Robert Johnston v. Dow Employees' Pension Plan

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0420n.06

No. 16-2246
FILED
UNITED STATES COURT OF APPEALS Jul 19, 2017
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
ROBERT JOHNSTON, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE
DOW EMPLOYEES’ PENSION PLAN and DOW ) EASTERN DISTRICT OF
CHEMICAL COMPANY RETIREMENT ) MICHIGAN
BOARD, )
)
Defendants-Appellees;

BEFORE: GIBBONS, SUTTON, and COOK, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. Plaintiff Robert Johnston appeals the

district court’s grant of judgment on the administrative record in favor of defendants Dow

Employees’ Pension Plan and Dow Chemical Company Retirement Board (collectively, the

“board”). Johnston alleges that the board miscalculated his pension benefit by failing to apply

the unambiguous terms of the pension plan and that the board’s interpretation violates ERISA’s

anti-cutback rule. However, because the board’s determinations were not arbitrary or capricious

or in violation of the anti-cutback rule, we affirm the denial of Johnston’s claims.

I.

Robert Johnston began working for Dow Chemical in 1980. In March 1996, Johnston

was transferred to a newly formed Dow joint venture, Dow DuPont Elastomers (“DDE”).

Johnston worked at DDE until June 30, 2005, at which point he was transferred back to Dow.

He then worked at Dow until he took early retirement on September 30, 2011.
No. 16-2246, Johnston v. Dow Employees’ Pension Plan

Johnston is entitled to a pension under the Dow Employee Pension Plan (“Plan”), which

is to be offset, to some degree, by the separate pension he receives from his prior work with

DDE. The pension benefit provided for under the Plan is an “employee pension benefit plan”

subject to the requirements of the Employee Retirement Income Security Act (“ERISA”).

Before Johnston commenced his pension benefit with Dow, he objected to the pension

calculation provided by the company. Pursuant to the Plan’s pension-calculation review

procedures, Johnston’s claim was reviewed by an “Initial Claims Reviewer,” who denied his

claim. After this initial denial, Johnston made further inquiries to the Initial Claims Reviewer,

who, after some delay, provided Johnston with answers to his questions.1 The Initial Claims

Reviewer also granted Johnston an extension to file an appeal with the Dow Retirement Board,

which serves as the “Appeal Administrator” under the Plan. In August 2012, Johnston filed a

timely appeal of the Initial Claims Reviewer’s decision.

The Board affirmed the denial of Johnston’s claim. Johnston then appealed that decision

to the district court. On the board’s motion for summary judgment on the administrative record,

the district court affirmed the board’s decision, finding that it was not arbitrary or capricious.

This appeal followed.

II.

We review de novo a challenge to an ERISA plan’s denial of benefits, “unless the benefit

plan gives the administrator or fiduciary discretionary authority to determine eligibility for

benefits or to construe the terms of the [P]lan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101, 115 (1989); see also Farhner v. United Transp. Union Discipline Income Prot. Program,

645 F.3d 338, 342 (6th Cir. 2011). Where the plan administrator is given such authority, its

1
Johnston’s follow-up request for additional information was made on September 27, 2011. He did not receive a
formal response until June 12, 2012.

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No. 16-2246, Johnston v. Dow Employees’ Pension Plan

decision is reviewed under the “arbitrary and capricious standard.” Firestone, 489 U.S. at 115.

We “give fresh review to the district court’s ruling on the administrative record,” but apply the

same arbitrary-and-capricious standard as the district court when reviewing the plan

administrator’s decision. Godleski v. FirstEnergy Corp., 477 F.3d 403, 405 (6th Cir. 2007). The

district court’s, as well as this court’s, review of a plan administrator’s denial of benefits under

an ERISA plan is limited to the administrative record that was before the board. Jones v. Metro.

Life Ins. Co., 385 F.3d 654, 660 (6th Cir. 2004) (citing Wilkins v. Baptist Healthcare Sys., Inc.,

150 F.3d 609, 613 (6th Cir. 1998)).

The arbitrary-and-capricious standard of review is “the least demanding form of judicial

review of administrative action.” Farhner, 645 F.3d at 342. And although this standard of

review is not without some teeth, “it is not all teeth.” McClain v. Eaton Corp. Disability Plan,

740 F.3d 1059, 1064 (6th Cir. 2014). Indeed, for “[a]n extremely deferential review[] to be true

to its purpose, [it] must actually honor an extreme level of deference to the administrative

decision.” Id. (internal quotations omitted). Thus, “[a] decision reviewed according the arbitrary

and capricious standard must be upheld if it results from a deliberate principled reasoning

process and is supported by substantial evidence.” Id. at 1064–65 (internal quotations omitted)

(quoting Schwalm v. Guardian Life Ins. Co. of Am., 626 F.3d 299, 308 (6th Cir. 2010)). Stated

differently, a decision is not arbitrary or capricious if it is “rational in light of the plan’s

provisions,” or when it is possible to “offer a reasoned explanation, based on the evidence, for a

particular outcome.” Shields v. Reader’s Digest Ass’n, Inc., 331 F.3d 536, 541 (6th Cir. 2003)

(quoting Davis v. Ky. Fin. Cos. Ret. Plan., 887 F.2d 689, 693 (6th Cir. 1989)).

3
No. 16-2246, Johnston v. Dow Employees’ Pension Plan

Here, Plan § 7.1 grants discretionary authority to Dow’s Plan Administrators, and the

board’s decision thus should be upheld unless it is found to be arbitrary or capricious.2 Despite

this unequivocal grant of discretion, Johnston claims that a different, or somehow “tempered,”

standard of review should apply. His arguments are unavailing.

First, Johnston asserts that the grant of discretion here is too vague because it gives

“discretionary authority to an unlimited number of individuals.” (CA6, R. 19, Appellant Br. at

57.) He claims that the Plan’s terms result in a circular definition in which anyone who exercises

discretion is granted discretion. But there is nothing wrong with having multiple fiduciaries with

discretionary authority within a plan. See Farhner, 645 F.3d at 342 (applying the arbitrary-and-

capricious standard to a grant of discretion to the “Plan Administrator and other Plan

fiduciaries”). Additionally, the Plan grants such authority not to an unlimited number of people,

but to those designated as “Initial Claims Reviewers” and to the “Appeals Administrator,” which

is the Retirement Board.

Second, Johnston claims that, because the Plan’s terms are unambiguous, the board’s

decision must be reviewed de novo. We have previously rejected this argument. See Radell v.

Michelin Ret. Plan, 578 F. App’x 483, 489 (6th Cir. 2014) (“When interpreting the language of

an ERISA plan, this court will apply a plain-meaning construction and give effect to its

unambiguous terms, but those principles do not change the applicable standard of review.”

(internal quotations and citations omitted)). True, where a plan’s terms are unambiguous and a

2
Section 7.1 provides that:
Each Plan Administrator shall be a “named fiduciary” within the meaning of 402(a)(2) of ERISA
with respect to, and shall have the exclusive power and authority to control and manage, the
operation and administration of the Plan. The principal duty of such Plan Administrator shall be
to see that the Plan is carried out in accordance with its terms and for the exclusive benefit of
Participants and their Spouses and Beneficiaries.
(DE 131-2, Plan § 7.1, Page ID 8101.) Section 7.1(b) specifically grants Plan Administrators the authority to
“interpret the Plan and to resolve any possible ambiguities, inconsistencies and omissions therein and therefrom.”
(Id.)

4
No. 16-2246, Johnston v. Dow Employees’ Pension Plan

plan administrator disregards that plain language, its actions are more likely to be arbitrary or

capricious. But the deferential standard of review that courts must apply to that decision is

unaltered.

Finally, Johnston claims that the board has a conflict of interest that necessitates a

different standard of review. But, again, we have rejected his argument. See Whitaker v.

Hartford Life & Accident Ins. Co., 404 F.3d 947, 949 (6th Cir. 2005); see also Canada v. Am.

Airlines, Inc. Pilot Ret. Benefit Program, 572 F. App’x 309, 312 (6th Cir. 2014) (“[A]lthough

American both funds the Plan and determines Plan eligibility, the district court properly factored

the airline’s dual role and inherent conflict of interest into its application of the arbitrary-and-

capricious standard rather than imposing a heightened standard of review altogether.”). As the

Supreme Court has made clear, a potential conflict of interest is just one “factor” for courts to

consider when determining whether a board’s action was arbitrary or capricious—the standard of

review remains the same. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 115 (2008) (adhering to

the arbitrary-and-capricious standard of review while eschewing “de novo review” or “special

burden-of-proof rules” for ERISA conflict-of-interest cases); see also Cox v. Standard Ins. Co.,

585 F.3d 295, 299 (6th Cir. 2009).

The district court correctly found that there was little depth to most of Johnston’s

conflict-of-interest arguments. Johnston alleges that the board’s retention of outside counsel to

advise it in processing his claim indicates a conflict of interest. The conflict is apparent, he

asserts, because this outside law firm ensured that the process was an adversarial one, “aimed at

bolstering the case for denial rather than providing the ‘full and fair review’ required.” (CA6, R.

19, Appellant Br. at 59.) But we have suggested that retention of outside counsel does not

indicate a conflict of interest and does not alter the standard of review. Kovach v. Zurich Am.

5
No. 16-2246, Johnston v. Dow Employees’ Pension Plan

Ins. Co., 587 F.3d 323, 329 (6th Cir. 2009). Instead, as the district court noted, we have held that

the retention of “outside counsel to assist [a plan administrator] in its claim determination would

in fact seem to demonstrate that it took the process seriously and attempted to ensure that its

decision had a strong legal basis.” Id. And, if the retention of outside counsel does not indicate

a conflict of interest where the plan is silent about such counsel, id., it certainly does not do so

where, as here, the plan expressly provides that outside counsel may be retained to assist with

claims.

Johnston also points to certain “procedural irregularities” in the processing of his claim

that he asserts evince biased decision making, but any irregularities are at least somewhat of

Johnston’s own making. He asked for an expedited response to his inquiry about his pension

being improperly calculated. The Initial Claims Reviewer responded promptly, which then

resulted in a follow-up email from Johnston in which he made detailed requests for a large

amount of documentation. The formal response to this request took a considerable length of

time, but the Initial Claims Reviewer stayed in constant contact with Johnston about the status of

his claim. Further, although the board may have been tardy in sending Johnston a letter detailing

its reasoning for denying Johnston’s claim, that delay, too, was necessitated by Johnston filing a

voluminous ninety-page appeal.3 But neither of these events, in and of itself, is evidence of bias.

Johnston himself does not articulate a credible reason for how these delays demonstrate bias,

other than to say that “they make no sense in the absence of an improper financial motive.”

(CA6, R. 19, Appellant Br. at 62.) Yet, delays in responding to unusually complex and lengthy

pension-benefit claims make a good deal of sense, with or without any financial conflict. And,

3
The board concedes that Johnston did not receive a letter notifying him of the denial of his appeal until after the
120-day deadline had expired. It seems to suggest, however, that it did, in fact, “determine” his appeal within the
120-day window by deciding to deny the claim on November 2, 2012. (See DE 131-2, Plan § 7.10, Page ID 8107
(“In no event shall the determination [of the appeal] take longer than 120 days after receipt of the request for
review.” (emphasis added)).)

6
No. 16-2246, Johnston v. Dow Employees’ Pension Plan

as the district court noted, Johnston presented no evidence that he was prejudiced by any of these

delays or that they in any way affected the outcome of his appeal. Johnston has not pointed to

“substantial evidence” of a conflict of interest in this case, and accordingly, to the extent there is

any conflict, we, like the district court, give that factor little weight in reviewing the board’s

decision.

III.

Johnston raises three issues on appeal. First, he claims that the board should have used

§ 9.6(b)(i)(B) to calculate his benefit, rather than § 10.46(c)(i). Second, he alleges that, even if

§ 10.46(c)(i) does apply, it should not be employed because, as an amendment that allegedly

reduces his benefit, it violates ERISA’s anti-cutback rule and its notice requirements. Related to

this second claim is Johnston’s assumption that § 9.6 would provide him a larger benefit than

§ 10.46—an assumption considered, and rejected, by the board and the district court.

Third, Johnston alleges that his average annual income (known under the Plan as “HC3A”) was

incorrectly calculated.

As to the first issue, § 9.6(b)(i)(B) and § 10.46(c)(i) are in conflict, and thereby create an

ambiguity that the board reasonably resolved. Next, the board determined that Johnston’s

benefit was greatest under § 10.46, nullifying Johnston’s notice and anti-cutback-rule claims.

And finally, the board gave a reasoned explanation of its HC3A determination, which reconciled

a benefits freeze with Johnston’s status as a pensioner entitled to benefits under § 10.46(c)(i).

The board did not act arbitrarily or capriciously in rendering these decisions and its interpretation

of the plan does not violate the anti-cutback rule.

7
No. 16-2246, Johnston v. Dow Employees’ Pension Plan

A.

“All matters of interpretation begin with the text; some end there.” Sexton v. Panel

Processing, Inc., 754 F.3d 332, 335 (6th Cir. 2014). Section 10.46 of the Plan is titled

“Transfers from DuPont Dow Elastomers [DDE] Pension and Retirement Plan.” (DE 131-2,

Plan § 10.46, Page ID 8185.) From there, the section states that there are three categories of

employees whose pensions are governed by it: (1) employees who were first hired by DDE;

(2) former employees who were transferred to DDE from DuPont; and (3) former employees

who were transferred to DDE from Dow. Employees in this final category have their pensions

governed by §§ 10.46(c)(i)–(ii). Provision (c)(i) is the subsection relevant to this appeal, and it

states:

Former employees transferred to DDE from [Dow], as part of the asset transfer
July 1, 1997, to the DuPont Dow Elastomers Pension and Retirement Plan, who
are transferred back to [Dow] shall be granted Vesting Service, Eligibility Service
and Credited Service equal to the corresponding service earned under the Plan
before such transfer plus the service earned under the DuPont Dow Elastomers
Pension and Retirement Plan. Provided, however, that any benefit earned under
the Plan shall be reduced by any benefit . . . that may have been earned under the
DuPont Dow Elastomers Pension and Retirement Plan.

(DE 131-2, Plan § 10.46(c), Page ID 8187.) As Johnston is indisputably an employee who was

transferred to DDE from Dow, a quick review suggests that this provision must apply to him.

But Johnston offers several rejoinders. First, Johnston alleges that his pension should be

calculated instead under § 9.6(b)(i)(B)—a section that governs employees who are transferred

from certain Dow affiliates to Dow and, thus, either begin or return to coverage under the Plan.

DDE was one of the affiliates to which § 9.6 was originally intended to apply. For the

employees who qualify for it, § 9.6(b)(i)(B) provides that:

Such Employee shall be entitled to benefits under the Plan on the basis of
Compensation, Credited Service, Vesting Service and Eligibility Service earned
under the terms of the Plan while an Employee aggregated to include

8
No. 16-2246, Johnston v. Dow Employees’ Pension Plan

compensation, credited service, vesting service and eligibility service (all as
defined hereunder) earned at such other entity related to [Dow] multiplied by a
fraction, the numerator of which is the Credited Service with [Dow] and
denominator of which is the Credited Service with [Dow] plus the credited service
(as defined hereunder) with such other entity related to [Dow].

(DE 131-2, Plan § 9.6(b)(i)(B), Page ID 8123.) Importantly, § 9.6(b)(i)(B) begins with the

proviso that it shall apply “[n]otwithstanding any provision of the Plan to the contrary.” (Id.)

The board considered this argument, but noted that the preamble to Article X, which

contains not only § 10.46 but many other provisions that address employees transferred from

specific Dow affiliates, declares, “[w]hen the provisions of this Article differ from the provisions

of the rest of the Plan, the provisions of this Article shall prevail.” (DE 131-2, Plan Art. X, Page

ID 8156.) Thus, since § 9.6 and § 10.46 are in conflict, yet each claims to supersede any

conflicting provision, their application is ambiguous.

The Plan envisions such a conflict, and grants the board the power “[t]o interpret the Plan

and to resolve any possible ambiguities, inconsistencies and omissions therein or therefrom.”

(DE 131-2, Plan § 7.1, Page ID 8101.) The board’s decision to apply § 10.46 over § 9.6 is not

arbitrary or capricious. The specific usually governs over the general, Morales v. Trans World

Airlines, Inc., 504 U.S. 374, 384–85 (1992) (“[I]t is a commonplace of statutory construction that

the specific governs the general.”), and the board explained that this was its reason for applying

§ 10.46 over § 9.6. It is reasonable to assume that a later added provision, which governed

employees transferred from specific Dow affiliates, was intended to supersede § 9.6, which

lumped all transferees together. Additionally, the board asserted, and Johnston has offered no

proof to the contrary, that it has consistently interpreted Article X provisions as superseding

§ 9.6 and that it has done so with former DDE employees under § 10.46 specifically.

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No. 16-2246, Johnston v. Dow Employees’ Pension Plan

Johnston next asserts that § 10.46(c) cannot apply to him because he does not fit into

either of the types of former DDE employees that the subsection claims to govern. Section

10.46(c) is divided into two subparts. Section 10.46(c)(i) applies to employees who were part of

the July 1, 1997 asset transfer. Section 10.46(c)(ii) applies to those employees who were

transferred post-July 1, 1997. It is undisputed that Johnston was transferred before July 1, 1997,

so the question is whether he was part of the July 1, 1997 asset transfer.

The board found that Johnston was part of that asset transfer. In doing so, the board

noted that it had applied § 10.46(c)(i) to former Dow employees who, like Johnston, were

“transferred to DDE from Dow during the early stages of the DDE joint venture, whose benefits

under the Plan were transferred to the DDE plan, and who returned to Dow at or after the

conclusion of the DDE joint venture.” (DE 131-8, A.R. 190, Page ID 12367.) The board has

also produced extrinsic evidence that Johnston was, in fact, part of the July 1, 1997 asset transfer.

Johnston asserts, however, that the extrinsic evidence4 instead supports that his assets were

transferred before the July 1, 1997 asset transfer, rendering § 10.46(c)(i) inapplicable to him.

Letters from DDE confirm that Johnston’s asset records were transferred to the DDE plan, and

they indicate that Johnston’s transfer balance was calculated on March 31, 1996—his last day of

pre-DDE Dow employment. Johnston claims that this definitively proves that the board

arbitrarily determined that he was part of the July 1, 1997 asset transfer. Johnston is mistaken.

4
Johnston argues that the board impermissibly turned to extrinsic evidence to create an ambiguity where none
would otherwise exist. He seems to suggest that, because he has shown that his transfer of assets was before July 1,
1997 (something he has not actually accomplished), that ends the matter. This ignores, of course, that in order to
make this showing he, too, must rely on extrinsic evidence. This is so because § 10.46(c)(i) by its terms requires a
look to the extrinsic evidence to determine if that provision applies. Johnston’s true gripe, it seems, is that the
board, in considering the extrinsic evidence, ruled against his claim.

10
No. 16-2246, Johnston v. Dow Employees’ Pension Plan

The board produced evidence5 that Dow decided that, “for employees who left Dow to go

to DDE . . . , [t]he final decision was to include employees who transferred through June 30,

1997.” (DE 132, D.R. 28, Page ID 12575 (emphasis added).) This certainly includes Johnston,

who claims his assets were transferred as of March 31, 1996. In fact, the board produced a

spreadsheet that it claims includes Johnston in the July 1, 1997 asset transfer. Further, as

mentioned above, the board asserts that it has been consistent in its process for categorizing

former Dow employees who were transferred to DDE during the early stages of the joint venture.

Though the board has admitted that it could not locate the precise date of Johnston’s asset

transfer, the evidence available to the board supports its decision to include Johnston in the July

1, 1997 asset-transfer group. As the board’s decision was “the result of a deliberate, principled

reasoning process and . . . is supported by substantial evidence,” see McClain, 740 F.3d at 1064,

we find that it was neither arbitrary nor capricious.

B.

Johnston next claims that § 9.6(b)(i)(B) should apply because it would provide him with

a greater benefit than § 10.46(c)(i). He alleges that § 10.46(c)(i), as an amendment to the Plan,

was enacted in violation of ERISA’s notice requirements and that its application violates the

statute’s “anti-cutback” rule, which, generally speaking, prohibits plan amendments that reduce a

pensioner’s accrued benefits. See 29 U.S.C. § 1054(g). The board concluded, however, that

5
There was a dispute before the district court about which documents were part of the administrative record. That
dispute splintered the record into three parts: the agreed upon administrative record, Johnston’s record, and the
board’s record. The district court, however, decided that the board’s record should be considered part of the
administrative record, despite Johnston’s objections. It did so based on the affidavits of those who took part in the
decision-making process—including Deborah Salow, the Initial Claims Reviewer for Johnston’s claim, and Michael
Personke, chairman of the Retirement Board at the time it rendered its decision on Johnston’s claim. This court has
previously upheld the use of ERISA decision makers’ affidavits in determining what evidence was before the board
and should thus be part of the administrative record on the district court’s, as well as this court’s, review. See Marks
v. Newcourt Credit Grp., Inc., 342 F.3d 444, 457–58 (6th Cir. 2003). The district court did not abuse its discretion
in considering the board’s evidence over Johnston’s objection. See id. at 457 (noting that this court reviews “for an
abuse of discretion all evidentiary rulings of the district court”).

11
No. 16-2246, Johnston v. Dow Employees’ Pension Plan

Johnston’s benefit was greater under § 10.46(c)(i), and thus that there was no notice requirement

and that the enactment of § 10.46(c)(i) did not violate the anti-cutback rule.

Here we are confronted with the primary issue in this case: does § 9.6(b)(i)(B) or

§ 10.46(c)(i) provide Johnston with the greater benefit? Section 9.6(b)(i)(B), under which

Johnston wishes to have his benefit calculated, states:

Such employee shall be entitled to benefits under the Plan on the basis of
Compensation, Credited Service, Vesting Service and Eligibility Service earned
under the terms of the Plan while an Employee aggregated to include
compensation, credited service, vesting service and eligibility service (all as
defined hereunder) earned at such other entity related to [Dow] multiplied by a
fraction, the numerator of which is the Credited Service with [Dow] and
denominator of which is the Credited Service with [Dow] plus the credited service
(as defined hereunder) with such other entity related to [Dow].

(DE 131-2, Plan § 9.6(b)(i)(B), Page ID 8123.) The parties agree on the denominator—Johnston

has worked a combined 31.8 years for Dow and DDE. The numerator is the source of

contention. Johnston claims that it should be 22.5 years, which amounts to his 16.2 years of pre-

DDE Dow service plus his 6.3 years of post-DDE Dow service. In contrast, the board finds that

the numerator should be 6.3 years. It bases its finding on a reading of § 9.6(b)(i)(B) with § 4.10,

which prevents the duplication of benefits under the Plan.

Section 4.10 states that:

There shall be no duplication of benefits payable under this Plan and under any
over private qualified retirement plan to which [Dow] or any Subsidiary or
affiliated corporation contributes or has contributed . . . . If a Participant . . . shall
be eligible for a benefit under any such plan . . . and shall also be eligible for a
benefit hereunder based upon the same period of service by the Participant, then
the amount of such other benefit received . . . shall be deducted from the benefit
payable hereunder for such same period of service.

(DE 131-2, Plan § 4.10, Page ID 8067–68.) The board, considering that Johnston’s pre-DDE

Dow benefit had been transferred to DDE, excluded that period of Dow service from the

12
No. 16-2246, Johnston v. Dow Employees’ Pension Plan

numerator.6 Because his initial 16.2 years of pension-benefit service were transferred to DDE,

and because he receives credit for those years pursuant to his DDE pension, giving him credit

under his Dow pension for those same 16 years would result in impermissible double counting.

This resulted in a much smaller benefit under § 9.6(b)(i)(B) and thus led the board to apply

§ 10.46(c)(i) to Johnston’s pension.

All agree that if § 4.10 does not exclude Johnston’s pre-DDE Dow service, § 9.6(b)(i)(B)

provides a greater benefit than § 10.46(c)(i), requiring that § 9.6(b)(i)(B) apply to avoid a

violation of the anti-cutback rule. There are two hurdles to § 4.10’s application to § 9.6(b)(i)(B).

The board’s interpretation narrowly clears both.

1.

The first hurdle requires us to determine if ERISA § 204(g)’s anti-cutback rule bars the

board from interpreting § 4.10 to prevent double counting under § 9.6(b)(i)(B). If it does,

§ 9.6(b)(i)(B) provides a greater benefit than § 10.46(c)(i), and § 10.46(c)(i)’s application would,

too, violate the anti-cutback rule. Put simply, one cutback leads to another.

There is a circuit split on what constitutes an “amendment” under ERISA § 204(g)’s anti-

cutback rule. Because the term “amendment” implies a change to the existing document, one

would assume that two contemporaneously adopted provisions, like § 4.10 and § 9.6(b)(i)(B),

could not “amend” each other. Yet some courts, including ours, subscribe to a broad

interpretation of “amendment” that may encompass contemporaneously adopted amendments.

See Hunter v. Caliber Sys., Inc., 220 F.3d 702, 712 (6th Cir. 2000) (“[A]n erroneous

interpretation of a plan provision that results in the improper denial of benefits to a plan

participant may be construed as an ‘amendment’ for the purposes of ERISA § 204(g). We see no

6
In its decision, the board mistakenly referred to the provision Johnston wished to have his benefit calculated under
as § 9.6(a)(vi). This appears to be a typographical error. The parties agree that either § 9.6(b)(i)(B) or § 10.46(c)(i)
applies to Johnston.

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No. 16-2246, Johnston v. Dow Employees’ Pension Plan

reason why an amendment that interprets a plan may not likewise be considered an “amendment”

for purposes of § 204.” (internal quotations and citations omitted)); see also Cottillion v. United

Refining Co., 781 F.3d 47, 58 (3d Cir. 2015) (“An erroneous interpretation of a plan provision

that results in the improper denial of benefits to a plan participant may be construed as an

‘amendment’ for the purposes of § 1054(g)”); Hein v. FDIC, 88 F.3d 210, 216 (3d Cir. 1996).7

There seem to be at least two types of cases where provisions that are not formal

amendments may violate the anti-cutback rule. See Kirkendall, 707 F.3d 173, 184 (2d Cir. 2013)

(“Even broadly interpreted, the word “amendment” contemplates that the actual terms of the plan

changed in some way or that the plan improperly reserved discretion to deny benefits, 26 C.F.R.

§ 1.411(d)–4.” (internal citations omitted)). The first type are cases of reinterpretation—i.e.,

cases where a plan provision was ambiguous and the plan administrator provided an

interpretation of that provision, only to later reinterpret the plan in a way that reduces the

employee’s accrued benefit. See Cottillion, 781 F.3d at 58. Here, however, there is no evidence

that the board changed its interpretation or “reinterpreted” the plan in applying § 4.10 to

§ 9.6(b)(i)(B) or that it has arbitrarily applied § 4.10 to § 9.6(b)(i)(B) in some cases but not in

others.

That leaves the second type of case, which involves Treasury Regulation § 1.411(d)–4,

promulgated under IRC § 411, a provision identical to the anti-cutback rule contained in ERISA

7
Other circuits, however, have held that the § 204(g)’s anti-cutback rule applies only “to actual amendments of the
plan’s terms and not interpretations of previous provisions or exercises of discretion reserved by the plan. See
Richardson v. Pension Plan of Bethlehem Steel Corp., 112 F.3d 982, 987 (9th Cir. 1997); Dooley v. Am. Airlines,
Inc., 797 F.2d 1447, 1451–53 (7th Cir. 1986). But, as noted in the Second Circuit’s decision in Kirkendall v.
Halliburton, Inc., 707 F.3d 173, 182–83 (2d Cir. 2013), this definition of “amendment” may be too narrow,
especially in light of a particular Treasury Regulation, see Thornton v. Graphic Commc’ns Conference of Int’l Bhd.
of Teamsters Supplemental Ret. & Disability Fund, 566 F.3d 597, 602 n.6 (6th Cir. 2009) (citing 29 C.F.R.
§ 2530.200a–2); see also McDaniel, 203 F.3d at 1114–15 & n.12 (holding that the rules prescribed under IRC § 411
apply with equal force to ERISA § 204).

14
No. 16-2246, Johnston v. Dow Employees’ Pension Plan

§ 204(g). See Kirkendall, 707 F.3d at 183; McDaniel, 203 F.3d at 1115, 1118. That regulation

provides:

A plan that permits the employer, either directly or indirectly, through the
exercise of discretion, to deny a participant [an accrued benefit] provided under
the plan for which the participant is otherwise eligible (but for the employer’s
exercise of discretion) violates the requirements of section 411(d)(6).

Treas. Reg. § 1.411(d)–4. This regulation seeks to “prohibit[] plan provisions from building

certain broad reservations of discretion into the plan terms.” Kirkendall, 707 F.3d at 183. The

question, then, is whether the board’s exercise of its discretion violates the anti-cutback rule.

Arguably, the board’s interpretation is one that denies a participant a benefit, to which,

absent the board’s exercise of its discretion under the plan, he would be entitled. See Treas. Reg.

§ 1.411(d)–4. But, considering this same issue, the Ninth Circuit held that the legislative history

of IRC § 411(d)(6)—the statutory provision under which Treas. Reg. § 1.411(d)–4 was

promulgated—indicates that neither Congress nor the Treasury Department intended the

regulation to apply to reconciliation of ambiguous plan provisions, and, accordingly, that court

found that merely interpreting ambiguous provisions was not the sort of exercise of discretion to

which Treas. Reg. § 1.411(d)–4 was referring.. See McDaniel v. Chevron Corp., 203 F.3d 1099,

1118 (9th Cir. 2000).

To support this holding, the McDaniel court noted that Treas. Reg. § 1.411(d)–4

“appear[ed] to be a direct response to a line of cases that effectively permitted plan

administrators to reduce or eliminate plan participants[’] benefits in a manner that did not require

a formal plan amendment,” but, importantly, “[n]one of those cases involved an ambiguous plan

provision.” Id. at 1119 (citing Stewart v. Nat’l Shopmen Pension Fund, 730 F.2d 1552, 1561

(D.C. Cir. 1984) (refusing to find liability under § 204(g) of ERISA where a plan administrator

changed benefits pursuant to a plan provision rather than an amendment); Dooley v. Am.

15
No. 16-2246, Johnston v. Dow Employees’ Pension Plan

Airlines, Inc., 797 F.2d 1447, 1451–52 (7th Cir. 1986) (refusing to a find liability under § 204(g)

of ERISA where a plan administrator reduced benefits pursuant to a provision authorizing a

change in actuarial assumptions “from time to time” rather than pursuant to a technical

amendment); see also Oster v. Barco of Cal. Emps.' Ret. Plan, 869 F.2d 1215, 1216–17, 1220–

21 (9th Cir. 1988) (refusing to find liability where a form of benefits was denied pursuant to a

provision that gave the administrator “sole discretion” to make the final determination as to the

manner in which benefits are distributed)). Further, the McDaniel court noted that ambiguous

plan provisions were noticeably absent from Treas. Reg. § 1.411(d)–4’s examples of overly

discretionary plan provisions.

Considering the complex nature of many pension plans, this one not excepted, and

considering the discretion that we grant plan administrators in interpreting the provisions of their

plans, it seems reasonable to conclude that “[t]he Treasury Department did not intend to create a

system of strict liability for mere ambiguities in the text of a covered plan.” McDaniel, 203 F.3d

at 1119. Instead, the regulation seems targeted at the discretion provisions themselves, and

specifically at those provisions that permit case-by-case end runs around the anti-cutback rule.

But, because Firestone permits broad grants of discretion to plan administrators in interpreting

plan provisions, we must allow the board to reasonably resolve ambiguities in the plan—

provided they do so consistently and not arbitrarily or capriciously—lest the discretion granted to

them under Firestone become illusory. In essence, we must draw a distinction between

discretion provisions that permit “case-by-case” determinations of benefits and those which

merely grant plan administrators discretion in interpreting the plan and its provisions. This latter

type of provision is, unequivocally, permitted. See Firestone, 489 U.S. at 115. Here, the board

did not employ a standalone discretion provision to treat Johnston differently; instead, as noted

16
No. 16-2246, Johnston v. Dow Employees’ Pension Plan

before, it used its discretion to reconcile ambiguous plan provisions and Johnston has not

demonstrated that the board has deviated from this interpretation. Accordingly, we find that

applying § 4.10’s prohibition on double counting to § 9.6(b)(1)(B) does not violate the anti-

cutback rule.

2.

The second hurdle requires us to consider whether the board acted arbitrarily and

capriciously in applying § 4.10 to § 9.6(b)(i)(B). Johnston claims that, while another subsection

of § 9.6 expressly refers to § 4.10’s non-duplication of benefits, § 9.6(b)(i)(B) contains no such

reference. Reading the Plan to include § 4.10’s prohibition duplication of benefits in

§ 9.6(b)(i)(B), Johnston continues, would render the reference to that provision in § 9.6(a)(ii)

superfluous. But the omission, at best, creates an ambiguity about whether § 4.10 applies. This

is so because § 4.10 unequivocally prevents double counting of years of service. Of course,

Johnston is right that § 9.6(b)(i)(B) provides that it applies “[n]otwithstanding any provisions to

the contrary.” But, just as with § 10.46(c)(i), the language of these provisions is in conflict,

rendering ambiguous their application to each other. Further, the board was given discretion to

remedy such ambiguities, inconsistencies, and omissions in § 7.1. Reading § 9.6(b)(i)(B)

together with § 4.10 to prevent Johnston from receiving double credit for one period of service is

rational in light of the plan provisions, is consistent with the board’s prior interpretations of these

provisions, and is supported by the aforementioned substantial evidence that his pension was part

of the DDE asset transfer in July 1997.

Because the board reasonably calculated Johnston’s benefit under § 9.6(b)(i)(B) to be less

than his § 10.46(c)(i) benefit, the company’s actions did not require notice under ERISA. See

29 U.S.C. § 1054(h) (providing notice requirements for only significant reductions in benefits).

17
No. 16-2246, Johnston v. Dow Employees’ Pension Plan

Likewise, amending the plan to include § 10.46(c)(i) did not violate the anti-cutback rule because

that provision provided Johnston with an increased benefit, not a significantly reduced one. See

29 U.S.C. § 1054(g); see also Thornton v. Graphic Commc’ns Conference of Int’l Bhd. of

Teamsters Supplemental Ret. & Disability Fund, 566 F.3d 597, 601 (6th Cir. 2009) (noting that

the purpose of the anti-cutback rules serves to prohibit pension plan amendments that decrease

plan participants’ accrued benefits). Therefore, we affirm the district court’s determination that

the board reasonably determined that § 10.46(c)(i) provided Johnston with his greatest available

benefit.

C.

Johnston also challenges the board’s computation of his Average Annual Compensation,

or “HC3A” under § 10.46(c)(i). An employee’s HC3A for pension-calculation purposes is “an

Employee’s highest average Annualized Compensation computable for any three consecutive

full calendar years.” (DE 131-8, A.R. 190, Page ID 12368; DE 131-2, Plan Art. I, Definition of

HC3A, Page ID 8025–26.)

For Employees governed by § 10.46, that provision’s preamble provides a starting place

for determining HC3A:

Average Annual Compensation [HC3A] for Employees covered under this
Section who, since [the end of the DDE joint venture on July 1, 2005], have less
than three years of Annualized Compensation at the time of termination and who
are vested at the time of termination shall be such Employee’s base salary for any
Plan Year, determined at the end of such Plan Year, during employment with
[Dow] plus the target performance award, if any, for such Plan Year times a factor
of .925.

(DE 131-2, Plan § 10.46, Page ID 8186.) “Annualized Compensation” means “the

Compensation received by the Employee.” (DE 131-2, Art. I, Definition of Annualized Comp.,

Page ID 8025.) An “Employee” is “any person engaged by [Dow] to perform personal services

18
No. 16-2246, Johnston v. Dow Employees’ Pension Plan

in an employer-employee relationship who receives compensation from [Dow] other than a

retirement benefit, severance pay, retainer or fee under contract.” (DE 131-2, Art. I, Definition

of Employee, Page ID 8035–37.) Dow—or “the Company”—is defined as “The Dow Chemical

Company and any other entity authorized to participate in the Plan.” (DE 131-2, Art. I,

Definition of Company, Page ID 8028–29.)

DDE is not the Dow Chemical Company, nor has it ever been authorized to participate in

the Plan. Thus, the board reasonably found that Johnston’s DDE service could not qualify as

Annualized Compensation because it was not compensation earned from the “Company.” Nor

could his pre-DDE Dow service years qualify; Annualized Compensation requires that the three

full calendar years be consecutive. Thus, Johnston’s Annualized Compensation will have to

come after his transfer back to Dow.

Johnston returned to Dow employment on July 1, 2005 and took early retirement in

2011—giving him more than six years back with Dow. Yet, the board found that he did not have

three years or more of Annualized Compensation at the time of termination with the following

reasoning. Because of Johnston’s length of service, he is entitled to the greater of two benefit

formulas: the “grandfathered formula” (also known as the “ERP” formula) or the “current benefit

formula” (also known as the “DEPP” formula). The parties agree that the grandfathered formula

applies to Johnston because it provides the greater benefit. But calculation inputs under the

grandfathered formula were frozen as of December 31, 2005. Accordingly, the board found that

Johnston’s HC3A should be calculated using the .925 factor because, having returned to Dow on

July 1, 2005, and the inputs under the grandfathered formula being frozen as of December 31,

2005, Johnston had three years or less of Annualized Compensation. Simply put, the

grandfathered formula’s benefit freeze, coupled with § 10.46(c)(i)’s provisions, required

19
No. 16-2246, Johnston v. Dow Employees’ Pension Plan

application of the .925 factor. Johnston does not allege that he would have been better off under

the current benefit formula.

Johnston’s only argument not precluded by the text is that the grandfathered formula

freeze should not prohibit the inclusion of his post-2005 Dow service for Annualized

Compensation purposes. All Johnston has to say about this, however, is that, “[b]ecause [his]

employment terminated on September 30, 2011, more than six years after July 1, 2005, he had

more than three years of Annualized Compensation during this period, and the .925 factor does

not apply to his calculation under § 10.46.” (CA6, R. 19, Appellant Br. at 56.) He does not

argue that his post-2005 Dow employment should be used in his HC3A; instead, he argues only

that the sole “rational” conclusion is that his grandfathered benefit must be calculated based on

his last three years of compensation before the freeze. This, of course, requires including DDE

compensation, something that is prohibited under the Plan’s plain terms. Nor does Johnston

explain why the board’s decision was arbitrary or capricious or offer what the proper calculation

should have been. The board offered a reasoned explanation of its decision to apply the .925

factor in calculating Johnston’s § 10.46(c)(i) HC3A and it did so in order to harmonize

complicated provisions within the Plan.

IV.

For the reasons stated above, we affirm the district court’s determination that the board

did not act arbitrarily or capriciously in denying Johnston’s ERISA benefit claims.

20
No. 16-2246, Johnston v. Dow Employees’ Pension Plan

SUTTON, Circuit Judge, dissenting. Robert Johnston worked for thirty years at Dow

Chemical and at a joint venture between Dow and DuPont (which goes by the name of DDE).

His service started with a sixteen-year stint at Dow, led to a nine-year interlude at DDE, and

ended with a six-year stint at Dow. That made Johnston eligible for two pensions, one from

Dow, one from DDE. Both retirement plans provided for defined-benefit pensions, entitling

eligible retirees to a fixed monthly payment premised on the employee’s years of service and

final average salary. No one had any trouble figuring out how to calculate Johnston’s DDE

pension, which included his nine years of service with DDE and his initial sixteen years of

service with Dow. But they did have a question about how to calculate his Dow pension:

Should Johnston’s sixteen years of service at Dow before his work at DDE count toward the

years-of-service component of his Dow pension? If so, Johnston is entitled to about $5,000 more

per year from the Dow pension.

Federal law has a tried and true mechanism for resolving such disputes. Under ERISA,

all pension plans must be in writing (to permit employees to prepare for retirement), all plan

administrators must adhere to the written terms of the plan (to protect employees’ reliance

interests), and companies may not lower pension benefits mid-stream (to safeguard both sets of

expectations). The written terms of the Dow plan answer today’s question as clearly as any

pension plan can: Johnston is entitled to count his first sixteen years of Dow service and thus to

$5,000 more per year under the Dow pension plan. Because my colleagues permit what ERISA

precludes—a reduction in Johnston’s pension benefit unauthorized by the plan—I must

respectfully dissent.

ERISA requires companies to administer employee benefit plans in accordance with a

“written instrument,” such as a pension plan. 29 U.S.C. § 1102(a)(1). The terms of a plan may

21
No. 16-2246, Johnston v. Dow Employees’ Pension Plan

give the company’s plan administrator discretion to resolve ambiguities in the plan. If so,

arbitrary-and-capricious review applies to the administrator’s resolution of any ambiguities. But

that latitude still requires the administrator to base any denial of benefits on a “plausible

interpretation” of the plan. Adams v. Anheuser-Busch Cos., 758 F.3d 743, 748 (6th Cir. 2014).

This case begins, and largely ends, with § 9.6(b)(1)(B) of Dow’s plan. “Notwithstanding

any provision of the Plan to the contrary,” it says, “Employees who enter the Plan or return to

coverage under the Plan from [DDE] shall have their benefits calculated under this clause.” A.R.

1881. Under this clause, the administrator calculates benefits by determining the employee’s

hypothetical full benefit based on his combined service with Dow and an affiliated company

(here DDE) as if they had always worked at Dow, then multiplying this number by “a fraction,

the numerator of which is the Credited Service with the Company [Dow] and the denominator of

which is the Credited Service with [Dow] plus the credited service . . . with [DDE].” Id.

(emphasis added).

In plain, if not everyday, English, § 9.6 tells the administrator to credit Johnston’s pre-

DDE service with Dow when calculating his benefits. The provision refers to the employee’s

“Credited Service with the Company [Dow].” Everything hinges on the meaning of that phrase,

which permits just one straightforward reading. The definition of “Credited Service” under § 9.6

says to “divid[e] [an] Employee’s Hours of Service” by “Location Work Schedule Hours.” A.R.

1804. “Employee” in turn is defined as a “person engaged by the Company.” Id. at 1793. And

the “Company” means Dow, not DDE. Id. at 1786; see also supra at 19. Section 9.6 says

nothing about disregarding pre-transfer service with Dow that counts toward the affiliate’s

pension plan; it refers to all credited service with Dow. Nor is there anything in the plan’s

22
No. 16-2246, Johnston v. Dow Employees’ Pension Plan

definition of “Credited Service” to that effect. The only permissible reading of “Credited

Service with the Company” is that it encompasses all credited service with Dow.

The plan administrators offer no coherent basis for sidestepping this reality. They start

by claiming that, when Johnston’s old pension assets were transferred to DDE, his sixteen years

of service with Dow became “Credited Service” with DDE, not Dow. That would be a plausible

way to write a plan. But it is not a plausible way to read this plan. Neither the plan

administrators nor the court points to any language in § 9.6 that allows this reading.

The plan administrators and the court cannot overcome this problem by using extrinsic

evidence to supply terms for § 9.6 that are not there. See supra at 10 (“The board has also

produced extrinsic evidence that Johnston was, in fact, part of the July 1, 1997 asset transfer.”).

ERISA requires the terms of pension plans to be in writing, not in the minds of the company’s

witnesses who later supply extrinsic evidence after the fact. Otherwise, the reliance interests

protected by ERISA’s in-writing mandate would be severely undercut. Dow’s appeal to extrinsic

evidence confirms what the terms of the plan show: Nothing in § 9.6 supports its position.

Section 4.10 does not fill this gap. The district court recognized that “Credited Service

with the Company” by its terms includes Johnston’s pre-DDE service. And this court, to its

credit, acknowledges the same. See supra at 12. But both courts claim that § 4.10’s alleged

prohibition on double counting years of service allowed Dow to alter § 9.6. That approach runs

through two red lights.

The first: Section 9.6 begins by prohibiting any such effort: “Notwithstanding any

provision of the Plan to the contrary.” If § 4.10 is to the contrary, it cannot be used. And if it is

not to the contrary, it is irrelevant. The court insists that “these provisions [are] in conflict.” See

supra at 17. But I fail to see how. Section 4 (called Article IV in the plan) does not contain its

23
No. 16-2246, Johnston v. Dow Employees’ Pension Plan

own “notwithstanding” clause. And nothing in it claims “to supersede any conflicting

provision.” See id. at 9.

The second: Section 4.10 nowhere establishes a general prohibition on double counting

that can be used to interpret or for that matter override independent sections of the plan. It

merely provides a means of accounting for duplicate pension plans when no more specific

provision (such as § 9.6) controls: “If a Participant . . . shall be eligible for a benefit under any

[affiliate pension plan] and shall also be eligible for a benefit hereunder based upon the same

period of service . . . , then the amount of such other benefit received . . . shall be deducted from

the benefit payable hereunder for such same period of service.” A.R. 1825–26. We know that

§ 4.10 does not control this pension calculation because no one—not the plan administrator, not

the district court, not this court—uses it in calculating Johnston’s pension. No one to this day

has used the method for avoiding double-counting that § 4.10 provides. The district court

instead used § 4.10 to produce a general principle (to avoid double counting) that it then applied

in interpreting the phrase “Credited Service with the Company” (to override § 9.6). That is

wishful thinking, not adherence to the written terms of the plan.

For these reasons, it makes no difference whether § 4.10 effects a contemporaneous

“amendment” to the plan. See supra at 13–17. The question is not whether the anti-cutback

provision applies to § 4.10; it is whether § 4.10 applies at all, or for that matter whether the

company has used the provision in calculating Johnston’s pension. At any rate, neither party

makes the argument on which the majority appears to rely.

Reliance on general equitable principles—to the apparent end of preventing Johnston

from using his first sixteen years of Dow service to calculate two separate pension payments—do

not support Dow’s position either. By requiring pension plan administrators to put the terms of

24
No. 16-2246, Johnston v. Dow Employees’ Pension Plan

the pension in writing and to honor its language, ERISA prohibits protean methods of pension

interpretation.

But I doubt Dow’s assessment of the equities anyway. What could be more inequitable

to a retiree than changing the terms of a pension plan after he retires? Johnston should have been

able to rely on the words of the plan. Plus, Dow had ample reasons, and equitable reasons at

that, to write § 9.6 just as it did. It makes considerable sense for a company to promise a

generous retirement benefit calculation to induce employees to transfer to a new joint venture.

It’s quite possible that employees like Johnston accepted these new assignments in reliance on

that promise given the risk that DDE’s pension (but not Dow’s) could become underfunded after

the venture ended. If the plan administrators and the court think it appropriate to look to

extrinsic evidence in this case, they might look to whether Johnston (or others like him) relied on

the plan’s language in accepting the transfer.

None of the court’s other rationales justifies these departures from the text. The court

assumes that a later amendment to the plan, § 10.46, “must apply” to Johnston, presumably

because of that provision’s title: “Transfers from [DDE] Pension and Retirement Plan.” See

supra at 8. It then claims a conflict between § 10.46 and § 9.6 by asserting that “each claims to

supersede any conflicting provision.” See id. at 8–9. But the conflict is a mirage. Because § 9.6

requires the company to credit Johnston’s pre-DDE service with Dow, and because everyone

agrees that doing so results in a larger benefit under § 9.6 than under § 10.46, see id. at 13,

§10.46 cannot apply. Invoking a later amendment to the plan (§ 10.46) to reduce Johnston’s

benefit violates ERISA’s anti-cutback provision. See 29 U.S.C. § 1054(g)(1).

At bottom, Johnston wants to count 22.5 years’ service with Dow in the numerator

(“Credited Service with the Company”) and 22.5 years’ service with Dow plus 9.3 years’ service

25
No. 16-2246, Johnston v. Dow Employees’ Pension Plan

with DDE in the denominator (“Credited Service with the Company plus the credited service

with [DDE]”), for a fraction of 22.5/31.8. That’s a straightforward application of § 9.6. Through

three stages of review, no one has put forward a plausible interpretation of § 9.6 that supports

Dow’s position. No one has put forward a plausible interpretation of § 4.10 that supports Dow

and that Dow has used to calculate Johnston’s pension. And no one has put forward a plausible

interpretation of § 10.46 that supports Dow and does not violate ERISA’s anti-cutback provision.

Implausible interpretations of pension plans necessarily are arbitrary and capricious

interpretations of pension plans. Johnston deserves the extra pension benefit, just as the plan

requires. I would reverse.

26