Here, however, there was no inadequacy to repair. The Fund’s
decisions state both a conclusion--that Mr. Militello was engaged
in “prohibited reemployment”--and a reason—-that he was employed as
the owner of Anthony Militello Trucking. “The administrator must
give the ‘specific reasons’ for the denial, but that is not the
same thing as the reasoning behind the reasons, in this case, the
interpretive process that generated the reason for the denial.”
Gallo v. Amoco Corp., 102 F.3d 918, 922 (7th Cir. 1996) (citations
omitted). Although the Fund cannot introduce new facts, outside the
administrative record, to justify the decision, it can “defend
[its] interpretation with any arguments that bear on its
rationality.” Id. at 923. The Fund does not introduce new facts;
it merely points to the evidence in the administrative record that
supports its reason for suspending benefits. Mr. Militello says
that he was not provided with the administrative record at the time
of the denial, but the Fund “is not limited to repeating what [it]
told the applicant.” Id. Specific reasons must be supplied so that
the applicant can adequately challenge the decision, Halpin, 962
F.2d at 689; Gallo, 102 F.3d at 923, and Mr. Militello was able to
do so here.

The Fund has a three-step administrative process for benefits
claims: step one is review by the Benefits Claim Review Committee,
Step two is by the Benefits Claim Appeals Committee, and step three

is by the Board of Trustees. Pension Plan App. B, at CS 0158. Mr.

13


information submitted, which included Mr. Militello’s tax returns,

that his ownership of Anthony Militello Trucking was prohibited

reemployment. CS 0003-04. Mr. Militello sues under ERISA, 29 U.S.C.

§ 1001 et seqg., claiming that the suspension of his benefits and

the Fund’s attempt to recover overpayment of benefits is unlawful.
Ii.

Both parties move for summary judgment, which is proper only
when the record “show[s] that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(c). In determining whether
a genuine issue of material fact exists, I must construe all facts
in the light most favorable to the non-moving party and draw all
reasonable and justifiable inferences in its favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On cross~motions for
summary judgment, I give separate consideration to the evidence of
each party and the inferences to be drawn from it. See
Hendricks~Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir.
1998).

The default standard of review for a denial of pension
benefits is de novo, but “[w]here the plan gives the administrator
discretion to interpret the plan terms or determine benefits
eligibility courts review the denial of benefit claims under ERISA,
29 U.S.C. § 1132(a) (1) (B), using the arbitrary and capricious

standard.” Carr v. Gates Health Care Plan, 195 F.3d 292, 294 (7th


reemployment. He argues that recoupment is unlawful because it does
not comply with 29 C.F.R. § 2530.203-3(b) (5). First, he does not
explain this argument at all in his motion, so he has waived it.
See United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991
(“[P]erfunctory and undeveloped arguments, and arguments that are
unsupported by pertinent authority, are waived.”). Even if I
consider the argument, however, § 2530.203-3(b)(5) provides no
assistance. That section states the procedure for requiring
verification of employment status and for the forwarding of
benefits withheld pending the receipt of verification, “except to
the extent that payments may be withheld and offset pursuant to
other provisions of this regulation.” The offset sought by the Fund
from payments that Mr. Militello will receive in the future is
unrelated to benefits withheld pending verification; it is to
compensate for benefits paid in error during Mr. Militello’s period
of “prohibited reemployment.” The pension plan provides that the
failure to notify the Fund of reemployment obligates the pensioner
to repay any benefits received during the period of “prohibited
reemployment.” Pension Plan § 4.13(c), (m). The Fund may offset
future benefit payments by the amount of benefits collected during
a period of prohibited reemployment. See 29 C.F.R. § 2530.203-
3(b) (3). The offset is appropriate, so Mr. Militello’s motion for

summary judgment is denied.

17


enforcement guidelines, all of which lack the force of law--do
not warrant Chevron-style deference.” Nevertheless, given the
specialized experience and broader information available to
such an agency, these informal interpretations are “entitled
to respect” to the extent that they have the “power to
persuade.”
American Fed’n of Gov’t Employees v. Rumsfeld, 262 F.3d 649, 656
(7th Cir. 2001) (citations omitted).

Mr. Militello argues that this discussion makes the Fund’s
request for and consideration of his personal income tax return
unlawful. However, even if I deferred to the Department of Labor’s
point of view, the discussion in its entirety does not support Mr.
Militello’s position. The Department of Labor states that it would
be unduly intrusive to ask for a personal income tax return, which
mostly contains information that is irrelevant to verification of
employment, when the administrator could easily get the same
information from tax withholding statements without considerable
expense of resources. 46 Fed. Reg. at 8902. Here the allegation was
that Mr. Militello was self-employed and received no wages, so
there would be no tax withholding statements. Under the
circumstances, his personal tax returns contained highly relevant
information, which could not have otherwise obtained without
imposing an inordinate burden on the Fund. The intrusion on Mr.
Militello’s privacy was not unreasonable. The Fund reasonably
requested and considered his personal tax returns to determine

whether he was engaged in “prohibited reemployment.”

Mr. Militello also argues that Fund did not specify what

9


discretion, Mr. Militello must demonstrate that it was exercised
arbitrarily and capriciously.

Under the arbitrary and capricious standard,

a plan administrator’s decision should not be overturned as

long as (1) “it is possible to offer a reasoned explanation,

based on the evidence, for a particular outcome,” (2) the
decision “is based on a reasonable explanation of relevant
plan documents,” or (3) the administrator “has based its
decision on a consideration of the relevant factors that
encompass the important aspects of the problem.”
Hess v. Hartford Life & Acc. Ins. Co., 274 F.3d 456, 461 (7th Cir.
2001). Where an application was given genuine consideration,
deferential review “is limited to the evidence that was submitted
in support of the application for benefits, and the mental
processes of the plan’s administrator are not legitimate grounds of
inquiry . . . .” Perlman v. Swiss Bank Corp. Comprehensive
Disability Protection Plan, 195 F.3d 975, 982 (7th Cir. 1999).
III.

I begin with the Fund’s motion. Mr. Militello argues that the
suspension of his benefits was based on an unlawful and nonuniform
interpretation of the pension plan in violation of 29 U.S.C. §
1132 (a) (1) (B), that he was not provided adequate notice of the
reasons for his suspension under 29 U.S.C. § 1133(a), and that the
suspension of his benefits violated 29 U.S.C. § 1053.

A.
Under § 1132(a)(1)(B), I must determine whether the Fund’s

determination that Mr. Militello was engaged in “prohibited


Cir. 1999) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101, 115 (1989)).

There are no “magic words” necessary to trigger this
deferential review, but the plan must “make reasonably clear that
the plan administrator is to exercise discretion.” Herzberger v.
Standard Ins. Co., 205 F.3d 327, 331 (7th Cir. 2000). Here the
pension plan gives the Board of Trustees the authority to
administer the trust in accord with the Trust Agreement, Plan §
7.01, which states that “[t]Jhe Trustees are vested with
discretionary and final authority in construing plan documents of
the Pension Fund.” Trust Agreement Art. IV § 17. I previously held
that this language was sufficient to trigger deferential review,
see Minute Order of Jan 14, 2002, and noted that, although Mr.
Militello ‘“d[id] not concede” that deferential review was
appropriate, he had provided no basis for concluding otherwise. He
now argues that de novo review is appropriate because the Fund's
trustees failed to exercise their discretion because their decision
was conclusory, contained no analysis, and merely rubber-stamped
the decision of the Benefits Claim Appeals Committee. He cites
Gritzer v. CBS, Inc., 275 F.3d 291 (3d Cir. 2002), but there the
administrator had never even issued a decision, so court held that,
where there was no analysis at all to which it could defer, the
plan administrator had forfeited the right to use its discretion.

Id. at 295-96. Here, however, where there was an exercise of


Vv.
I Grant the Fund’s motion for summary judgment, and Deny Mr.
Militello’s motion for summary judgment. Mr. Militello’s motion to

strike the affidavit of Mr. Nelson is DENIED

ENTER De ?

Elaine E. Bucklo
United States District Judge

Dated: July ld, 2002

18


he was not driving the trucks himself, management of a trucking
business would qualify as “prohibited reemployment” under § 4.13(g)
of the pension plan. The Fund’s reversal of its prior determination
was not a “nonuniform” interpretation.

Mr. Militello argues that the information from the local union
was hearsay, but “[a] pension or welfare fund trustee or
administrator is not a court [and] is not bound by the rules of
evidence.” Karr v. National Asbestos Workers Pension Fund, 150 F.3d
812, 814 (7th Cir. 1998). He also argues that the Fund improperly
requested and considered his personal income tax returns.
Department of Labor regulations for 29 U.S.C. § 1053 provide that
“[a] plan may provide that an employee must notify the plan of any
employment. A plan may request from an employee access to
reasonable information for the purpose of verifying such
employment.” 29 C.F.R. § 2530.203-3(b) (5). Mr. Militello cites an
agency discussion of this regulation, Department of Labor, Rules
and Regulations for Minimum Standards for Employee Benefit Plans;
Suspension of Benefit Rules, 46 Fed. Reg. 8894, which states that
the Department of Labor would not consider a request for a complete
copy of a personal income tax returns to be “reasonable.” Id. at
8902. This is an informal agency interpretation of a regulation.
Agency rules and regulations with the force of law are entitled to
deference, but

informal agency interpretations such as those contained in
“opinion letters ... policy statements, agency manuals, and

8


Mint Order Foxm (6997
ud . ‘ United States District Court, Northern District of Illinois

Name of Assigned Jud; i Sitting Judge if Other
sor Magistrate Judge Elaine E, Bucklo than Assigned Judge
CASE NUMBER 01 C 2884 DATE 7/10/2002
CASE Militello vs. Central States, et al.
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

qd) Oo Filed motion of [ use listing in “Motion” box above.]

(2) i) Brief in support of motion due

@) im) Answer brief to motion due__._ Reply to answer brief due.

(4) QO Ruling/Hearing on setfor at

(5) Oo Status hearing[held/continued to] [set for/re-set for} on _ setfor at

(6) 0 Pretrial conference[held/continued to] [set for/re-set for]on__——ssetfor_ at.
(7) o Trial[set for/re-set for] on at

(8) a (Bench/Jury trial] [Hearing] held/continued to__at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CFRCP4(m) ElGeneral Rule21 CIERCP41(a\(1) CI FRCP41(a)(2).

ao wt [Other docket entry] Defendants’ motion for summary judgment is granted and plaintiff's motion
for summaty judgment is denied. Accordingly, judgment is entered in favor of defendants and against
plaintiff. Plaintiffs motion to strike the affidavit of Mr. Nelson is also denied. Any other pending motion
in this case is terminated as moot. Enter Memorandum Opinion and Order.

(1) ww (For further detail see order (on reverse side oiftachessdythe original minute order.]

No notices required, advised in open court.

No notices required. umber of notices

Notices mailed by judge’s staff.

Notified counsel by telephone. Ns dex ea’

docketing deputy Tiials

v | Docketing to mail notices.
VY | Mait Ao 450 form.
Copy to judge/magistrate judge. Lyne de Iu

SIG SN

date mailed notice
courtroom

MP} deputy’s Of 2 Rd O1 nr ZO
initials - —
Oneal a eb mang dopants



record, was arbitrary and capricious). I cannot reweigh the
evidence where the record supports the Fund’s decision as
reasonable. See id. The Fund’s interpretation of the plan and its
decision that Mr. Militello was operating a trucking business as
well as its conclusion that the business constituted “prohibited
employment” were not arbitrary and capricious.

B.

ERISA requires every employee benefit plan to provide notice
of a denial of benefits, “setting forth the specific reasons for
such denial, written in a manner calculated to be understood by the
participant.” § 1133(1). The regulations interpreting this statute
require a notice of adverse benefit determination to include:

(i) The specific reason or reasons for the adverse

determination;

(ii) Reference to the specific plan provisions on which the

determination is based;

(iii) A description of any additional material or information

necessary for the claimant to perfect the claim and an

explanation of why such material or information is necessary;

{and]

(iv) A description of the plan’s review procedures and the

time limits applicable to such procedures, including a

statement of the claimant’s right to bring a civil action

under section 502(a) of the Act following an adverse benefit
determination on review
29 C.F.R. § 2560.503-1(g) (1). Mr. Militello argues that he did not
receive this notification as soon as the Fund received the
information from the local union, but the statute and regulation

require that he receive notice of an adverse determination, not of

the commencement of the investigation. The February 5, 1998, letter

11


portion of the expenses on his 1996 tax returns, if any, were
attributable to prohibited employment that began, at the earliest,
when he retired in April of 1996. However, even if I credit Mr.
Militello’s argument, which seems to be that those expenses were
attributable to pre-retirement employment, it was not unreasonable
to view the tax returns, which reflected more than $120,000 of
expenses suggesting that he was actually operating a trucking
business, as establishing prohibited employment after April 1996.

Finally, Mr. Militello argues that the Fund ignored the
evidence that he provided that showed that he was not employed in
the trucking business. For example, he says that his tax returns
demonstrated that he paid no wages or salaries,* and he produced
leases, some of which imposed the responsibility of hiring and
paying drivers on the lessee, American Motor Lines. But arguments
about the sufficiency of the evidence cannot demonstrate
arbitrariness or capriciousness where there is evidence in the
record that supports the plan administrator’s reasons. See Exbom v.
Central States, S.E. and S.W. Areas Health and Welfare Fund, 9300
F.2d 1138, 1144 (7th Cir. 1990) (holding that existence of
conflicting evidence in record was not reason to find plan

administrator’s decision, which was supported by other evidence in

2? The Fund argues that he actually left these spaces blank on
his tax returns, rather than filling in “zero,” and that he does
not actually show that he paid no wages. Taken in the light most
favorable to Mr. Militello, however, this is evidence that he paid
no wages or salaries.

10


reemployment” under § 4.13(g) was reasonable and supported by the
evidence in the administrative record. The Fund was informed by a
local union that Mr. Militello was operating a trucking company and
that he employed his son as a driver. Mr. Militello denied that he
did anything more than lease vehicles to a third party, and he
provided copies of the lease agreements, but his tax returns showed
that he paid nearly $100,000 for fuel and more than $20,000 as a
“driver bonus.” CS 0048.

Mr. Militello argues that this was an inconsistent and
“nonuniform” interpretation because it reversed the Fund’s previous
determination that mere ownership of his trucks was “ok to accept
for [the] purpose of retirement.” CS 0033. A nonuniform
interpretation may be arbitrary and capricious, see Russo v.
Health, Welfare & Pension Fund, Local 705, Int’l Bhd. of Teamsters,
984 F.2d 762, 766 (7th Cir. 1993), but here the facts, as known by
the Fund, had changed. When Mr. Militello applied for pension
benefits, the Fund only knew that he owned the vehicles and was
leasing them, but was told that he did not exercise any control
over the drivers. CS 0033. The Fund reasonably concluded, on the
basis of the information from the local union and Mr. Militello’s
tax return, that he was actually operating a trucking business and
paying drivers. If he had been leasing the trucks to another
company that operated them, he would not have incurred anything in

driver expenses or much at all in the way of fuel expenses. Even if


1996 federal income tax returns. CS 0069. Mr. Militello responded
that he had no day-to-day duties, and that he leased all of his
trucks to a company called American Motor Lines, which paid and
hired all of the drivers. CS 0068. Mr. Militello submitted copies
of lease agreements with American Motor Lines, several of which
stated that American Motor Lines, as lessee, would be responsible
for hiring drivers. CS 0013, CS 0016-21. Mr. Militello’s federal
tax returns listed business income and expenses for a principal
business described as “trucking” and with the business name of
“Anthony Militello.” CS 0047. Included among the expenses were
$98,792 for “fuel” and $21,390 for a “driver bonus.” CS 0048. The
Reemployment Committee of the Fund concluded that Mr. Militello had
engaged in prohibited reemployment as the owner of Anthony
Militello Trucking, based on the determination that he was engaged
in work using the same skills that he had used while working for a
contributing employer. CS 0035. The Fund advised him that his
benefits would be suspended if he did not terminate his employment
with Anthony Militello Trucking within 30 days. Id.

Mr. Militello appealed to the Benefits Claim Appeals
Committee, which affirmed the decision of the Reemployment
Committee, stating that his ownership of Anthony Militello Trucking
was prohibited reemployment. CS 0032. Mr. Militello exhausted his
administrative appeals by taking his claim before the Board of

Trustees. The Board of Trustees also concluded, based on all of the


Militello says that he was denied review at the initial level
because his claim was heard by the Reemployment Committee, not the
Benefits Claim Review Committee. In reply, the Fund submits an
affidavit of Albert E. Nelson, its Benefits Director, in which he
states that the Reemployment Committee is the “functional
equivalent” of the Benefits Claim Review Committee, but it is more
specialized. Reply Ex. AQ 9. Mr. Militello objects that this is
new evidence introduced in reply, but the Fund introduced it to
rebut Mr. Militello’s claim that he had been denied access to the
first step of the administrative process. See Beck v. University of
Wisc. Bd. of Regents, 75 F.3d 1130, 1134 n.* [sic] (7th Cir. 1996
(“‘(W]here the reply affidavit merely responds to matters placed in
issue by the opposition brief and does not spring upon the opposing
party new reasons for the entry of summary judgment, reply
papers--both briefs and affidavits--may properly address those
issues.’” ). His objection did not include any evidence to rebut
the facts in Mr. Nelson’s reply affidavit, so I take those facts as
true for the purpose of the Fund’s motion.

Mr. Militello also objects to the affidavit of Mr. Nelson
offered in support of the Fund’s motions, but mostly he disputes
the effect of the evidence, rather than Mr. Nelson’s competence to
offer it. He does object to Mr. Nelson’s designation of the “record
on review,” arguing that it is not a matter within Mr. Nelson’s

personal knowledge, but as Benefits Director, he is the custodian

14


and that he was only fifty-three when he retired in 1996, id. { 20.
On its face, then, § 1053 does not apply to Mr. Militello because
he has not attained normal retirement age. See Whisman v. Robbins,
55 F.3d 1140, 1146 (6th Cir. 1995) (“[W]ithout running afoul of §
(1053] (a), Central States need not have placed any conditions on
the forfeiture of benefits for participants who become reemployed
prior to reaching normal retirement age.”); Chambless v. Masters,
Mates & Pilots Pension Plan, 571 F. Supp. 1430, 1440-41 (S.D.N.Y.
1983) (holding that neither 29 U.S.C. § 1053(a) nor 29 C.F.R. §
2530.302-3(c) applies to early retirement benefits for applicants
who have not reached normal retirement age). I therefore need not
consider Mr. Militello’s argument that self-employment is not a
basis for suspension of benefits under 29 C.F.R. § 2530.203-3(c) (2)
because it speaks of “service,” which is elsewhere defined as
“performance of duties for the employer.”
IV.

Mr. Militello’s motion for summary judgment raises identical
arguments, save one, to those he raises in his response to the
Fund’s motion. Because I conclude that, even viewing the facts in
the light most favorable to him, he cannot prevail on those
arguments, he cannot possibly meet the standard for summary
judgment in his favor.

I consider separately his argument that the Fund may not

recoup the $75,400 in benefits paid to him during his prohibited

16


retired in 1996, for health reasons, at age 53. Alco Express
contributed to the Fund on Mr. Militello’s behalf, and when Mr.
Militello retired, he sought pension benefits from the Fund. Mr.
Militello told the Fund that he was retiring from active driving
but that he owned trucks and trailers. Admin. Record at CS 0009.!
The pension plan provided for suspension of pension benefits for
any pensioner engaged in “prohibited reemployment,” § 4.13(a)
which is defined to include “[e]mployment in any position,
including a managerial or supervisory position and including self-
employment, . . . in the same industry in which the Participant or
Pensioner earned any Contributory Service Credit while covered by
the Pension Fund.” § 4.13(g) (3). Alco Express advised the Fund that
Mr. Militello owned equipment that he leased to a trucking company,
but stated that he did not have any control over the drivers of the
equipment. CS 0033. The Fund granted his request for pension
benefits and began paying $2,600 per month effective April 1, 1996.
In November 1997, the Fund was told by a local union
representative that Mr. Militello was running a non-union trucking
business and that he employed his son as a driver. The Fund
investigated, told Mr. Militello that he had been accused of being
the self-employed owner of a trucking company, and asked him to

provide information about the company and a complete copy of his

* Citations to the administrative record appear in the
following form: “CS ”


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY J. MILITELLO,
Plaintiff,
Vv.

CENTRAL STATES SOUTHEAST AND
SOUTHWEST AREAS PENSION FUND
and THE BOARD OF TRUSTEES OF
THE CENTRAL STATES SOUTHEAST
AND SOUTHWEST AREAS PENSION
FUND,

No. 01 C 2884

Defendants.

MEMORANDUM OPINION AND ORDER

Anthony Militello was a truck driver whose employer made
pension contributions to Central States Southeast and Southwest
Areas Pension Fund (“the Fund”), a multi-employer pension plan as
defined by ERISA, 29 U.S.C. §§ 1002(2) (A) and (37). The Fund
terminated Mr. Militello’s benefits and sought repayment of
benefits paid when it determined that he was engaged in “prohibited
reemployment” under the pension plan. Mr. Militello sues the Fund
under ERISA, challenging the denial of benefits as an unlawful and
nonuniform interpretation of the pension plan. The Fund moves for
summary judgment, and Mr. Militello brings a cross-motion. I grant
the Fund’s motion and deny Mr. Militello’s.

I.

Mr. Militello was a truck driver at Alco Express until he

Y


notifying Mr. Militello of the Reemployment Committee’s decision to
suspend his benefits, CS 0035, conformed to these requirements.
All of the Fund’s decisions stated that the reason they were
suspending Mr. Militello’s benefits was that his ownership of
Anthony Militello Trucking constituted “prohibited reemployment”

”

because it was work, “in any capacity,” using the same skills in
the same metropolitan area as he did when he was employed, and that
to prevent the suspension, he would have to give up his ownership
of Anthony Militello Trucking. See CS 0035, 0032, 0002-04. Mr.
Militello argues that, because none of the Fund’s decisions
specifically refer to his tax returns, or to the specific evidence
that the Fund considered in reaching this conclusion, the Fund did
not provide the “specific reasons” required by § 1133(1). The
justification based on the tax return, he says, is a “post hoc
attempt to furnish a rationale” for the denial of his benefits. See
Halpin v. W.W. Grainger, Inc., 982 F.2d 685, 696 (7th Cir. 1992).
In Halpin, the administrator’s letter simply stated that the
pensioner was no longer totally disabled, but did not explain why.
Id. at 692. The court held that this was a “[{b]are conclusion[{]”
that was insufficiently specific to provide the administrator’s
rationale. Id. at 693. The court also said that “the sending of the
file, without sufficient indication of what parts of the file the

[administrator] relied on or rejected, does not repair the

inadequacy.”

12


of the records and documents maintained in the applications of
pension benefits, Ex. A 5, and he states that the record that he
attaches is “a true and accurate copy of the Minutes of the Pension
Group Trustees’ meeting of June 10, 1998,” id. 7 26. Mr. Militello
submits certain other documents which his attorney says were found
in the Fund’s files, but he submits no basis for determining that
those additional documents were part of the minutes of the
Trustees’ meeting. I conclude that Mr. Nelson is competent to
testify about the contents of the administrative record, and I
accept the Fund’s version of the “record on review.” See Whisman v.
Robbins, 810 F. Supp. 936, 941 (S.D. Ohio 1992), rev’d on other
grounds, 55 F.3d 1140 (“[(T]he Nelson affidavit demonstrates that he
is in a position to verify what evidence was actually considered by
the Trustees when they reached their decision to suspend [the
applicant]’s retirement benefits.”). Mr. Militello’s motions to
strike the affidavits of Mr. Nelson are denied, and his procedural
claims are without merit.
Cc.

Finally, Mr. Militello argues that the suspension of his
benefits violates 29 U.S.C. § 1053, which states that “[e]ach
pension plan shall provide that an employee’s right to his normal
retirement benefit is nonforfeitable upon the attainment of normal
retirement age.” § 1053(a). Mr. Militello admits that the “normal

retirement age” is sixty-five, see Resp. to Stmt. of Facts. 1 16,

15