12

‐ 4834

‐ cv (L)

Alcantara v. Bakery & Confectionery Union & Indus. Int’l Pension Fund Pension Plan



## In the 1 

# United States Court of Appeals

2



## For the Second Circuit 3

________ 4

August Term 2013 5

Nos. 12

‐ 4834

‐ cv, 12

‐ 4839

‐ cv, 12

‐ 4851

‐ cv, 12

‐ 4861

‐ cv, 12

‐ 4912

‐ cv 6

R AFAEL A LCANTARA

, I NDIVIDUALLY

, AND O N B EHALF O F A LL O THERS 7

S IMILARLY S ITUATED

, A LONSO G OMEZ

, I NDIVIDUALLY

, AND O N B EHALF 8

O F A LL O THERS S IMILARLY S ITUATED

, C ELESTINO J UAREZ

, 9

I NDIVIDUALLY

, AND O N B EHALF O F A LL O THERS S IMILARLY S ITUATED

, 10

V ASILICHIA B ABU

, I NDIVIDUALLY

, AND O N B EHALF O F A LL O THERS 11

S IMILARLY S ITUATED

, A NGEL D E L A C RUZ

, I NDIVIDUALLY

, AND O N 12

B EHALF O F A LL O THERS S IMILARLY S ITUATED

, K HIM C HAND

, 13

I NDIVIDUALLY

, AND O N B EHALF O F A LL O THERS S IMILARLY S ITUATED

, 14

T ESFAYE G HEBREMEDHIN

, I NDIVIDUALLY

, AND O N B EHALF O F A LL 15

O THERS S IMILARLY S ITUATED

, R ATHIN D UTTA G UPTA

, I NDIVIDUALLY

, 16

AND O N B EHALF O F A LL O THERS S IMILARLY S ITUATED

, L UIS M EJIA

, 17

I NDIVIDUALLY

, AND O N B EHALF O F A LL O THERS S IMILARLY S ITUATED

, 18

A NTONIO M EROLLA

, I NDIVIDUALLY

, AND O N B EHALF O F A LL O THERS 19

S IMILARLY S ITUATED

, R OLANDO M ONTANO

, I NDIVIDUALLY

, AND O N 20

B EHALF O F A LL O THERS S IMILARLY S ITUATED

, R USSELL N EUBERT

, 21

I NDIVIDUALLY

, AND O N B EHALF O F A LL O THERS S IMILARLY S ITUATED

, 22

T AGLIARENI S ALVATORE

, I NDIVIDUALLY

, AND O N B EHALF O F A LL 23

O THERS S IMILARLY S ITUATED

, M USOVIC S MAIL

, I NDIVIDUALLY

, AND O N 24

B EHALF O F A LL O THERS S IMILARLY S ITUATED

, J UAN F. T ORRES

, 25

I NDIVIDUALLY

, AND O N B EHALF O F A LL O THERS S IMILARLY S ITUATED

, 262 No. 12

‐ 4834

‐ cv

K ENNETH K ERN

, M ELVIN M ENARD

, G ARRETT S CHOL

, G UY S TALTER

, 1

A LMOND R EID

, M ICHAEL D ʹ A NTONIO

, P HILLIP R OGERS

, D ONALD 2

S CROGHAM

, B RIAN K. F OWLER

, S R

., J OSEPH A LTAMORE

, I NDIVIDUALLY

, 3

AND ON B EHALF OF A LL O THERS S IMILARLY S ITUATED

, L ESLIE D URHAM

, 4

R ANDALL F ARMER

, R ODNEY S IMPSON

, J AMES T HOMAS

, J AMES S MITH

, 5

S TEVEN S HANKLES

, M ATTIE D AVIS

, J OYCE S LATON

, R ICKEY M EDLEY

, 6

K ATHY B ENEFIELD

, T IMOTHY W RIGHT

, M.D., R ODNEY F OSTER

, S ANDRA 7

B RANDON

, E DDIE W RIGHT

, T OMMY W OMACK

, R OGER W OOTEN

, R ICKEY 8

W ILBORN

, G ARY W HITMORE

, W ALTER W ATSON

, D ANNY W HITE

, T ERRY 9

W AGNER

, D ANIEL T HURMAN

, R ICKY T EAT

, B EECHER T ANNER

, J R

., 10

M ICHAEL S LATON

, T OMMY S IBERT

, D ONNA S MITH

, C HRIS S MITH

, G ARY 11

S ARRATT

, C HARLES R OGERS

, W ILLIAM R ICHEY

, G UY R ICE

, P HYLLIS 12

C RAZE

, G ARY M EDLEY

, R ANDALL M OORE

, M ARK M ONEY

, M ICHAEL 13

N ORRIS

, T ONY N ELSON

, D ONALD J ONES

, D AVID L AWMAN

, T ONEY I VEY

, 14

R OBERT J ONES

, L ARRY I NGLE

, B ILLY H OLKEM

, H ERBERT H EAD

, P AMULA 15

H ARPER

, R ODNEY B ROTHERS

, D ENNIS B RANDON

, C ONNIE B URGESS

, 16

R UTH B AILEY

, J IMMY A MMONS

, K ENNETH B EARDEN

, N ICKEY G ORHAM

, 17

R ALPH F LYNN

, J AMES F ERGUSON

, W ALTER E SLOON

, G LENDA D UPREE

, 18

R OGER D AVIS

, A LAN D ALTON

, J AMES C RAWFORD

, D OUGLAS C OMBS

, 19

M ELISSA C ISCO

, B ILLY C OOK

, C HARLES C OKER

, B ILLY C ATHEY

, 20

K ENNETH B URT

, D ANIEL C ARTER

, E DWARD B EARDEN

, S HEILA 21

H AMMOND

, S ALVADOR M ARTINEZ

, R ANDALL G ARRISON

, L ESLIE 22

C ADDICK

, J OSEPH B ARELA

, S HEILA J UAREZ

, R OGER G ONZALEZ

, P HILLIP 23

G. S COTT

, INDIVIDUALLY AND AS REPRESENTATIVE ON BEHALF OF A 24

CLASS OF SIMILARLY SITUATED PERSONS

, T ERRY W AYNE F INCH

, T ERRY 25

M OORE

, R ONALD B LACKWELL

, 26

Plaintiffs

‐ Appellees

, 27

J OHN S TEVEN C HAMBERS

, K EVIN W ATERS

, 28

Plaintiffs

, 29

v. 303 No. 12

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‐ cv

B AKERY AND C ONFECTIONERY U NION AND I NDUSTRY I NTERNATIONAL 1

P ENSION F UND P ENSION P LAN

, B AKERY AND C ONFECTIONERY U NION 2

AND I NDUSTRY I NTERNATIONAL P ENSION F UND B OARD OF T RUSTEES

, AS 3

P LAN A DMINISTRATOR

, J OHN D OES 3

‐ 10, AS T RUSTEES OF THE B AKERY 4

AND C ONFECTIONERY U NION AND I NDUSTRY I NTERNATIONAL P ENSION 5

F UND

, F RANK H URT

, S TEVEN V. B ERTELLI

, D AVID B. D URKEE

, A NTHONY 6

J OHNSON

, A RT M ONTMINY

, R OBERT O AKLEY

, R ANDY D. R OARK

, J OSEPH 7

T HIBODEAU

, R ICHARD B. C OOK

, D AN C RAIG

, T HOMAS G. K IRCHNER

, 8

J ON M C P HERSON

, L OU M INELLA

, J OHN W AGNER

, J OHN D OE N O

. 1, 9

J OHN D OE N O

. 2, AS T RUSTEES OF THE B AKERY AND C ONFECTIONERY 10

U NION AND I NDUSTRY I NTERNATIONAL P ENSION F UND

, T HE B AKERY 11

AND C ONFECTIONERY U NION AND I NDUSTRY I NTERNATIONAL P ENSION 12

F UND

, J OHN B ECK

, P LAN M ANAGER

, B AKERY AND C ONFECTIONERY 13

U NION AND I NDUSTRY I NTERNATIONAL P ENSION F UND B OARD OF 14

T RUSTEES

, B AKERY AND C ONFECTIONERY U NION AND I NDUSTRY 15

I NTERNATIONAL P ENSION F UND

, 16

Defendants

‐ Appellants. 1 17

________ 18

Appeal from the United States District Court 19

for the Southern District of New York. 20

Nos. 11 Civ. 1471, 11 Civ. 9203, 12 Civ. 141, 21

12 Civ. 142, 12 Civ. 913

― Vincent L. Briccetti, Judge

. 22

________ 23

A RGUED : N OVEMBER 20, 2013 24

D ECIDED : M AY 1, 2014 25

________ 26

1 The Clerk of Court is directed to amend the official caption to conform to the listing

above.4 No. 12

‐ 4834

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Before: K EARSE

, J ACOBS

, and B.D. P ARKER

, Circuit Judges

. 1

________ 2

Appeal from a judgment of the United States District Court for 3

the Southern District of New York (Briccetti, J. ). The district court 4

held that the anti

‐ cutback rule in § 204(g) of the Employee 5

Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1054(g), 6

precludes plan amendments that reduce retirement

‐ type subsidies 7

for Plaintiffs

‐ Appellees who ceased employment without satisfying 8

the preamendment conditions for the subsidy, but who could later 9

satisfy the conditions without returning to work. We AFFIRM the 10

judgment of the district court. 11

________ 12

J ULIA P ENNY C LARK (Jeremiah A. Collins, Osvaldo 13

Vazquez, on the brief ), Bredhoff & Kaiser PLLC, 14

Washington, DC, for Bakery and Confectionery 15

Union and Industry International Pension Fund 16

Pension Plan, Bakery and Confectionery Union and 17

Industry International Pension Fund Board of 18

Trustees, as Plan Administrator, John Does 3

‐ 10, as 19

Trustees of the Bakery and Confectionery Union and 20

Industry International Pension Fund, Frank Hurt, 21

Steven V. Bertelli, David B. Durkee, Anthony Johnson, 22

Art Montminy, Robert Oakley, Randy D. Roark, 23

Joseph Thibodeau, Richard B. Cook, Dan Craig, 24

Thomas G. Kirchner, Jon McPherson, Lou Minella, 25

John Wagner, John Doe No. 1, John Doe No. 2, as 26

Trustees of the Bakery and Confectionery Union and 27

Industry International Pension Fund, The Bakery and 28

Confectionery Union and Industry International 29

Pension Fund, John Beck, Plant Manager, Bakery and 30

Confectionery Union and Industry International 315 No. 12

‐ 4834

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Pension Fund Board of Trustees, Bakery and 1

Confectionery Union and Industry International 2

Pension Fund

. 3

B ENJAMIN G OULD (Lynn L. Sarko, Derek W. 4

Loeser, David S. Preminger, Erin M. Riley, Alison 5

S. Gaffney, on the brief ), Keller Rohrback LLP, 6

Seattle, WA, Chrisopher A. Seeger, Diogenes P. 7

Kekatos, Seeger Weiss LLP, New York, NY, 8

William D. Frumkin, Elizabeth E. Hunter, 9

Frumkin & Hunter LLP, White Plains, NY for 10

Alcantara Plaintiffs

. 11

Thomas O. Sinclair (M. Clayborn Williams, on the 12

brief ), Sinclair Williams LLC, Birmingham, AL, for 13

Phillip G. Scott and Terry Wayne Finch

. 14

D AVID P. M ARTIN

, The Martin Law Group, LLC, 15

Tuscaloosa, AL, Robert Brett Adair, Adair Law 16

Firm, LLC, Birmingham, AL, for Blackwell, 17

Martinez, and Moore Plaintiffs

. 18

________ 19

B ARRINGTON D. P ARKER

, Circuit Judge : 20

In this appeal from a judgment of the United States District 21

Court for the Southern District of New York (Vincent L. Briccetti, 22

Judge ) we consider whether the anti

‐ cutback rule in § 204(g) of the 23

Employee Retirement Income Security Act of 1974 (“ERISA”), 29 24

U.S.C. § 1054(g), precludes plan amendments that reduce retirement

‐ 25

type subsidies for plan participants who have ceased employment 26

without satisfying the preamendment conditions for the subsidy, but 27

who could later satisfy the preamendment conditions without 286 No. 12

‐ 4834

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returning to work. We hold that the rule protects such benefits and, 1

accordingly, we affirm the judgment of the district court. 2

I. BACKGROUND 3

The relevant facts are uncontested. Defendants

‐ Appellants 4

are the Bakery and Confectionery Union and Industry International 5

Pension Fund Pension Plan (the “Plan”), a multiemployer defined

‐ 6

benefit pension plan, and its Board of Trustees. The Plaintiffs

‐ 7

Appellees are participants in the Plan. The plaintiffs’ former 8

employers are parties to collective bargaining agreements with local 9

unions of the Bakery, Confectionery, Tobacco Workers and Grain 10

Millers International Union. 11

The Plan provides for a range of benefits. The standard 12

benefit, payable at age 65

— the “normal retirement age” under the 13

Plan

— was labeled Plan A. Participants could elect to receive their 14

Plan A pension benefits as early as age 55, but at an actuarially 15

reduced level that reflected the earlier (and longer) expected stream 16

of payments. Certain employers elected to offer additional 17

subsidized early retirement benefits that were not actuarially 18

reduced. Two of these plans, Plan G (the “Golden 80 Plan”), and 19

Plan C (the “Golden 90 Plan”), are at issue here. Under those Plans, 20

a participant who had completed at least ten years of service with a 21

participating employer, and whose combination of his age and years 22

of service totaled 80 or 90 years, respectively, could retire and 23

receive full pension benefits. 24

Prior to July 2010, the Plan allowed a participant to “age into” 25

Golden 80 or 90 benefits. This meant that a participant who had 267 No. 12

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achieved the ten

‐ year minimum service requirement, but who had 1

left covered employment before achieving the requisite 80

‐ or 90

‐ 2

year age

‐ plus

‐ years

‐ of

‐ service level, would still become eligible for 3

Golden 80 or 90 benefits as soon as his age

‐ plus

‐ years

‐ of

‐ service 4

reached the required 80

‐ or 90

‐ year requirement. 5

In July 2010, the Trustees amended the Plan to eliminate the 6

option to “age into” benefits and to require that a participant be 7

employed at the time he qualified for Golden 80 or 90 benefits. The 8

amendment did not affect those participants who had already aged 9

into Golden 80 or 90 benefits. The amendment affected only those 10

participants who had completed the ten

‐ year minimum service 11

requirement, but who had not yet reached the requisite age

‐ plus

‐ 12

years

‐ of

‐ service level and were no longer working for an employer 13

participating in the Golden 80 or 90 Plans. The brunt of this change, 14

according to plaintiffs, fell on former employees who were laid off 15

due to either plant closings or reductions in force and subsequently 16

were unable to find work in the industry. 17

Participants who lost their opportunity to qualify for Golden 18

80 or 90 benefits as a result of the amendment filed various suits 19

alleging that the plan amendment violated § 204(g), ERISA’s anti

‐ 20

cutback rule, which prohibits plan amendments that reduce or 21

eliminate certain pension benefits. In response, the Plan contended 22

that the rule protected only those Golden 80 and 90 Plan participants 23

who remained in covered employment at the time they achieved the 24

required age

‐ plus

‐ years

‐ of

‐ service level. 258 No. 12

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‐ cv

The cases were consolidated and the parties cross

‐ moved for 1

judgment on the pleadings. The district court held that the 2

amendment violated the anti

‐ cutback rule. In re Bakery & 3

Confectionery Union & Indus. Int ʹ l Pension Fund Pension Plan

, 865 F. 4

Supp. 2d 469, 474

‐ 75 (S.D.N.Y. 2012). Judge Briccetti reasoned that 5

“[e]ligibility for plaintiffs is based on a sum of their respective ages 6

and lengths of service. Because they can continue to age into 7

pension benefits even after they have separated from their respective 8

employers, Section 204(g) applies. And because plaintiffs may, post

‐ 9

amendment, satisfy the pre

‐ amendment requirements to obtaining a 10

Plan C or Plan G pension, the anticutback rule bars the amendment.” 11

Id. at 474. The district court entered judgment, the defendants 12

appealed, and the appeals were consolidated. See Fed. R. Civ. P. 13

54(b). We affirm. 14

II. DISCUSSION 15

We review de novo a judgment entered on the pleadings 16

pursuant to Federal Rule of Civil Procedure 12(c). Kirkendall v. 17

Halliburton, Inc.

, 707 F.3d 173, 178 (2d Cir. 2013). “In deciding a Rule 18

12(c) motion, we apply the same standard as that applicable to a 19

motion under Rule 12(b)(6), accepting the allegations contained in 20

the complaint as true and drawing all reasonable inferences in favor 21

of the nonmoving party.” Ziemba v. Wezner

, 366 F.3d 161, 163 (2d 22

Cir. 2004). 239 No. 12

‐ 4834

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The anti

‐ cutback rule, ERISA § 204(g), provides as follows: 1

(g) Decrease of accrued benefits through amendment of 2

plan 3

(1) The accrued benefit of a participant under a 4

plan may not be decreased by an amendment of 5

the plan [except in certain circumstances not 6

applicable here]. 7

(2) For purposes of paragraph (1), a plan 8

amendment which has the effect of

‐‐ 9

(A) eliminating or reducing an early 10

retirement benefit or a retirement

‐ type 11

subsidy (as defined in regulations), or 12

(B) eliminating an optional form of benefit, 13

with respect to benefits attributable to service 14

before the amendment shall be treated as 15

reducing accrued benefits. In the case of a 16

retirement

‐ type subsidy, the preceding sentence 17

shall apply only with respect to a participant who 18

satisfies (either before or after the amendment) 19

the preamendment conditions for the subsidy. 20

29 U.S.C. § 1054(g). 21

The issues presented on appeal are whether the Golden 80 and 22

90 Plans are considered “accrued benefits” under § 204(g)(1) or 23

“retirement

‐ type subsid[ies]” under § 204(g)(2) for the purposes of 24

the anti

‐ cutback rule, and, if the latter, whether plaintiffs, as former 25

employees, can “satisf[y] (either before or after the amendment) the 26

preamendment conditions for the subsidy.” 2710 No. 12

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In our view, it is clear that the Golden 80 and 90 Plans are 1

“retirement

‐ type subsid[ies]” that qualify for protection under 2

§ 204(g)(2). The term “retirement

‐ type subsidy” is defined in IRS 3

regulations interpreting a parallel provision of the Internal Revenue 4

Code. 2 A retirement

‐ type subsidy is: 5

the excess, if any, of the actuarial present value of a 6

retirement

‐ type benefit over the actuarial present value 7

of the accrued benefit commencing at normal retirement 8

age or at actual commencement date, if later, with both 9

such actuarial present values determined as of the date 10

the retirement

‐ type benefit commences. Examples of 11

retirement

‐ type subsidies include a subsidized early 12

retirement benefit

. . . . 13

26 C.F.R. § 1.411(d)–3(g)(6)(iv). 14

The Golden 80 and 90 Plans fall within this definition. The 15

Plans provide a “retirement

‐ type benefit” because they provide a 16

“benefit under a defined benefit plan

. . . that

. . . continues after 17

retirement, and is not an ancillary benefit.” Id. § 1.411(d)–3(g)(6)(iii). 18

It is undisputed that the actuarial value of the Golden 80 and 90 19

Plans at the time they begin distributing benefits is in “excess” of 20

“the actuarial present value of the accrued benefit commencing at 21

normal retirement age.” Id. § 1.411(d)–3(g)(6)(iv). Accordingly, for 22

the purposes of the anti

‐ cutback rule, the Golden 80 and 90 Plans are 23

retirement

‐ type subsidies. 24

The evolution of § 204(g) reinforces this conclusion. Prior to 25

the passage of the Retirement Equity Act of 1984 (“REA”), Pub. L. 26

No. 98

‐ 397, 98 Stat. 1426, the anti

‐ cutback rule was limited to the 27

2 Pursuant to regulations issued by the Secretary of Labor, the IRS regulations are

applicable to the interpretation of sections 202 through 204 of ERISA. See 29 C.F.R.

§ 2530.200a

‐ 2.11 No. 12

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text now included in § 204(g)(1) and thus applied only to “accrued 1

benefits.” Whether early retirement benefits, retirement

‐ type 2

subsidies, and optional forms of benefits were protected was unclear 3

because the statute did not specifically address those types of 4

benefits. 5

Congress reco gnized that these benefits could be important 6

components of retirement packages and passed the REA in part to 7

limit the circumstances under which these benefits could be reduced 8

or elimin ated through plan amendments. S. Rep. No. 98

‐ 575, at 27 9

(1984). To do so, Congress added § 204(g)(2) which did not disturb 10

the existing protec tion for “accrued benefits,” but went on to 11

provide th at reductions to early retirement benefits, retirement

‐ type 12

subsidi es, and optional forms of benefits were to be “treated as” 13

reductions of “accrued bene f its.” Accordingly, where a benefit 14

qualifies as a retirement

‐ type subsid y, it is subject to § 204(g)(2) of 15

the anti

‐ cutback rule. 16

Section 204(g)(2) contains an additional provision, the 17

meaning of which is the primary point of disagreement on this 18

appeal. Under that provision, the anti

‐ cutback rule applies to 19

retirement

‐ type subsidies, “only with respect to a participant who 20

satisfies (either before or after the amendment) the preamendment 21

conditions for the subsidy.” 29 U.S.C. § 1054(g)(2). The plaintiffs 22

would have us read the “only with respect to a participant

. . .” 23

language as simply requiring that a participant “satisf[y] (either 24

before or after the amendment) the preamendment conditions for 25

the subsidy” to have their benefits protected by the rule. The 26

plaintiffs contend that they have satisfied (or will satisfy) this 27

requirement. The preamendment Plan, they argue, conditioned 28

Golden 80 or 90 benefits on the sum of plaintiffs’ years

‐ of

‐ 29

employment plus age equaling 80 or 90, respectively. Because 30

plaintiffs either have seen, or if they continue to age will see, that 3112 No. 12

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‐ cv

number equal 80 or 90 and because the Plan has no time limitation 1

within which a participant must reach that number, the 2

preamendment condition, they contend, is or will be satisfied. 3

The Plan agrees that Golden 80 and 90 Plans are retirement

‐ 4

type subsidies, but insists that § 204(g)(2) contains an implicit 5

“continued employment” requirement, under which a participant, to 6

be protected by the anti

‐ cutback rule, must have remain in covered 7

employment until he becomes eligible for the subsidy. The Plan 8

insists that the “only with respect to a participant

. . .” language is 9

intended to have a limiting effect on the application of the anti

‐ 10

cutback rule to retirement

‐ type subsidies and that, read literally as 11

the plaintiffs urge, the sentence has none because a participant could 12

never be eligible for a subsidy without “satisf[ying]

. . . the 13

preamendment conditions for the subsidy.” On the basis of this 14

reading, the Plan contends that the scope of the limitation is unclear 15

and can be understood only by resort to the legislative history, 16

which the Plan argues reveals that Congress intended to limit the 17

protection of the anti

‐ cutback rule to current employees. For several 18

reasons, we disagree with the Plan’s approach. 19

Legislative interpretation begins with the plain text of the 20

statute and, where the text is unambiguous, also ends there because 21

the “judicial inquiry is complete.” Hedges v. Obama

, 724 F.3d 170, 189 22

(2d Cir. 2013). We read the provision as straightforwardly applying 23

to participants, such as the plaintiffs, who qualified for the subsidy 24

before the amendment or who could do so afterwards. The text says 25

nothing about satisfying the preamendment conditions “while 26

employed,” or before “separating from service,” or anything to that 27

effect. To the contrary, the statutory wording cuts against such a 28

requirement. Section 204(g)(2), which requires that a “participant” 29

satisfy the preamendment conditions of the subsidy in order to enjoy 30

the protections of the anti

‐ cutback rule, is elucidated by the 3113 No. 12

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‐ cv

definition of a “participant” under ERISA as “any employee or 1

former employee of an employer,

. . . who is or may become eligible to 2

receive a benefit of any type from an employee benefit plan.” 29 3

U.S.C. § 1002(7) (emphasis added). Consequently, it is immaterial 4

that some plaintiffs had not yet satisfied the preamendment age

‐ 5

level conditions when they left covered employment, because § 6

204(g)’s prohibition on cutbacks applies to former as well as to 7

current employees. 8

The Plan’s approach would require us to delve into the 9

complex legislative history of ERISA and the REA in search of 10

limiting principles that Congress did not include in the text. This 11

“would result not in a construction of the statute, but, in effect, an 12

enlargement of it by the court, so that what was omitted

. . . may be 13

included within its scope.” Lamie v. U.S. Tr.

, 540 U.S. 526, 538 (2004) 14

(internal quotation marks and brackets omitted). Accordingly, we 15

are not inclined to overlook the plaintiffs’ straightforward and 16

reasonable interpretation of the statute in favor of one that renders 17

the text ambiguous and resorts to legislative history or policy 18

arguments to give it meaning. S ee also Fedorenko v. United States

, 449 19

U.S. 490, 513 (1981). 20

This conclusion is consistent with decisions from other circuits 21

recognizing that a participant may “grow into” eligibility for 22

retirement

‐ type subsidy benefits under the anti

‐ cutback rule by 23

satisfying the eligibility requirements after the date of the 24

amendment. See, e.g.

, Bellas v. CBS, Inc.

, 221 F.3d 517, 521 (3d Cir. 25

2000); Ahng v. Allsteel, Inc.

, 96 F.3d 1033, 1036

‐ 37 (7th Cir. 1996); 26

Harms v. Cavenham Forest Indus., Inc.

, 984 F.2d 686, 692 (5th Cir. 27

1993); Gillis v. Hoechst Celanese Corp.

, 4 F.3d 1137, 1146 (3d Cir. 1993); 28

Hunger v. AB

, 12 F.3d 118, 121 (8th Cir. 1993). As the Seventh Circuit 29

explained in Ahng

, “[t]he courts of appeals that have ruled on an 30

employee’s right to ‘grow into’ early retirement benefits have

. . . 3114 No. 12

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uniformly held that as long as an employee satisfies, or will be able to 1

satisfy

, the eligibility requirements of the early retirement benefit in 2

effect prior to the amendment, § 204(g) protects the benefit.” 96 F.3d 3

at 1036 (emphasis added). 4

Other courts have denied a participant the ability to “grow 5

into” benefits only where he has ceased employment without 6

completing the minimum years of service necessary to become 7

eligible for the retirement

‐ type subsidy or failed to satisfy some 8

other preamendment condition that cannot be cured. In that 9

situation, courts have permitted the reduction or elimination of the 10

benefits because the participant, even without the amendment, 11

would never have been able to satisfy the preamendment conditions 12

of the subsidy. See Shaver v. Siemens Corp.

, 670 F.3d 462, 490

‐ 91 (3d 13

Cir. 2012) (denying application of § 204(g)(2) because service with 14

successor employee “forever disqualifie[d the participants] from 15

receiving

. . . benefits under th[e] plan” which was “a prohibition 16

that the passage of time cannot cure”); Hunger

, 12 F.3d at 121; Berger 17

v. Edgewater Steel Co.

, 911 F.2d 911, 918 (3d Cir. 1990). In contrast, the 18

plaintiffs here all have, or will, become eligible for the Golden 80 or 19

90 benefits simply through the passage of time. 20

For these reasons we hold that the plaintiffs have satisfied (or 21

will satisfy) the preamendment conditions and their Golden 80 and 22

90 benefits are protected by the anti

‐ cutback rule. 23

CONCLUSION 24

The judgment of the District Court is affirmed. 25