Daniel E. GILL, Thomas C. McDermott, and Jay T. Holmes, Plaintiffs-Appellees, v. BAUSCH & LOMB SUPPLEMENTAL RETIREMENT INCOME PLAN I, Bausch & Lomb Incorporated, and the Compensation Committee of the Bausch & Lomb Board of Directors, Defendants-Appellants.
No. 14-1058.
United States Court of Appeals, Second Circuit.
Dec. 3, 2014.
Contrary to Zhang‘s contention, the record does not compellingly suggest that the IJ ignored his wife‘s letter. See Xiao Ji Chen v. U.S. Dep‘t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006) (presuming that the agency “has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise“). The IJ explicitly acknowledged that her letter was included in the record. And, like Zhang‘s testimony, the letter was vague concerning the details of Zhang‘s detention and beatings. Therefore, because her letter failed to supply any information regarding the severity of Zhang‘s beatings or resulting injuries, which was the agency‘s focus in requiring a letter from the herbalist who treated him, it did not corroborate his claim or satisfy his burden of proving past persecution. See Yan Juan Chen, 658 F.3d at 252-53; see also Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir.2011) (“[W]e find no error in the BIA‘s conclusion that [petitioner] failed to establish persecution because ..., prior to his arrest and detention by local police, he suffered only minor bruising from an altercation with family planning officials, which required no formal medical attention and had no lasting physical effect.” (emphasis in original)).
We find no error in the agency‘s decision declining to admit into evidence the State Department‘s 2011 Religious Freedom Report because Zhang proffered it after the submission deadline and did not make a timely motion for its inclusion. See Immigration Court Practice Manual, § 3.1(d)(ii), (iii).
For the foregoing reasons, the petition for review is DENIED.
Harold Arthur Kurland, Esq., Ward Greenberg Heller & Reidy LLP, Rochester, N.Y., for Plaintiff.
Howard Shapiro, Anthony Silverio Cacace, Nicole A. Eichberger, Esq., Proskauer Rose LLP, New Orleans, LA, for Defendants.
PRESENT: DENNIS JACOBS, REENA RAGGI and DEBRA ANN LIVINGSTON, Circuit Judges.
SUMMARY ORDER
Defendants-appellants (collectively, “Bausch & Lomb“) appeal from the judgment of the United States District Court for the Western District of New York (Telesca, J.), granting summary judgment in favor of plaintiffs-appellees Daniel E. Gill, Thomas C. McDermott, and Jay T. Holmes (“plaintiffs“). We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
Plaintiffs, three former Bausch & Lomb executives, brought suit under the Employee Retirement Income Security Act of
1. The Compensation Committee of the Board of Directors interpreted the “change-in-control” provision (Section 13 of the plan) to apply to plaintiffs, as “Retired Participants.” Although Section 13 only mentions “Participants“—a separately defined term under the plan—Bausch & Lomb argues that, reading the plan as a whole, “Retired Participants” are a subset of “Participants,” so they too are subject to the lump-sum cash-out provision in Section 13. The district court disagreed with Bausch & Lomb‘s interpretation. As do we.
The major problem with Bausch & Lomb‘s interpretation is that Section 13 explicitly mentions “Participants,” but contains no mention of “Retired Participants.” That omission cannot be ignored, because the definitions section of the plan defines the two categories to be mutually exclusive:
(f) Participant means an employee of the Company who has been selected to participate in the Plan pursuant to Section 4.
[...]
(h) Retired Participant means a former Participant who is receiving benefits under this Plan.
Plan § 2. Accordingly: (1) Retired Participants such as plaintiffs are, in fact, retired, so they are no longer “employee[s] of the Company,” as is required to be a Participant; and (2) a Retired Participant, as a matter of logic, cannot be both a “former Participant” and a current Participant (due to the temporal element inherent in the word “former“).
Moreover, Section 13 presents one more textual problem for Bausch & Lomb‘s interpretation. It provides that, for purposes of “determining the Participant‘s accrued benefit,” the “date of the Change of Control” will act as a stand-in for “the date of Termination of Employment.” In other words, Section 13 creates an artificial termination date in the event of a change in control (the age of the beneficiary on his termination date is relevant to determining the size of the benefit payment, see Plan § 5(a)). But, as Bausch & Lomb concedes, this provision is critical as applied to Participants (who would need an artificial termination date, because they are still working for the company), but is senseless as applied to Retired Participants (who already have a termination date—that is, their actual retirement or separation date). Bausch & Lomb argues that “the most plausible reading of that provision is that it would only redefine termination dates where necessary.” But it never explains why the rest of Section 13 should apply to
Bausch & Lomb falls back on a series of arguments about the overall structure and purpose of the plan, which it claims compel the inference that, at least in Section 13, a reference to “Participants” necessarily includes “Retired Participants.” To be sure, an ERISA plan, like any contract, “should be read to give effect to all of its provisions and to render them consistent with each other.” Perreca v. Gluck, 295 F.3d 215, 224 (2d Cir.2002) (quoting Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 63 (1995)). But most of Bausch & Lomb‘s structure and purpose arguments are unpersuasive, and in any event, none comes close to the showing required to overcome the plan‘s plain text, which strongly favors plaintiffs’ interpretation.
In sum, because it is plain that Section 13 applies only to Participants, Retired Participants such as plaintiffs do not fall within its scope.
2. Bausch & Lomb also challenges the district court‘s remedy, which ordered reinstatement of Bausch & Lomb‘s monthly benefit obligation, while allowing for a one-time “credit” in the amount of the (unlawful) lump-sum that Bausch & Lomb already paid. “We review a district court‘s chosen remedy of an identified ERISA violation for an excess of allowable discretion.” Frommert v. Conkright, 535 F.3d 111, 117 (2d Cir.2008), rev‘d on other grounds, 559 U.S. 506 (2010); accord Zervos v. Verizon N.Y., Inc., 277 F.3d 635, 648 (2d Cir.2002).
The district court was faced with an unusual remedial problem. On one hand, plaintiffs are in possession of a large sum of money they should not yet have (as a result of their successful ERISA lawsuit); on the other hand, Bausch & Lomb will owe them more money, in the future, if they live long enough. The district court‘s chosen remedy was an appropriate exercise of discretion. We need not decide whether Bausch & Lomb‘s proposed alternative—to require return of the lump sum, then begin monthly benefit payments immediately—would also have been permissible. But the need to craft a remedy, even if imperfect, is the result of Bausch & Lomb‘s own violations of ERISA. Under these circumstances, the district court‘s remedy is not an abuse of discretion.
The district court‘s remedy does not run afoul of the principle, announced by the U.S. Supreme Court in CIGNA Corp. v. Amara, 563 U.S. 421, 131 S.Ct. 1866, 179 L.Ed.2d 843 (2011), that a district court has no authority to “reform” an ERISA plan. The only relief ordered by the district court—reinstatement of monthly benefit payments that Bausch & Lomb had unlawfully withheld—was explicitly called for by the plan itself. And the district court‘s practical measure of a “credit” in the amount of the lump sum is a traditional application of the remedy of contractual expectation damages—ensuring that plaintiffs are restored to the same financial position they would have been in, but for Bausch & Lomb‘s breach. See, e.g., United States v. Boccagna, 450 F.3d 107, 119 (2d Cir.2006) (“Expectation damages strive to place an aggrieved party in the same economic position it would have been in had both parties fully performed their contractual obligations.“) (internal quotation marks and citation omitted). Amara instructs a district court to limit itself to “the simple enforcement of a contract as written,” 131 S.Ct. at 1877; the district court did just that.
For the foregoing reasons, and finding no merit in Bausch & Lomb‘s other argu-