16‐723‐cv Morrone v. The Pension Fund of Local No. One, I.A.T.S.E.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2016

(Argued: February 21, 2017 Decided: August 14, 2017)

Docket No. 16‐723‐cv

VINCENT MORRONE,

Plaintiff‐Appellant,

v.

THE PENSION FUND OF LOCAL NO. ONE, I.A.T.S.E.,

Defendant‐Appellee.*

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Before: KEARSE, HALL, AND CHIN, Circuit Judges.

* The Clerk of Court is respectfully directed to amend the official caption to

conform to the above.

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

Southern District of New York (Crotty, J.), entered pursuant to an opinion and

order granting summary judgment dismissing plaintiff‐appellantʹs claim that an

amendment to a pension plan violated the anti‐cutback provisions of the

Employee Retirement Income Security Act,

et seq.

AFFIRMED.

ROBERT L. LIEBROSS, Law Office of Robert L. Liebross, New York, New York (Edgar Pauk, Law Office of Edgar Pauk, Brooklyn, New York, on the brief), for Plaintiff‐ Appellant.

FRANKLIN K. MOSS (Denis P. Duffey Jr., Nicholas J. Johnson, on the brief), Spivak Lipton LLP, New York, New York, for Defendant‐ Appellee.

CHIN, Circuit Judge:

Plaintiff‐appellant Vincent Morrone appeals from a judgment of the

United States District Court for the Southern District of New York (Crotty, J.),

dismissing his claim that an amendment to a pension plan offered by defendant‐

appellee the Pension Fund of Local No. One, I.A.T.S.E. (the ʺPension Fundʺ),

violated the anti‐cutback provisions of the Employee Retirement Income Security 2

Act,

et seq. (ʺERISAʺ). We conclude that the amendment did not

violate ERISAʹs anti‐cutback rule, and we therefore affirm.

BACKGROUND

The facts are largely undisputed and are summarized here in the

light most favorable to Morrone.

Morrone is a stagehand and a member of Local One of the

International Alliance of Theatrical Stage Employees (the ʺUnionʺ). He

participates in a ʺdefined benefit planʺ (the ʺPlanʺ), see

(35),

offered by the Pension Fund and is thus a ʺparticipantʺ in the parlance of ERISA,

see

(7). From 1970 until 1996, Morrone earned benefits under the

Plan; in 1997, he stopped working Union jobs and therefore stopped earning

benefits; and in 2012, he resumed earning benefits when he returned to Union

work. The principal question presented is whether a 1999 amendment to the

Plan violated ERISAʹs anti‐cutback rule,

(g), which prohibits a

pension fund from reducing or eliminating certain earned benefits.

Among other benefits, the Plan provides participants with a

ʺNormal Pensionʺ ‐‐ a monthly benefit, payable beginning at age sixty‐five. The

Normal Pension is based on two related concepts: pension credits and accrual

3

rates. Under the Plan, a participant accrues a ʺpension creditʺ for each calendar

year in which he earns a minimum threshold amount of income from ʺCovered

Employment,ʺ i.e., qualifying work for an employer who is covered by the

Unionʹs collective bargaining agreements and who contributes to the Plan. 1 The

Planʹs Board of Trustees (the ʺBoardʺ) sets an ʺaccrual rateʺ for each pension

credit, expressed in terms of dollars per month. Not all pension credits are

assigned the same accrual rate. Typically, the Board sets accrual rates for

pension credits earned in more recent years higher than those earned in earlier

years. Furthermore, when the Planʹs investments perform well the Board

occasionally exercises its discretion to raise retroactively the accrual rates for past

years of pension credit. The monthly amount of a participantʹs Normal Pension

is the sum of the products of each pension credit and its corresponding accrual

rate.

To illustrate, take a hypothetical case where a participant earned

pension credits from 1988 until 2013 and then retired. Under the most recent

1 The threshold amounts for the relevant years (in parentheses) are as follows: $4,000 (1961 through 1977), $6,000 (1978 through 1981), $9,000 (1982 through 1984), $12,000 (1985), $15,000 (1986 through 1992), $18,000 (1993 through 1994), $20,000 (1995 through 2001), $25,000 (2002 through 2004), $30,000 (2005), and $35,000 (2006 and later).

4

version of the Plan, pension credits earned from 1961 to 1990 have an accrual rate

of $75 per month and pension credits earned from 1991 to 2014 have an accrual

rate of $100 per month. Accordingly, upon retirement, such a hypothetical

participantʹs monthly benefit would be $2,525 ‐‐ comprised of three pension

credits (for Covered Employment from 1988 to 1990) at $75 per month plus

twenty‐three pension credits (for Covered Employment from 1991 to and

including 2013) at $100 per month.

The example presumes that the participant is entitled to current

accrual rates for all of the pension credits that he earned from 1988 to 2013. This

is because in the hypothetical the participant left Covered Employment just once

(upon retirement) and, under the terms of the Plan, unless an exception applies, a

participant is entitled to the accrual rates ʺin effect at the time [he] ultimately

separates from Covered Employment.ʺ J. App. 413. Morrone calls this feature of

the Plan a ʺliving pension.ʺ Appellantʹs Br. at 4.

Of course, stagehands like Morrone often leave and then later return

to Covered Employment. This practice led to the possibility that a participant

could leave Covered Employment, wait until the Board retroactively increased

accrual rates, and then return to Covered Employment for just a year to qualify

5

for the higher rates. And so the Plan included rules governing how a participant

could bridge a hiatus in Covered Employment and reactivate his living pension.

The crux of the partiesʹ dispute here is whether Morrone may do so under the

rule in effect when he first left Covered Employment in 1996 or whether he must

satisfy a stricter rule under a 1999 amendment to the Plan. The two rules are

discussed, in turn.

Before 1994, the Plan contained the so‐called ʺParity Rule.ʺ That rule

provided as follows:

If a Participant does not earn [pension credit] based upon Covered Employment in two or more consecutive calendar years (the ʺhiatus periodʺ) and thereafter retires without having resumed work in Covered Employment and earning at least as many years of [pension credit] after such resumption as the number of consecutive years in such hiatus period, the amount of benefit to which such Participant will be entitled will be based upon the monthly benefit accrual rate in force immediately prior to the start of such hiatus period but subject to the minimum pension benefit amount in force on the effective date of the award.

J. App. 285. Simply put, under the Parity Rule a worker with a break in Covered

Employment of two or more years in length could bridge that gap and reactivate

his living pension as to pension credits earned before the break by working in

Covered Employment for at least as many years after the break as the length of

6

the break itself. For example, a worker who takes a three‐year hiatus could

reactivate the living pension by returning to Covered Employment for three

years. A worker who, like Morrone, takes a fifteen‐year hiatus would have to

return to Covered Employment for fifteen years to reactivate the living pension.

In 1994, the Plan was amended to include the so‐called ʺFive Year

Rule.ʺ That rule provided as follows:

A Participant who returns to Covered Employment [after a hiatus] and earns at least five consecutive years of [pension credit] shall be entitled to a pension amount determined under the terms of the Plan and benefit levels in effect at the time the Participant ultimately separates from Covered Employment.

J. App. 413. Under the Five Year Rule, a worker who takes a three‐year hiatus

must return to Covered Employment for five years to reactivate the living

pension for pension credits earned pre‐hiatus. Likewise, a worker who, like

Morrone, takes a fifteen‐year hiatus must return to Covered Employment for just

five years to do so (as opposed to fifteen years under the Parity Rule).

As noted, Morrone accrued pension credits under the Plan from

1970 until 1996 and then went on a fifteen‐year hiatus. When Morrone left

Covered Employment in 1996, the operative version of the Plan contained the

Five Year Rule; the accrual rate for the pension credits earned from 1970 to 1990

7

was $50 per month; and the accrual rate for the pension credits earned from 1991

to 1996 was $70 per month. By amendment dated January 1, 1999 (the ʺ1999

Amendmentʺ), the Plan removed the Five Year Rule and reinstated the Parity

Rule.

Morrone returned to Covered Employment in 2012, and, by then, the

Board had raised accrual rates for pension credits earned from 1970 to 1990 to

$75 per month and for pension credits earned since 1990 to $100 per month. On

January 14, 2013, Morrone wrote the Plan director to request an estimate of the

monthly benefits he would receive should he retire in 2017. After a protracted

back and forth with the director not relevant to this appeal, the estimate Morrone

received applied the Parity Rule: Pension credits that he earned from 1970 to

1990 were assigned a $50 per month accrual rate (the rate in effect in 1996, when

he began his hiatus); those earned from 1991 to 1996 were valued at $70 per

month (also the 1996 rate); and those earned since 2012 were valued at $100 per

month (the current rate), for a total monthly benefit of $1,770.2 The director

determined that because Morrone had taken a fifteen‐year hiatus and would

have returned to Covered Employment for only six years as of 2017, he was not

2 The estimate presumed Morrone would earn pension credits through the year 2014, rather than 2017. 8

entitled to the current accrual rate for the pension credits he earned before his

hiatus.

Morrone filed an appeal with the Board, seeking current accrual

rates for all of his pension credits and not just those he earned since returning to

Covered Employment in 2012. The difference is indeed material. Applying the

Five Year Rule would give Morrone an extra $705 per month or $8,460 per year

above the estimate provided by the Plan director. The Board denied Morroneʹs

appeal and his subsequent request to reconsider.

On October 14, 2014, having exhausted his administrative remedies,

Morrone filed this action below against the Pension Fund, seeking declaratory

relief to clarify his rights to future pension benefits under ERISA. See

(a)(1)(B) (providing that a civil action may be brought by a participant ʺto

clarify his rights to future benefits under the terms of the planʺ). Specifically,

Morrone alleged that the 1999 Amendment reinstating the Parity Rule was an

illegal reduction of accrued benefits or retirement‐type subsidies under ERISAʹs

ʺanti‐cutback rule.ʺ

(g).

The parties filed cross‐motions for summary judgment on April 24,

2015. On February 10, 2016, the district court granted the Pension Fundʹs motion

9

and denied Morroneʹs motion. It concluded that ʺthe 1999 [A]mendment did not

reduce ʹa retirement‐type subsidy . . . with respect to benefits attributable to

service before the amendment,ʹʺ as prohibited by

(g), ʺbecause

the benefits Morrone contests are attributable to service after the amendment.ʺ

Morrone v. Pension Fund of Local No. 1, I.A.T.S.E., No. 14 Civ. 8197,

, at *2 (S.D.N.Y. Feb. 10, 2016). Moreover, the district court held that the

1999 Amendment also did not decrease an ʺaccrued benefitʺ because it merely

ʺmodified the conditions under which Morrone could accrue additional benefits

in the future; it did not modify the benefits Morrone had already accrued in the

past.ʺ

Accordingly, the district court entered judgment in favor of the

Pension Fund.

This appeal followed.

DISCUSSION

The questions presented are whether, by removing the Five Year

Rule and reinstating the Parity Rule, the 1999 Amendment impermissibly

reduced (1) an ʺaccrued benefitʺ or (2) a ʺretirement‐type subsidy,ʺ in violation of

ERISAʹs anti‐cutback provision.

(g).

10

I. Applicable A e Law

A. A Stand dard of Re eview

We review de n novo the district courrtʹs summaary judgmeent ruling,

ʺconstru uing the ev vidence in the light m most favorrable to thee non‐mov ving party and

drawing all reaso onable inferrences in [[his] favor..ʺ Mihalik v. Credit A Agricole

Cheuvreeux N. Am., Inc., 715 F F.3d 102, 1 108 (2d Cirr. 2013); accord Fallin v.

Common nwealth Ind dus., Inc., 6

12, 516 (6th h Cir. 20122) (reviewin ng de novo the

district courtʹs enttry of sum mmary judg gment on g hat a plan amendmen grounds th nt

did not violate ER RISAʹs antii‐cutback rrule). A m movant is en ntitled to ssummary

judgmeent if ʺtheree is no gen nuine dispu ute as to an ny materiaal fact and d the movaant is

entitled d to judgment as a matter of law w.ʺ Fed. R R. Civ. P. 56(a).

B. B ERIS SAʹs Anti‐C Cutback R Rule

ERISA was ena acted ʺto en nsure that employeees will not be left em mpty‐

handed d once emp ployers hav ve guarantteed them certain beenefits.ʺ Loockheed Corrp. v.

Spink, 5

(199 96). Its purrpose is to ʺmak[e] sure that if a worker has

been prromised a d nefit upon rretirementt ‐‐ and if h defined peension ben he has

fulfilled d whateverr condition ns are requ uired to ob btain a vestted benefitt ‐‐ he actu ually

will receive it.ʺ N Nachman Coorp. v. Penssion Benefitt Guar. Corrp., 446 U.S S. 359, 375

11

(1980). The statuteʹs so‐called ʺanti‐cutback ruleʺ is ʺcrucialʺ to this purpose.

Cen. Laborersʹ Pension Fund v. Heinz,

(2004). In fact, Congress

amended the rule with the Retirement Equity Act of 1984 to clarify that it

protects accrued benefits, as well as early retirement benefits, retirement‐type

subsidies, and optional forms of benefits. See

;

(g)(1)‐(2).

As amended, the anti‐cutback rule provides as follows:

(g) Decrease of accrued benefits through amendment of plan (1) The accrued benefit of a participant under a plan may not be decreased by an amendment of the plan [except in certain circumstances not present here]. (2) For purposes of paragraph (1), a plan amendment which has the effect of ‐‐ (A) eliminating or reducing an early retirement benefit or a retirement‐type subsidy (as defined in regulations), or (B) eliminating an optional form of benefit, with respect to benefits attributable to service before the amendment shall be treated as reducing accrued benefits. In the case of a retirement‐type subsidy, the preceding sentence shall apply only with respect to a participant who satisfies (either before or after the amendment) the preamendment conditions for the subsidy.

(g)(1)‐(2). Examining the statuteʹs text reveals that the anti‐

cutback rule has two important features.

12

First, the rule principally protects those benefits that a participant

has earned, rather than those that he might earn in the future. See Heinz,

(ʺSo far as the IRS regulations [that interpret § 1054(g)] are concerned . . .

the anti‐cutback provision flatly prohibits plans from attaching new conditions to

benefits that an employee has already earned.ʺ (emphasis added)). This is because,

except for ʺthe case of a retirement‐type subsidyʺ (which we will discuss below),

the plain text of the statute prohibits only an amendment which (1) decreases an

ʺaccrued benefitʺ or (2) ʺeliminat[es] or reduc[es] an early retirement benefit . . . or

. . . an optional form of benefit . . . with respect to benefits attributable to service

before the amendment.ʺ

(g)(1)‐(2) (emphases added). Accordingly,

save changes that impact retirement‐type subsidies, ʺemployers are perfectly free

to modify the deal they are offering their employees, as long as the change goes

to the terms of compensation for continued, future employment.ʺ Heinz,

(emphasis added).

Second, the rule privileges substance over form. See

at 744‐45.

Again, the plain text of the statute focuses on ʺthe effect ofʺ a plan amendment,

i.e., whether it decreases, eliminates, or reduces benefits or subsidies.

(g)(2) (emphasis added). This focus on the ʺeffectʺ of plan amendments

13

means that a court must consider whether, ʺin any practical sense, [the] change of

terms could [] be viewed as shrinking the value of [a participantʹs] pension rights

and reducing his promised benefits.ʺ Heinz,

. For example, in

Central Laborersʹ Pension Fund v. Heinz, the Supreme Court rejected any formal

distinction between, on the one hand, ʺplacing materially greater restrictions on

the receipt of [a] benefit,ʺ and on the other, ʺa decrease in the size of the monthly

benefit paymentʺ itself because, ʺas a matter of common sense, a participantʹs

benefits cannot be understood without reference to the conditions imposed on

receiving those benefits.ʺ

(alteration and internal quotation marks

omitted). At bottom, ʺ[t]he real question is whether . . . at the moment the new

[amendment] is imposed, the accrued benefit [or retirement‐type subsidy]

becomes less valuable.ʺ

.

II. Application

With these principles in mind, we turn to Morroneʹs arguments on

appeal that the 1999 Amendment violated the anti‐cutback rule. We consider

whether the 1999 Amendment decreased, first, Morroneʹs accrued benefits, and,

second, a retirement‐type subsidy.

14

A. Accrued Benefits

Morrone argues that the 1999 Amendment impermissibly reduced

his accrued benefits. First, he contends that applying the Parity Rule instead of

the Five Year Rule plainly decreased his accrued benefits because it reduced the

accrual rates for the pension credits he earned from 1970 to 1996. Second, he

avers that the ʺrightʺ to reactivate the living pension feature under the Five Year

Rule is itself a benefit that he accrued by working in Covered Employment from

1994 to 1996, when the Five Year Rule was in effect. Both of these arguments fail.

Morroneʹs first argument is inconsistent with the Supreme Courtʹs

instruction in Heinz that, ʺ[i]n a given case,ʺ a court must evaluate the effect of a

plan amendment ʺat the moment the new condition is imposed.ʺ

.

As noted above, Morrone accrued pension credits by earning the requisite

amount of income from Covered Employment in each year from 1970 to 1996. It

is therefore undisputed that, in 1999, when the Plan was amended, he was

entitled to receive pension benefits based on his service from 1970 to 1996 ‐‐ those

pension credits were unquestionably an ʺaccruedʺ portion of Morroneʹs benefit.

The parties dispute what accrual rates Morrone was entitled to receive for these

15

accrued pension credits. Under Morroneʹs interpretation,3 the terms of the Plan

before the 1999 Amendment provided that the ʺpension to which a Participant is

entitled shall be determined under the terms of the Plan and [the accrual rates] in

effect at the time the Participant separates from Covered Employment,ʺ i.e., in

1996, unless he satisfies the Five Year Rule, in which case he ʺshall be entitled to

. . . [the accrual rates] in effect at the time [he] ultimately separates from Covered

Employment,ʺ i.e., in 2017. J. App. 413 (Article II, Section 16).

Morrone separated from Covered Employment in 1996. In 1999,

when the Plan was amended, Morrone had neither returned to Covered

Employment, nor had he earned at least five consecutive years of pension credit

thereafter. As a result, he was entitled to the accrual rates in effect in 1996, when

he separated from Covered Employment and began his fifteen‐year hiatus. In

other words, in 1999, even under the version of the Plan that Morrone prefers ‐‐

the one containing the Five Year Rule ‐‐ Morrone had earned only the accrual

rates in effect in 1996. Thus, in accordance with Heinz, the 1999 Amendment did

not violate the anti‐cutback rule because Morroneʹs ʺaccrued benefit [did not]

3 The Pension Fund offers a conflicting interpretation of the preamendment version of the Plan, arguing that, even if the Five Year Rule applies, it does not benefit Morrone. But we need not reach this argument because, as we shall see, even if Morroneʹs interpretation is correct, there was no reduction of his accrued benefits.

16

become[] less valuableʺ ʺat the moment the [1999 Amendment was] imposed.ʺ

. Indeed, Morrone will receive exactly the benefits he was entitled

to receive under the pre‐1999 Amendment‐version of the Plan, namely, the

accrual rates in effect in 1996 for the pension credits he earned from 1970 to 1996.

Morroneʹs second argument is that the ʺrightʺ to reactivate his living

pension under the Five Year Rule is itself a benefit that he accrued by working in

Covered Employment from 1994 to 1996. This argument is belied by the text of

the statute. As is relevant to this appeal, ERISA provides that ʺ[t]he term

ʹaccrued benefitʹ means . . . in the case of a defined benefit plan, the individualʹs

accrued benefit [1] determined under the plan and . . . [2] expressed in the form

of an annual benefit commencing at normal retirement age.ʺ

(23)(A). Morrone fails to show how his purported ʺrightʺ under the Five

Year Rule satisfies either prong of this definition.

As to the first prong, the Supreme Court has noted that ERISA

ʺrather circularly defines ʹaccrued benefitʹ as ʹthe individualʹs accrued benefit

determined under the plan.ʹʺ Heinz,

(quoting

(23)(A)). Faced with this circularity in Heinz, the Supreme Court examined

the terms of the plan before it to determine if a benefit was impermissibly

17

reduced in violation of the anti‐cutback rule. See

at 744‐45. Likewise, the

Sixth Circuit has ʺpostulated that rather than give a comprehensive definition of

ʹaccrued benefits,ʹ Congress chose to leave the responsibility of delineating the

bounds of the term to ʹthe employer and the employee through the agreed‐upon

terms of the plan document.ʹʺ Deschamps v. Bridgestone Ams., Inc. Salaried Emps.

Ret. Plan,

, 279‐80 (6th Cir. 2016) (quoting Thornton v. Graphic

Commcʹns Conf. of the Intʹl Bhd. of Teamsters Supplemental Ret. & Disability Fund,

(6th Cir. 2009)). In light of this delegation of responsibility, the

Sixth Circuit reasoned that it should ʺlook to the terms of the Plan in ascertaining

which, if any, benefits . . . accrued prior to the [challenged] amendment.ʺ Id. at

280. Accordingly, we do the same.

Here, the version of the Plan in effect before the 1999 Amendment

does not define the term ʺaccrued benefit.ʺ But it does provide that the ʺterm

ʹPension Creditʹ shall mean the years of [pension credit] for service in Covered

Employment which are accumulated and maintained for Employees in

accordance with the provisions of Article III of this Pension Plan.ʺ J. App. 395.

Article III, in turn, articulates the rules governing the accrual of pension credits,

vesting rights, breaks in service, and other events that impact a participantʹs

18

status under the Plan, including hiatuses from Covered Employment. Moreover,

as noted previously, the Plan states that a participantʹs monthly Normal Pension

benefit is the sum of the products of each pension credit and its corresponding

accrual rate. None of these provisions, however, supports Morroneʹs contention

that the ability to qualify for current accrual rates under the Five Year Rule or the

Parity Rule constitutes a ʺbenefitʺ that he accrues under the Plan. Rather, we

agree with the district court that the Five Year Rule and the Parity Rule are

ʺconditions under which Morrone could accrue additional benefits in the futureʺ;

they are not ʺaccrued benefitsʺ themselves. Morrone,

, at *2.

As to the second prong, the statute defines ʺaccrued benefitʺ in part

as one capable of being ʺexpressed in the form of an annual benefit commencing

at normal retirement age.ʺ

(23)(A). Indeed, ERISAʹs benefit

accrual requirements provide that an ʺaccrued benefit under a defined benefit

plan must be valued in terms of the annuity that it will yield at normal

retirement age.ʺ Esden v. Bank of Boston,

(2d Cir. 2000)

(construing

(c)(3)). Morrone has made no attempt to show that

his ʺrightʺ to reactivate his living pension under the Five Year Rule or the Parity

Rule is capable of being valued in that way. And we are doubtful that he could

19

make such a showing, which would require speculative assumptions about, inter

alia, the likelihood that the Board would raise accrual rates in the future, the

amount of any such increase, the years of pension credit to which the increases

would redound, and the likelihood that any given participant would accrue the

requisite years of pension credit after his hiatus. In other words, we reject

Morroneʹs contention ʺthat we should take a broad view of accrued benefits that

would include a right to have his benefit calculated as ifʺ the Five Year Rule were

still in effect. Arndt v. Sec. Bank S.S.B. Emps.ʹ Pension Plan,

(7th

Cir. 1999) (rejecting a similar argument with respect to disability benefits).

For these reasons, we conclude that, even if the Plan conferred on

participants a ʺrightʺ to reactivate the ʺliving pensionʺ feature after a hiatus in

Covered Employment, such right does not constitute an ʺaccrued benefitʺ as that

term is defined in ERISA.

(23)(A). Accordingly, the 1999

Amendment did not violate § 1054(g)(1) of the anti‐cutback rule.

B. Retirement‐Type Subsidy

Morrone next argues that the higher accrual rates he seeks constitute

a ʺretirement‐type subsidyʺ and, consequently, he should be permitted to satisfy

ʺthe preamendment conditions for the subsidy,ʺ

(g)(2), by

20

earning five pension credits under the Five Year Rule rather than the fifteen

required by the Parity Rule. We are not persuaded.

The anti‐cutback rule protects retirement‐type subsidies ʺonly with

respect to a participant who satisfies (either before or after the amendment) the

preamendment conditions for the subsidy.ʺ

We have read this ʺprovision as

straightforwardly applying to participants . . . who qualified for the subsidy

before the [challenged] amendment or who could do so afterwardsʺ under the

terms of the plan before the amendment. Alcantara v. Bakery & Confectionery

Union & Indus. Intʹl Pension Fund Pension Plan,

(2d Cir. 2014).

Furthermore, because ʺan amendment placing materially greater restrictions on

the receipt of [a] benefit reduces the benefit just as surely as a decrease in the size

of the monthly benefit payment,ʺ Heinz,

(internal quotation marks

omitted), the Plan may not lawfully apply the Parity Rule in place of the Five

Year Rule if the higher accrual rates that Morrone seeks constitute a ʺretirement‐

type subsidy,ʺ see

(g)(2). We conclude they do not.

ERISA does not define ʺretirement‐type subsidy.ʺ Instead, Congress

delegated authority to the Treasury Department to define the term. See

(g)(2) (prohibiting ʺa plan amendment which has the effect of . . .

21

eliminating or reducing . . . a retirement‐type subsidy (as defined in regulations)ʺ

(emphasis added)); Bellas v. CBS, Inc.,

(3d Cir. 2000) (ʺCongress

contemplated that the Treasury Department would promulgate regulations

setting forth the definition of retirement‐type subsidy.ʺ). The Treasury

Department did not exercise that authority until 2005 when, acting through the

Internal Revenue Service (ʺIRSʺ), it promulgated regulations defining

ʺretirement‐type subsidy.ʺ See Section 411(d)(6) Protected Benefits,

(Aug. 12, 2005). By their terms, those IRS regulations apply to plan

amendments adopted on or after August 12, 2005 and thus do not apply to the

1999 Amendment. See

(d)–3(j) (2016). Nonetheless, both

Morrone and the Pension Fund rely on the regulations as persuasive authority

and therefore we consider them here. The regulations define ʺretirement‐type

subsidyʺ as follows:

The term retirement‐type subsidy means the excess, if any, of the actuarial present value of a retirement‐type benefit over the actuarial present value of the accrued benefit commencing at normal retirement age or at actual commencement date, if later, with both such actuarial present values determined as of the date the retirement‐type benefit commences. Examples of retirement‐type subsidies include a subsidized early retirement benefit and a subsidized qualified joint and survivor annuity.

22

(d)–3(g)(6)(iv) (first emphasis in original and second emphasis

added).

A fundamental concept encompassed by this definition is that a

retirement‐type subsidy is an amount in addition to or in excess of a participantʹs

normal retirement benefit. In that regard, the regulation accords with the

ordinary meaning of the word ʺsubsidyʺ as used in this context, i.e., ʺa payment

of an amount in excess of the usual charge for a service.ʺ Websterʹs Third New

International Dictionary of the English Language Unabridged 2279 (1968) (emphasis

added). It also comports with relevant legislative history. In describing the

scope of

(g)(2), the Senate Report on the bill that would become

the Retirement Equity Act of 1984 makes clear that a ʺbenefit subsidyʺ is ʺthe

excess of the value of a benefit over the actuarial equivalent of the normal

retirement benefit.ʺ S. Rep. No. 98‐575, at 28 (1984) (emphasis added). Decisions

of our sister circuits are also in accord. For example, the Third Circuit has

ʺdefined a retirement‐type subsidy to be the excess in value of a benefit over the

actuarial equivalent of the normal retirement benefit.ʺ Bellas,

(emphasis added). In sum, the ordinary meaning of the word ʺsubsidy,ʺ the

legislative history, existing case law, and IRS regulations lead us to conclude that

23

an essential characteristic of a retirement‐type subsidy is that it is an amount in

excess of a participantʹs normal retirement benefit. Accordingly, if the higher

accrual rates that Morrone seeks are not in excess of or in addition to his normal

retirement benefit, then they are not a ʺretirement‐type subsidyʺ protected by

§ 1054(g)(2) of the anti‐cutback rule.

Turning to the text of the Plan, we conclude that, even under

Morroneʹs preferred interpretation, the higher accrual rates that he seeks would

constitute his normal retirement benefit and not an amount in excess of it.

Therefore, those higher accrual rates are not a retirement‐type subsidy. To recap,

Article II, Section 16, entitled ʺApplication of Benefit Increases,ʺ provides that

ʺ[t]he pension to which a Participant is entitled shall be determined under the

terms of the Plan and benefit levels in effect at the time the Participant separates

from Covered Employment.ʺ J. App. 413. Article III, Section 11, entitled

ʺProtracted Absence of Participant from Covered Employment,ʺ contains the

Parity Rule: A worker with a hiatus in Covered Employment of two or more

years in length is entitled to ʺthe monthly benefit accrual rate in force

immediately prior to the start ofʺ the hiatus, unless he returns to Covered

Employment for at least as many years as the length of the hiatus itself. J. App.

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431. Morrone argues, however, that the Five Year Rule is a ʺpreamendment

conditionʺ to his receipt of the higher accrual rates in effect when he plans to

retire in 2017, and thus he should be permitted to qualify for those higher rates

under the Five Year Rule in accordance with

(g)(2).

Morrone is correct that the accrual rates he seeks via application of

the Five Year Rule are greater than those he is entitled to receive under the Parity

Rule. But those higher accrual rates are not an amount in excess of his normal

retirement benefit. Under the terms of the Plan, they would constitute his normal

retirement benefit if he satisfied the Planʹs conditions for receiving them. That is

because, regardless of whether the Five Year Rule or the Parity Rule applies, the

Plan states that ʺthe monthly amount of [Morroneʹs] Normal Pension will be

determined byʺ calculating the sum of the products of each pension credit he

earned and its corresponding accrual rate, as determined in accordance with the

text of the Plan. J. App. 401; see also

(22) (defining ʺnormal

retirement benefit,ʺ in relevant part, as ʺthe benefit under the plan commencing

at normal retirement ageʺ). Accordingly, the 1999 Amendment did not place

greater restrictions on the receipt of a retirement‐type subsidy. Instead, it merely

changed the conditions under which Morrone could earn a larger normal

25

retirement benefit in the future. Thus, the 1999 Amendment is not prohibited by

§ 1054(g)(2) of the anti‐cutback rule because it does not reduce a retirement‐type

subsidy.

* * *

Congress enacted robust protections for pensioners by expanding

the anti‐cutback rule in 1984. The rule specifically protects pensionersʹ accrued

benefits, early retirement benefits, retirement‐type subsidies, and optional forms

of benefits. But, contrary to Morroneʹs arguments on appeal, the anti‐cutback

rule does not command that a pensionerʹs benefits be determined under the

version of the plan that is most generous to him. Employers remain ʺperfectly

free to modify the deal they are offering their employees, as long as the change

goes to the terms of compensation for continued, future employment.ʺ Heinz,

. That is exactly what happened in this case.

CONCLUSION

To summarize, we conclude that the 1999 Amendment did not

decrease Morroneʹs accrued benefits. Moreover, the higher benefit accrual rates

that Morrone demands are not a ʺretirement‐type subsidyʺ ‐‐ rather, they would

constitute his normal retirement benefit if he satisfied the conditions to receiving

26

them, namely, the Parity Rule. Accordingly, we conclude that the 1999

Amendment did not violate ERISAʹs anti‐cutback rule,

(g). We

have considered Morroneʹs remaining arguments and conclude they are without

merit.

We therefore AFFIRM.

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