The opinion of the court was delivered by: Shadur, District Judge.
On November 19, 1979 Robert McGinnis ("McGinnis") filed this
action against defendants William D. Joyce, John D. Kelahan,
Frank Wsol, Robert J. Baker, John J. Barranco and Michael P.
Murphy. Defendants are trustees of the International Brotherhood
of Teamsters Local No. 710 Pension Fund (the "Pension Fund") and
Health and Welfare Fund (the "Welfare Fund") (collectively the
"Funds"), of which McGinnis is a beneficiary. In McGinnis'
Amended Complaint (the "Complaint") he charges defendants with a
continuing and wilful refusal to grant McGinnis access to
plan-year reports of the Funds, to which he is entitled under
Sections 104(b)(2) and 104(b)(4) of the Employee Retirement
Income Security Act of 1974 ("ERISA").
On December 4, 1980 McGinnis moved to amend the Complaint to
include allegations that (1) defendants have unlawfully refused
to provide McGinnis with a list of all employers contributing to
the Pension Fund and (2) defendant Wsol and other employees of
Local 710 have threatened McGinnis with violence if he continues
his opposition activities (including pursuing this action) or
ever comes to the union hall where the Funds' offices are
located. Defendants oppose the proposed amendment, maintaining
that its allegations are non-actionable under ERISA. For the
reasons stated in this memorandum opinion and order, McGinnis'
motion to amend the Complaint is granted in part and denied in
Defendants argue that McGinnis' charges track ERISA § 511, a
criminal statute that does not imply a private right of action:
They contend that Sections 510 and 511 are mutually exclusive, so
that the fact that McGinnis has alleged facts actionable under
Section 511 (though not by McGinnis) precludes him from obtaining
any relief under Section 510.
McGinnis concedes that Section 511 does not imply a private
right of action and that the allegations contained in his
amendment may in fact be actionable under that provision.
However, he argues that those allegations also support a claim of
"discriminat[ion] against a . . . beneficiary for exercising any
right to which he is entitled under the provisions" of the Plans
or ERISA. Therefore, McGinnis says, he is entitled to relief
under the literal language of Section 510.
Defendants' argument that the applicability of Section 511 to
these facts precludes relief under Section 510 is plainly
1. Nothing in the text of those provisions or their legislative
history (as submitted to the Court by the parties) supports the
construction defendants suggest. If anything the legislative
history supports the contrary position. See, H. Conf. Report No.
93-1290, 1974 U.S.Cong.Code and Administrative News at 4639,
2. Defendants' contention that because McGinnis may state a
civil cause of action under 29 U.S.C. § 411 and § 412, no cause
of action should be read into Section 510, is equally without
merit. Neither general principles of statutory construction nor
the specific authorities cited by defendants suggest that the
wrong alleged may not be redressable concurrently under two or
3. Finally, defendants' argument that Section 510 on its face
applies only to "discrimination in employment or union
membership" and that the discrimination alleged in McGinnis'
amendment fails to meet that criterion is also without support.
By its express terms Section 510 applies to discrimination
incurred because a beneficiary has exercised his or her rights
under a plan or the ERISA statute.
Under McGinnis' allegations he is being treated differently —
discriminated against — for having exercised or seeking to
exercise the rights identified in Section 510. Those charges are
sufficient to support the amendment as a matter of pleading.
However, McGinnis' proposed Count IV does appear to be
defective in one respect. By its express terms, Section 510 is to
be enforced under ERISA § 502:
(a) A civil action may be brought —
(1) by a participant or beneficiary —
(A) for the relief provided for in subsection (c)
of this section, or
(B) 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) by a participant, beneficiary, or fiduciary
(A) to enjoin any act or practice which violates
any provision of this subchapter or the terms of
the plan, or (B) to obtain other appropriate
equitable relief (i) to redress such violations or
(ii) to enforce any provisions of this subchapter
or the terms of the plan; . . .
(c) Any administrator who fails or refuses to comply
with a request for any information which such
administrator is required by this subchapter to
furnish to a participant or beneficiary . . . may
in the court's discretion be personally liable to
such participant or beneficiary in the amount of
up to $100 a day from the date of such failure or
refusal, and the court may in its discretion
order such other relief as it deems proper.
Section 502(a)(1) is clearly inapplicable to the facts alleged
in Count IV. It is rather Section 502(a)(3) that McGinnis seeks
to invoke to "enforce . . . provisions of this subchapter,"
specifically Section 510.
But Section 502(a)(3) authorizes only an injunction or "other
appropriate equitable relief" to redress such violations.
McGinnis seeks both an injunction and "$40,000 in damages for the
repeated and continuing violations of plaintiff's rights under
Section 510 of ERISA." Because money damages are not authorized
by the statute under the
alleged circumstances, paragraph (c) of the prayer for relief in
McGinnis' proposed amendment will be stricken.*fn3
McGinnis' motion for leave to file the tendered amendment to
the Amended Complaint is granted except as to proposed prayer for
relief (c). Defendants are ordered to file an amendment to their
answer, responding to the allegations of the McGinnis amendment,
or or before February 17, 1981.