Tasker v. DHL Retirement Savings Plan

United States Court of Appeals
For the First Circuit

No. 09-2661

JEFFREY R. TASKER,

Plaintiff, Appellant,

v.

DHL RETIREMENT SAVINGS PLAN ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Lipez, Selya and Thompson,

Circuit Judges.

Robert S. Catapano-Friedman, with whom The Catapano-Friedman
Law Firm was on brief, for appellant.
Jeremy P. Blumenfeld, with whom Allison N. Suflas and Morgan,
Lewis & Bockius LLP were on brief, for appellees.

October 6, 2010
 SELYA, Circuit Judge. This appeal raises an issue of

first impression at the federal appellate level concerning the

workings of the anti-cutback rule of the Employee Retirement Income

Security Act (ERISA), 29 U.S.C. § 1054(g), when viewed through the

prism of a Treasury Department regulation, 26 C.F.R. § 1.411(d)-4.

The issue arises in the context of plaintiff-appellant Jeffrey R.

Tasker's claim that a group of related entities — DHL Retirement

Savings Plan, DHL Retirement Pension Plan, Employee Benefits

Committee of DPWN Holdings (USA), Inc., and the DHL Retirement

Pension Plan Committee (collectively, the defendants) — violated

the anti-cutback rule when they eliminated his unexercised option

to transfer funds from his profit-sharing plan account to his

retirement plan. Concluding, as we do, that the unambiguous

language of the regulation allowed the defendants to eliminate the

transfer option, we affirm the district court's dismissal of the

claim.

I. BACKGROUND

Because this appeal follows the allowance of a motion to

dismiss for failure to state a claim upon which relief can be

granted, Fed. R. Civ. P. 12(b)(6), we draw the facts from the

plaintiff's complaint. SEC v. Tambone, 597 F.3d 436, 438 (1st Cir.

2010) (en banc).

The plaintiff toiled in the employ of Airborne Express,

Inc. (Airborne) for more than three decades. In 2003, DHL Holdings

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(USA) Inc., now DPWN Holdings (USA), Inc., acquired Airborne. The

plaintiff worked briefly for the acquirer (which, for ease in

reference, we shall call DHL) and then retired in March of 2004.

While employed by Airborne, the plaintiff participated in

both the company's profit-sharing and retirement plans. After he

retired but before he began receiving benefits, Airborne's plans

were merged into their DHL counterparts, namely, the DHL Savings

Plan and the DHL Retirement Plan. Because the mergers themselves

are not central to the issues on appeal, we refer throughout to the

profit-sharing plan and the retirement plan, without further

elaboration.

The retirement plan and the profit-sharing plan are both

ERISA plans. The retirement plan is a defined benefit plan. See

29 U.S.C. § 1002(35). The benefit accruing to a participant under

this plan is based on the participant's age, years of service, and

average compensation. Section 4.01(A) of the retirement plan limns

the relevant benefit formula:

. . . . [A] Participant's Accrued Benefit
shall be entirely determined under the
formulas of this Section 4.01(A) . . .

Subject to the offset under paragraph C of
this Section 4.01, a Participant's Accrued
Benefit under this paragraph shall be
determined under the formula (a times c) + (b
times d) where the terms have the following
meaning:

a = The number of years of the Participant's
Years of Credited Service up to a maximum of
25 Years.

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 b = The number of years of the Participant's
Years of Credited Service which exceeds 25
Years.

c = An amount equal to 2.0 percent of the
Participant's Average Monthly Compensation.

d = An amount equal to 0.5 percent of the
Participant's Average Monthly Compensation.

The benefit computed under this formula is subject to an offset,

that is, a reduction based on the participant's account balance in

the profit-sharing plan. The offset is spelled out in Section

4.01(C):

A Participant's benefit determined under
paragraphs A and/or B above shall be reduced
by the Participant's Profit Sharing Plan
Annuity Benefit, if any, as determined under
this paragraph . . . . The annuity benefit
derived from the Participant's nonforfeitable
interest in the Participant's Profit Sharing
Plan account balance shall mean a monthly
Single Life Annuity (SLA) payable at the
Participant's Normal Retirement Age. This
monthly SLA shall be determined as the
Actuarial Equivalent (without regard to any
pre-retirement mortality) of the Participant's
nonforfeitable Profit Sharing Plan account
balance as of the Profit Sharing Plan
Valuation Date immediately preceding the
Participant's date of termination, assuming no
future Employer contributions.

The profit-sharing plan is a defined contribution plan.

See 29 U.S.C. § 1002(34). A participant's benefit under this plan

is computed with reference to his account balance, which may be

taken as either a lump sum or an annuity. The account balance, in

turn, is the product of all amounts contributed by the participant

and left in the plan, net of gains or losses on his investments.

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 The plaintiff's remonstrance stems from the interlocking

offset provision. When he retired in 2004, the retirement plan

permitted a participant, prior to his election to begin receiving

benefits, to transfer the balance from his profit-sharing plan

account into the retirement plan. The corresponding provision of

the profit-sharing plan enabled a participant to take full

advantage of this option by transferring his account balance from

that plan to the retirement plan. Such a transfer, when effected,

would drop the participant's profit-sharing plan account balance to

zero and, thus, avoid any offset. This transfer option was in

place when DHL acquired Airborne. It was likewise in place when

the plaintiff retired, in March of 2004, at age 57.

Upon his retirement, the plaintiff stated his intention

to commence the receipt of his annuity benefit on October 1, 2008,

that is, at age 62. His account balance in the profit-sharing plan

at retirement was $370,388.22.

As he readied himself to leave the workplace, the

plaintiff requested and received benefit information from DHL. The

company furnished him with written estimates detailing the benefit

options then available to him. These estimates included projected

benefit levels based on the formula contained in Section 4.01(A) of

the retirement plan, with an offset based on Section 4.01(C).

Predicated on his years of service and average compensation, his

accrued benefit was estimated to be $5,824.27 per month, which was

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reduced to $4,775.90 by a factor related to his decision to begin

receiving benefits before age 65. The offset from his profit-

sharing account, which was also affected by age-related factors,

was estimated to be $4,588.00 per month. The amalgamation of these

two numbers resulted in a projected annuity benefit of $187.90 per

month. This estimate assumed that the plaintiff's profit-sharing

account balance would remain intact and at his disposal.

DHL furnished the plaintiff with a separate estimate of

what his benefit might be if he exercised the transfer option

permitted under Section 7.11 of the retirement plan: $4,163.92 per

month as a joint survivor annuity — a figure that contemplated

emptying his profit-sharing account. This estimate, like the other

estimate, made pellucid that it was merely a projection, not a

final calculation or a guarantee.

At the time that he received these estimates, the

plaintiff could have elected to transfer his profit-sharing plan

account balance into the retirement plan account, but he eschewed

that course. Moreover, he did not indicate at that time how he

wished to receive his benefit.

Effective December 31, 2004, DHL amended the retirement

plan to eliminate the transfer option and prohibit transfers of the

kind previously permitted under Section 7.11. Without amending any

other language in Section 7.11, the amendment stated that the

retirement plan "shall not accept transfers of any Profit Sharing

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account balances after December 31, 2004." DHL simultaneously

amended Section 8.04C(3) of the profit-sharing plan to eliminate a

participant's right to transfer funds to the retirement plan.

In 2008, the plaintiff tried to exercise the transfer

option and begin the distribution of his benefit as adumbrated in

the second estimate that he had received in 2004. In letters dated

July 22 and August 28, 2008, the plan administrator informed him

that the December 2004 amendments foreclosed his use of the

transfer option (and, thus, effectively rendered the annuity

benefit described in the second estimate unavailable). The letters

explained what payments the plaintiff could expect: either an

annuity of $2,200 per month (should he take his profit-sharing

account in annuity form and combine it with his retirement

annuity)1 or an annuity of $187 per month (which would leave the

entire balance in his profit-sharing account intact). The profit-

sharing balance was an important dictum; it had grown to

$513,754.58 by this time.2 Either of the available alternatives

was a far cry from the annuity benefit projected in the second

estimate.

1
The difference between his estimated annuity under the
retirement plan in the event of a transfer and the estimated
annuity under the profit-sharing plan results from a variation in
the actuarial assumptions applied under the two plans.
2
Although investments increased this amount between 2004 and
2008, Section 4.01 fixed the offset amount under that plan at a
value determined before the plaintiff's separation from service.

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 After unsuccessfully pursuing an administrative appeal,

the plaintiff brought suit in the federal district court. He

alleged a violation of ERISA's anti-cutback rule and sought an

award of damages under 29 U.S.C. § 1132(a)(1)(B) (count 1). He

also asserted related claims for breach of fiduciary duty (count 2)

and injunctive and declaratory relief (count 3). The defendants

moved to dismiss the complaint. The district court granted their

motion in substantial part, rejecting the core claim that the

defendants had violated the anti-cutback rule. Tasker v. DHL Ret.

Sav. Plan, No. 09-cv-10198, 2009 WL 4669936, at *5 (D. Mass. Nov.

20, 2009). The court did not dismiss the plaintiff's separate

claim, embedded in count 1, that the defendants had improperly

denied him the right to take his profit-sharing benefit in the form

of an annuity. Id. Later, the plaintiff voluntarily dismissed

that separate claim; the district court entered a final judgment;

and this timely appeal ensued.

II. STANDARD OF REVIEW

We review de novo a district court's disposition of a

motion to dismiss for failure to state a claim upon which relief

can be granted. Centro Medico del Turabo, Inc. v. Feliciano de

Melecio, 406 F.3d 1, 5 (1st Cir. 2005). We accept as true all

well-pleaded facts set out in the complaint and draw all reasonable

inferences from them in favor of the pleader. Tambone, 597 F.3d at

441-42.

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 A complaint must only contain "a short and plain

statement of the claim showing that the pleader is entitled to

relief." Fed. R. Civ. P. 8(a)(2). But even though a complaint

need not plead "detailed factual allegations," Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007), it nonetheless must "contain

sufficient factual matter, accepted as true, to 'state a claim to

relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.

Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). Thus, a

complaint must do more than recite the formal elements of a cause

of action; it must include "factual content that allows the court

to draw the reasonable inference that the defendant is liable for

the misconduct alleged." Id. "If the factual allegations in the

complaint are too meager, vague, or conclusory to remove the

possibility of relief from the realm of mere conjecture, the

complaint is open to dismissal." Tambone, 597 F.3d at 442 (citing

Twombly, 550 U.S. at 555).

III. ANALYSIS

The Supreme Court has noted the "centrality of ERISA's

object of protecting employees' justified expectations of receiving

the benefits their employers promise them." Cent. Laborers' Pension

Fund v. Heinz, 541 U.S. 739, 743 (2004). In keeping with this

object, the substantive protections of ERISA "are designed largely

'to safeguard the financial integrity of employee benefit funds, to

permit employee monitoring of earmarked assets, and to ensure that

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employers' promises are kept.'" Alexander v. Brigham & Women's

Physicians Org., Inc., 513 F.3d 37, 43 (1st Cir. 2008) (quoting

Belanger v. Wyman-Gordon Co., 71 F.3d 451, 454 (1st Cir. 1995)).

To that end, ERISA memorializes an anti-cutback rule, which provides

in relevant part:

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, other than an amendment described in
section 1082(d)(2) or 1441 of this title.

(2) For purposes of paragraph (1), a plan
amendment which has the effect of —

. . .

(B) eliminating an optional form of benefit,
with respect to benefits attributable to
service before the amendment shall be treated
as reducing accrued benefits.

29 U.S.C. § 1054(g). A counterpart provision of the Internal

Revenue Code mirrors this ERISA provision. See 26 U.S.C.

§ 411(d)(6)(B)(ii).

The theme of the plaintiff's claim is that the December

2004 plan amendments eliminating the transfer option contravene this

rule. A principal difficulty with this argument is that the

Treasury Department, acting under a lawful delegation of authority

from Congress, see id., has carved a number of exceptions out of the

rule. Regulations lawfully promulgated by the Secretary of the

Treasury (the Secretary), which interpret the anti-cutback rule,

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command an appreciable measure of judicial deference. See Cent.

Laborers' Pension Fund, 541 U.S. at 747; Hoult v. Hoult, 373 F.3d

47, 54-55 (1st Cir. 2004).

Included in the compendium of relevant Treasury

Department regulations is a clear grant of safe passage for plan

amendments that eliminate transfer options (even when the

elimination may have the incidental effect of reducing benefits).

The regulation states:

Q-2. To what extent may section 411(d)(6)
protected benefits under a plan be reduced or
eliminated?

. . .

A-2. (b)(2)(viii) Provisions for transfer of
benefits between and among defined
contribution plans and defined benefit plans.
A plan may be amended to eliminate provisions
permitting the transfer of benefits between
and among defined contribution plans and
defined benefit plans.

26 C.F.R. § 1.411(d)-4, Q&A-2(b)(2)(viii).

In this instance, both the profit-sharing plan and the

retirement plan were "amended to eliminate provisions permitting the

transfer of benefits" from one plan to the other. At first blush,

then, resolving this case seemingly requires only that we travel the

path that the Secretary already has beaten. The question posed here

directly tracks Q-2 of the regulation: did the defendants violate

the anti-cutback rule, ERISA § 204(g), by eliminating the transfer

option, when that elimination had the incidental effect of

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significantly lowering the plaintiff's projected benefit? The

answer, a clear "no," directly tracks the teachings of A-2: "[a]

plan may be amended to eliminate provisions permitting the transfer

of benefits between and among . . . plans," even if that elimination

reduces an accrued (but unclaimed) benefit. Accordingly, as the

district court recognized, the regulation insulates the challenged

plan amendments from the anti-cutback rule.

In an effort to blunt the force of this reasoning, the

plaintiff posits that a series of obstacles block the path

illuminated by the regulations. Before us, his primary contention

is that other language in the relevant regulations has a limiting

effect. He suggests that this language, which describes the

authority exercised by the Secretary in promulgating the

regulations, bars a "plain meaning" interpretation of the transfer

option exception. This language reads in pertinent part:

In general. The Commissioner may, consistent
with the provisions of this section, provide
for the elimination or reduction of section
411(d)(6) protected benefits that have already
accrued only to the extent that such
elimination or reduction does not result in
the loss to plan participants of either a
valuable right or an employer-subsidized
optional form of benefit where a similar
optional form of benefit with a comparable
subsidy is not provided or to the extent such
elimination or reduction is necessary to
permit compliance with other requirements of
section 401(a) . . . .

26 C.F.R. § 1.411(d)-4, Q&A-2(b)(1). Specifically, the plaintiff

asserts that the qualification that exceptions "not result in the

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loss to plan participants of either a valuable right or an employer-

subsidized optional form of benefit" precludes a reading of the

transfer option exception that allows the reduction of an accrued

benefit.

This asseveration is brand, spanking new. The plaintiff

did not advance any argumentation based on this language in the

district court. That omission works a forfeiture of the argument

here. United States v. Leahy, 473 F.3d 401, 409-10 (1st Cir. 2007);

Clauson v. Smith, 823 F.2d 660, 666 (1st Cir. 1987). The fact that,

in the court below, the plaintiff challenged the defendants' reading

of the regulation on a different theory does not preserve the new

argument that he proffers here. See Cochran v. Quest Software,

Inc., 328 F.3d 1, 11 (1st Cir. 2003) (explaining that "a party may

not advance for the first time on appeal either a new argument or

an old argument that depends on a new . . . predicate"); Clauson,

823 F.2d at 665-66 (similar).

We review forfeited claims for plain error — a hard-to-

meet standard that is "not appellant-friendly." Dávila v.

Corporación de P.R. Para La Difusión Pública, 498 F.3d 9, 14 (1st

Cir. 2007). "[W]e will resuscitate a forfeited argument only if the

appellant demonstrates that '(1) an error occurred (2) which was

clear or obvious and which not only (3) affected the [appellant's]

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of the judicial proceedings.'" Id.

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at 14-15 (quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001)).

We assume, for argument's sake, that plain error review

is available here.3 The plaintiff's suggestion that this earlier

language somehow derails a straightforward application of the

transfer option exception cannot satisfy this uncompromising

standard. Section 1.411(d)-4, Q&A-2(b)(2)(viii) asks and answers

the precise question on which the plaintiff's claim turns. It

states unambiguously that transfer options may be eliminated even

if such an action reduces a section 411(d)(6) benefit. We cannot

say that, by applying this clear, direct language, according to its

tenor, the district court committed an obvious error.

The separate language of section 1.411(d)-4, Q&A-2(b)(1)

does not change this calculus. The most that can be said is that

section 1.411(d)-4, Q&A-2(b)(1) might help to support a challenge

to the reasonableness of the transfer option exception. But the

plaintiff acknowledged below that he was not making a reasonableness

challenge, see Tasker, 2009 WL 4669936, at *4, so any such challenge

is deemed waived. See Redondo-Borges v. U.S. Dep't of HUD, 421 F.3d

1, 6 (1st Cir. 2005).

3
It may not be. The record that would be needed to flesh out
the plaintiff's present claim is largely undeveloped. Thus, the
availability of plain error review is questionable. See United
States v. Torres, 162 F.3d 6, 11 n.2 (1st Cir. 1998) (affirming the
application of this rule to the failure to develop a factual record
supporting a suppression claim).

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 Last — but far from least — even if we were inclined to

overlook this waiver and inquire into the Secretary's authority to

promulgate the transfer option exception — and we are not — the

answer to such a query would fail to demonstrate plain error. The

Secretary has "the ultimate authority to interpret the[] overlapping

anti-cutback provisions" of ERISA and the Internal Revenue Code.

Cent. Laborers' Pension Fund, 541 U.S. at 747. It is not obvious

that the Secretary's broad authority falls short of encompassing the

regulation at issue here.

The plaintiff advances two other bases for reading

section 1.411(d)-4, Q&A-2(b)(2)(viii) more narrowly than its

language suggests. Both of these theories were preserved below.

To begin, the plaintiff asks us to interpret the transfer

option exception as permitting only the elimination of transfer

options themselves. Under this reading, the "transfer" is the

"protected benefit," and any other diminutions resulting from that

elimination remain prohibited by the anti-cutback rule. This

reading is implausible.

The anti-cutback rule describes with specificity the set

of benefits that it safeguards: accrued benefits, early retirement

benefits, retirement-type subsidies, and optional forms of benefits.

See 26 U.S.C. § 411(d)(6); 29 U.S.C. § 1054(g). The rule does not

afford protection for "ancillary benefits, . . . or any other

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benefits that are not described in section 411(d)(6)." 26 C.F.R.

§ 1.411(d)-3(b)(3)(i).

The described set of protected benefits does not include

transfer options. Consequently, the transfer option is an ancillary

benefit that may lawfully be eliminated through a permitted plan

amendment (such as an amendment defenestrating a transfer option).

The text of the regulation reinforces this interpretation

of "protected benefits." Under that phraseology, protected benefits

may "be reduced or eliminated" by an amendment that "eliminate[s]

provisions permitting the transfer of benefits between and among

defined contribution plans and defined benefit plans." Id.

§ 1.411(d)-4, Q&A-2(b)(2)(viii). The only sensible construction of

this language is that even protected benefits may be reduced or

eliminated to the extent that the reduction or elimination occurs

as an incidental effect of eliminating a transfer option.

The limitation that the plaintiff advocates — that

reductions resulting from the elimination of transfer options are

still prohibited — is nowhere contained in the text of the

regulation itself. This is especially significant because the

Secretary did include similar restrictions in other parts of the

same regulations. See, e.g., 26 C.F.R. § 1.411(d)-4, Q&A-

2(a)(3)(ii) (explicitly limiting the permissible reductive effect

of modifications to options to receive annuities as cash payments).

That no such language limits the reductive effects of the

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elimination of a transfer option favors the conclusion that no such

circumscription was meant. See Barnhart v. Sigmon Coal Co., 534

U.S. 438, 452 (2002) ("[I]t is a general principle of statutory

construction that when Congress includes particular language in one

section of a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.") (internal

quotations omitted); Morales v. Sociedad Española de Auxilio Mutuo

y Beneficencia, 524 F.3d 54, 59 (1st Cir. 2008) (explaining that

canons of statutory construction are "fully transferable to the

construction of regulations"); see also United States v. DiTomasso,

___ F.3d ___, ___ (1st Cir. 2010) [No. 08-2567, slip op. at 14].

The plaintiff's last argument is equally unavailing. He

insists that, notwithstanding the language of section 1.411(d)-4,

Q&A-2(b)(2)(viii), two other Treasury regulations forbid the

elimination of a transfer option when doing so would result in a

reduction of an accrued benefit. The first of these regulations

states in pertinent part:

The prohibition against the reduction or
elimination of section 411(d)(6) protected
benefits already accrued applies to plan
mergers, spinoffs, transfers, and transactions
amending or having the effect of amending a
plan or plans to transfer plan benefits.
Thus, for example, . . . if an employee's
benefit under a defined contribution plan is
transferred to another defined contribution
plan (whether or not of the same employer),
the optional forms of benefit available with
respect to the employee's benefit accrued

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 under the transferor plan may not be
eliminated or reduced except as otherwise
permitted under this regulation.

26 C.F.R. § 1.411(d)-4, Q&A-2(a)(3)(i). The second regulation

states in pertinent part:

Section 411(d)(6) protected benefits may not
be eliminated by reason of transfer or any
transaction amending or having the effect of
amending a plan or plans to transfer benefits.
Thus, for example, except as otherwise
provided in this section, an employer who
maintains a money purchase pension plan that
provides for a single sum optional form of
benefit may not establish another plan that
does not provide for this optional form of
benefit and transfer participants' account
balances to such new plan.

Id. § 1.411(d)-4, Q&A-3(a).

In the plaintiff's view, his situation is analogous to

the situations described in these regulations because, in 2004, his

annuity was estimated at $4,163.92 per month (if he used the

transfer option full-scale), yet in 2008, after the transfer option

was eliminated, his annuity was estimated at only $2,200 per month.

If these other regulations mean what they say, the plaintiff

asserts, the elimination of his option to transfer funds from his

profit-sharing plan account to the retirement plan (and, thus,

secure the higher annuity) must constitute a violation of the anti-

cutback rule.

The plaintiff's indignation is understandable, but his

reliance on the cited regulations is misplaced. They merely

recapitulate the anti-cutback rule, illustrating its application to

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plan mergers, transfers, and amendments. They do not deal, directly

or inferentially, with the transfer option exception. To construe

these general regulations to override a separate, highly specific

regulation that clearly and unambiguously permits the elimination

of a transfer option even when that elimination would have the

incidental effect of reducing an accrued benefit would turn the

regulatory scheme on its head. "It is a conventional canon of legal

interpretation that specific provisions trump more general ones,"

Harry C. Crooker & Sons, Inc. v. OSHRC, 537 F.3d 79, 84 (1st Cir.

2008), and that canon applies here.

This sockdolager is the inclusion, in the general

regulations cited by the plaintiff and reproduced above, of the

phrases "except as otherwise provided in this section" and "except

as otherwise permitted in this section." The elimination of

transfer options is "otherwise provided" by section 1.411(d)-4, Q&A-

2(b)(2)(viii) and, accordingly, plan amendments eliminating transfer

options are "otherwise permitted," even if their effect is to shrink

accrued benefits.

To sum up, none of the pitfalls proposed by the plaintiff

would justify us in abandoning the path demarcated by the

regulations. The only reasonable conclusion that can be drawn is

that section 1.411(d)-4, Q&A-2(b)(2)(viii) permitted the defendants

to eliminate the transfer option.

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IV. CONCLUSION

This is a hard case — hard in the sense that it requires

us to deny relief to a plaintiff for whom we have considerable

sympathy. After all, the plaintiff worked for many years, planned

for his retirement, and now finds that the annuity he can collect

is roughly half the size that he had anticipated. On general

notions of fairness, the plaintiff deserves better.

But this case — like most hard cases — cannot be decided

on generalized notions of fairness. ERISA is a creature of statute,

fleshed out by regulations. Subject to constitutional concerns not

present here, courts must follow the path demarcated by Congress and

the Executive Branch. Where, as here, the statute and the

implementing regulations are clear, an inquiring court must follow

their lead. No judge is free to disregard the law simply because

he or she thinks that it would be fairer to do so in a given case.

We have warned before, in the ERISA context, that hard

cases have a propensity to make bad law. See, e.g., Burnham v.

Guardian Life Ins. Co., 873 F.2d 486, 487 (1st Cir. 1989). This

case is of that genre. Were we arbitrarily to ignore an unambiguous

regulation allowing the action taken by the defendants, we would be

making bad law. We must abjure so wayward an approach.

Of course, the Secretary could modify the regulations to

minimize or abate inequities of the sort that the plaintiff has

experienced here. The Secretary, however, has not chosen to do so.

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By the same token, Congress could revise the statute, but it too has

refrained from doing so. In the absence of any such ameliorative

action by either Congress or the Secretary, our hands are tied.

We need go no further. For the reasons elucidated above,

we hold that the challenged plan amendments were permissible and,

therefore, the elimination of the transfer options did not violate

ERISA's anti-cutback rule.

Affirmed. No costs.

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