USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_________________________

No. 95-1704

EDMUND H. BELANGER, ET AL.,

Plaintiffs, Appellants,

v.

WYMAN-GORDON COMPANY,

Defendant, Appellee.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

___________________

_________________________

Before

Selya, Circuit Judge,

_____________

Aldrich, Senior Circuit Judge,

____________________

and Cyr, Circuit Judge.

_____________

_________________________

Mark I. Zarrow, with whom Lian, Zarrow, Eynon & Shea was on
_______________
__________________________
brief, for appellants.
John O. Mirick,
_______________

with

whom Mirick, O'Connell, DeMallie &

_______________________________

Lougee was on brief, for appellee.

______

_________________________

December 14, 1995

_________________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
______________

This

appeal

requires us

to

decide

what constitutes

Employee

a benefit

Retirement Income

1001-1467 (1988).

"plan" for

Security Act

The heart

purposes of

(ERISA), 29

of the appellants'

the

U.S.C.

case is

their

contention that a series of four early retirement offers extended

by

their employer

plan.

The

over a

district court

after a bench trial.

four-year period constitute

thought not, and

an ERISA

dismissed the

suit

principally from

the

We affirm.

I.
I.
__

Background
Background
__________

We

take

the

underlying

facts

parties' pretrial stipulations.

Facing an uncertain economic future, defendant-appellee

Wyman-Gordon Co. (the company) decided

to reduce its work

force

in hopes of improving its overall financial outlook.

made its first move in November

off

loyal minions,

1987.

the company

Rather than simply laying

offered all

union workers (characterized as

The company

age-qualified non-

all "weekly and monthly salaried

employees") an opportunity for early retirement (Offer No.1).

make departing

over

a sweeter

and beyond

amounting to one

sorrow, the

regular retirement

week's pay for each

days' pay for each

year of service

multiplied by 110%.

company proposed

benefits, a

to pay,

lump-sum bonus

year of service, plus

in excess of fifteen

Offer No. 1 contained no

To

two

years,

cap on the number

of service years that could be included in calculating the amount

of

the one-time

bonus.

Some

eligible employees

accepted the

offer and some did not.

In January

1990, the company,

still in the

throes of

downsizing, made a similar early retirement offer (Offer

It structured this offer

less complicated

in much the same manner,

formula for computing retirement

week's salary for each year of

No. 2 did

not impose a

service.

ceiling on the

No. 2).

but devised a

bonuses:

one

Like Offer No. 1, Offer

number of service

years

that could figure

not all

into the calculation.

consummation

company's

corporate

ardently

America,

sought but

prognosis remained

early retirement offer (Offer

offer contemplated that the

bonus would be calculated

of Offer

financial

seldom

gloomy,

security

achieved.

but

is

When

it sponsored

No. 3) in January

the

yet another

of 1991.

This

amount of an individual's retirement

by the same formula used

No. 2 (multiplying one

for purposes

week's pay times the

number of

years), but capped the number of years includable in the

computation at twenty-five.

monthly salaried employees

Offer

some

of the eligible employees accepted the offer.

In

service

Once again,

No. 3, including the

plaintiffs and

appellants

Almost

two-thirds of the weekly and

who were eligible

to do so

eighteen persons who

(all

of

whom had

accepted

appear here as

spent

more

than

twenty-five years in the company's service).

Despite

company

the winnowing

apparently

that

convinced

occurred

that strength

over time,

lay

the

in lack

of

numbers

undertook further cost-reduction measures in October of

1991.

These

included

salary

cuts

and

yet

another

early

retirement

offer (Offer

No. 4).

As

with the

two immediately

preceding

proposals,

the

carrot

that

the

company

dangled

consisted of a bonus calculated on the basis of one week's salary

for each year of

service.

This time, however,

the offer accessible to more

age

the company made

employees (by lowering the

minimum

for early retirement) and abjured any ceiling on the maximum

number

of

service years

Thirty-eight of

includable in

figuring the

lump sum.

forty-six eligible employees accepted

Offer No.

4.

The

some)

were displeased

no little

(and quite

upon learning of the more generous terms embodied in Offer

No. 4.

as

appellants

an

Each of them had accepted a capped offer

inducement

to

take

effectively reduced their early

early

retirement,

Offer No.

and

the

cap

retirement bonuses by an average

of roughly $9,950 per

inter
_____

alia
____

that

constituted a

retiree.

the series

They sued the

of

plan under the

four

company, alleging

early retirement

terms of ERISA, 29

offers

U.S.C.

1002;

that the plan failed to comply with ERISA's imperatives, e.g, the

company had not provided a written plan description or a protocol

for amendment,

see 29
___

U.S.C.

1022

& 1102;

and that

these

violations entitled them to damages based on what they would have

received had Offer No. 3 not been capped, together with interest,

counsel fees, and other redress.

After conducting a

rejected

The

court

the central premise

held

that

the

non-jury trial, the district

underlying the

early

retirement

court

appellants' claim.

offer

which

the

appellants accepted did not constitute a plan for ERISA purposes,

and

that, therefore, the company was not obliged to heed ERISA's

requirements.

See Belanger v. Wyman-Gordon Co., 888 F. Supp. 9,

___ ________
________________

12 (D. Mass. 1995).

The appellants assign error.1

II.
II.
___

Discussion
Discussion
__________

A.
A.
__

Standard of Review
Standard of Review
__________________

The question whether a given employee benefit or set of

benefits is a plan

requires a

properly governed by the strictures

certain level

of judicial

versatility.

of ERISA

Because an

inquiring court must both assess the facts and apply the law, two

different standards of review

come into play.

"For

purposes of

appellate review, mixed questions of fact and law ordinarily fall

along

review

degree-of-deference

for law-dominated

questions

fact-dominated questions."

F.3d

1129,

1132 (1st

continuum,

Cir.

Johnson
_______

1995).

to

ranging

from

plenary

clear-error review

for

v. Watts Regulator Co., 63

____________________

At

the

near

end of

the

continuum, the district court's interpretation of the word "plan"

as it is used in ERISA poses a question of law subject to de novo

review.

At the

into the nature

the instant

far end of

the continuum, the

and scope of the

case

court's inquiry

benefits actually at issue

demands factfinding,

and

is to

that

in

extent

____________________

1In
claims.
Belanger,
________

the district
The

court

court, the
found

888 F. Supp. at

against

appellants also
them

12-13, and only

been preserved for review.

on

all

raised other
fronts,

see
___

this ERISA claim has

reviewable only for clear error.

trial court accurately applies

existence vel non of an

___ ___

In other words, as

long as the

the relevant legal standards, the

ERISA plan is principally a question

of

fact, and the court of appeals must defer to the district court's

judgment unless that judgment is clearly erroneous.

See Wickman
___ _______

v. Northwestern Nat'l Ins. Co., 908 F.2d 1077, 1082

____________________________

(1st Cir.),

cert.
_____

denied, 498 U.S. 1013

______

Santander P.R.,
______________

902 F.2d

(1990); see also

___ ____

148, 152 (1st

Cumpiano v. Banco
________
_____

Cir. 1990)

(explaining

that there is no clear error "unless, on the whole of the record,

[the court of appeals] form[s] a strong, unyielding belief that a

mistake has been made").

B.
B.
__

The Meaning of "Plan"

The Meaning of "Plan"
_____________________

The text of ERISA itself

what

constitutes a

1002(2)(A), merely

benefit

plan

maintained

employees.

covered "plan."

The

statute, 29

constructs a tautology, defining

as "any

by

affords scant guidance as

plan,

an employer

program

that

or

provides

to

U.S.C.

an employee

fund" established

or

certain benefits

to

Relying on the purposes undergirding

the statute to

give meaning to this cryptic language, the Supreme Court has made

it very clear that an employee

for

purposes of

ERISA only

benefit may be considered a

if it

involves the

plan

undertaking of

continuing

employer

administrative

and

financial

obligations

by

the

to the behoof of employees or their beneficiaries.

See
___

Fort Halifax Packing Co.

_________________________

v. Coyne, 482
_____

U.S. 1,

12 (1987); see
___

also District of Columbia

____ ____________________

v. Greater Wash. Bd. of Trade, 113 S.

___________________________

Ct.

580, 584 n.2 (1992) (construing Fort Halifax as holding that

____________

plan exists

only if

an employer

has "some

minimal, ongoing

`administrative' scheme or practice").

Fort Halifax is
_____________

There, the

Court

the beacon

rejected an

The

we

ERISA preemption

Maine statute requiring employers

payment to displaced employees

by which

must steer.

challenge to

to tender a one-time severance

in the event of a

plant closing.

Court held that Maine's plant-closing law did not succumb to

ERISA's

preemptive

tribute

comprised no

force

because

more

than a

triggered by a single event."

the

legislatively

"one-time, lump-sum

482 U.S. at 12.

maintain,

original).

an employee

benefit

plan."
____

mandated

payment

Consequently, the

state statute neither "establishe[d], nor require[d] an

to

Id.
___

employer

(emphasis

in

Two of ERISA's cardinal goals

and

protection

of employees

protection of employers

appear to

Court's interpretation of

what constitutes

former

acknowledged

goal,

the

Court

have

influenced the

a plan.

that

As to

Congress

designed

ERISA's preemption provision partially to protect employers

"patchwork

benefits.

Court

scheme"

Id.
___

of

regulations in

This concern has

reasoned, in

a one-time

employer's only obligation is

By

contrast, this

concern

employee

benefits

that

assets,

"creat[ing]

little or no

payment situation

to draw a

is highly

place

need

respect

pertinent

in

employee

which the

See
___

in respect

demands" on

financial

from

pertinence, the

single check.

"periodic

for

to

the

id.
___

to

employer

coordination

and

control."

Id.
___

As

to ERISA's

other, more

recognized that, in general, ERISA's

important goal,

the Court

substantive protections are

intended to safeguard the financial integrity of employee benefit

funds, to permit employee monitoring of earmarked

ensure that employers' promises are kept.

assets, and to

See id. at 15.

___ ___

Since

a single-shot benefit requires no greater assurance than that the

check

will

not

bounce,

ERISA's

panoply

virtually nothing to do with such a

of

simple task.

More elaborately structured benefits, however,

set

of concerns.

protections

has

See id. at 16.

___ ___

raise a different

As the Court observed, ongoing investments and

obligations are uniquely vulnerable to employer abuse or employer

carelessness, and thus require

ERISA's special prophylaxis.

See
___

id.
___

The

existence

employer's

of

upshot is that, in the albedo of Fort Halifax, the

____________

a plan

turns

on

benefit obligations.

judgments in this area on

is no mean feat.

the

nature

Withal,

and extent

of

an

making particularized

the basis of vague etchings

of policy

As we wrote on an earlier occasion, "so long as

Fort Halifax prescribes

_____________

complexity

based on

the extent

of administrative obligations, line drawing

necessary and

sides."

a definition

close

cases

will approach

the

line

and

. . . is

from

both

Simas v. Quaker Fabric Corp., 6 F.3d 849, 854 (1st Cir.

_____
___________________

1993).

There

is

no

authoritative

checklist

that

consulted to determine conclusively if an employer's

can

be

obligations

rise to

the level

factors may

of an

be suggestive,

necessarily constitutes

program."

ERISA plan.

While

typically "no

the establishment

wide array

single act

of

in itself

of the plan,

fund or

Donovan v. Dillingham, 688 F.2d 1367, 1373 (11th Cir.

_______
__________

1982) (en banc).

Yet, some factors tend to be more indicative of

the existence of a plan than others.

One very important consideration

of

all the

surrounding

facts and

employee would perceive an ongoing

provide

employee benefits.

is whether, in

circumstances, a

light

reasonable

commitment by the employer to

See Henglein
___ ________

v. Informal Plan for

__________________

Plant Shutdown Benefits for Salaried Employees, 974 F.2d 391, 400
______________________________________________

(3d Cir. 1992);

at

Donovan, 688 F.2d at 1373;

_______

1135 (advocating

whether an

within

should judge

employer "established

the

scope

vantage").

of

ERISA

periodic benefits

See
___

Henglein, 974
________

the

or maintained" a

"from

Thus, evidence that an

long-term or

telling.

that courts

cf. Johnson, 63 F.3d

___ _______

the

question of

benefit plan

employees'

place

of

employer committed to provide

to its employees

F.2d at

400;

will often

see also
___ ____

be

Kenney v.
______

Roland Parson Contracting Corp., 28 F.3d 1254, 1258-59 (D.C. Cir.

_______________________________

1994) (explaining that a plan may be created, even in the absence

of formal documentation, by

plan

"an employer's representation that a

has been established, in

conjunction with any action, such

as

withholding wages for contribution to such a plan, that tends

to

confirm

its representations").

Anticipating

this reality,

this court stated in Wickman, 908 F.2d at 1083, that the "crucial
_______

factor in determining if a `plan' has been established is whether

the [proffering of an

intention

employee benefit] constituted an expressed

by the employer to

provide benefits on

a regular and

long term basis."

We

end where we began.

In this

cloudy corner of the

law, each case must be

appraised on its own facts.

All that can

be stated with assurance is that Fort Halifax controls.

____ _______

Thus, so

long as a proffered benefit does not involve employer obligations

materially beyond those

F.3d at 853-54,

reflected in Fort Halifax, see

____________ ___

the benefit will not amount to

Simas, 6
_____

a plan under the

ERISA statute.2

C.
C.
__

Analysis
Analysis
________

Viewed

against this

conclusion

that ERISA

retirement

offers

offers,

whether

did

backdrop,

not apply

is eminently

they

are

to

the

the series

supportable.

assessed

district

court's

of

early

Nothing in

individually

or

in

the

the

aggregate,

reflects

administrative

the

company's

assumption

or financial obligation

to its

of

an

ongoing

employees within

the purview of Fort Halifax.

____________

Taken

singly,

the

early

retirement

offers

involve

which an

employer

had to

____________________

2Simas
_____
fulfill,

involved a

under

state

situation in
law,

obligations

analogous

to,

but

materially beyond, those imposed under the Maine statute at issue

in Fort Halifax.
_____________
unlike

the

The Massachusetts statute

Maine

determinations, based

statute,
on at

over a prolonged time period.

we held
the

that ERISA

statute imposed

required

addressed in Simas,
_____

individualized

least one nonmechanical

See
___

obligations on

Thus,

statute because

the employer

See id. at 853-54.

___ ___

10

criterion,

Simas, 6 F.3d at 853.

_____

preempted the Massachusetts

those involved in an ERISA plan.

employer

equivalent to

precisely the kind

of one-time, lump-sum

Halifax Court clearly excluded from

_______

See 482
___

U.S. at

mechanical

required

12.

calculate or

complicated

to distribute

pivoted on a single,

of

Fort
____

the pantheon of ERISA plans.

The company's offers

determination

no

payment that the

eligibility

administrative

the promised

time-specific event.

hinged on

and,

if

apparatus

benefit.

They did

a purely

accepted,

either

The

to

offers

not involve

promises that had to be

company thereby make

kept over a lengthy period, nor

any lasting financial commitment

of a type

that might implicate ERISA's substantive protections.

line is

single

that the company

check to

retirement

sufficiently

outside

each

offer.

close

If this

is not

to

Fort Halifax
____________

the

See
___

time payment is not an

F.3d 1530,

The bottom

to write

who accepted

Fort Halifax
____________

model

Fort Halifax, 482

____________

Medtronic Bio-Medicus, Inc.,

___________________________

(8th Cir. 1994) (holding

969

more than propose

eligible employee

ERISA's sphere.

also Kulinski v.
____ ________

did no

did the

an early

redux,

that

it is

it falls

U.S. at 12; see

___

21 F.3d 254,

that a severance plan involving

258

a one-

ERISA plan); Angst v. Mack Trucks, Inc.,

_____
__________________

1539 (3d

Cir. 1992)

(similar); Fontenot
________

v. NL
__

Indus., Inc., 953 F.2d 960, 962-63 (5th Cir. 1992) (similar).
____________

The more

intriguing question

the incidence of serial

not a

lone offer but

roughly four years

it does.

itself, is

the fact that the

a succession

changes the

Each of the

beyond

offers

in this case

of offers over

result.

reach.

11

The

company made

a period

of

We do not believe that

four early retirement

ERISA's

is whether

offers, in and

appellants

have

of

not

advanced

any convincing

reason why the

sheer number

of ERISA-

exempt early retirement offers, without more, serves to alter the

Fort Halifax
_____________

parade

ERISA

analysis.

To be

sure,

of early retirement offers

where,

future offers.

for example,

in some

circumstances a

might constitute a plan under

employees rely

on the

promise of

Cf. Moeller v. Bertrang, 801 F. Supp. 291, 294-95

___ _______
________

(D.S.D. 1992) (emphasizing the importance of employee reliance on

employer promises of

no

future benefits).

But this

such concatenation of circumstances.

record reveals

Here, the

whole is no

greater than the sum of the parts.

Three

First,

the

pieces of

administration

information confirm

of

the offers

this conclusion.

neither

required

special

mechanism

decisionmaking.

nor

engendered

Second, the

that the serial offers

had

need

record is

a defined sequence.

no promises of financial

for

devoid of

were the product of a

or that the company ever represented

were linked in

nonmechanical

any evidence

prearranged design

to its work force that they

Consequently,

the employees

obligation on which

to rely, and,

thus, no need for ERISA's substantive protection.

The

finishing

touch is the district court's factual finding that the offers did

not impose continuing obligations

financial nature.

See
___

of either an administrative or

Belanger, 888
________

F. Supp.

at 12.

The

appellants have pointed to no facts that remotely contradict this

factual finding.

To sum up,

it appears

that the

company devised

each

offer

without giving thought to possible future offers, and that

12

each

offer was motivated

Just as four eggs,

by a bona

fide need to

without more, do not

reduce costs.

make an omelette,

four

independent early retirement offers, without visible ties to each

other and without

proof of

an enduring obligation

owed by

employer to the employees, do not make an ERISA plan.3

the

III.
III.
____

Conclusion
Conclusion
__________

We need go no further.

matter of fact,

The district court found, as a

that the company's four

early retirement offers

involved no continuing administrative or

financial obligation on

its part, and thus concluded, as a matter of law, that the offers

together did not constitute a plan under ERISA.

we emphatically agree.

Affirmed.
Affirmed.
________

On this

record,

____________________

3Although the

appellants press heavily on the fact that the

same executive designed each

to prove that he did

retirement offer, this does nothing

so as part of an ERISA plan.

_________________________

Indeed,

the

uncontroverted evidence strongly

suggests that successive offers

were

the

necessary

only

because

corporate

profit-and-loss

statement failed to recuperate in the projected time frame.

13