United States Court of Appeals, Eleventh Circuit

15 F.
3d 163
73 A.F.T.R.2d 94-1327, 17 Employee Benefits Cas. 2357
John W. DYCE, Eldridge Cobb, Art I. Dumond, Dennis L.

Ellingson, Paul A. Green, James R. Himes, Charles P. Lynch,
Jack G. Maltese, David E. Merritt, George F. Mulkins, Ernest
Riesen, Edwin R. Waters, William Wright, PlaintiffsAppellants,
v.
SALARIED EMPLOYEES' PENSION PLAN OF ALLIED
CORPORATION,
Defendant-Appellee.
No. 92-2635.
United States Court of Appeals,

Eleventh Circuit.
March 1, 1994.
John Finlay MacLennan, Smith, Hulsey & Busey, Jacksonville, FL, for
plaintiffs-appellants.
John Firth Dickinson, Corbin, Dickinson, Duvall & Margulies,
Jacksonville, FL, for defendant-appellee.
Appeal from the United States District Court for the Middle District of
Florida.
Before COX, Circuit Judge, MORGAN and HENDERSON, Senior
Circuit Judges.
MORGAN, Senior Circuit Judge:
Appellants brought this action pursuant to the Employee Retirement Income

Security Act of 1974, 29 U.S.C. Sec. 1001, et seq. ("ERISA") after Appellants
applied for and were denied immediate early retirement benefits. Appellants
contend that the sale of their employer to a separate entity terminated their
employment for purposes of early retirement benefits, even though they

continued to work for the new entity. Appellants argue further that an
amendment to the pension plan that bases eligibility for retirement benefits on
termination from the new employer could not be retroactively applied. The
district court entered summary judgment in favor of the plan sponsor. We
AFFIRM.
BACKGROUND
2
The appellants were employed until January 6, 1989, by Ignition Products

Corporation ("Ignition Products"), which at that time was a wholly owned
subsidiary of Allied-Signal Incorporated ("Allied"). As of January 6, 1989, all
appellants were participants in the Salaried Employees' Pension Plan of Allied
Corporation ("Plan"), which is a defined benefit plan within the meaning of
Sec. 3(35) of ERISA, 29 U.S.C. Sec. 1002(35). On January 6, 1989, Ignition
Products was merged into Unison Industries Limited Partnership ("Unison")
and Allied transferred all of its shares in Ignition Products to Unison.1 All of the
appellants who were employed with Ignition Products prior to January 6
continued their employment without interruption at Unison after January 6.
The Plan in effect as of January 6, 1989, allowed reduced pension benefits for
participants who took early retirement as provided in Article IV, Sec. 1:
4 each person who is a Participant may elect to retire on or after age 55 but prior to
(c)
Normal Retirement Date, and if such person either has at least ten years of
Eligibility Service or at least five years of Service ... the person shall become
entitled to a Pension hereunder....
5 each person who is a Participant may elect to retire at any time after which the
(d)
sum of age and Service first equals or exceeds 80, and shall become entitled to a
Pension hereunder....
6
Pursuant to the merger agreement between Allied and Unison, Allied retained
liability under the Plan for benefits of Ignition Products employees not eligible
to retire or not already retired as of January 6, 1989. Allied purchased a group
annuity contract to cover their liability and assigned it to Unison. The merger
agreement also provided that employees eligible to retire as of the date of the
merger but who continued their employment with Unison would be eligible for
Plan benefits as of the date they terminated their employment with Unison.
In order to effectuate the intentions of the parties as expressed in the merger

agreement, Allied amended Schedule B of the Plan, effective January 6, 1989,
through formal action taken on August 9, 1989. Specifically, Section 23 was

added to Schedule B, entitled "Divestiture of Ignition Products", which
provided:
8
Those
participants who are eligible at the divestiture date for retirement under
Article IV, Sec. 1(c) or Sec. 1(d) ..., but who do not elect prior to the divestiture date
to elect retirement under such sections, will, upon their termination of employment
with Unison, be entitled to payment of retirement benefits ...
9
The amendment also allowed "bridging" of eligibility for those participants

who were within two years of eligibility for retirement under Article IV, Sec.
1(c), or within three years of eligibility for retirement under Article IV, Sec.
1(d).
10
After January 7, 1989, all of the appellants applied for immediate payment of
early retirement benefits, which were denied by the Plan administrator.2 The
sole basis for denying the appellants' claims for benefits was the language of
the Sec. 23 amendment to the Plan, making participants ineligible for
immediate payment of early retirement benefits as long as they were employed
by Unison.
11
After exhausting the claims review procedure provided for in the Plan, the
appellants filed the instant action. The district court granted summary judgment
in favor of the Plan and this appeal followed.
STANDARD OF REVIEW
12
Our review of the district court's grant of summary judgment is plenary. With
respect to the Plan's denial of pension benefits, we apply an arbitrary and
capricious standard of review. Firestone Tire and Rubber Co. v. Bruch, 489
U.S. 101, 115, 109 S.Ct. 948, 956, 103 L.Ed.2d 80 (1989).
DISCUSSION
13
The appellants contend that the amendment to the pension plan, formerly
adopted in August of 1989, cannot be applied retroactively so as to deny
benefits to appellants who were retired from the Plan as of January 6, 1989.
Relying on the Plan's definition of retirement,3 the appellants argue that the
merger terminated their employment with Allied, and therefore they were
technically "retired" for purposes of the Plan. Since they were no longer
employed by Allied or an affiliated company, the appellants contend that they
were entitled to immediate early retirement benefits. Further, the appellants
assert that it was arbitrary and capricious to deny appellants' claims based upon
a condition not set forth in the Plan at the time of retirement. Initially, we will
address whether it was proper for the Plan administrator to retroactively apply
the Sec. 23 amendment to appellants' applications for pension benefits. If it was
proper to apply the amendment retroactively, then we cannot say that the denial
of benefits was arbitrary and capricious.
14
The appellants contend that the Sec. 23 amendment, which requires termination
of employment with Unison in order to qualify for retirement benefits, may not
be applied retroactively if the effect is to deprive participants of benefits to
which they would otherwise be entitled. The appellants argue that the Plan, as it
existed at the time of the merger, is controlling on their applications for early
retirement benefits. The appellants contend that denial of their claims based on
a standard that was not contained in the terms of the Plan amounts to an
arbitrary and capricious decision. See Blau v. Del Monte Corporation, 748 F.2d
1348 (9th Cir.1984).
15
ERISA mandates that employee benefit plans subject to its requirements be

administered "in accordance with the documents and instruments governing the
plan." ERISA Sec. 404(a)(1)(D), 29 U.S.C. Sec. 1104(a)(1)(D). However, both
ERISA and the implementing regulations provide rules governing how
amendments are to be made and what notice must be given. In fact, the
regulations interpreting ERISA specifically provide that a modification or
amendment to a pension plan may be retroactively applied:
16 plan administrator shall furnish this summary ... not later than 210 days after the
The
close of the plan year in which the modification or change was adopted. This
disclosure date is not affected by retroactive application to a prior plan year of an
amendment which makes a material modification to the plan.
17
29 C.F.R. Sec. 2520.104(b-3)(a) (emphasis added). Further, the Plan itself

reserves the right "to modify, amend, suspend or terminate, in whole or in part,
any or all of its provisions."
18
The appellants argue that retroactive application of an amendment to

participants who have retired cannot be used to deny benefits to which those
participants would otherwise have been entitled to as of the date of their
retirement. See Donovan v. Dillingham, 688 F.2d 1367, 1367 (11th Cir.1982)
("Congress intended ERISA to protect working men and women from abuses in
the administration ... of private retirement plans."); Amato v. Western Union
Int'l, Inc., 773 F.2d 1402, 1409 (2d Cir.1985) (Employers are specifically
prevented by ERISA "from pulling the rug out from under promised retirement
benefits upon which his employees had relied during their long years of
service.").
19
In this case, the benefits to which the appellants are entitled have not been
reduced or eliminated. Every participant who was eligible to retire and receive
benefits before the divestiture date was still eligible for those same benefits
after the merger. The timing of the receipt of benefits is entirely up to each
participant, based on when she elects to retire. The appellants' take the position
that retirement is self-executing. To the contrary, the plain language of the Plan
requires that a participant "elect to retire." Prior to the merger a participant
could have elected to retire and immediately begun to receive early retirement
benefits. After the merger and the effective date of the amendment, the same
choice was available to each appellant.
20
The merger agreement between Allied and Unison contemplated that

employees eligible to retire as of the date of the merger, but who elected to
continue employment with Unison, would be eligible for Plan benefits as of the
date they terminated their employment with Unison, rather than the date they
terminated their employment with Ignition Products. Unison stepped into the
shoes of Allied, as employer, for purposes of the plan. As part of the merger
agreement, both Allied and Unison contemplated that only current employees of
Ignition Products as of the date of the merger would be employed by Unison. If
any of the appellants had elected to retire prior to the merger, it is merely
speculation whether Unison would have hired them after the merger.
Nevertheless, each appellant could have elected to retire prior to January 6,
sought employment with Unison or a third company, and still received early
retirement benefits. That option is still available to all of the appellants. There
is nothing to prevent the appellants from terminating their employment with
Unison now, collecting early retirement benefits, and then seeking
reemployment with Unison or a third company.
21
Both the Plan and applicable regulations permit employee benefit plans under
ERISA to be amended, not only prospectively, but also retroactively. In this
case, retroactive application of the Sec. 23 amendment does not deprive
participants of a benefit to which they would otherwise be entitled. Therefore,
we conclude that the amendment was properly applied retroactively to January
6, 1989.
22
In determining whether the denial of the appellants' claims was arbitrary and
capricious, "the function of the court is to determine whether there was a
reasonable basis for the decision, based upon the facts as known to the
administrator at the time the decision was made." Jett v. Blue Cross and Blue
Shield of Alabama, 890 F.2d 1137, 1139 (11th Cir.1989). Since it was proper
to apply the Sec. 23 amendment retroactively to the appellants applications, it
must be considered one of the terms of the Plan in effect at the time of the
divestiture. Therefore, the plan administrator had a reasonable basis for denying
the appellants claims for benefits. In fact, the plain language of the Plan, based
on the amendment, requires that early retirement benefits be denied as long as
the appellants are employed by Unison.
23
For all of the forgoing reasons, the judgment of the district court is
AFFIRMED.
The record is not clear as to exactly what were the mechanics of the sale of
Ignition Products to Unison. However, both parties agree that Unison is not an
affiliated company of Allied for purposes of the Plan
A Finance and Pension Committee, identified in the Plan as the Named

Fiduciary, exercised control over the administration, management and
disposition of the plan. The Committee had the power to appoint, at its
discretion, a plan administrator to exercise its powers and functions with respect
to interpretation and administration of the Plan
The Plan contained the following definitions:

'Retirement' is defined as 'termination of employment of a participant pursuant
to Article IV hereof.'
'Employment' is defined as 'the status of being an employee as defined herein.'
'Employee' means 'any person, including any officer not including any director
as such, employed by the company or an affiliated company for a fixed
compensation ...'

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15 F.

John W. DYCE, Eldridge Cobb, Art I. Dumond, Dennis L.

United States Court of Appeals,

Appellants brought this action pursuant to the Employee Retirement Income

employment for purposes of early retirement benefits, even though they

The appellants were employed until January 6, 1989, by Ignition Products

In order to effectuate the intentions of the parties as expressed in the merger

through formal action taken on August 9, 1989. Specifically, Section 23 was

The amendment also allowed "bridging" of eligibility for those participants

ERISA mandates that employee benefit plans subject to its requirements be

29 C.F.R. Sec. 2520.104(b-3)(a) (emphasis added). Further, the Plan itself

The appellants argue that retroactive application of an amendment to

The merger agreement between Allied and Unison contemplated that

A Finance and Pension Committee, identified in the Plan as the Named

The Plan contained the following definitions:

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