724 F.2d 100
4 Employee Benefits Ca 2654
John R. PECKHAM and W.T. Woolumv.BOARD OF TRUSTEES OF the INTERNATIONAL BROTHERHOOD ANDALLIED TRADES UNION and Industry National Pension Fund.
No. 82-1640.
United States Court of Appeals,Tenth Circuit.
Dec. 16, 1983.

Before SETH, Chief Judge, and HOLLOWAY, McWILLIAMS, BARRETT, DOYLE, McKAY, LOGAN and SEYMOUR, Circuit Judges.


1
This matter comes on for consideration of the appellant's petition for rehearing and suggestion for rehearing in banc.


2
Upon consideration whereof, the petition for rehearing is granted by the panel to whom the case was submitted.


3
It is ordered that the judgment entered herein on October 24, 1983 is vacated.  The Court has this date filed its supplemental opinion on rehearing in which it rescinds the portion of the opinion filed October 24, 1983 directing the Board to pay the plaintiffs interest on the mistaken contributions that the Court ordered refunded.


4
With this modification, the opinion filed October 24, 1983, 719 F.2d 1063, is reaffirmed.


5
The petition for rehearing having been granted by the panel to whom the case was argued and submitted, and no member of the panel nor judge in regular active service on the Court having requested that the Court be polled on rehearing in banc, Rule 35, Federal Rules of Appellate Procedure, the suggestion for rehearing in banc is denied.


6
Before SETH, Chief Judge, and LOGAN and SEYMOUR, Circuit Judges.

SUPPLEMENTAL OPINION ON REHEARING

7
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. Sec. 1.401(a)-3, Ex.  (1).


8
Relying on Prop.Treas.Reg. Sec. 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 overpayments.  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.

