United States Court of Appeals 

For the First Circuit 

No. 19-1908 

PATRICIA C. COFFEY, 

Plaintiff, Appellant, 

v. 

NEW HAMPSHIRE JUDICIAL RETIREMENT PLAN; 

BOARD OF TRUSTEES OF THE NEW HAMPSHIRE JUDICIAL RETIREMENT PLAN, 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

[Hon. Paul J. Barbadoro, U.S. District Judge] 

Before 

Lynch, Kayatta, and Barron, 

Circuit Judges. 

 Stephen D. Rosenberg, Caroline M. Fiore, The Wagner Law Group, 

Russell F. Hilliard, and Upton & Hatfield LLP were on brief for 

appellant. 

 Scott H. Harris, Benjamin B. Folsom, and McLane Middleton, 

P.A. were on brief for appellee. 

April 21, 2020 
- 2 - 

LYNCH, Circuit Judge. The issue on appeal is whether 

the New Hampshire Judicial Retirement Plan ("the Plan") allows a 

former judge who resigned with sufficient years of creditable 

service, but before reaching the minimum retirement age, to receive 

a Service Retirement Allowance ("SRA") upon later reaching the 

retirement age. In agreement with the district court, we hold 

that it does not. We affirm summary judgment for the Plan. 

I. 

A. The Judicial Retirement Plan Statute 

The General Court of New Hampshire ("legislature") 

enacted the Plan as "a defined benefit plan providing disability, 

death, and retirement protection to members and their families." 

N.H. Rev. Stat. Ann. § 100-C:2(I). The Plan defines a "member" as 

"any full-time supreme court, superior court, or circuit court 

judge." Id. § 100-C:1(IX). The Plan "is intended for all time to 

meet the requirements of a qualified pension trust within the 

meaning of section 401(a), and to qualify as a governmental plan 

within the meaning of section 414(d) of the United States Internal 

Revenue Code of 1986, as amended." Id. § 100-C:2(I). 

The Plan states in the "Service Retirement Benefits" 

provision that 

[a]ny member who has at least 15 years of 

creditable service and is at least 60 years of 

age . . . may retire on a service retirement 

allowance or a reduced service retirement 

allowance, upon written application to the 
- 3 - 

board setting forth on what date, not less 

than 30 days nor more than 90 days subsequent 

to the filing of the application, the member 

desires to be retired. During such period of 

notification, the member may have separated 

from service. 

N.H. Rev. Stat. Ann. § 100-C:5(I).1 "Retirement" is defined as 

"withdrawal from active service with a retirement allowance 

granted under the provisions of this chapter." Id. § 100-C:1(XIV). 

 A member who retires with five years of creditable 

service but is not eligible for an SRA is entitled to the return 

of the member's accumulated contributions to the Plan and any 

interest accrued on those contributions. Id. § 100-C:5(VII). 

The Plan also allows a member to retire if he or she 

becomes disabled. The "Disability Retirement Benefits" provision 

states that 

[r]egardless of a member's length of service, 

any member who becomes permanently and totally 

disabled may apply to the board of trustees to 

retire on a disability retirement allowance 

. . . . Such application shall be granted 

provided that a physician . . . certifies that 

the member is mentally or physically 

incapacitated for further performance of duty, 

that such incapacity is likely to be 

permanent, and that such person should be 

retired. A member's disability retirement 

allowance shall be equal to 70 percent of the 

member's final year's salary. 

1 The Plan provides that the SRA will vary with the age at 

which the member retires and the member's years of creditable 

service at retirement. N.H. Rev. Stat. Ann. § 100-C:5(II-IV). 

The Plan also accords death benefits to the surviving spouse or 

minor children of a member who "dies in office." Id. § 100-C:7(I). 
- 4 - 

Id. § 100-C:6. Further, the Plan provides that, 

[i]f a member ceases to be a judge for reasons 

other than retirement or death, the amount of 

such member's accumulated contributions shall 

be paid to such member within 3 months after 

such member's written request therefor, 

provided that the member may not file a 

written request for such payment until at 

least 30 days from the date the member ceases 

to be a judge. 

Id. § 100-C:8(I). 

B. Facts 

 On October 25, 1991, Coffey became a Superior Court 

justice for the state of New Hampshire. She served full-time as 

a justice until she resigned on April 21, 2008; that is, for 

sixteen-and-a-half years. She was fifty-four years old when she 

resigned. 

 On January 16, 2015, at the age of sixty-one, Coffey 

applied for an SRA. 

On February 24, 2015, the Board of Trustees of the New 

Hampshire Judicial Retirement Plan ("Board") denied her 

application. It stated that it interpreted N.H. Rev. Stat. Ann. 

§ 100-C:5(I) "as requiring a member be employed up to the point of 

retirement"; that is, to be in active service at the time he or 

she applies for an SRA. Coffey's attorney protested, arguing that 

both the plain language of the statute and compliance with the 

governmental plan provisions of the Internal Revenue Code ("Code") 

supported Coffey's interpretation and SRA application. On June 
- 5 - 

12, 2015, after considering these arguments, the Board issued a 

final decision denying Coffey's application for an SRA and so 

notified her. 

C. Procedural History 

 Almost three years later, Coffey filed a lawsuit in the 

United States District Court for the District of New Hampshire 

against the Plan and the Board. She sought a declaratory judgment 

that she was eligible for an SRA and brought claims for violations 

of Chapter 100-C, section 5 of the New Hampshire Revised Statutes 

and of section 502(a)(1)(B) of the Employee Retirement Income 

Security Act ("ERISA"). She also brought a similar claim for 

breach of contract under New Hampshire state law. 

 On November 26, 2018, the district court dismissed 

Coffey's ERISA claim for failure to state a claim.2 On August 14, 

2019, the district court granted summary judgment in favor of the 

Plan as to the remaining claims. Coffey v. N.H. Judicial Ret. 

Plan, No. 18-cv-503, 2019 WL 3816731, at *6 (D.N.H. Aug. 14, 2019). 

The court concluded that the plain language of the statute 

"requires a judge to be in active service when she elects to retire 

and claim a service retirement allowance" and that "textual 

evidence" from the entire statutory scheme supported that 

conclusion. Id. at *3-4. This appeal followed. 

2 The dismissal of the ERISA claim was not appealed. 
- 6 - 

II. 

A. Standard of Review 

"We review a grant or denial of summary judgment, as 

well as pure issues of law, de novo." Sun Capital Partners III, 

LP v. New England Teamsters & Trucking Indus. Pension Fund, 943 

F.3d 49, 55 (1st Cir. 2019) (quoting Sun Capital Partners III, LP 

v. New England Teamsters & Trucking Indus. Pension Fund, 724 F.3d 

129, 138 (1st Cir. 2013)). 

B. Statutory Interpretation Under New Hampshire Law 

The parties agree there are no disputes of material fact 

and the issue is one of law. The issue is one of statutory 

interpretation: that is, whether Coffey is eligible to receive an 

SRA on her application. 

To interpret a statute, New Hampshire courts3 "first look 

to the language of the statute itself, and, if possible, construe 

that language according to its plain and ordinary meaning." In re 

Carrier, 82 A.3d 917, 920 (N.H. 2013). "[I]f the language is clear 

and unambiguous," the court need "not look beyond the language of 

the statute." In re Town of Seabrook, 44 A.3d 518, 525 (N.H. 

2012). New Hampshire courts "interpret legislative intent from 

3 To interpret a New Hampshire state statute, we employ 

New Hampshire interpretive methods and canons of construction. 

See Garran v. SMS Fin. V, LLC (In re Garran), 338 F.3d 1, 6 (1st 

Cir. 2003) (stating that when a state court has not interpreted a 

state statute, the federal court "must predict how the [highest 

state court] would interpret the statute"). 
- 7 - 

the statute as written and will not consider what the legislature 

might have said or add language that the legislature did not see 

fit to include." Carrier, 82 A.3d at 920. 

"[W]henever possible, every word of a statute should be 

given effect." Garand v. Town of Exeter, 977 A.2d 540, 544 (N.H. 

2009) (quoting Town of Amherst v. Gilroy, 950 A.2d 193, 197 (N.H. 

2008)). Importantly, "[w]hile the title of a statute is not 

conclusive of its interpretation, it provides significant 

indication of the legislature's intent in enacting the statute." 

Id. at 545 (quoting State v. Gubitosi, 958 A.2d 962, 966 (N.H. 

2008)). 

New Hampshire courts "construe all parts of a statute 

together to effectuate its overall purpose and avoid an absurd or 

unjust result. Moreover, [they] do not consider words and phrases 

in isolation, but rather within the context of the statute as a 

whole." Carrier, 82 A.3d at 920 (citation omitted). Following 

this approach, we must also "presume that the legislature does not 

enact unnecessary and duplicative provisions." Garand, 977 A.2d 

at 544 (quoting State v. Gifford, 808 A.2d 1, 3 (N.H. 2002)). 

C. Section 100-C:5 Requires a Member To Be in Active Service 

When He or She Applies for an SRA 

 The district court correctly concluded that "the only 

plausible way to read [section] 100-C:5, I is that it requires a 

judge to be in active service when she elects to retire and claim 
- 8 - 

a service retirement allowance." Inserting the definition in 

section 100-C:1(XIV) of "retirement" into section 100-C:5(I) reads 

as: 

Any member who has at least 15 years of 

creditable service and is at least 60 years of 

age . . . may ["withdraw[] from active service 

with a retirement allowance granted under the 

provisions of this chapter"] on a service 

retirement allowance or a reduced service 

retirement allowance, upon written 

application to the board setting forth on what 

date, not less than 30 days nor more than 90 

days subsequent to the filing of the 

application, the member desires to be retired. 

During such period of notification, the member 

may have separated from service. 

N.H. Rev. Stat. Ann. §§ 100-C:1(XIV), 100-C:5(I). Read with the 

definition of "retirement," the plain language of this section 

requires a retirement-age member with sufficient creditable 

service to "withdraw from active service" to receive an SRA. 

Although this substitution does show a minor superfluity 

in the provision, this does not alter our interpretation. First, 

it does not create the significant redundancy and either 

inconsistency or absurd result that Coffey's interpretation would. 

See infra; see also Garand, 977 A.2d at 544 ("[W]henever possible, 

every word of a statute should be given effect." (emphasis added) 

(quoting Town of Amherst, 950 A.2d at 197)). Although the district 

court adopted this interpretation and the Plan argues for it in 

its appellate brief, Coffey does not argue that this minor 

superfluity requires that we adopt her interpretation. Any such 
- 9 - 

argument is waived. Pignons S.A. de Mecanique v. Polaroid Corp., 

701 F.2d 1, 3 (1st Cir. 1983). 

Second, if instead we use the dictionary definition of 

"retire," the outcome would remain the same. See In re Malisos, 

103 A.3d 793, 795 (N.H. 2014) (looking to dictionaries to determine 

the "plain and ordinary meaning of [an undefined] term" in a 

statute). The Oxford English Dictionary defines "retire" as "[t]o 

leave office, employment, or service permanently, now esp. on 

reaching pensionable age; to stop working." Retire, Oxford English 

Dictionary (3d ed. 2010), www.oed.com/view/Entry/164325; see also 

Retire, Merriam-Webster Online Dictionary, www.merriamwebster.com/dictionary/retire (last visited Apr. 20, 2020) 

(defining "retire" as "to withdraw from one's position or 

occupation [or to] conclude one's working or professional 

career"). This definition also requires that Coffey be leaving 

active service when retiring.4 

 Coffey argues that the district court "overreached" by 

interpreting the word "retire" in this section using the statutory 

definition of "retirement." We disagree. The title of this 

provision, "Service Retirement Benefits," shows the New Hampshire 

legislature intended consistency between section 100-C:1, XIV's 

4 We assume without deciding that Coffey is a "member" as 

defined in section 100-C:1(IX). 
- 10 - 

definition of "retirement" and section 100-C:5(I)'s use of 

"retire." Garand, 977 A.2d at 545. 

 Coffey argues that the title does not support reading 

"retirement" into section 100-C:5(I). She contends that if the 

court reads the definition of "retirement" into the body of section 

100-C:5(I), then the court also must read the definitions of 

"service" and "retirement" into the title. She argues that this 

would result in an absurd title, and so the statutory definition 

of retirement cannot be read into the title or body of the section.5 

This argument lacks merit. 

Coffey does not cite any New Hampshire rule requiring a 

court to insert definitions into a statute's title and determine 

if it is coherent. New Hampshire law provides that a "title . . . 

provides significant indication of the legislature's intent," 

which here is that the legislature intended "retirement" and 

"retire" be construed consistently. Garand, 977 A.2d at 545. 

Further, to adopt a definition of "retire" inconsistent 

with that of section 101-C:1(XIV) would make superfluous section 

100-C:5's statement that "[d]uring [the thirty- to ninety-day] 

period of notification, the member may have separated from 

service." N.H. Rev. Stat. Ann. § 100-C:5(I). As the district 

5 The title would read: "Service as a supreme court, 

superior court, full-time district court, or full-time probate 

court justice withdrawal from active service with a retirement 

allowance granted under the provisions of this chapter benefits." 
- 11 - 

court correctly stated, under "Coffey's reading . . . a judge could 

separate from service at any point before reaching retirement age 

and still claim a service retirement allowance." Coffey, 2019 WL 

3816731, at *3. The explicit authorization to separate from 

service during this statutory notification period would have no 

meaning if, as Coffey argues, a judge could separate years before 

applying for an SRA. This would violate New Hampshire courts' 

strong aversion to superfluous statutory provisions. See, e.g., 

Garand, 977 A.2d at 544; Merrill v. Great Bay Disposal Serv., Inc., 

484 A.2d 1101, 1103 (N.H. 1984) ("It is an elementary principle of 

statutory construction that all of the words of a statute must be 

given effect and that the legislature is presumed not to have used 

superfluous or redundant words."). 

Coffey argues the district court's interpretation reads 

the word "may" as a "mandatory requirement," instead of correctly 

as a "permissive option." The district court's interpretation, 

she asserts, improperly "rewrite[s]" the statute and so must be 

reversed. Not so. 

Our interpretation is not undercut by the permissive 

reading of "may." Under the first sentence of section 100-C:5(I), 

a member could "withdraw[] from active service with a retirement 

allowance." N.H. Rev. Stat. Ann. §§ 100-C:1(XIV), 100-C:5(I). 

The inclusion of the "During . . . service." sentence permits a 
- 12 - 

member to withdraw from service before (albeit only just before) 

the member technically retires. 

The district court correctly concluded the statutory 

context also supported this interpretation.6 Interpreting section 

100-C:5 in light of section 100-C:6 reinforces that the New 

Hampshire legislature did not intend Coffey's interpretation. 

If, as Coffey argues, a member need not be in active 

service to "retire," then interpreting "retire" consistently 

between sections 100-C:5 and 100-C:6 may yield absurd results. 

The district court offered the hypothetical considering 

a judge who resigned after serving for one day, 

went into private practice, and ten years later 

became unable to perform judicial duties but 

was otherwise capable of practicing law. Under 

Coffey’s reading, that former judge would be 

entitled to a disability retirement allowance 

because she did not have to be in active service 

when she became disabled. 

Coffey, 2019 WL 3816731, at *3. Coffey's interpretation either 

requires that the disability provision allow for such absurd 

results, or that the Plan use the term "retire" inconsistently.7 

6 The district court also concluded that interpreting 

section 100-C:5 in light of section 100-C:8 and in comparison to 

the New Hampshire public employee retirement plan further 

supported its interpretation. We need not address these 

conclusions or the parties' related arguments, as they are 

unnecessary to deciding this case. 

7 Coffey argues for the latter: that because the 

Retirement and Disability provisions are separate sections and the 

statute does not expressly state that they "interact," that it is 

reversible error to rely on one in interpreting the other. This 
- 13 - 

New Hampshire law prohibits either result. See Carrier, 82 A.3d 

at 920. 

D. Coffey's Interpretation Is Not Necessary for the Plan To 

Comply with Section 401 of the Code 

Coffey further argues that the Code, and the Plan's 

express intent to satisfy the Code's requirements, supports her 

interpretation. Section 100-C:2(I) states that the Plan "is 

intended for all time to meet the requirements of a qualified 

pension trust within the meaning of section 401(a), and to qualify 

as a governmental plan within the meaning of section 414(d) of the 

United States Internal Revenue Code of 1986, as amended." N.H. 

Rev. Stat. Ann. § 100-C:2(I). But our interpretation does not 

violate the Code's requirements. In consequence, Coffey's 

argument is without merit. 

For a governmental plan to "constitute a qualified trust 

under [§ 401]," it must "satisf[y] the requirements of [§] 411." 

26 U.S.C. § 401(a)(7). Section 411 requires a governmental plan 

to "meet[] the vesting requirements resulting from the application 

of [§§] 401(a)(4) and 401(a)(7) as in effect on September 1, 1974." 

Id. § 411(e)(2). 

Section 401(a)(4) requires that the Plan "not 

discriminate in favor of employees who are officers, shareholders, 

atomistic approach directly contradicts New Hampshire law and so 

lacks merit. See Carrier, 82 A.3d at 920. 
- 14 - 

persons whose principal duties consist in supervising the work of 

other employees, or highly compensated employees." Id. 

§ 401(a)(4) (1970). 

Section 401(a)(7) requires the Plan to "provide[] that, 

upon its termination or upon complete discontinuance of 

contributions under the [P]lan, the rights of all employees to 

benefits accrued to the date of such termination or discontinuance, 

to the extent then funded, or the amounts credited to the 

employees' accounts are nonforfeitable."8 Id. § 401(a)(7) (1970). 

The plain language of this provision does not require any specific 

vesting schedule as to individual employees. Further, IRS Revenue 

Ruling 68-302 supports this interpretation, stating that 

"[v]esting prior to normal or stated retirement age, other than 

upon termination of the plan or complete discontinuance of 

contributions thereunder, is not a requisite for qualification, 

8 As of September 1, 1974, Internal Revenue Service 

("IRS") regulations stated that "termination" is fact-specific, 

but tends to cabin the term situations like where the employer 

ceases to exist or excludes through plan amendment or discharge 

groups of employees. 26 C.F.R. § 1.1401-6(b)(1)-(2). The 

regulations define a "complete discontinuance of contributions" 

with respect to employer contributions to the plan only. Id. 

§ 1.1401-6(c)(1)-(2). "Voluntary employee decisions to leave the 

employer or terminations not connected with the significant 

corporate event do not constitute 'employee terminations' which 

would trigger partial termination." Sage v. Automation ,Inc. 

Pension Plan & Tr., 845 F.2d 885, 891 (10th Cir. 1988) (quoting 

Weil v. Ret. Plan Admin. Comm. for the Terson Co., 750 F.2d 10, 13 

(2d Cir. 1984)). 
- 15 - 

under section 401(a) of the Internal Revenue Code."9 Rev. Rul. 

68-302, 1968-1 C.B. 163. 

In requiring members to be in active service when 

applying for an SRA, the Plan does not violate either section of 

the Code. As to § 401(a)(4), because all members are judges, the 

Plan does not discriminate. Because the Plan has neither 

"terminat[ed]" nor "discontinu[ed] . . . contributions," it also 

complies with the plain language of § 401(a)(7). 26 U.S.C. 

§ 401(a)(7) (1970); see also Debell v. Bd. of Trs., Pub. Emps.' 

Ret. Sys. (PERS), 815 A.2d 997, 1001 (N.J. Super. Ct. App. Div. 

2003) ("[Pre-ERISA § 401(a)(7)] assures that all employees with 

accrued benefits would be vested according to the schedule 

contained in the statute if the plan were terminated, not . . . 

when an employee-member of the plan is terminated."). 

 Coffey's sole argument against this interpretation is 

that an IRS memorandum interprets the pre-ERISA Code as requiring 

in this case a "15-year-cliff vesting schedule," i.e., Coffey's 

9 IRS guidance also supports this interpretation. IRS 

Publication 772 states that "[v]arious provisions are in use, 

ranging from complete and immediate vesting through different 

forms of graduated vesting (upon completion of stated service or 

participation requirements and/or reaching a specified age) to no 

vesting until attainment of normal or stated retirement age." 

I.R.S. Publication 778, Part 5(c) (1972). 
- 16 - 

favored interpretation of section 100-C:6(I).10 See Memorandum 

from Mark O'Donnell, Acting Director EP Rulings & Agreements, IRS, 

on Processing of Governmental Plans Determination Letter 

Applications with respect to Vesting Issues (Apr. 30, 2012) 

("O'Donnell Memorandum"). But her reliance on this memorandum is 

misplaced. 

 The vesting requirements in the O'Donnell Memorandum are 

"safe harbor[s]," not requirements. Id. at 3. As the district 

court correctly concluded, the Plan can be qualified under the 

Code without necessarily satisfying a safe harbor requirement. 

The O'Donnell Memorandum states that a plan not within a safe 

harbor "may not be issued a favorable determination letter" and 

"should be referred . . . for further analysis and resolution." 

Id. at 4 (emphasis added). The permissive "may" and "further 

analysis" statement mean that such a plan is not necessarily 

entitled to a favorable determination. See, e.g., United States 

v. Mass. Water Res. Auth., 256 F.3d 36, 51 (1st Cir. 2001) 

(discussing the "permissive 'may'"); In re Liquidation of the Home 

Ins. Co., 953 A.2d 443, 452 (N.H. 2008) ("It is the general rule 

that in statutes the word 'may' is permissive only . . . ." 

(quoting In re Rowan, 694 A.2d 1002, 1004 (N.H. 1997))). The 

10 We need not address what degree of deference, if any, we 

must accord to this memorandum, as our holding does not conflict 

with it. 
- 17 - 

memorandum does not, as Coffey contends, require the Plan to adopt 

one of the safe harbor vesting schedules to receive a favorable 

determination.11 

III. 

Affirmed. 

11 Nor does the IRS website, which, despite Coffey's 

mischaracterizations, merely repeats the "safe harbor" language of 

the O'Donnell Memorandum.