benefits of November 1, 2004, was reinstated. 5 Because

      4
         Martinez contends the reinstated benefits were not the “same benefits”
because he received a different monthly amount following his 2009 retirement.
Section 9.07(h), titled Benefit Payments Following Suspension, explains that the
amount of a participant’s monthly benefit “when resumed after suspension” will
be adjusted to account for increase in age or any additional accrued pension
credit. Aple. App. 172–73. The Fund explained the adjustment in Martinez’s
early retirement benefit payments by letter in advance of the reinstatement in June
2010.
      5
         Because we conclude that the 2009 date was not a new retirement but
instead a resumption of his prior early retirement pension, we need not address
Martinez’s argument that he was permitted under the Plan to select a second
effective date of benefits. Because the same pension was resumed, the effective
date of benefits remained November 1, 2004. Even assuming that the Plan
supports allowing Martinez to select a second effective date of benefits, Section
4.16(c)(ii) refers to the “Effective Date of Benefits of the Initial Early Retirement
                                                                         (continued...)

                                         -21-
his effective date of benefits was in 2004 and he did not become disabled until

2009, he is not eligible for an adjustment under Section 4.16(c)(ii).

      Martinez maintains this cannot be right because the Plan defines

“retirement” as being “separated from service with any and all Contributing

Employers and from any and all employment that would be considered to be

Disqualifying Employment.” Aple. App. at 171 (Section 9.06). Martinez

contends that because he was not retired during the period he returned to work, he

could not also be considered an early retirement pensioner during that time. We

disagree. The Plan requires that at the time a participant elects to begin receiving

pension benefits he or she must be retired and must submit a written application

for benefits. In 2004, when Martinez submitted his application for benefits, he

was retired as defined by the Plan. The Plan then goes on to provide what

happens to retired participants when they return to work. And as we have just

explained, the Plan does not say that coming out of retirement terminates a

previously granted pension, but instead says it is suspended until such point that it

resumes.

      Because neither exception to Section 4.19 applies, Martinez is not eligible

to change his pension. Although this result may seem an injustice to Martinez

who is now disabled, the Supreme Court has emphasized “the particular

      5
        (...continued)
Pension,” Aple. App. 158 (emphasis added), and the effective date of Martinez’s
initial early retirement pension was November 1, 2004.

                                         -22-
importance of enforcing plan terms as written in § 502(a)(1)(B) claims.”

Heimeshoff v. Hartford Life & Accident Ins. Co., 134 S. Ct. 604, 612 (2013).

“[E]mployers have large leeway to design disability and other welfare plans as

they see fit. And once a plan is established, the administrator’s duty is to see that

the plan is maintained pursuant to that written instrument.” Id. at 611–12

(internal quotations, citation, and alterations omitted).

      For those reasons, the Trustees did not err in denying his conversion to a

disability pension.

      B. Equitable Estoppel

      Martinez also contends the Fund is equitably estopped from denying

benefits. He asserts that his return to retirement in 2009 did entitle him to apply

for and receive a new type of pension because he detrimentally relied on Fund

correspondence indicating that he would be able to do so. Specifically, he cites

the Fund’s use of the terms “re-retire” and “re-retirement” in various forms and

correspondence and the Fund’s October 2009 letters that instructed, “Your

Effective Date of Benefits is established as the first of the month following

receipt of your Application for Benefits or the first of the month after you cease

working.” App. 236; see also Aple. App. 73.

      ERISA preempts state law claims, including equitable estoppel claims.

Kerber v. Qwest Grp. Life Ins. Plan, 647 F.3d 950, 962 (10th Cir. 2011); see also

Callery v. U.S. Life Ins. Co., 392 F.3d 401, 407 (10th Cir. 2004). We have said

                                         -23-
that an equitable estoppel claim may be available in the ERISA context in

“egregious” circumstances, “such as where the employer lied, engaged in fraud,

or intended to deceive participants, or where the claim was premised on the

employer’s interpretation of an ambiguous provision in the plan.” Kerber, 647

F.3d at 962 (internal citation omitted).

      Martinez alleges this case presents such egregious circumstances. To make

the case, Martinez takes the Fund’s instructions far from context. The terms “re-

retire” and “re-retirement” only appear in the context of explaining the Plan’s

provisions on the suspension and resumption of benefits. The Plan never used the

terms in the context of assuring participants that upon re-retirement, they are

entitled to submit a new application for benefits. Moreover, as the Fund points

out, the prefix “re” suggests a return to a pre-existing condition, rather than an

entirely new retirement with a new type of pension benefit. Thus, aside from the

fact that any reliance on these terms was unreasonable, Martinez has not

identified any lie, fraud, or intent to deceive by the Fund.

      The single sentence taken from the October 2009 letters is similarly

unhelpful. The first form letter was sent in response to Martinez’s online query in

which he stated he wanted to retire, but did not mention the fact that he had

previously retired and applied for benefits. The letter was sent only “to

acknowledge receipt of [Martinez’s] inquiry” and explained that “[d]ue to a large

number of requests for information we have received, it may take us 4 to 6 weeks

                                           -24-
to respond to [the] inquiry.” App. 149. When Martinez submitted a second

online query several days later, again without clarifying that he had already

retired, the Fund sent an Application for Benefits and instructed that his effective

date of benefits would be set after he stopped working. It is clear the letters did

not provide any individualized advice, but were instead intended to provide

general information until the Fund had the opportunity to look into Martinez’s

inquiry. And in December, after speaking with Martinez about the particulars of

his situation, the Fund subsequently advised him that he would need to submit a

Resumption of Benefits form and that his benefits would thereafter be reinstated.

      In sum, because we have already determined the Plan language is

unambiguous and the representations cited by Martinez are not the type that rise

to the requisite level of egregiousness, his equitable estoppel claim fails.

                                 III. Conclusion

      For the foregoing reasons, we AFFIRM the Fund’s denial of benefits.




                                         -25-
