UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Donald Rhodes, Plaintiff
v. Case No. 16-cv-35-SM Opinion No. 2016 DNH 218 Holden Engineering & Surveying, Inc.; Holden Engineering & Surveying, Inc. Incentive Compensation Plan; and Peter Holden, as Plan Administrator, Defendants
O R D E R
Donald Rhodes was employed by Holden Engineering &
Surveying, Inc., from 1984 until 1995. During four of those
years, he participated in Holden Engineering’s “Incentive
Compensation Plan” - a deferred compensation plan administered
for the benefit of Holden’s highly compensated employees. This
litigation arises out of the Plan Administrator’s refusal to pay
Plan benefits, in the amount of $60,000, to which Rhodes says he
is entitled under the plan.
Pending before the court are the parties’ cross motions for
judgment on the administrative record. For the reasons
discussed, Rhodes’ motion is granted in part and denied in part.
Holden Engineering’s motion is denied.
1 Before turning to the parties’ arguments on the merits, a
fundamental problem must be addressed. Rhodes has not sued
either the Plan or the Plan Administrator. In a case involving
ERISA benefits, the proper party defendant is the “party that
controls administration of the plan.” Terry v. Bayer Corp., 145
F.3d 28, 36 (1st Cir. 1998). See also Barkin v. Patient
Advocates, LLC, 493 F. Supp. 2d 119, 122 (D. Me. 2007). Here,
because the Plan is entirely funded by Holden Engineering, Inc.,
those entities share an identity of financial interests: Plan
liability to pay benefits will be borne directly by Holden.
Perhaps that explains why Holden has not addressed Rhodes’
failure to name the Plan or the Plan Administrator as parties,
or sought dismissal on that basis.1
Given that circumstance, the court will presume that Rhodes
intended to name the Plan and Plan Administrator as defendants.
The court also presumes that Holden has no objection to deeming
the Plan as well as Peter Holden, in his capacity as Plan
1 Rhodes’ failure to name the Plan or the Plan Administrator may also be explained by language in the Plan itself. In section 8.1 (entitled, “Enforcement”), the Plan provides that, “The Employer shall have the authority to enforce this Plan . . . [and] the Employer shall be the only necessary party” to any enforcement action. Perhaps the parties interpret that section of the Plan to mean that only Holden Engineering need be named as a defendant when a Plan Participant sues to enforce his or her rights under the Plan.
2 Administrator, as named defendants in this litigation. If
Holden (or the Plan or the Plan Administrator) does object, a
written objection may be filed, stating in detail the basis for
that objection, as provided below. Otherwise, the complaint
will be deemed amended by agreement to name the Plan and Plan
Administrator as defendants.
Standard of Review
The parties agree that Holden’s deferred compensation plan,
frequently known as a “top hat” plan, is governed by the
provisions of the Employee Retirement Income Security Act
(“ERISA”), 29 U.S.C. §§ 1001 et seq. See also 29 U.S.C.
§ 1051(2). When, as here, an ERISA-governed plan reserves to
the plan administrator the discretion to interpret the plan and
determine benefits eligibility, a benefits decision under the
plan will be upheld unless it was “arbitrary, capricious, or an
abuse of discretion.” O’Shea v. UPS Retirement Plan, 837 F.3d
67, 73 (1st Cir. 2016) (citation omitted). Under that standard,
a reviewing court “asks whether a plan administrator’s
determination is plausible in light of the record as a whole,
or, put another way, whether the decision is supported by
substantial evidence in the record.” Colby v. Union Sec. Ins.
Co., 705 F.3d 58, 61 (1st Cir. 2013) (citation and internal
quotation marks omitted). See also Niebauer v. Crane & Co., 783
3 F.3d 914, 922–23 (1st Cir. 2015) (applying the court’s “typical
deferential standard of review” to an ERISA-governed “top hat”
plan). See generally McCarthy v. Commerce Group, Inc., 831 F.
Supp. 2d 459, 480 (D. Mass. 2011) (noting that even if benefits
eligibility decisions under a top hat plan are subject to de
novo review, when the plan administrator is vested with
discretion, the court need only determine whether it exercised
that discretion reasonably and in good faith; hence, the court’s
review is deferential and “the debate over the standard of
review is much ado about not much”).
Background
Rhodes worked at Holden Engineering from 1984 to 1995.
During four of those years, he participated in Holden’s
“Incentive Compensation Plan” - an ERISA-governed, deferred
compensation plan administered for the benefit of Holden’s
highly compensated employees. See Complaint, Exhibit 1
(document no. 1-1), “Holden Engineering & Surveying, Inc.
Incentive Compensation Plan” (the “Plan”). Rhodes claims that
under the terms of the Plan, he was entitled to $15,000 in
deferred compensation for each of those four years, to be
distributed to him upon one of the Plan’s four “Events of
Distribution.” Under the Plan, one of those events of
4 distribution was triggered when Rhodes turned sixty-five, on
December 13, 2014.2
About a week after he turned 65, Rhodes wrote to Holden
asking that the Plan Administrator distribute $60,000 in
benefits to which he was entitled, along with any accrued
interest. He also requested an accounting of his deferred
compensation account. In response, Peter Holden, President of
Holden Engineering and administrator of the Plan, denied Plan
benefits. But, the reasons articulated for that denial seemed
completely untethered to any benefits eligibility criteria
described in the Plan. Peter Holden (presumably speaking as the
Plan Administrator) stated that the Incentive Compensation Plan
was intended to serve as a means by which to encourage employee
retention; it was not designed to be a “retirement plan.”
Moreover, he added, Rhodes’ rights under the plan “terminated”
when he left the company’s employ. Finally, Holden stated that
“[t]his is a position that I am more than willing to defend.”
Letter dated May 15, 2015, from Peter Holden (document no. 1-6)
2 When Rhodes resigned from Holden in 1995, the Plan Administrator, in the exercise of his discretion, elected not to distribute Rhodes’ deferred compensation at that time. See Plan at section 4.3 (defining one of the “Events of Distribution” as follows: “In the Plan Administrator’s discretion, the termination of the Participant’s employment with the Employer.”).
5 (the “Denial Letter”). The Plan Administrator plainly took the
position that Rhodes was entitled to nothing under the Plan.
This litigation ensued.
One can only assume that upon receiving notice of Rhodes’
suit, Holden consulted with an attorney who quickly realized the
factual and legal errors in the Plan Administrator’s Denial
Letter. Indeed, in its Answer to the Complaint (document no.
8), Holden offered an entirely different interpretation of the
Plan than described in the letter to Rhodes. Holden now
acknowledges that Rhodes’ rights under the deferred compensation
plan did not “terminate” when he left Holden’s employ, and it
concedes that Rhodes is entitled to benefit payments under the
Plan.
The only significant point of contention remaining is
whether Rhodes is entitled to the full $60,000 in deferred
compensation as a lump sum, or whether the Plan Administrator
may distribute at least a portion of that money to him in equal
payments, on an annual basis. Also at issue is Rhodes’
assertion that he is entitled to interest earned on the $60,000
in benefits over roughly 30 years, as well as the parties’
cross-motions for an award of reasonable attorney’s fees.
6 Discussion
A. The Plan Provisions.
Holden established the Plan in 1988, but it was made
retroactively effective as of August 1, 1986. Generally
speaking, the Plan provided that each year the Plan
Administrator could designate an eligible employee as a
“Participant” in the Plan for that year. The Plan, at section
2.3. The Plan Administrator would also set the amount of
deferred compensation to which the participating employee was
entitled. In essence, the Plan allowed Holden to award annual
bonuses to select employees, while offering those employees the
option of either taking that bonus “immediately” at the end of
the current year, or deferring it until a later date (when,
presumably, the Participant would be in a lower federal tax
bracket). But, because the Plan was established in 1988, it
provided that participants could not elect an immediate payout
for the years 1986 and 1987. Those years had already passed and
one might infer that Holden did not want to allocate the cash
necessary to make “retroactive” payouts of year-end bonuses for
those earlier years.3
3 Moving forward, however, the Plan required Holden to set aside a “separate fund or funds” each year in an amount necessary to meet its financial obligations under the Plan. The Plan, at section 3.3. See also Id. at section 3.1. The Plan
7 Consequently, under the Plan's terms, deferred compensation
payments for 1986 and 1987 could only be taken upon an “Event of
Distribution” (though, critically, the Plan is silent as to
whether those payments may be taken as a lump sum, or whether
they must be taken in annual installments over some
indeterminate period of time). The relevant section of the Plan
provides as follows:
For any Plan Year with the exception of the 1986 and 1987 Plan Years, any Participant may elect to receive as an immediate cash payment rather than as a deferred future benefit all or any part of the amount which may thereafter be allocated to him for such Plan Year; provided, however, that such election shall be made by the Participant by completing Part II of the Notice and delivering the same to the Plan Administrator prior to the commencement of such Plan Year.
Plan, at section 4.1 (emphasis supplied). The “Notice”
referenced in the Plan was provided to Rhodes in April of 1988.
It, too, had an exception for certain Plan Years. Specifically,
it provided that:
1986, 1987, and 1988 Plan Years. You have been credited with $15,000 with respect to Deferred Incentive Compensation for each of the years 1986- 1988, inclusive. You will not have any election with regard to the form of distribution of this Deferred Incentive Compensation upon the occurrence of an Event of Distribution as regards any Deferred Incentive Compensation for each of these years. You will, however, have the elections indicated in paragraph B
contemplated that those funds could be invested or held in a cash account, in the discretion of the Plan Administrator.
8 below with respect to all plan years beginning in 1989 or thereafter for which you were designated as a Participant.
Notice to Participants Under Holden Engineering Plan (document
no. 1-2) at 1 (emphasis supplied). The Notice then provided
that for Plan Years 1989 and thereafter, the Participant could
make a one-time election to receive payment of his or her
deferred compensation: (a) immediately, at the end of each year;
(b) in equal annual installments for a period not to exceed ten
years, commencing upon occurrence of an Event of Distribution;
or, finally, (c) as a “lump sum,” upon occurrence of an Event of
Distribution. Rhodes elected to receive his deferred
compensation for 1989 (and any following years in which he might
be a Participant) in the form of a lump sum.
In a separate section, the Plan establishes what might be
called a “default” payout mechanism. It provides that if a
Participant fails to file a timely Notice regarding the method
of distribution he or she has elected for the year 1989 (and
subsequent years), the Plan Administrator “shall elect for such
Participant the payout schedule . . . . as if the Participant
had elected the ten (10) year installment payout.” The Plan at
section 4.2. But, as noted above, Rhodes did not fail to
complete and submit the Notice in which he elected the form of
9 payout he wished to receive. Instead, as for the Plan year 1989
(and all subsequent years), he elected to receive a lump sum
upon one of the Events of Distribution. Consequently, that
“default” payout option over a period of 10 years does not apply
to Rhodes. It bears repeating that the Plan does not specify
how the Administrator would make payouts of deferred
compensation for the years 1986, 1987, and 1988 - the years at
issue in this case.
B. The Plan Administrator’s Decisions.
The Plan Administrator’s initial refusal to acknowledge
Rhodes’ rights under the Plan, as well as his litigation-
inspired reinterpretation of the Plan, fall squarely within the
realm of “arbitrary and capricious” decisions. His assertion
that “when an employee left the employ of the company their
rights in this retention plan terminated,” Denial Letter at 1,
was wholly without legal merit and entirely inconsistent with
the Plan's terms. While the Plan Administrator’s recent
concession that Rhodes is entitled to $15,000 immediately (for
the 1989 Plan year) is consistent with Plan provisions and
Rhodes’ elections, his assertion that Rhodes is entitled to the
balance of his deferred compensation in “ten annual installments
of $4500 beginning one year from the date of this [court’s]
10 Order,” Defendant’s Memorandum at 19, is entirely without
support in the Plan.
According to Holden, the Plan is not obligated to begin
paying Rhodes deferred compensation for the years 1986-88 until
one year from now, notwithstanding that the “Event of
Distribution” triggering the Plan's payment obligations occurred
nearly two years ago. That interpretation of the Plan language
is unarguably arbitrary and unreasonable. It is neither
“plausible in light of the record as a whole,” nor does it find
“substantial evidence in the record.” Colby, 705 F.3d at 61.
As noted earlier, the Plan fails to address how
distributions are to be made to Participants for the years 1986,
1987, and 1988 (other than stating that for two years - 1986 and
1987 - “immediate” payout is unavailable, and noting that for
three years - 1986, 1987, and 1988 - Participants cannot elect
their preferred method of payout). The Plan Administrator’s
notion that the Plan may defer payments to Rhodes over a ten-
year period is drawn from entirely unrelated language in the
Plan (which, as discussed below, may or may not be a defensible
exercise of discretion). But, his assertion that the Plan need
not begin making those annual payments until one year after this
11 court resolves the pending motions lacks any support in the Plan
and is, in a word, arbitrary.
Even if, in the absence of specific Plan language, the Plan
Administrator retained the discretion to make equal annual
distributions to Rhodes over ten years - essentially borrowing
the “default” payout scheme from another section of the Plan -
those payouts would not be timed to this court’s resolution of
the parties’ dispute. Instead, the first installment would have
become due upon Rhodes having turned 65 - the “Event of
Distribution” of which Rhodes made the Plan Administrator aware
nearly two years ago. So, even if the court were to endorse (as
a permissible exercise of discretion) the Plan Administrator’s
proposed ten-year payout scheme, Rhodes would (as of December
13, 2016) be entitled to the immediate payment of $28,500 (the
$15,000 lump sum all agree he is due, plus $13,500 representing
three payments of $4,500 to which Rhodes was entitled in
December of 2014, 2015, and 2016). And, each year thereafter,
beginning on December 13, 2017, Rhodes would be entitled to an
additional $4,500. See, The Plan, at section 4.3 (“The Plan
Administrator shall commence distributions to any Participant
. . . upon the earliest to occur of the following Events of
Distribution.”) (emphasis supplied). Nowhere in the Plan is
there any suggestion that the Plan Administrator may delay
12 making benefit payments for two or three years after the Event
of Distribution. And, there is certainly nothing that would
authorize the Plan Administrator to delay making such payments
until one year after ordered to do so by a court of competent
jurisdiction.
C. Interest.
The next question presented is whether Rhodes is entitled
to interest on his deferred compensation from the date on which
it vested through the present. The Plan is decidedly vague on
that point. Section 3.2 provides that “Funds set aside or
earmarked to meet the Employer’s obligations hereunder may be
kept in cash, or invested and reinvested, in the discretion of
the Plan Administrator.” It then goes on to provide that if
those funds are invested in stocks, bonds, or other securities,
the Plan Administrator will allocate among the various
Participants’ accounts the costs associated with maintaining
those investments, as well as any investment gains or losses, on
a pro rata basis. It does not, however, speak to “interest”
that might be earned if the funds were kept in “cash” (say, in
the form of a bank account).4
4 Of course, the Plan’s silence on that point may be easily explained: funds deposited into an interest bearing account would not have any “losses” or administrative fees that would have to be allocated across various Participants’ accounts; only
13 Elsewhere in the Plan, however, reference is made to
“interest” earned on those retained funds. Section 5.1 of the
Plan provides that the “Employer shall maintain accurate and
detailed records of each Participant’s Bookkeeping Account.”
That section of the Plan goes on to require the Employer to
provide “to each Participant, within ninety (90) days following
close of each Plan Year, a written account” which shall include
“the amount of [deferred incentive compensation] and interest
credited to such Bookkeeping Account” as of the last day of the
Plan year. Id. (emphasis supplied).5
The record does not reveal how those “separate funds” were
held, other than counsel’s representation that the Plan
Administrator “elected not to invest funds credited to
Plaintiff.” Defendant’s memorandum at 7-8. See also
Defendant’s Statement of Disputed Facts (document no. 14), at
interest, at a uniform rate, would have to be credited to those accounts.
5 Holden erroneously suggests that, because the deferred compensation funds owed to each Participant were not held in an investment account, the Plan Administrator was not required to maintain “Bookkeeping Accounts” for each Participant, nor was he required to provide Participants with an annual accounting. See Defendant’s Statement of Facts (document no. 14) at para. 9. That claim is entirely inconsistent with the Plan language. See The Plan, at section 5.1. See also Id. at sections 1.1.2, 2.3, 4.2.1, and 4.4.
14 para. 3. But, if those funds were deposited into an interest
bearing account of some sort, Plan Participants would likely be
entitled to any interest earned, net of any related expenses.
At a minimum, the Plan Administrator is obliged to disclose to
Rhodes precisely how he held those funds (presumably, it was
done in compliance with the requirements of the Plan), and he
must provide Rhodes with the (required) accounting he requested.
See The Plan, at section 5.1.
D. The Appropriate Remedy.
Under ERISA, if a court concludes that a plan administrator
has acted arbitrarily and/or capriciously in denying a claim for
benefits, it has the discretion to either award those benefits
immediately or to remand the matter to the plan administrator
for “a renewed evaluation of the claimant’s case.” Cook v.
Liberty Life Assur. Co., 320 F.3d 11, 24 (1st Cir. 2003). The
unique facts presented in each case will typically dictate which
resolution is more prudent. See generally Quinn v. Blue Cross &
Blue Shield Ass’n, 161 F.3d 472, 477 (7th Cir. 1998) (collecting
cases in which courts concluded that remand is appropriate when
the factual record is undeveloped, the plan administrator
misconstrued the terms of the plan, and/or when the proper
interpretation of the plan is uncertain).
15 Here, given the circumstances presented, the court
concludes that remand to the Plan Administrator for further
factual development and evaluation is appropriate. For example,
it would be helpful to know how the Plan Administrator has
historically interpreted the Plan and addressed requests like
Rhodes’ - that is, how he has distributed deferred compensation
to other Plan Participants for the years 1986, 1987, and 1988.
Moreover, because the Plan Administrator denied Rhodes’ claim
for benefits, Rhodes never had the opportunity to persuade the
Plan Administrator to exercise his discretion regarding the
timing of payments in a particular manner. Additionally, Rhodes
needs to know how the Plan Administrator held those funds and,
if they were held as cash, whether they were segregated into an
interest-bearing account.
As noted earlier, the Plan is silent as to how the Plan
Administrator should (or may) distribute Rhodes’ deferred
compensation for the years 1986, 1987, and 1988, but, in a
different context - when a Participant has failed to notify it
of his or her payout preferences for the years 1989 and forward
- the Plan adopts a ten-year annual payment scheme as a sort of
“default option.” See Plan at section 4.2. Consequently, it is
possible that such a payout scheme would lie at the outer limits
16 of the Plan Administrator’s discretion with respect to Rhodes’
claim for benefits for the years 1986, 1987, and 1988.6
But, of course, the Plan Administrator may have
consistently exercised his discretion differently in the past
under identical circumstances, and such information may be
relevant in determining the limits of his discretion in this
case. For example, if in all prior cases the Plan Administrator
disbursed deferred compensation from 1986, 1987, and/or 1988 to
Participants in a lump sum, it might arguably amount to an abuse
of discretion should he elect to treat Rhodes differently,
depending on the reasons articulated to support the exercise of
his discretion in that manner. All of this is, of course,
speculative and reflects that the record is undeveloped on these
important issues.7
6 Because the Plan is silent, limits must necessarily be inferred. The Plan Administrator could not, for example, sustainably decide to pay Rhodes’ benefits over, say, 100 years.
7 Parenthetically, the court notes that the fact that Peter Holden acted as both the President of Holden Engineering and the Plan Administrator, coupled with the fact that the Plan is unfunded, present a structural conflict of interest. See, e.g., McCarthy, 831 F. Supp. 2d at 485. Yet, neither party has addressed how (if at all) that might affect the Plan Administrator’s discretion or limit his ability to distribute Rhodes’ deferred compensation over a substantial period of time.
17 On this record, the outer limits of the Plan
Administrator’s permissible discretion in distributing to Rhodes
his deferred compensation for the years 1986, 1987, and 1988
simply cannot be determined. Nor is it apparent how the Plan
Administrator held those funds over the intervening years, and
whether interest accrued on those funds. Consequently, the
court concludes that remand to the Plan Administrator for
further proceedings, including full disclosure of all relevant
information to the beneficiary, is appropriate.
E. Attorney’s Fees.
Both parties have moved for an award of reasonable
attorney’s fees. Holden invokes a provision of the Plan that
says it shall be entitled to such fees should it “substantially
prevail” in any action in which a Participant challenges any
provisions or operations of the Plan. The Plan, at section 8.4.
Rhodes, on the other hand, invokes ERISA’s fee-shifting
provision, which states that “the court in its discretion may
allow a reasonable attorney’s fee and costs of action to either
party.” 29 U.S.C.A. § 1132(g)(1). See also Hardt v. Reliance
Standard Life Ins. Co., 560 U.S. 242, 255 (2010) (“[A] fees
claimant must show ‘some degree of success on the merits’ before
a court may award attorney’s fees under § 1132(g)(1). A
claimant does not satisfy that requirement by achieving ‘trivial
18 success on the merits’ or a ‘purely procedural victory,’ but
does satisfy it if the court can fairly call the outcome of the
litigation some success on the merits without conducting a
lengthy inquiry into the question whether a particular party’s
success was ‘substantial’ or occurred on a ‘central issue.’”)
(citations and internal punctuation omitted).
Holden’s request for attorney’s fees is denied. The Plan
Administrator’s denial of Rhodes’ application for benefits under
the Plan was not only incorrect, it was plainly arbitrary and
capricious. And, it forced Rhodes to hire legal counsel and
file this action in order to vindicate his clearly established
rights under the Plan. Holden cannot be said to have
“substantially prevailed” in this action. Rhodes, on the other
hand, has secured a reversal of the denial of his benefits
request, an immediate award of a portion of those benefits, and
remand to the Plan Administrator so he may fully and carefully
consider how he will distribute the remaining deferred
compensation to which Rhodes is entitled. It is beyond doubt
that Rhodes’ victory was substantially more than “trivial” or
“purely procedural.” Hardt, 560 U.S. at 255.
19 Conclusion
Rhodes was forced to bring this action when the Plan
Administrator denied that he had any rights under the Plan, and
expressed his intent to defend that decision. The initial
denial of Rhodes’ application for deferred compensation
benefits, as well as the Plan Administrator’s latest
(unsupported) interpretation of the Plan language, are arbitrary
and capricious positions that Rhodes should not have had to
challenge by seeking legal counsel and bringing suit.
In light of the foregoing, Holden Engineering’s motion for
judgment on the administrative record (deemed a motion by the
Plan and Plan Administrator as well) (document no. 19) is
denied. Rhodes’ motion (document no. 17) is granted in part,
and denied in part, as follows.
This matter is hereby remanded to the Plan Administrator
for further proceedings consistent with this order. While a
final interpretation of the Plan language must await those
proceedings on remand, this much may be said with certainty:
even if the outer limits of the Plan Administrator’s discretion
would permit him to distribute Rhodes’ deferred compensation in
10 equal, annual payments, Rhodes is still entitled to the
immediate payment of $28,500. That sum breaks down as follows:
20 $15,000.00 1989 Plan year deferred compensation, payable in a lump sum upon Rhodes’ 65th birthday, December 13, 2014.
$4,500.00 First of ten equal annual payments, also due on December 13, 2014.
$4,500.00 Second of ten equal annual payments, due on December 13, 2015.
$4,500.00 Third of ten equal annual payments, due on December 13, 2016.
Accordingly, on or before December 14, 2016, the Plan
Administrator of Holden Engineering & Surveying, Inc. Incentive
Compensation Plan shall pay to Rhodes the sum of $28,500.00.
Additionally, the Plan Administrator shall provide Rhodes with
an accounting of his deferred compensation account and shall
disclose to him the manner in which the Plan held those funds
during the years between 1986 and the present.
Rhodes is also entitled to an award of costs and reasonable
attorney’s fees and he shall present his request for the same to
the Plan. If the parties cannot agree on a reasonable award of
costs and attorney’s fees prior to January 10, 2017, Rhodes
shall submit a well-supported motion for such an award to the
court. The Plan may file an objection within 10 days
thereafter.
21 The Clerk of Court shall amend the case caption to include
as named defendants both “The Holden Engineering & Surveying,
Inc. Incentive Compensation Plan” and “Peter Holden, as Plan
Administrator.” If any party objects, it shall file a written
objection on or before December 23, 2016.
The Clerk of Court shall enter judgment in accordance with
this order and close the case (subject to reopening, upon motion
of either counsel, if necessary).
SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
December 5, 2016
cc: Benjamin T. King, Esq. James E. Higgins, Esq.