*1 288 1446(b), § differently procedural, jurisdictional, to hold with re-

reasoned basis one-year subject limitation. and therefore to forfeiture. Ac- gard “[NJoth- to the affirm ing suggests cordingly, judgment in the text of the statute operates differently correctly limit district court it one-year ruled 30-day provision objection from the limit. Neither that Music forfeited his jurisdic- limit expressly purports to federal removal.

tion, prohibitive terms of the one- and the mandatory no more

year limit ... are compulsory 30-day

than the terms of the Ariel, F.3d at 614-15. In-

limit[.]”

deed, previously we have held that where express-

a removal did not limiting statute

ly jurisdiction restrict of the federal courts, requirements the statute PRICE, Plaintiff-Appellee, R. James procedural were and thus waivable. Car- v. Co., penter v. Baltimore & O.R. 109 F.2d (6th Cir.1940) 375, (holding statute BOARD OF TRUSTEES OF the limiting the removal of cases to federal INDIANA LABORER’S PENSION procedural part court to be because the FUND; Indiana Laborer’s Pension statutory language purport “does not Fund, Defendants-Appellants. jurisdiction limit the of the District Court 09-3897, Nos. 09-4204. but personal privilege confers a on the waived”). Appeals, United States Court of Sixth Circuit. that, in unpublished opinion,

We note panel Syntex this court Brock v. 6, Argued: Aug. 2010. Laboratories, Inc., 232, 7 F.3d 1993 WL 12, Decided and Filed: Jan. (6th 1993) 389946, Oct.1, at *1 (unpub Cir. opinion), lished table held that the one-

year period jurisdictional limitation is a

mandate, subject and therefore not to for respectfully

feiture. We disagree with the decision,

Brock and for the reasons stated

herein, choose not to follow it. See United Sanford, v.

States 476 F.3d

Cir.2007) (noting unpublished opinions

are not binding precedent under the doc TriHealth, decisis);

trine of stare Inc. v. Comm’rs, Ohio,

Bd. Cnty., Hamilton (6th Cir.2005) (same). authority

Brock cites no holding its

and, above, as detailed is inconsistent with published opinions of our court.

III. conclusion, one-year we hold that the removal,

time limitation rule for 28 U.S.C. *2 Winters, Gary McCaslin,

ARGUED: R. McCaslin, Cincinnati, Ohio, Imbus & for Appellants. Tony Merry, Law Offices C. LLC, Columbus, Ohio, Tony Merry, C. Gary BRIEF: R. Appellee.

for ON Win- ters, McCaslin, McCaslin, & Imbus Cincin- nati, Ohio, Tony Merry, apply the district court Appellants. appro- C. failed LLC, Tony Merry, C. Co- standard of priate analyzing Law Offices of review when lumbus, Ohio, Appellee. Accordingly, Price’s claim. we VACATE *3 the district opinion court’s and order and McKEAGUE, Before: and SUTTON proceedings REMAND for further consis- JONKER, Judges; District Circuit opinion. tent with this Judge.* I. McKEAGUE, J., opinion delivered the The facts in this case undisputed. are court, SUTTON, J., joined. in which The Indiana State District of La- Counsel - JONKER, 301), (pp. D.J. delivered a borers and Hod Carriers Pension Fund separate concurring opinion. (the “Fund”) multi-employer employee is a pension plan benefit established and main- OPINION in tained accordance with ERISA. As re- McKEAGUE, Judge. Circuit ERISA, quired by the Fund has a written (the pension plan “Plan”), document appeal This arises at the intersection of sets forth the provid- terms of the benefits complex numerous areas of federal law. ed the Fund. The Plan indicates that upon through We are called to sift participants Fund must employ- be union complexity hopes adding clarity. in ees, working under various collective bar- many years prior appeal, For to this addition, gaining agreements. the Plan occupational James Price received disabili- provides also that the Fund will be admin- ty payments an employee under (the istered a Board of Trustees benefit plan established and maintained in “Board”). The in possesses Board turn accordance Employee with the Retirement authority determinations, to make benefit (“ERISA”). Security Income Act of 1974 Plan, interpret and amend the Plan. Price’s benefits were discontinued after In granting the Board amendment power, plan trustees amended the to limit the Section 15.1 of the Plan specifically states: payment occupational disability benefits Any amendment to the Plan period to a years. of two He then filed retroactively by made court, majority ac- suit in federal challenging district tion of the Board present of Trustees the denial of alleging his benefits and voting bring order to the Plan in the plan amendment violated ERISA be- compliance any with the Act and subse- occupational disability cause his quent amendments thereto. It is the had vested aas matter of law. The dis- desire of the Board of Trustees to main- trict court determined that occupa- Price’s tain qualified the Plan as a Plan and tional benefits did indeed vest 401(a) Trust under Code sections under this court’s Yard-Man line of cases 501(a). and, accordingly, found that the amend- applied ment as to Price violated ERISA. The present Trustees who are and vot- pension plan appeals The now ing may this deter- by majority amend the Plan mination, arguing However, the benefits were action. no amendment shall considering vested. After all of the be made which results reduced bene- law, relevant bodies of conclude that fits for Participant rights whose * Jonlcer, The Michigan, Honorable Robert J. sitting by designation. United States Judge District for the Western District of Board, already become vested under the arguing have the Amendment as provisions of the Plan on the date the applied to him violated ERISA. The made, except upon amendment the Board denied appeal stated advice and counsel of enrolled actu- a written letter to Price’s attorney that ary. Occupational Disability Benefits could be amended under the terms of the Plan. began receiving James Price first dis- Price then filed suit federal district ability Plan in benefits under the 1132(a)(1)(B). § court under 29 U.S.C. injuries after a series of work-related left complaint His alleged that the Amendment him unable to work. Price’s benefits were deprived violated ERISA because it him of initially approved under the Plan’s “Total *4 a benefit that had a vested as matter of Disability and Permanent Benefit” catego- law. 2001, ry. In the Fund notified Price that longer qualified he no for benefits under period After a short of discovery, the him category, this but advised that he parties cross-filed summary judgment. could continue receiving benefits under Ar- The granted judgment district court provisions “Occupational ticle 7A’s Dis- favor of Price under this precedent court’s ability Benefit.” At the time Price began Union, Auto., in Int’l United Aerospace, & Benefits, receiving Occupational Disability Agrie. Implement Workers Am. v. payment of those benefits was limited ac- Yard-Man, Inc., (6th 1476, 716 F.2d 1482 7A.5, cording to terms set forth in Section Cir.1983). Price v. Bd. Trustees Occupational

which stated that “[t]he Dis- Fund, al., Ind. Laborer’s Pension et 2:07- ability payable only during Benefit shall be 7, (S.D.Ohio ev-00933 at 2009 WL 799639 Occupational Disability continued and until 2009). 24, Mar. According to the lower Early Age Retirement under section court, Occupational Price’s Disability Ben 2.1(n).” 2004, In the Board exercised its efits vested under Yardr-Man at the time authority amendment under Plan Section began receiving he the benefits because (the 15.1 and amended Section 7.A5 the Plan promised benefits “until Early “Amendment”) to state following: Age.” Retirement at Id. 8. The district Occupational Disability [T]he Benefit provision court read this as indication payable shall be only during a Partici- parties intended the benefits to pant’s Occupational continued Disability orders, In separate vest. Id. the lower and— court ordered the Fund to reinstate Price’s pay attorney’s benefits and Price’s fees. (b) effective for Occupational Disability bring The Board and the Fund appeal, 1, Benefits commencing prior January challenging the district court’s determina 2005, period for a not to exceed Decem- tion that Occupational Disability 31, 2006, or, earlier, ber if the Partici- attorney’s Benefits vested and its award of pant’s Early attainment of Retirement fees favor of Price. Age.... began receiving Occupation- Because Price II. 1, Disability prior January al Benefits 2005, his benefits were discontinued after We review a district grant court’s 31, 2006, according December summary judgment de novo. Noe v. Amendment. (6th 548, PolyOne Corp., 520 F.3d 551 Cir.2008).

Price appealed the discontinuation of his “[S]ummary judgment ap Occupational Disability Benefits to ‘if propriate pleadings, discovery 292 file, question properly, To answer this we materials on

and disclosure genuine is no there law creating affidavits show trace Sixth Circuit case fact and that the any material issue as to inference that intended for judgment as a matter entitled to movant is ap- benefits to vest. The inference first ” Philips Display v. of law.’ Schreiber decision in pears this court’s seminal Co., F.3d Components Yard-Man; indeed, the has inference been 56). Cir.2009) (quoting Fed.R.Civ.P. many simply of our renamed cases creating the “Yard-Man inference.” III. inference, the Yard-Man this court ad- by noting that disabili begin We question of specific dressed the “whether welfare-type benefit un ty benefits are beyond retiree insurance benefits continue such, ERISA, ERISA’s statuto der and as bargaining expiration collective ry apply. do not See vesting requirements agreement upon the intent of the [based] 1002(1); § Robinson v. Sheet U.S.C. Yard-Man, parties.” 716 F.2d at 1479. Fund, Nat’l Pension Plan Metal Workers’ question, applied To answer this tradi- (2d Cir.2008). A, When interpretation, tional rules of contract con- *5 exempt vesting is from ERISA’s law, with federal labor and deter- sistent requirements, no barrier exists to the provision mined that of the relevant or discontinuation of the benefit. modification (“CBA”), bargaining agreement collective tiss-Wright Corp. Schoonejon Cur v. specifically provided for retiree ben- 73, 78, 1223, 115 gen, 514 U.S. S.Ct. 131 efits, ambiguous was as to whether the (1995). L.Ed.2d 94 While does not ERISA parties intended the benefits to vest. Id. require vesting, parties may neverthe ambiguity, at Due to this we looked provide vesting less welfare benefits evidence, including to extrinsic durational Schreiber, through agreement. 580 F.3d provisions within the CBA and the context If parties at 363. intended for the bargaining process, and determined agreement benefits to vest and this in parties did fact intend for the breached, an ERISA violation occurs. Id. at retiree benefits to vest. Id. 1480-83. party disputes Neither in this case express agreement providing there is no Yard-Man, Subsequent to this court has vesting Occupational of Price’s Disabili consistently applied analysis its to cases ty inquiry Benefits. Our does not end involving parties the issue of whether here, however, because while Price’s bene bargaining process the collective intended fits not have vested under ex according for retiree benefits to vest press agreement, long this court has rec specifically terms of the have CBA. We ognized that under certain circumstances inferred this intent that benefits vest an intent can vest be inferred from ambiguity where an exists in retiree specific language parties’ agree in the benefits section the CBA and where See, Yard-Man, ments. at e.g., 716 F.2d parties’ in- extrinsic evidence evinces pres 1482. When these circumstances are See, e.g., tention that the benefits vest. exists, ent such that the inference the ben Noe, (finding at intent to 520 F.3d vest recipient. efit vests in favor of the Ac general where CBA contained durational cordingly, a unilateral decrease these clause, pen- retiree benefits were tied to vested benefits would in an result ERISA promises sion CBA would question violation. The for this case then illusory vesting); without Yolton v. El present becomes whether the inference is Co., here. Pipeline Paso Tenn. Cir.2006)

(6th (finding intent to vest could disabled” was a status similar to the “retir general be inferred where CBA contained ee” status open because both are to their clause); Joy durational Maurer v. Techs. benefits being negotiated away by future Inc., Cir.2000) F.3d 917-18 bargaining parties. 2:07-cv-00933 (finding intent to vest where durational at persuaded 6. We are not that the occu general clause of was rather than pationally CBA disabled status and retiree sta Union, Auto., specific); Int’l quite easily United Aero tus can be so analogized. And space, Agric. Implement & again Workers believe that Yard-Man’s own Inc., Am. v. Liquidating, BVR 190 F.3d language makes that case apply difficult to (6th Cir.1999) 768, 774 (holding that dis outside the context of retiree health bene trict court should have considered terms of fits. agreement insurance where CBA was am with, begin To the Yard-Man court spe- vest).

biguous as to intent to Price now cifically recognized uniqueness in the upon seizes our reasoning Yard-Man retiree status because retiree benefits are its progeny argues that the intent delayed considered form of compensation to vest can be inferred in this ease. past reward for compensation. 716 Admittedly many Yard-Man contains F.2d at 1482. Because these benefits are a case, similarities to this delayed which would make form of compensation, it is unlike- application its Occupa- ly attractive. Price’s parties would leave them sub- tional Disability arguably ject Benefits are sim- Thus, to future negotiations. ilar in nature to the retiree health may properly court infer that the Additionally, at issue in Yard-Man. intended for retiree benefits to vest. Id. *6 Plan in this case indicates that Price was a While reasoning may this hold true for member, union working under a CBA. retiree it resonates less in the plunge headlong per- Yet before we context of Specifically, benefits. —and haps haphazardly finding a occupational disability Yardr- generally —into here, Man pause inference to consider cannot delayed be considered a form of And, whether Yard-Man’s framework is even compensation. unlike retiree bene- workable present. with the facts In con- fits where everyone meeting length-of- issue, sidering principled this we note that service requirement will realize the bene- fit, only distinctions exist between this case and the portion a small of those meeting Yard-Man line of cases. length-of-service After careful requirement for occu- consideration, we believe that pational disability these dis- actually benefits will re- against tinctions applying Thus, caution Yartd- alize the benefit. repre- rather than Man’s set of rules in this context. senting a delayed compensation, form of appropriately benefits are more that, Chief among these distinctions is characterized as an potentially uncertain Yard-Man, unlike in where the benefit at realized benefit. benefit, issue awas retiree health the ben- at occupational Moreover, efit issue here is an disabil- unique- Yard-Man notes a ity benefit. Our case law has not ad- ness in the retiree status because unions dressed whether the Yard-Man inference do not persons any obligation owe retired can be appropriately applied bargain outside the to for their continued benefits. Thus, teaches, context of retiree health benefits. This was Id. Yard-Man it is more a distinction that appar- likely the district court that would intend the ently significant. Instead, did not find retiree benefits to vest avoid the bene- “occupationally court reasoned that being negotiations. fits left to future Id.

294 status, employer demonstrates undue less the of retiree this feature

Unlike 12112(b)(5)(A). § hardship. status does not 42 U.S.C. disabled occupationally unrepre- Also, open specifically itself noted that necessarily leave this court has This status is negotiations. provide future employer might required sented an status, as likely permanent to be a not as period part an extended leave status, because the retiree is the case with accommodation. See Cleveland reasonable person might disabled occupationally an Express Corp., Fed.Appx. v. Fed. point and return at some expect to recover Cir.2003) (6th (holding question that a representation. A of union position to a month leave fact existed as whether six related to the oc- more fundamental issue accommodation). Thus, was a reasonable is whether a status cupationally disabled persons disabled possible it is some considered an in this status is still person never leave the confines of union would purpose of union bar- “employee” for the strongly bargaining. possibility This cuts in this case is silent gaining. The record inference against applying Yard-Man employee Price remained an as to whether to this status.1 membership. union purpose for the analysis convinced that Our leaves us However, likely it is that at least some applied Yardr-Man’s framework cannot be occupationally disabled sta- persons Yet, inquiry our not end there here. does employees tus would be union mem- —and argues the Board that in the ab- requirements imposed bers' —due Yard-Man, apply we should sence Family Specifically, the Med- federal law. precedent Sprague court’s v. General that employers ical Leave Act mandates Corp., Motors Cir. employee with provide eligible must an 1998) (en banc). Sprague, In we evaluated during of leave a 12- twelve workweeks whether retiree health benefits vested required if period month the leave is due salaried, favor of non-union Mo- General that makes to “a serious health condition employees. tors Id. at 393. We ultimate- employee perform unable to the func- ly unilaterally held when benefit is position employee.” tions of the of such 2612(a)(1)(D). addition, provided by employer, plan docu- § while U.S.C. *7 express ments must contain a clear and the Americans with Disabilities Act does statement of intent to vest. Id. at 400. require employers grant specified not language lacking Because that was employees, amount of leave to disabled Sprague, the benefits not vest. Id. require employers this act does to reason- did ably employees, Applying Sprague pres- accommodate disabled un- to this case also Furthermore, specific we note that even if the Yard- These so-called durational clauses al- applicable occupa- Man framework was parties any low the to overcome inference pro- tional Price has not might regarding that otherwise exist their in- any upon duced CBA we can infer that which Applying Yard- tent for benefit to vest. the the intended for his benefits to vest. case, Man inference to this without the bene- apply To the Yard-Man inference in the ab- CBA, consulting might fit of the relevant in- require sence of a CBA would a court to advertently parties’ spe- the intent thwart any confirming— assume—without evidence cifically vesting prevent Occupational of Occupational Disability that Price’s Benefits minimum, appli- Disability At Benefits. this Moreover, provided were for in the CBA. cation of Yard-Man would undercut future consistently law our case has stated that the vesting through spe- parties’ ability prevent parties can establish a lack of intent to vest clauses, cific durational which would under- by including language stating within the CBA carefully mine balanced reason- Yard-Man’s specific that the benefit would not survive the ing. Noe, expiration of CBA. 520 F.3d at 562.

295 already Yet for many an attractive solution. determined neither ents ERISA above, provide nor Yard-Man for vesting the reasons stated do not this of Moreover, case. Price’s own Sprague governs complaint, outcome believe following benefits at filed of appeal this case either. The issue an the denial of of Benefits, Occupational Disability his Sprague specifically were characterized was 393, 1132(a)(1)(B), § unilaterally brought Id. at under 29 offered benefits. U.S.C. however, Here, the administra- allows for civil actions “to 402-03. recover record that Price’s Occu- benefits due to under [a claimant] tive makes clear Disability plan.” Benefits were bar- terms of his When the pational issue is unilaterally provided. properly framed as whether gained-for and Price’s Occu- Again, pational Disability that the factu- Benefits we are not convinced vested under Plan, can so then de easily al distinctions this case terms this novo review Moreover, Rather, appropriate. we believe that this seems less dismissed. the stan- properly under a differ- dard for reviewing case understood an administrator’s de- framework, does not one that include termination on an individual’s claim ent appropriate. Yard-Man or benefits seems Sprague. either most When ERISA benefits plan IV. gives the administrator discretion in inter Disability If Occupational Price’s Bene- preting making its terms or benefits deter statutory fits do not vest under ERISA’s minations, both court and the district vesting requirements Yard-Man court review the administrator’s decision Sprague inapplicable, frameworks are under arbitrary capricious stan only possible vesting then the source Co., dard. See Kovach v. Zurich Am. Ins. Price’s benefits is the Plan itself. Section (6th 323, Cir.2009) 587 F.3d 328 (citing clearly gives 15.1 the Plan the Board Bruch, Firestone Tire & Rubber Co. v. 489 authority to amend Plan. Yet it also 101, 111-15, 948, U.S. 109 S.Ct. any specifically prohibits amendment (1989)); L.Ed.2d 80 Jones v. Metro. Life “which results in benefits for reduced Co., (6th Ins. 659-60 F.3d Cir. Participant rights already whose have be- 2004); Baptist Wilkins v. Sys., Healthcare provisions come vested under the Inc., Cir.1998). Un made, Plan on the date amendment is review, der this up standard of “we must except upon the advice and counsel of an hold the decision if administrator’s the ad actuary.” issue enrolled The then be- interpretation ministrator’s the Plan’s Occupational whether comes Dis- Kovach, provisions is reasonable.” *8 ability vested within Benefits became the (alteration quota F.3d at 328 and internal meaning of Plan that the the such Amend- omitted). tion While federal case .marks to applied ment could not be him. law has on applicable created confusion the outset, At the pause applicable determine standard of review to cases in benefits, denying volving vesting decision of whether Board’s welfare court- appeal given any principles Price’s should be defer- fashioned common-law for inter question preting plans proper The answer to this lies in “are ence. ERISA welfare ly how the issue is framed. The district understood aids to determining as by reviewed the Board’s decision whether the benefits court de denial of the ad reasonable, by framing as ministrator rather than novo the issue whether the resolving interpre violate[d] “Plan Amendment ERISA.” warrants for a court’s disputes any 3. Yet we tive deference 2:07-cv-00933 at have without to the sug- concurring colleague nonetheless interpretive discretion.”our exercise of administrator’s Inc., disability benefits be- gests v. Motorola that Price’s Mar rs Cir.2009). they 786-87 time were award- F.3d came vested at the ed, the use of the terms of regardless of here, we these mandates Applying Plan or intent inferred therefrom. that, gives the Board if the Plan conclude fact, concurring colleague states In our terms, the es interpret its discretion subsequent amendment to the that on the reasonable case turns sence of this at all” on proper impact had “no plan And, indeed, the Board’s decision. ness of The concur- receipt of benefits. discretion, and give such the Plan does Plan found rence claims that when the Board invoked that discretion was benefits, disability it ef- eligible Price for Price’s benefits. Section terminating that was “a sin- fectively issued “IOU” Board of Trustees that provides “[t]he 11.9 complete that was gle and discrete event right and discre have the exclusive shall Plan the award deci- provisions terms and at the time the made interpret tion to ” Therefore, Yet, provides sup- the Board’s no colleague of the Plan.... sion.” our the arbi assertions, must be reviewed under decision either from the port for such review, standard of trary capricious controlling or from the statuto- Plan itself principles as aids using common-law Contrary the claims in ry or case law.2 review, looking to the undertaking this concurrence, review of the Board’s de- Plan whether or terms of the to determine necessarily looking entails cision interpretation was reason not the Board’s Plan to determine if Price’s terms of the Marrs, F.3d at 786-87. able. See vested, disability as it is the Plan benefits forth the terms that, itself sets pause briefly to note while We conferred, vested, or terminat- benefits are arbitrary capricious that the agreeing claim, of Price’s ed.3 applies standard to review years ser- held that where an Benefits must have at least ten 2. The Second Circuit has employee plan provides disability. benefits vice at the time of his The Plan benefits, than the those benefits vest "no later recipient provide copy requires that the also employee time that the becomes disabled.” reporting any federal income tax form in- Am., 306 F.3d v. Prudential Ins. Co. supplemental employment Feifer earned from come Yet, (2d Cir.2002). both Feifer receiving continue benefits. Most in order to and in ex rel. Estate Gibbs v. CIGNA Gibbs importantly, explains the Plan that benefits Cir.2006), (2d Corp., where that 440 F.3d 571 reasons, terminated a number of principle applied, the welfare same also was including recipient's annual income if the plans explicit at issue did not contain supplemental employment from exceeds 150 language reserving right amend re- percent Occupational Disability of his annual challenged at voke the while the Plan Benefit, recipient provide if the fails to Gibbs, 577; here does. 440 F.3d at issue See evidence of income from Board of Trustees fact, Gibbs, Feifer, 306 F.3d at 1211. supplemental employment, recipient or if the plan provision expressly contained a stat- undergo a medical examination as refuses to ing "[a]ny or termination modification requested by the of Trustees. Accord- Board employee’s] right will not affect to bene- [the ingly, though colleague in the concur- our that occurred fits from covered suggests the Plan rence the terms of the termination or modification.” 440 before *9 irrelevant at the moment an individu- become Thus, F.3d at 577. these cases are distin- fact, disability it is al first receives case, guishable and the from Price's Second very the terms of the Plan that determine the holding alter the outcome Circuit’s does not ways that such benefits can be terminated here. already provided they have been even after requires anyone example, Plan that For recipient. seeking receipt Occupational Disability Plan, reviewing pant’s terms of the it “Past Credited Service Benefit” and tempting

would be to find that lan- his “Future Credited Service Benefit.” Plan guage indicates an intent to The Future Credited Service Benefit pro- vest the Plan provides vision provides differing formulations de- amendments not reduce benefits that pending on the participant’s retirement have become “vested” in Section 15.1. date, and the Past Credited Service Bene- However, analysis of the context in fit specifically references the “retired sta- which the word is used ap- shows it tus.” plies to retiree benefits and not Reading all of provisions these together, 7A, governs benefits. Article which Occu- it would not seem unreasonable for the pational Disability Benefits, does not use Board to determine that Occupa- Price’s the term vested accrued to refer to or tional Disability Benefits were not “Ac- modify “Occupational the term Disabili- crued Benefits” and therefore did not vest. ty Benefit.” provide any Nor does it other above, 7A, As noted Article which covers vesting provisions for disability benefits. Occupational Disability Benefits, does not Thus, one must look to other sections of specific contain vesting language. Nor do the Plan for a definition vesting, since 9.2, 2.1(a), Sections or 4.2 contain language the Plan does not expressly provide one. including Occupational Disability Bene- The gets closest the Plan to a definition of fit within meaning of “vested” or “Ac- 9.2, “vesting” is “Vesting Section titled Instead, crued Benefit.” Section 4.2 spe- Schedule,” which states that partici- “[a] cifically refers to the “retired status” and pant begins who payments on or provides amounts based on retirement after June 1997 shall be vested his dates.4

Accrued Benefit....” This section then points Benefit,” to the term “Accrued Price nevertheless argues that his bene- 2.1(a) is defined Section as “the fits vested under Section 7A.2 because that monthly benefit that has been earned provides section Occupational “[t]he Participant years for the of Service he Disability Benefit shall monthly be a bene- Employer worked for an according to the fit equal percent to 65 of the Participant’s benefit formula described in section Benefit, 4.2 vested Accrued unreduced for ear- 4.2, hereof.” Moving to Section ly payment.” which is Although Price’s alternate titled “Amount of Normal Retirement interpretation of Section 7A.2 could be Benefit,” provides this section plausible, a detailed that would not render formula calculating a participant’s interpretation Board’s unreasonable. Fur- monthly ther, “Normal Retirement Benefit.” interpretation does not seem Specifically, Normal Retirement Benefits to be logical the most reading of that are using calculated partici- sum of a section. The term “vested” modifies the that, pause 4. We despite to note requires interpreta- assertion a review of the Board’s concurrence, colleague made our in the tion of the applied terms of the Plan as suggest do not that the difference between interpretation and whether such was pension Thus, arbitrary benefits welfare benefits capricious. alone our discus- justifies the Board’s decision to revoke Price’s sion of the reasonableness of the Board's de- Occupational Disability Benefits. As we ex- cision focuses on the Plan’s use of the term above, plained pension the difference between "vest” in relation to the use of the terms Benefit,” compel and welfare benefits "Occupational does our conclu- Disability "Retire- Benefit,” applied Benefit,” sion that Yard-Man cannot be to this ment and "Accrued However, not, case. properly whether the suggests, Board as the concurrence on the dif- decided to terminate Price's ference between those benefits. *10 V. Benefit,” the defini- and “Accrued phrase 2.1(a) in Sections Accrued Benefit tion of reasons, foregoing we VACATE For the any language contain 4.2 does not and court and RE- of the district the decision Disability Occupational indicating that consistent proceedings for further MAND adopt Benefits. To Accrued Benefits are opinion. with this 7A.2 would reading of Section section to state rewrite that seemingly JONKER, concurring. Judge, District Disability Benefit Occupational “the vested fully opinion’s the lead agree I with “Occupation- the term ...” or would insert v. conclusion that Wilkins analysis and the definition Disability Benefit” within al Inc., Sys., 150 F.3d Baptist Healthcare logical A more read- Benefit. of Accrued Union, (6th Cir.1998), than Int’l rather be that would seem to 7A.2 ing of Section Auto., Agric. Imple Aerospace, & United right a vested to providing than rather Inc., v. Yard-Man ment Workers Am. of Benefits, Disability Section Occupational (6th Cir.1983), establishes 716 F.2d 1476 for calcu- merely a formula provides 7A.2 here, framework of review appropriate amount. lating the benefit objection remanding the and I have no to application District of case to the Court court, however, did not re- district The in framework in the first the Wilkins under the Board’s determination view the I not believe a remand is nec stance. do standard, and nei- arbitrary capricious however, my in view a essary, using the issue party ther addressed of review does change in the framework in the district of review proper standard outcome in the case. not alter the correct Accordingly, before this court. court or readily I vote to affirm the District would matter must be re- we believe now under the original decision Court’s There, court. to the district manded standard. Wilkins to brief opportunity have the parties will Court, in the correct standard mind key insight the issue with The of the District decision, may properly court review its was practical hinge and the district and the of inter- involves a deci- regarding recognition the Board’s decision that this case already the Plan and the to terminate awarded bene- pretation of the terms of sion fits, grant deny to bene- of Price’s benefits decision resulting termination view, my in the first instance. arbitrary capricious stan- fits using the Everyone agrees vacate the is a critical difference. Additionally, because we dard.5 re- originally qualified for and in favor of Mr. Price judgment district court’s disability ben- complete an award of attorney’s fees favor of ceived the award by that time the Plan its Sec’y efits in 1990. At longer appropriate. no See Price is pay the benefit all the promised terms Dep’t King, Labor v. Cir.1985) way early age, long retirement as (stating the factors for cases). remained disabled. qualifying participant determining fee awards ERISA Mr. Price Everyone agrees further this decision as Accordingly, we vacate qualified for and received award later well. and, arguments raised Price in his brief Although we have undertaken a brief and proposed light of the alternative framework cursory the terms of the Plan and its review of concurrence, 'Vest,” provide a clear and the term we do not intend use of starting point dis- appropriate from which the prejudge remand the outcome of this case on analysis may engage in its own on arbitrary capricious trict court standard. under the Rather, response remand. we do so both *11 disability ticipant a benefit occupational package promising the Plan’s benefit IOU the Plan terms pay 2001. At that time its to the terms of the benefit effect at way to this benefit all the promised pay qualification. to the the time In case of age, long quali- early Price, retirement as the the package promised Mr. benefit And fying participant remained disabled. early until payment the later of retirement that everyone agrees Mr. Price remains age end of disability or the status. The so, very day. the disabled to this Even Plan remained free to Mr. require Price to prom- Plan Mr. Price stopped paying the disability demonstrate his continuing sta- 1, 2007, on disability January ised benefit time, tus from time to the Plan early reached because he retirement origi- terms said so at the time Price Mr. age, his status disability and not because nally qualified. But each review such was solely Plan changed, but because the benefits; not a decision to rath- new award adopted an amendment after Mr. er, simple it a implementation was of the occupational award that cut the off benefit the package terms of benefit conferred 31, 2006. course effective December Of upon Price in Mr. the first instance. The applies by the amendment its to terms decision to award the package benefit was anyone qualifies benefit who first for the a single and discrete event that was com- amendment; after the date of the the Plan plete at the time the Plan the made award had to the obligation no continue to offer decision, and that conferred enforceable package poten- same of welfare benefits to rights contract obligations on each previously tial beneficiaries that it had of- party. fered. But for someone like Mr. opinion quite The lead correct to ob- disability whose benefit was first awarded I serve that have cited no case statute amendment, by the Plan before the when applies that describes or disability the ben- promised pay the Plan to the until benefit just efit in the award terms I have used. early the later of retirement or the age is, believe, It I equally correct observe status, disability I end of the believe opinion the lead no authority cites proper amendment no at all. impact has the applies general upon rules which happens What when the Plan awards all agree particular pattern the fact qualified benefit to a participant view, my we have here. In citations to a view, my like Mr. the Price? when particular case or statute cannot settle the Plan initially participant decides that a dispute precise here because there is no qualifies participant has worked —that authority, at par- such least none required years, ten has demonstrated independent ties have cited or that our disability status and has satis- otherwise research has is the appar- uncovered. It requirements fied the for coverage—and authority point ent dearth of on that leads benefit, something awards the my effort articulate for first time fundamentally changes: the Plan’s disabili- of analysis framework that is both faith- ty package generically offered to agreed general ful to rules and at qualifying all participants confers enforce- I respectful same time of what believe are rights able on obligations contractual real, reasonable and enforceable con- particular the Plan qualifying and on expectations parties. tractual participant. contract ob- rights Those view, advocating I am ligations, The framework has the my are defined salutary practical treating terms of the Plan effect at effect of the time case, provides disability the initial It is as qualification decision. though par- under a effectively through the Plan issues the a trust fund created col- *12 view, original qualifying my date. In the in the same agreement, bargaining

lective the death routinely obligated pay treat ERISA Plan would be courts way federal provided Plan in on involving benefits benefit if the terms of the effect disability cases death— n contract. private a insurance through qualifying the date —the date federal staple a of the cases are I required again, Such it. Once believe I know of no such court docket. district agreed with both the result is consistent or the court has party case in which general governing rules ERISA welfare change disability a in bene- suggested that benefits, and the reasonable contractual disability by employer’s the fits offered expectations parties. the terms of a change Plan back to reaches Finally, opinion’s if the lead view of the disability benefit un- awarded previously disability then I would prevails, benefit Plan, and the insur- the terms of the der employees that union whose dis- submit Plan, in at funding the effect policy ance ability protected only by benefit is a Trust the initial award. The the time of purchase one here had better their like the proper- appear the courts assume — too, disability policy, private own insurance ly my governing in view—that the terms of they really meaning- because do not have in effect disability award are ones that, disability say ful I be- protection. original my of the award. at the time disabled, person they cause once a is are Price, view, employee a union like Mr. in engage definition not able to income- disability benefit is funded a

whose work, generating or at least not income- bargaining created under a collective Trust generating they work of the kind are ac- by private than insur- agreement, rather Nor, performing. obviously, customed to contract, reasonably expects nothing ance they purchase private disability are able to in at less: the terms of the Plan effect they already are disabled. insurance after time of the initial benefit award should obligated prom- If the Trust to fund their rights define the contractual and obli- disability power to ised benefit also has the gations parties. of the qualifying amend the Plan after the dis- Plan in at Using the terms of the effect ability way event in a that cuts off the participant qualifies the time a for the people already benefit even for who have disability initial award also works with the qualified, really then there is no reliable through funded other welfare benefit disability protection at all. Mr. in this case. The Plan at issue here Trust course, exactly position if the disability provides only pension for not opinion’s power lead view of the Plan’s benefits, A but also a death benefit. death prevails. benefit, benefit, like a is a wel- opinion suggests The lead that the well- fare benefit under and therefore ERISA under be- established difference ERISA subject general against vesting rule hand, pension on the one tween Suppose of welfare a covered benefits. including disability and welfare qualified employee triggers dies and benefits— hand, may justify benefits—on the other the Plan have the death benefit. Does the dis- the Plan’s decision here to revoke power lawful to amend terms originally it award- ability package benefit employee’s death after the death respectfully disagree I ed to Mr. Price. way prevent payment that would my with that view it overlooks a opinion’s analy- the lead benefit? Under sis, critical difference between the Plan’s unde- it the Plan could do so would seem of a power change niable the terms because the amendment would allow the on the welfare benefiN-in- deny place generally applicable Plan to what had been record, prospectively Wilkins eluding a standard to this or to any benefit — qualified expanded people who have record the District Court benefit, hand; and the proper. on the one Plan’s find *13 have the quite different claim to unilateral eliminate change to or even disabili-

power already has

ty packages benefit it award- I nothing

ed. see ERISA welfare cases, dealing those including with

benefit suggests health

retiree care power to make undisputed pro-

the Plan’s spective benefit changes pack- available GOODWIN, Michael Petitioner- ages yet not includes power awarded Appellee/Cross-Appellant, unilaterally or eliminate a change to bene- already fit A conferred. benefit v. recurring decision; is not annual award a Warden, JOHNSON, Respondent- David

rather, it grant is a one time decision to or Appellant/Cross-Appellee. deny package by the benefit followed on- 06-3571, Nos. 06-3572. including periodic going administration — package review status —of Appeals, United States Court of awarded. Sixth Circuit. reason, For this I do not believe it is Argued: Dec. 2009. necessary reasonably to reach the even of the amendment possible constructions Decided and Filed: Jan. I

provision simply of the Plan. do not by it its terms to applies

believe

unique provision permits situation. The

amendments to the offered benefits

Plan, my but this in view is not the same

thing eliminating as changing particu-

lar benefit already Nothing conferred. language permit

the Plan purports change

retroactive contractual already of a

terms conferred. the Plan Mr.

Once awarded Price the dis- benefit,

ability I the Plan believe was con-

tractually obligated pay the benefit on

the terms as defined the date of the

award. And in this case these terms did permit

not Plan to cut off Mr. early Price reached retirement

before disabled,

age long as he remained as all

agree day. he very is to this readily I

Accordingly, would vote to af- now,

firm the District but I do Court

object give to a remand to the District opportunity apply

Court first