Timоthy D. LAURENT, Smeeta Sharon, Plaintiffs-Appellees, Michael A. Weil, Plaintiff, v. PRICEWATERHOUSECOOPERS LLP, The Retirement Benefit Accumulation Plan for Employees of Pricewaterhousecoopers LLP, The Administrative Committee to the Retirement Benefit Accumulation Plan for Employees of Pricewaterhousecoopers LLP, Defendants-Appellants.
Docket No. 14-1179
United States Court of Appeals, Second Circuit.
Argued: April 14, 2015. Decided: July 23, 2015.
794 F.3d 272
Julia Penny Clark, Bredhoff & Kaiser, PLLC, Washington, DC (Eli Gottesdiener, Gottesdiener Law Firm, PLLC, Brooklyn, N.Y., on the brief), for plaintiffs-appellees.
Before CABRANES, LYNCH, and DRONEY, Circuit Judges.
The Employee Retirement Income Security Act of 1974 (“ERISA“), as amended
Defendants moved to dismiss the complaint. The district court (J. Paul Oetken, Judge) denied the motion to dismiss, holding that the PwC plan violated ERISA because (1) five years of service is not an “age” under ERISA, (2) the plan violated ERISA‘s anti-backloading rules, and (3) the plan‘s documents violated ERISA‘s notice requirements. It then certified its decision for interlocutory review, and we accepted the certification. We agree that the plan violates ERISA, but for different reasons than those cited by the district court.1 We hold that the plan‘s definition of “normal retirement age” as five years of service violates the statute not because five years of service is not an “age,” but because it bears no plаusible relation to “normal retirement,” and is therefore inconsistent with the plain meaning of the statute. We accordingly AFFIRM, without reaching the district court‘s alternative reasons for denying defendants’ motion to dismiss.
BACKGROUND
Before discussing plaintiffs’ suit and the issues raised on appeal, it is necessary to provide some background on ERISA and how its minimum vesting provisions apply to the kind of plan that PwC offers its employees, in order to clarify the framework in which those issues must be analyzed.
I. ERISA‘s Vesting Requirements for Cash Balance Plans
Congress passed ERISA in response to findings that inadequate vesting protections in private retirement plans were causing retirees to lose their anticipated benefits. See
In order to qualify as ERISA-compliant, retirement plans must meet the statute‘s “[n]onforfeitability requirements.” See ERISA § 203(a);
Two statutory definitions are critical to understanding this vesting requirement: First, as noted, under the Act, “accrued benefit” means, “in the case of a defined benefit plan, the individual‘s accrued benefit determined under the plan and ... expressed in the form of an annual benefit commencing at normal retirement age.”
In the 1980s and ‘90s, many companies created a third type of plan, known as a “cash balance” plan. Cash balance plans combine attributes of both defined contribution and defined benefit plans. They simulate the structure of defined contribution plans, but they are treated as defined benefit plans. Under cash balance plans, “employers do not deposit funds in actual individual accounts, and employers, not employees, bear the market risks.” Hirt v. Equitable Ret. Plan for Emps., Manag-ers, & Agents, 533 F.3d 102, 105 (2d Cir. 2008). Instead of an actual individual account, a participant in a cash balance plan has a hypothetical account, the value of which is “driven by two variables: (1) the employer‘s hypothetical ‘contributions,’ and (2) hypothetical earnings expressed as interest credits.” Esden v. Bank of Boston, 229 F.3d 154, 158 (2d Cir.2000). For this reason, “[c]ash balance plans are considered defined benefit plans under ERISA.” Lonecke, 584 F.3d at 462. “As a result of this classification, the term ‘accrued benefit’ in a cash balance plan is expressed in the form of an annual benefit commencing at normal retirement age,” just like the accrued benefit in a defined benefit plan.
Generally with сash balance plans, interest credits continue to accumulate even after an employee terminates employment and until the benefits are distributed. See Esden, 229 F.3d at 160. Thus, if a vested employee leaves employment before reaching retirement age, his or her benefit at retirement will be based on the contributions made during employment, plus the interest accruing over time, both during employment and between the employee‘s departure and retirement age. In a cash balance plan, the employer may offer the departing employee the option of either an annuity or a lump sum; however, “any such [lump-sum] payout must be worth at least as much, in present terms, as the annuity payable at normal retirement age.” Lonecke, 584 F.3d at 463 (internal quotation marks omitted); accord, Esden, 229 F.3d at 163. In other words, plans are not required to offer participants a lump-sum distribution, but if they do, they cannot deprive the participants of the value that would accrue if the participants waited and took their distributions as an annuity at normal retirement age.
The difference between the hypothetical value of a cash balance plan account at any given time and the value of the account as an annuity payable at normal retirement age is known as the “whipsaw calculation.”4 To determine the whipsaw calculation, the account balance is increased by the plan‘s interest rate multiplied by the time to normal retirement age, then discounted back to present value at a set rate, usually the rate on 30-year Treasury securities. See Esden, 229 F.3d at 159, 164 n. 13. Assume, for example, that a benefit plan‘s normal retirement age is 65 and a 64-year-old employee has an account balance of $100,000. Assume further that the plan provides a corporate bond rate of return, which today is 8%—a rate that is 2% higher than the current Treasury rate of 6%. To determine the whipsaw-calculated lump sum, or “whipsaw payment,” one increases the account balance by today‘s corporate bond rate, to get $108,000 at age 65; then discounts it back to present value at the Treasury rate. The calculation then results in a lump-sum payment of roughly $102,000, as opposed to the account balance of $100,000. See Barry Kozak, The Cash Balance Plan: An Integral Component of the Defined Benefit Plan Renaissance, 37 J. Marshall L.Rev. 753, 773 (2004).
Before turning to plаintiffs’ lawsuit, we must note that the rule of actuarial equivalence and the whipsaw calculation just dis-
With these principles in mind, we turn to plaintiffs’ lawsuit.
II. PwC‘s Retirement Plan and Plaintiffs’ Suit
Plaintiffs are, and represent a class of, former PwC employees who terminated their employment after completing at least five years of service at the firm. Based on their years of service, plaintiffs hаd fully vested in PwC‘s retirement plan, the Retirement Benefit Accumulation Plan for Employees of PricewaterhouseCoopers LLP (“the RBAP” or “the Plan“). The RBAP is a cash balance plan, funded entirely by the employer. The funds deposited by PwC into the Plan, and represented in the participants’ hypothetical individual accounts, may be “invested” through various investment options at the election of the employee, such as money-market funds or more aggressive strategies. Under some cash balance plans, the employer specifies the annual investment return; however, the RBAP does not guarantee any set rate of return. Instead, the balance in a participant‘s account appreciates or depreciates in the form of daily-adjusted interest credits, according to the participant‘s chosen investment option.
The RBAP permits participants either to receive their account balances upon termination of employment, provided they have fully vested, or to retain their account balances in the Plan after terminating employment, and to continue to accrue the interest credits as long as they remain рarticipants—until age 70½ at the latest. Vesting under the Plan occurs after five years of service, with a year of service being defined as any 12-month period during which the employee worked at least 1,000 hours. Upon termination of employment (or anytime thereafter), an account can be distributed to the participant, at her election, in one of two ways: in the form of an annuity or in a lump-sum cash payment once the participant reaches normal retirement age. Of central importance here, however, the Plan defines “nor-
After fully vesting and terminating their employment with PwC, plaintiffs elected to receive lump-sum payments. Under the Plan, the amount of the lump sum was defined as the participant‘s vested account balance—i.e., the specific cash balance at the time of the distribution. Plaintiffs sued, alleging that they were entitled to receive greater amounts based on a whipsaw calculation of their account balances.7 What makes plaintiffs’ claim for whipsaw-calculated payments unique, however, is that, under the terms of the RBAP, they were in fact past normal retirement age once they had vested, because the Plan defined “normal retirement age” as “[t]he earlier of the date a Participant attains age 65 or completes five (5) Years of Service” as an employee at PwC. Joint App‘x at 337 (emphasis added). Plaintiffs alleged three flaws with this definition.
First, they alleged that it violаted ERISA § 3(24), because that provision of the statute defines normal retirement age as “the time a plan participant attains normal retirement age under the plan.”
Second, plaintiffs alleged that the Plan‘s definition violated the provisions of ERISA that were meant to prevent “backloading,” which occurs when a covered employee receives disproportionately higher benefit accruals for later years of service and therefore disadvantages shorter-term employees. See
Third, plaintiffs alleged that they were not informed of the definition of “normal retirement age” in the Summary Plan Description (“SPD“), the document provided to employees that explains the terms of PwC‘s plan. The omission, they contended, constitutes an independent violation of the notice requirements in ERISA‘s implementing regulations. See
III. Procedural History
Plaintiffs originally brought this action on March 23, 2006, and PwC moved to dismiss. On September 5, 2006, the district court, then-Judge Michаel B. Mukasey, denied in part PwC‘s motion to dismiss, determining that the Plan‘s definition
In denying PwC‘s motion to dismiss the Second Amended Complaint, Judge Oetken first analyzed whether our decision in Duchow controlled the case, as Judge Mukasey had ruled. In Duchow, we rejected the defendant plan‘s reading of “normal retirement age” as incorporating a years-of-service requirement through its inclusion of the term “anniversary” in ERISA § 3(24)(B)(ii), because the ordinary meaning of “anniversary” “plainly denotes a date rather than the years between the date and the past event.” 691 F.2d at 79. Judge Oetken determined that Duchow dealt exclusively with age-based requirements for vesting independent of length of service, and did not consider the possibility of a service-based normal retirement age. Laurent IV, 963 F.Supp.2d at 317.8 Thus, where Duchow referred to “age,” it meant “‘age’ under § 203(a),” the nonforfeitability requirements, and interpreted only the anniversary provision of the statutory default, i.e., the anniversary of commencing participation in a plan.
The district court then proceeded to analyze the statutory requirements. It noted that ERISA provided that “normal retirement age” can mean “the time a plan participant attains normal retirement age under the plan,” but held that this definition did not confer limitless discretion on the plan sponsor to define any event or condition as the normal retirement age, such as “on the first occasion that a double rainbow appears over Tokyo, or when Meryl Streep wins her next Emmy, or when the plan рarticipant consumes his fiftieth cupcake.”
But the district court concluded that defining “age” in terms of years of service was a “strained construction” that departed from the ordinary meaning of the word, and thus was inconsistent with the meaning of normal retirement age in ERISA.
As alternative bases for denying PwC‘s motion to dismiss, the district court determined that the RBAP violated ERISA‘S prohibitions on “backloading,” which prevent retirement plan sponsors from evading the statute‘s minimum vesting requirements by keeping rates of benefit accrual low in the early years of an employee‘s service (when the employee is more likely to terminate employment prior to retirement), and concentrating accrual in the later years of service (when the employee is more likely to stay with the employer until retirement). See
The district court certified an interlocutory appeal on the foregoing issues, Laurent v. PricewaterhouseCoopers LLP, No. 06 Civ. 2280(JPO), 2014 WL 251986 (S.D.N.Y. Jan. 22, 2014) (“Laurent V“), and we granted leave to appeal, Laurent v. PricewaterhouseCoopers LLP, No. 14-314 (2d Cir. Apr. 22, 2014), ECF No. 1.
DISCUSSION
I. Standard of Review
We review the denial of а motion to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) de novo. See Drimal v. Tai, 786 F.3d 219, 223 (2d Cir.2015).
II. Statutory Construction
As with any statute, our interpretation of ERISA‘s terms begins with the statutory text. See Jimico Enters. v. Lehigh Gas Corp., 708 F.3d 106, 110 (2d Cir.2013). ERISA § 3(24) defines “normal retirement age” as “the earlier of—
- the time a plan participant attains normal retirement age under the plan, or
- the later of—
- the time a plan participant attains age 65, or
- the 5th anniversary of the time a plan participant commenced participation in the plan.
Considering the plain meaning of the text in the context in which it appears, it is immediately apparent that the statute confers considerable discretion on retirement plan creators to determine normal retirement age. The plаin text allows for the selection of a retirement age “under the plan” as an alternative to the statutory default, and specifies that normal retirement age shall be the earlier of those two points in time. One can easily imagine why Congress would want courts to defer to employers’ determination of a retirement age that is earlier than the default: in many jobs and industries, normal retirement occurs earlier than age 65. Employers of firefighters, ballerinas, or professional athletes, for example, could quite reasonably select a much younger normal retirement age than the statutory default. The structure of the statute therefore signals Congress‘s intent to give employers wide latitude in deciding whether it is reasonable for workers to retire at a given age—whether that is 62 or 65 for most office workers, 50 or 55 for law enforcement officers, and 35 or 40 for shortstops. These are discretionary calls for the plan
PwC emphasizes that discretion, arguing that the statute “allows a [plan] sponsor to specify ‘the time’ that a participant attains normal retirement age, with time meaning simply ‘a point or period when something occurs.‘” Appellаnts’ Br. at 25 (internal quotation marks omitted). PwC argues that Congress placed no limits on when a plan could determine that normal retirement age had been reached, and “[c]onditions, if any, are left up to the sponsor.”
But a closer reading of the statute compels the conclusion that it does not confer boundless discretion to select any point in or measure of time. True, § 3(24)(A) permits plans to define a “time,” but that is not simply any time: under the statute‘s plain terms, it must be “the time a plan participant attains normal retirement age.”
Instead, the statute defines “normal retirement age” as the earlier of “the time a plan participant attains normal retirement age under the plan” or the statutory default of age 65 or the fifth anniversary of plan participation. The repetition of the phrase, “normal retirement age,” in § 3(24)(A) is no mere tautology. Rather, it suggests that “the time” that a plan establishes as its normal retirement age must have some reasonable relationship to the age at which participants would normally retire. The statute does not define what “normal” or “retirement” mean, and where a statute does not define a term, we “give the term its ordinary meaning.” Taniguchi v. Kan Pac. Saipan, Ltd., 132 S.Ct. 1997, 2002 (2012). “Normal” means “[c]onforming, adhering to, or constituting a usual or typical standard, pattern, level, or type,” and, importantly, to “retire” means, inter alia, “[t]o withdraw from business or public life and live on one‘s income, savings, or pension.” Am. Heritage Dictionary 848, 1055 (2d ed.1982); accord, Webster‘s New Riverside Univ. Dictionary 803, 1003 (2d ed.1984). Thus, “normal retirement” does not, in its ordinary meaning, suggest anytime the employer wishes, or whenever an employee leaves a company after a few years on the job. The plain meaning of the statute does not allow for an ordinary industrial or finаncial services company to pick, say, 35 as its normal retirement age, since such a company could not, under normal circumstances, reasonably expect its employees to retire at that time.12
The district court‘s conclusion that the RBAP violated ERISA because it defined normal retirement age in terms of years of service, rather than as a literal age, placed undue emphasis on the word “age” to the exclusion of its modifiers, “normal retirement.” Words in a statutory text should not be interpreted in isolation; “[o]ur duty, after all, is to construe statutes,” not isolated words or phrases. King, 135 S.Ct. at 2489 (internal quotation marks omitted). There is no indication in the statute that normal retirement age must be a literal calendar age. To the contrary, the statutory default itself includes a variation on that theme, allowing normal retirement age to be defined as five years after the commencement of participation in the plan. See
Reading the statute to permit plans to use any arbitrary age that suits the employer as a “normal retirement age” would read that very phrase out of § 3(24)(A). Such a reading would also be inconsistent with the statutory default, § 3(24)(B), which defines normal retirement age as 65 or five years after hiring, whichever is later. That definition is consistent with the ordinary understanding of normal retirement age: 65 for most people, but with an exception for someone who is hired within five years of her 65th birthday. And that commonsense definition fits the “symmetrical and coherent regulatory scheme,” Brown & Williamson, 529 U.S. at 133, created by the statute: requiring that plans pick an age that bears some relationship to typical retirement age for workers covered by the plan advances the Act‘s stated purpose of protecting employees “with long years of employment” from “losing anticipated retirement benefits.”
The district court‘s alternate conclusion was based on an attempt to distinguish PwC‘s plan from the plan at issue in Fry v. Exelon Corp. Cash Balance Pension Plan. In that case, the Seventh Circuit upheld a plan that defined normal retirement age as “five years on the job.” 571 F.3d 644, 646 (7th Cir.2009). Like the RBAP, that was also the plan‘s vesting date, and thus the employees’ first opportunity to demand а lump-sum distribution when terminating their employment. The Seventh Circuit held that the plan‘s definition did not violate ERISA, because:
[T]he Plan‘s formula—the participant‘s age when beginning work, plus five years—is an “age.” It is employee specific, to be sure, but “age + 5” remains an age. It is not as if the Plan provided that “an employee reaches normal retirement age when he owns ten umbrellas.” The Plan‘s formula not only specifies an “age” but also is lifted right out of the statute. Subsection (B)(ii) defines as the highest possible “normal retirement age” (for a person hired at 65 or older) “the 5th anniversary of the time a plan participant commenced participation in the plan.” Making that statutory definition of “normal retirement age” universally applicable can‘t be rejected on the ground that the formula does not yield an “age.” ERISA does not require the “normal retirement age” to be the same for every employee; § 1002(24)(B)(ii) shows that too.
We respectfully disagree with the Seventh Circuit‘s conclusion that five years on the job is a permissible normal retirement age under ERISA, simply because it is an “age.” Adopting its rule would permit PwC to pick an unreasonably low age as its normal retirement age, which would contravene the language of the statute, for the reasons described above. The Seventh Circuit‘s reliance on
The Seventh Circuit rejected the argument that five years on the job is not a “normal retirement age,” however, because, it stated, ERISA “does not compel a pension plan‘s retirement age to track the actuarial tables.” Id. (emphasis added) (internal quotation marks omitted). Instead, the court held, under § 3(24)(A), “an age is the ‘normal retirement age’ because the plan‘s text makes it so. The age in the plan is ‘normal’ in the sense that it applies across the board, to every participant in the plan.”
Again we respectfully disagree. The statute sets as a default an age that anyone would recognize as a traditional age for retirement. It allows plans to set an earlier date, but that too must be a normal retirement age. The argument that a “normal retirement age” need not have any relationship to the age at which plan participants normally retire because the phrase is used to trigger certain benefits or adjustments rather than to mandate retirement is a non sequitur. Congress
Moreover, there is no reason to think that ERISA‘s drafters meant by “normal” the ordinary age of rеtirement in one part of its definition, and “normal” merely in the sense of “applies across the board” in a different part of the same sentence. Such a reading would defy the “presumption that a given term is used to mean the same thing throughout a statute, a presumption surely at its most vigorous when a term is repeated within a given sentence.” Brown v. Gardner, 513 U.S. 115, 118 (1994) (citation omitted). In any event, even in isolation from the present context, “normal” does not ordinarily mean “uniform,” and had Congress wanted to mandate uniformity, it could have allowed plans to select “the uniform retirement age under the plan.”14 Construing the statute consistently with the ordinary meaning of its terms and as a coherent whole, “the time a plan participant attains normal retirement age under the plan” must bear some reasonable relation to a time when the plan‘s participants would, under normal circumstances, retire. Five years on the job at an accounting firm is not a normal retirement age.15
Inasmuch as we find Fry‘s reading of the statute unpersuasive, we are similarly skeptical of the distinction between five “anniversaries” in Fry and five “years of service” in this case. The district court here recognized that five years оf service, as calculated in increments of 1,000 hours, was a different measure of time than five anniversaries, because a year of service might not correspond to a chronological year. It therefore distinguished Fry and held that unlike the plan in that case, the RBAP violated ERISA because it did not pick an “age” as its normal retirement age. Laurent IV, 963 F.Supp.2d at 321. But when one considers the function of normal retirement age in the overall scheme of statutory protections, that distinction between anniversaries and years of service is revealed to be essentially semantic.
If an employee‘s fifth anniversary at the company and her five years of service coincide, there is literally no difference between how a years-of-service plan and an anniversary plan would treat that employee. The question, then, is whether the result differs if they do not coincide. Theoretically, under an anniversary plan, normal retirement age “under the plan” could be reached before the benefit has fully vested, if it takes an employee longer than five years on the job to fulfill five years of
Because the PwC Plan and the plan in Fry are no different in their effect, it would elevate form over function to hold PwC liable for violating ERISA simply because it did not use the right words to eliminate a benefit to which its employees were entitled. If PwC could accomplish the same result permissibly under the statute by picking a normal retirement age of 35 or the fifth anniversary of hire, holding that it violated the statute by instead choosing five years of service would amount to little more than a “gotcha” outcome lacking any substantive protection for pension plan participants.
Accordingly, we do not find either the Seventh Circuit‘s reading of the statute or the distinction betwеen anniversaries and years of service persuasive.17 We nevertheless concur in the district court‘s determination that the RBAP is invalid, because five years of service is no more a normal retirement age than five years on the job. And the statute‘s text is clear that the time a participant attains normal retirement age under the plan must be just that: a normal retirement age.
III. Consistency with Precedent
Our determination that the clear statutory text governs this case is sufficient to end the inquiry. See Tapia v. United States, 131 S.Ct. 2382, 2388 (2011). We find additional support for that conclusion, however, in the fact that PwC‘s interpretation of the statute would effectively nullify our decision in Esden v. Bank of Boston. The plan at issue in Esden had attempted to eliminate whipsaw payments by projecting the interest rate at 4% compounded annually, notwithstanding the fact that the actual interest credits, though variable, could not accrue at a rate lower than 5.5%. See
Esden does not directly control this case because the rule of actuarial equivalence was there defined in terms of equivalence between the point at which the participant elects to take a lump sum distribution and the participant‘s normal retirement age (65 in that case). The PwC Plan‘s elimination of the whipsaw by foreshortening the time to normal retirement age therefore complies with the letter of our decision. But by pegging normal retirement age to the vesting date, the Plan accomplishes the same result that we proscribed in Esden: it effectively penalizes employees based on the time when, and form in which, they take their distribution. Had plaintiffs kept their accounts and not taken a lump sum when they terminated their employment with PwC, their accounts would have been valued differently (though not necessarily higher, because the value of the accounts fluctuated based on whatever investment option each participant chose) when they took an annuity later. Therefore, taking the lump sum at the termination of their employment deprived plaintiffs of the actuarial equivalent of what their accounts would have been worth had they later taken an annuity. Again, that is not technically a forfeiture under the statute, because forfeiture is defined in reference to normal retirement age. But in substance, the PwC Plan accomplishes precisely what we forbade in Esden, by choosing a methodology for calculating actuarial equivalence that effectively withholds that statutory protection from plaintiffs’ accounts.
PwC argues that Esden recognized that there are ways a plan can permissibly avoid any whipsaw payout, and indeed, we said, “If the plan‘s projection rate (that is the hypothetical interest credits it provides) and the statutorily prescribed discount rate are identical, then the present value of the hypothetical account projected forward to normal retirement age determined by this computation will be exactly the current cash account balance.”
IV. Other Considerations
We pause to discuss two additional considerations that are relevant to our holding.
First, we acknowledge that our interpretation of the statute is not wholly consistent with that of the IRS, though its interpretation has shifted over time. The IRS has “primary jurisdiction and rule-making authority over ERISA‘s funding, participation, benefit accrual, and vesting provisions,” Esden, 229 F.3d at 157 n. 2, and ERISA itself provides that “[r]egulations prescribed by the Secretary of the Treasury under sections 410(a), 411, and 412 of Title 26 (relating tо minimum participation standards, minimum vesting standards, and minimum funding standards, respectively) shall also apply to the minimum participation, vesting, and funding standards set forth in [ERISA],”
Even if it were entitled to deference, moreover, where the agency interpretation is inconsistent with the statute‘s plain meaning, we need not defer to that interpretation. See Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581, 600 (2004) (“[D]eference to [an agency‘s] statutory interpretation is called for only when the devices of judicial construction have been tried and found to yield no clear sense of congressional intent.“); cf. Hurwitz v. Sher, 982 F.2d 778, 782 (2d Cir.1992) (explaining, under prior precedent that accorded great weight to the IRS‘s interpretations of ERISA, that its interpretations need not be sustained if “plainly inconsistent” with
Prior to the enactment of ERISA, an IRS Revenue Ruling provided that, to qualify for tax benefit status, a retirement plan could set its normal retirement age lower than age 65, but only if the age in the plan represented the age at which employees customarily retired in the particular company or industry, and was not a device to accelerate funding. Rev. Rul. 71-147, 1971-1 C.B. 116. Following the enactment of I.R.C. § 411(a)(8), the Internal Revenue Code‘s analogue to ERISA § 3(24), however, another Revenue Ruling permitted a plan to set normal retirement age at any age, including lower than age 65, regardless of the age at which employees customarily retired in the particular company or industry. See Rev. Rul. 78-120, 1978-1 C.B. 117. That 1978 Revenue Ruling represented the IRS‘s position until 2007, when, in response to the passage of the Pension Protection Act, the agency changed course again and ruled—this time in a formal regulation following notice and comment, see IRS Notice 2007-8, In-Service Benefits Permitted to be Provided at Age 62 by a Pension Plan, 2007-1 C.B. 276 (Dec. 22, 2006)—that “normal retirement age could not be earlier than the earliest age that is reasonably representative of a typical retirement age for the covered workforce.” 72 Fed.Reg. 28604-01, at *28605 (2007).
Although it postdates the relevant period for this case and is prospective only, we find it noteworthy that the IRS‘s latest interpretation of the statute reverts to the agency‘s original position, requiring that normal retirement age be an age that is reasonably representative of the typical retirement age for the industry in which the covered employee worked. That the agency has changed its position does not, in and of itself, suggest that we should not defer to the interpretation that was operative at the relevant time. See Himes v. Shalala, 999 F.2d 684, 690 (2d Cir.1993). But given that the IRS‘s prior view was announced in a Revenue Ruling, while its current view followed from public notice and comment, we think it more likely that the IRS‘s current position represents the agency‘s “fair and considered judgment on the matter.” Esden, 229 F.3d at 169 (internal quotation marks omitted). Moreover, the IRS‘s current view coheres more naturally with the text of the statute, and reinforces our conclusion that ERISA does not permit a plan to pick any age as its normal retirement age, regardless of whether it bears any resemblance to normal retirement. Cf. Mellouli v. Lynch, 135 S.Ct. 1980, 1989 (2015) (declining to defer to agency interpretation of statute where that interpretation “leads to consequences Congress could not have intended” (internal quotation marks omitted)). Consequently, the position of the IRS in the 1978 Revenue Ruling does not persuade us of an interpretation of the statute contrary to the one we have reached here.
Second, we note that a provision in the 2015 Appropriations Act provided a “clarification” of the meaning of normal retirement age that applies retroactively. Consolidated and Further Continuing Appropriations Act, 2015, Pub.L. No. 113-235, 128 Stat. 2130, 2827 (2014), codified at
Plaintiffs contended at oral argument and in a post-argument supplemental brief that the new statute invalidates PwC‘s plan, because it precludes normal retirement ages based on less than 30 years of service. But the new statute does not say either way how Congress views a plan that defines normal retirement age based on less than 30 years of service; it merely states thаt a 30-year plan does not violate ERISA. In fact, the new statute cuts against plaintiffs’ argument that years of service can never be an acceptable “age” under ERISA, because Congress recognized in its clarification the acceptability of a plan that included a years-of-service component. That shows that Congress is not averse to a years-of-service-based normal retirement age, in the same way that its use of an anniversary date in ERISA § 3(24)(B)(ii) shows that it is not averse to an anniversary-based normal retirement age. See Fry, 571 F.3d at 647. But that does not necessarily mean that plans may use those measures of time without limitation, any more than the fact that the statute uses a precise calendar age as its statutory default means that a plan could pick age 21 as its normal retirement age. And it is instructive that Congress permitted a years-of-service normal retirement age that is sufficiently long that it bears a close relationship to what we ordinarily view as a time period after which it would be “normal” to retire. The new statute therefore neither permits nor precludes PwC‘s five-year plan.
Finally, PwC argues that even if the RBAP is invalid under ERISA, the district court erred by imposing 65 as a “default” statutory age to which the Plan must now adhere. It is not clear to us that the district court did anything of the sort. Although Judge Oetken stated that he “embrace[d] Laurent I‘s result,” Laurent IV, 963 F.Supp.2d at 315, that statement is more plausibly read, in the context of the court‘s further discussion, to concur with Judge Mukasey‘s denial of PwC‘s motion to dismiss, not necessarily to adopt the remedy that Judge Mukasey imposed.19 Because it did not address the appropriate relief, we leave it to the district court to consider that question in the first instance.
CONCLUSION
For the foregoing reasons, we hold that PwC‘s retirement plan violates ERISA, because five years of service is not a “normal retirement age” under the statute. Having so concluded, we need not reach the alternative bases for the district court‘s denial of PwC‘s motion to dismiss. Accordingly, the district court‘s denial of PwC‘s motion is AFFIRMED.