FISHER v. PENSION BENEFIT GUARANTY CORPORATION

Filing 25

MEMORANDUM OPINION: Finding that the PBGC Appeals Board failed to justify adequately its denial of Fisher's request for a lump-sum payment, the Court hereby grants Fisher's motion for summary judgment and denies the PBGC's motion for summary judgment. The case is remanded to the PBGC for further proceedings consistent with this Memorandum Opinion. See Memorandum Opinion for details. Signed by Judge Randolph D. Moss on 2/25/2016. (lcrdm2, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JOSEPH V. FISHER,
Plaintiff,
v.

Civil Action No. 14-1275 (RDM)

PENSION BENEFIT GUARANTY
CORPORATION,
Defendant.

MEMORANDUM OPINION
This is an action brought under the Administrative Procedure Act, 5 U.S.C. § 701 et seq.,
to recover unpaid retirement benefits regulated by the Employee Retirement Income Security Act
of 1974 (“ERISA”). ERISA establishes certain limitations on the payment of retirement benefits
by failing plans. An administrator of such a plan—known as a “distressed” plan—is barred from
making payments other than in the order established by the statute, and from making lump-sum
payments of any kind. 29 U.S.C. §§ 1341(c)(3)(D), 1344. But the text of ERISA states that such
limitations apply only once the administrator provides notice that the plan will be terminated. Id.
§ 1341(c)(3)(D)(i)(I). This case is about the administrator’s obligations in the period before it
provides notice of termination.
Plaintiff Joseph Fisher is a former executive of a corporation that sponsored a retirement
plan governed by ERISA. He requested a lump-sum benefits payment several months before the
plan administrator submitted formal notice of its intent to terminate the plan. The administrator
denied Fisher’s request on the ground that “applicable law prohibits the payment of lump sum
distributions in anticipation of the termination of the Plan.” The plan was terminated, and the

Pension Benefit Guaranty Corporation (“PBGC”) took over as trustee. Fisher submitted another
request for a lump-sum benefits payment, which the PBGC again denied, citing a PBGC policy.
Fisher now brings this action, arguing that the PBGC should have honored his request for a
lump-sum payment of his retirement benefits.
This matter is before the Court on the parties’ cross-motions for summary judgment.
Because the Court concludes that the PBGC Appeals Board failed to justify its decision not to
honor Fisher’s request for a lump-sum payment, it will REMAND the matter to the agency for
further proceedings.
I. BACKGROUND
A.

Statutory and Regulatory Background
In 1974, animated by concerns over the growth in size and the unregulated state of the

employee benefit plan sector, Congress passed the Employee Retirement Income Security Act
(“ERISA”), Pub. L. No. 93-406, 88 Stat. 829 (codified at 29 U.S.C. § 1001 et seq.). “Among the
principal purposes of this ‘comprehensive and reticulated statute’ was to ensure that employees
and their beneficiaries would not be deprived of anticipated retirement benefits . . . .” PBGC v.
R.A. Gray & Co., 467 U.S. 717, 720 (1984) (quoting Nachman Corp. v. PBGC, 446 U.S. 359,
361–62 (1980)). In order to accomplish this purpose, Title IV of ERISA created a plan
termination insurance program, administered by the PBGC. Id.; see 29 U.S.C. § 1301 et seq.
That program protects plan participants “by guaranteeing a class of ‘nonforfeitable benefits,’
reimbursing eligible participants or beneficiaries when a guaranteed plan terminates without
sufficient funds.” Davis v. PBGC, 734 F.3d 1161, 1164 (D.C. Cir. 2013) (quoting 29 U.S.C.
§ 1322(a)). The basic premise of this program is that “if a worker has been promised a defined

2

pension benefit upon retirement[,] . . . he actually will receive it.” Nachman Corp., 446 U.S. at
375.
One central function of Title IV is to facilitate the orderly wind-down of retirement plans
that cannot meet their payment obligations. Such a retirement plan can enter into what is known
as a “distress termination” if the PBGC finds that it has “insufficient assets to satisfy its pension
obligations.” Davis, 734 F.3d at 1164; 29 U.S.C. § 1341(c). A plan in distress must provide
sixty days’ notice to all affected parties, including participants and the PBGC—an event known
as a “notice of distress termination.” Id. § 1341(a)(2), (c)(3)(D)(i)(I). Once the plan has
provided such notice, the PBGC determines whether the plan has sufficient assets to pay all,
some, or none of its liabilities. Id. § 1341(c)(3)(A)–(C). If the PBGC determines that the plan
lacks the assets to pay all liabilities that are guaranteed by Title IV, “the PBGC becomes trustee
of the plan, taking over the plan’s assets and liabilities.” PBGC v. LTV Corp., 496 U.S. 633, 637
(1990); 29 U.S.C. § 1341(c)(3)(B)(iii). In order to pay those benefits guaranteed by ERISA, the
PBGC “uses the plan’s assets to cover what it can,” but “then must add its own funds to ensure
payment of most of the remaining . . . benefits.” LTV Corp., 496 U.S. at 637.
Because such plans do not have the resources to meet their obligations, ERISA imposes
certain limitations on what a plan administrator (and the PBGC) may pay the participants of a
distressed plan. Most basically, ERISA “guarantees” only a portion of the benefits to which
participants would have been entitled to under a plan. 1 See 29 U.S.C. § 1322. ERISA also

1

Specifically, the statute limits “guaranteed” benefits to a monthly payment “equal to the lesser
of” (a) an employee’s “average monthly gross income from his employer” during the 5-year
period in which he was most highly compensated or (b) “$750 multiplied by a fraction” that is
indexed to the contribution and benefit base set out at 42 U.S.C. § 430. 29 U.S.C. § 1322(b)(3).
The PBGC represents (and Fisher does not contest) that the benefits guaranteed at the time of
Fisher’s plan’s termination were $3,698.86 per month. Dkt. 17-1 at 9.
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establishes a priority order under which a plan administrator (or the PBGC) shall pay participants
if the plan has sufficient assets to pay guaranteed benefits, but not enough to pay all benefits. Id.
§ 1344(a). ERISA imposes several other restrictions on the benefits payable by an administrator
of a plan entering into a distress termination (or by the PBGC). For instance, the statute states
that any benefits that result from an amendment to a plan that was executed within five years of
the date on which the plan terminated shall be “phased in” over the course of five years, not
honored as provided in the plan document. Id. § 1322(b)(1), (7). The purpose is to protect the
PBGC—and the plan’s beneficiaries as a whole—from amendments that increase the benefits
made payable to some (but not all) beneficiaries in the period of time immediately preceding a
plan’s termination.
At issue in this case are the statutory provisions that govern the payment of benefits by a
plan entering into a distress termination. ERISA imposes certain payment restrictions that take
effect “on the date on which the plan administrator provides a notice of distress termination to
the” PBGC. See id. § 1341(c)(3)(D)(i)(I). The administrator of such a plan is prohibited from
paying benefits except those “guaranteed by the [PBGC]” under 29 U.S.C. § 1322 and those “to
which assets are required to be allocated” under 29 U.S.C. § 1344. Id. § 1341(c)(3)(D)(ii)(IV).
Most significantly, for present purposes, the administrator of a plan entering into a distress
termination is also required to “pay benefits attributable to employer contributions, other than
death benefits, only in the form of an annuity.” Id. § 1341(c)(3)(D)(ii)(II) (emphasis added).
These provisions, which were enacted in 1986 as part of a revision to ERISA, were meant “to
increase the likelihood that participants and beneficiaries . . . will receive their full benefits” by
ensuring that the limited resources of a distressed plan were allocated for the benefit of all
participants. H.R. Rep. No. 99-241, pt. 2, at 27 (1985), as reprinted in 1986 U.S.C.C.A.N. 685,

4

685. The provision limiting the lump-sum distribution of plan assets, in particular, was enacted
in response to congressional concern that such distributions “would dilute plan assets and may
adversely affect participants’ benefits under Title IV and the PBGC’s recovery.” Id. at 50.
The PBGC has promulgated regulations and policies to implement Title IV. It has
promulgated regulations that mirror § 1341’s prohibition on paying lump-sum benefits. See 29
C.F.R. § 4041.42(b)(2) (prohibiting plan administrators from “[p]aying benefits attributable to
employer contributions, other than death benefits, in any form other than as an annuity,” as of
“the first day [the administrator] issues a notice of intent to terminate”). It has also promulgated
regulations that prohibit administrators from allocating plan assets “upon plan termination in a
manner other than that prescribed in” 29 U.S.C. § 1344, and that provide that “a distribution . . .
of assets . . . made in anticipation of plan termination[] is considered to be an allocation of plan
assets upon termination.” Id. § 4044.4(a), (b). It has even promulgated regulations that bar the
PBGC itself from paying benefits as a lump sum, at least in most circumstances. Id. § 4022.7(a).
Finally, the PBGC has adopted an internal policy under which it will not pay out a request for a
lump-sum payment made to a plan in distress “even if [the request] was received before the date
of the Notice of Intent to Terminate.” Dkt. 24-1 at 125 (Administrative Record (“A.R.”) 53 at 3)
(“Policy 5.4-9”) (emphasis added).
B.

Facts and Proceedings
Fisher is a former executive of the Penn Traffic Company, a corporation that operated a

chain of supermarkets throughout the Mid-Atlantic and New England. See Compl. ¶ 7. Until it
declared bankruptcy in 2003, Penn Traffic operated a retirement plan known as the Penn Traffic
Plan. See Dkt. 24-1 at 3 (A.R. 2 at 2) (“Appeals Board Decision”); id. at 47 (A.R. 3, Ex. 9, at 1).
In 2002, Penn Traffic adopted an amendment to the plan in order to increase the benefits owed to

5

Fisher under the plan. Id. at 9 (Appeals Board Decision, Encl., at 1). The amendment, known as
the Second Amendment, provided Fisher with an immediate credit to his retirement account “in
the amount of $318,449,” as well as subsequent annual credits of over $100,000. Id. at 10
(Appeals Board Decision, Encl., at 2). The Plan permitted employees, including Fisher, to
withdraw benefits in the form of a lump-sum payment upon retirement. Id. at 162 (A.R. 55 at
27) (“Plan”).
In May 2003, Penn Traffic filed for Chapter 11 bankruptcy. Id. at 47 (A.R. 3, Ex. 9, at
1). Fisher resigned on August 15, 2003. Id. at 19 (A.R. 3, Ex. 1, at 1). Upon his resignation, he
requested that the plan administrator pay his accrued benefits as a lump sum. Id. On September
29, 2003, Penn Traffic’s Board of Directors voted to terminate the Penn Traffic Plan. Id. at 30
(A.R. 3, Ex. 4, at 4). Given the impending termination, the Board also directed the committee
that administered the Plan to “deny and reject” Fisher’s pending request for benefits in the form
of a lump-sum payment. Id. The committee informed Fisher by letter on October 17, 2003, that
his request for a lump-sum benefits payment had been denied. Id. at 21 (A.R. 3, Ex. 2, at 1). It
explained that “applicable law prohibits the payment of lump sum distributions in anticipation of
the termination of the Plan.” Id. Fisher appealed the committee’s denial of his request, but his
appeals were never adjudicated. Id. at 35 (A.R. 3, Ex. 6, at 1). On November 19, 2003, over a
month after Fisher was notified that his request for a lump-sum distribution was denied, Penn
Traffic submitted its notice of intent to terminate to the PBGC. Id. at 86 (A.R. 13 at 2).
The PBGC sent Fisher a letter on December 16, 2009, explaining that it had calculated
his monthly benefits at $452.77. Id. at 100 (A.R. 32 at 1). The PBGC’s calculation was based
on its conclusion that the Second Amendment had not been properly executed and that Fisher
was accordingly not entitled to the benefits he had been awarded in 2002. Id. at 6 (Appeals

6

Board Decision at 5). Fisher appealed. Id. at 12 (A.R. 3). He argued that the PBGC had erred in
excluding the benefits provided in the Second Amendment. Id. at 16–17 (A.R. 3 at 5–6). But he
also argued that he was entitled to a lump-sum payment of his retirement benefits under the plan,
and that nothing in ERISA permitted the plan administrator (or the PBGC) to deny him such a
payment. Id. at 15–16 (A.R. 3 at 4–5). Specifically, Fisher argued, first, that 29 U.S.C. §
1341(c)(3)(D)(i)(I), which prohibits the payment of lump-sum benefits beginning “on the date on
which the plan administrator provides a notice of distress termination” to the PBGC, did not bar
a lump-sum payment because Penn Traffic had denied his request before it submitted a notice of
distress termination to the PBGC. Id. at 15 (A.R. 3 at 4). Fisher also argued that 29 C.F.R. §
4044.4(b), which prohibits the distribution of assets “in anticipation of plan termination” in a
manner not consistent with ERISA, did not bar a lump-sum payment because the regulation was
ultra vires and, in any event, inapplicable under the circumstances. Id. at 15–16 (A.R. 3 at 4–5).
The PBGC Appeals Board issued its decision on September 19, 2011. Id. at 2. It held
that Fisher was entitled to the increased benefits that had been awarded in the Second
Amendment, but that he was not entitled to a lump-sum payment of benefits. See id. at 4–7
(Appeals Board Decision at 3–6). In reaching this decision, the Appeals Board relied exclusively
on 29 U.S.C. § 1341 and the regulations and policy that implement it. The Appeals Board
explained that both 29 U.S.C. § 1341(c)(3)(D) and 29 C.F.R. § 4041.42(b)(2) “state[], in general,
that a plan administrator cannot pay benefits in a form other than an annuity after it issues a
Notice of Intent to Terminate (‘NOIT’) the plan to PBGC.” Id. at 4 (Appeals Board Decision at
3). And the Appeals Board quoted at length from Policy 5.4-9, which specifically states that
“PBGC will not accept a plan application to pay a benefit in a lump sum . . . even if it was
received before the date of the [NOIT].” Id. at 5 (Appeals Board Decision at 4) (emphasis

7

added). The Board stated that Policy 5.4-9 “is dictated by a straightforward reading of” the
statute and the regulation. Id. It explained:
Both the law and the regulation provide a black-line rule in the case of distress
terminations, to wit, if the plan administrator did not make a lump-sum
distribution of a participant’s benefit before the NOIT date, the plan administrator
cannot thereafter make a lump-sum distribution of the participant’s benefit.
As the Penn Traffic Plan’s former administrator could not make a lumpsum distribution of Mr. Fisher’s benefit at any time after the NOIT date, no lumpsum distribution was due and payable as of the Plan’s termination date. Thus,
while PBGC will generally pay benefits that were due and payable as of a plan’s
termination date as pre-termination-liability payments if a plan’s assets are
sufficient to pay them, in your client’s case, PBGC cannot pay your client a lumpsum benefit because no lump-sum benefit was due and payable to him as of the
Plan’s termination date.
Id. at 5–6 (Appeals Board Decision at 4–5). The Appeals Board did not mention the fact that
Penn Traffic had already denied Fisher’s request for a lump-sum payment by the time it issued
its notice of intent to terminate. Nor did it discuss the application and validity of 29 C.F.R.
§ 4044.4(b).
Fisher timely filed this action challenging the Appeals Board’s decision, Dkt. 1, and the
parties then filed cross-motions for summary judgment, Dkts. 16, 17. Fisher also filed a motion
for relief under Federal Rule of Civil Procedure 56(d), Dkt. 19, arguing that the Court should
permit additional discovery rather than accept certain arguments made by PBGC in its motion.
The motions are now fully briefed.
II. LEGAL STANDARD
This suit arises under Section 706(2)(A) of the APA, which precludes agency action that
is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See 5
U.S.C. § 706(2)(A). That provision sets out “[t]wo distinct but potentially overlapping standards
of . . . review.” Fox v. Clinton, 684 F.3d 67, 74 (D.C. Cir. 2012). Under the first, agency actions
will be set aside if they are not “the product of reasoned decisionmaking.” Id. at 74–75; see also
8

Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 52 (1983). Although arbitrary and capricious review is “fundamentally deferential,” see Fox,
684 F.3d at 75, the APA nonetheless requires not only that “an agency’s decreed result be within
the scope of its lawful authority,” but also that “the process by which it reaches that result . . . be
logical and rational,” Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998). It
is well established that even agency action that is “well within the agenc[y’s] scope of authority”
will be set aside if it is “not supported by the reasons that the agenc[y] adduce[s].” Id.; see also
SEC v. Chenery Corp., 318 U.S. 80, 94 (1943) (“[C]ourts cannot exercise their duty of review
unless they are advised of the considerations underlying the action under review.”).
Under the second standard of review, agency actions will be set aside if they are contrary
to law—if, in other words, they are not “authorized by the statutory text.” Gonzales v. Oregon,
546 U.S. 243, 255 (2006). To guide judicial review of an agency’s statutory interpretation, the
Supreme Court has set out interpretive standards under which courts often “accord substantial
deference to an agency’s interpretation of both a statute it administers and its own implementing
regulations.” Fogo De Chao (Holdings) Inc. v. DHS, 769 F.3d 1127, 1135 (D.C. Cir. 2014); see
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Under
Chevron, a reviewing court “must give effect to an agency’s . . . reasonable interpretation of an
ambiguous statute,” Christensen v. Harris Cnty., 529 U.S. 576, 586–87 (2000), presuming that
the agency’s interpretation is set out in a manner sufficiently formal and authoritative to warrant
that deference, see United States v. Mead Corp., 533 U.S. 218, 226–27 (2000). If it is not, the
agency’s interpretation “is ‘entitled to respect’ only to the extent it has the ‘power to persuade.’”
Gonzales, 546 U.S. at 256 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). And
under Auer v. Robbins, 519 U.S. 452, 461 (1997), a reviewing court must defer to an agency’s

9

interpretation of its own regulation unless that interpretation is “plainly erroneous or inconsistent
with the regulation.” Id.
III. DISCUSSION
Fisher raised two arguments before the Appeals Board: (1) that 29 U.S.C. § 1341, which
prohibits a plan administrator from paying lump-sum benefits beginning “on the date on which
the plan administrator provides a notice of distress termination” to the PBGC, did not bar a
lump-sum payment because Penn Traffic had denied his request before it submitted a notice of
distress termination to the PBGC; and (2) that 29 C.F.R. § 4044.4, which prohibits the
distribution of assets “in anticipation of plan termination” in a manner not consistent with
ERISA, did not bar a lump-sum payment because the regulation was ultra vires and, in any
event, inapplicable under the circumstances. Dkt. 24-1 at 15–16 (A.R. 3 at 4–5). The Appeals
Board responded only to the first argument. See id. at 4–6 (Appeals Board Decision at 3–5).
The Court will begin with that argument.
A.

Section 1341(c)
Section 1341(c) requires a plan administrator to “pay[] benefits attributable to employer

contributions, other than death benefits, only in the form of an annuity” during the interim period
beginning “on the date on which the plan administrator provides a notice of distress termination
to the” PBGC. 29 U.S.C. § 1341(c)(3)(D)(i)(I), (ii)(II). Fisher argued before the Appeals Board,
and he argues here, that this provision does not permit a plan administrator to deny a request for
lump-sum payment before the administrator provides formal notice to the PBGC. The Appeals
Board rejected that argument, relying principally on an internal PBGC policy. That policy
provides that the PBGC “will not accept a plan application to pay a benefit in a lump sum
received by the plan administrator before [the date the plan is terminated]—even if it was

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received before the date of the Notice of Intent to Terminate.” Dkt. 24-1 at 125 (Policy 5.4-9 at
3). The PBGC argues that this policy represents a reasonable interpretation of § 1341, which
forbids the plan administrator from making any payments of lump-sum benefits after it submits
its notice of termination to the PBGC—and does not differentiate between requests for such
payments made before the notice is submitted and those made after the notice is submitted.
Both parties frame this case as a facial challenge to the validity of that policy. See Dkt.
16 at 13 (arguing that “the PBGC’s internal policy contradicts ERISA”); Dkt. 17-1 at 21 (stating
that the question here is “whether PBGC must pay a lump sum to a participant who elected that
form of benefit before an NOIT was issued”). The PBGC argues that the statute is silent as to
whether a participant who requests a lump-sum payment before a plan administrator submits a
notice of distress termination is entitled to such a payment after the administrator submits the
notice, and that its policy (denying payment under such circumstances) rests on a reasonable
interpretation of the statute that is consistent with congressional intent. That may be true. As the
PBGC observes, the purpose of the prohibition on lump-sum distributions was to prevent such
distributions from “dilut[ing] plan assets” and “adversely affect[ing] participants’ benefits under
Title IV,” H.R. Rep. No. 99-241, pt. 2, at 50, a purpose that is implicated equally by distributions
requested before a plan administrator provides formal notice as by those that are requested after.
If this case were no more than a facial challenge to the validity of the policy, the Appeals
Board’s decision (which effectively restated and applied the policy) might be sufficient to
withstand challenge.
The problem for the PBGC is that Fisher’s case does not fall within the plain terms of the
policy: while the policy states that requests submitted before the plan administrator submits a
notice of distress termination may be denied after the notice is submitted, in this case the request

11

was not only submitted but also denied before the plan administrator submitted its termination
notice to the PBGC. The Appeals Board decision applying the policy in such a case, moreover,
stands in at least some tension with the statute, which provides that an administrator must deny
such a request after it “provides a notice of distress termination to the” PBGC. See 29 U.S.C.
§ 1341(c)(3)(D)(i)(I). Thus, even if the statute permits the post-notice denial of a pre-notice
request, it arguably cannot be read to permit the pre-notice denial of a pre-notice request. If the
policy is read to encompass such a request, under this argument, it is inconsistent with ERISA
and cannot be sustained.
The Appeals Board’s decision suggests that the PBGC reads the statute to permit such a
result. But the decision does not explain why. It states only that the PBGC policy, which itself
does not address the distinction presented here, “is dictated by a straightforward reading of” the
statute and PGBC’s regulations. Dkt. 24-1 at 5 (Appeals Board Decision at 4). But even if the
Appeals Board is correct that § 1341(c) sets out a “black-line rule” permitting a plan
administrator to deny a request for a lump-sum benefit after it submits a notice of distress
termination, regardless of when the request was made—that is, even if Policy 5.4-9 reflects the
correct (or a permissible) interpretation of § 1341—neither the policy nor the decision speaks to
whether an administrator may deny such a request before submitting a notice of distress
termination. The decision does not note the distinction—nor the incongruity between its
conclusion and the text—at all. The PBGC may view a pre-notice denial as consistent with the
purpose of § 1341(c), if not its plain text. It may even be right. But it cannot identify anything
in the Appeals Board decision, or in the policy, that even attempts to reconcile the Appeals
Board’s conclusion and the text of § 1341(c).
B.

Section 4044.4(b)

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While the Appeals Board’s decision fails to address potentially dispositive aspects of the
§ 1341(c) issue, it wholly ignores whether and how 29 C.F.R. § 4044.4 might apply to Fisher’s
claim. That regulation prohibits a plan administrator from allocating plan assets “upon plan
termination in a manner other than that prescribed in” 29 U.S.C. § 1344. 29 C.F.R. § 4044.4(a).
But it also states that a “distribution, transfer, or allocation of assets to a participant . . . made in
anticipation of plan termination[] is considered to be an allocation of plan assets upon
termination.” Id. § 4044.4(b) (emphasis added). The parties both operate on the assumption that
a lump-sum payment to Fisher would have violated 29 U.S.C. § 1344 if it had been made “upon
termination.” See Dkt. 17-1 at 19 n.7, 24; Dkt. 18 at 13–15. But they disagree as to whether 29
C.F.R. § 4044.4(b), which treats a payment or allocation “made in anticipation of plan
termination” identically as a payment made upon termination, represents a lawful exercise of the
PBGC’s authority, and, if so, whether it applies here. Id.
The validity and applicability of § 4044.4(b) would seem to be critical issues in this case.
Penn Traffic, in denying Fisher’s request for a lump-sum benefits payment, used language
virtually identical to the regulation. See Dkt. 24-1 at 21 (A.R. 3, Ex. 2, at 1) (“[A]pplicable law
prohibits the payment of lump sum distributions in anticipation of the termination of the
Plan . . . .” (emphasis added)). And Fisher raised the issue of § 4044.4 at length in his letter brief
to the Appeals Board, arguing that the regulation was ultra vires and, in any event, inapplicable
to his case. Id. at 15–16 (A.R. 3 at 4–5). The Appeals Board decision, however, did not discuss
or even mention the regulation. The Court can only speculate as to why the Appeals Board
failed to address one of Fisher’s two principal arguments. It is possible that it viewed Fisher’s
appeal as controlled by 29 U.S.C. § 1341 and the PBGC’s policy implementing it. If so, its
conclusion cannot stand for the reasons discussed above—namely, that § 1341 does not, on its

13

face, address circumstances where the plan administrator has denied a request for a lump-sum
distribution before “provid[ing] a notice of distress termination,” 29 U.S.C. § 1341(c)(3)(D)(i)(I),
and the Appeals Board offered no analysis of how § 1341 might apply in such a case. It is also
possible that the Appeals Board viewed itself as lacking the authority to entertain a challenge to
the validity of § 4044.4(b). But it did not say so, and, in any event, Fisher also raised a challenge
to the applicability of § 4044.4(b), a question well within the Board’s expertise. Whatever the
reason the Appeals Board declined to reach the issue, the Court cannot evaluate the potential
impact of § 4044.4(b) on Fisher’s claim in the absence of the agency’s considered opinion on the
matter. See Boivin v. U.S. Airways, Inc., 446 F.3d 148, 155 (D.C. Cir. 2006).
C.

Remand
Because the PBGC Appeals Board failed to address the distinction between pre-notice

and post-notice denials—a distinction critical to the applicability of § 1341—and did not address,
much less adjudicate, Fisher’s challenge to 29 C.F.R. § 4044.4(b), the Court concludes that the
Board’s decision must be set aside and this case remanded to the agency for further proceedings.
See Fox, 684 F.3d at 80 (“pursu[ing] a course of prudence” and “remand[ing] the case to the
Department for reconsideration”); Tripoli Rocketry Ass’n, Inc. v. Bureau of Alcohol, Tobacco,
Firearms, & Explosives, 437 F.3d 75, 77 (D.C. Cir. 2006) (same). The Appeals Board may be
correct that Fisher is not entitled to a lump-sum payment of his retirement benefits. But it is a
cardinal rule of judicial review that the Court “cannot exercise [its] duty of review unless [it is]
advised of the considerations underlying the action under review.” Chenery, 318 U.S. at 94; see
also SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (“[A] reviewing court, in dealing with a
determination or judgment which an administrative agency alone is authorized to make, must
judge the propriety of such action solely by the grounds invoked by the agency.”). The Appeals

14

Board decision simply does not supply reasons sufficient for the Court to consider, much less to
ratify. The matter must be remanded for consideration of the issues discussed above.
The PBGC offers two reasons why the Court need not remand the matter but neither is
persuasive. First, it asserts that the Court should defer to the Appeals Board’s decision under
Chevron. Dkt. 17-1 at 20; Dkt. 23 at 7–8. But even if the Appeals Board’s decision would
ordinarily warrant Chevron deference, a question the Court need not decide, see Fox, 684 F.3d at
77–78 (outlining factors relevant to the determination whether an informal adjudication warrants
such deference), it is clear that the Appeals Board’s decision in this case does not. An agency’s
unreasoned adjudication of a question of law does not warrant deference of any sort. See Tripoli,
437 F.3d at 77 (“We . . . owe no deference to ATFE’s purported expertise because we cannot
discern it.”). And even if the Court owed Chevron deference to the Appeals Board’s decision, it
would fail at Chevron’s second step, under which courts defer “only if the agency has offered a
reasoned explanation for why it chose [its] interpretation.” See Vill. of Barrington, Ill. v. Surface
Transp. Bd., 636 F.3d 650, 660 (D.C. Cir. 2011). Chevron may support the interpretation that
the agency ultimately adopts, but it cannot salvage the Appeals Board’s decision here.
The PBGC also argues that the question in this case is not whether the plan administrator
was required to honor Fisher’s request for a lump-sum payment, but whether the PBGC is
currently obligated to honor such a request. Dkt. 17-1 at 19. But this argument simultaneously
proves too little and too much. On the one hand, it is axiomatic that the question here is not what
Fisher was owed under the terms of the Penn Traffic Plan but what he is owed now. On the
other hand, there is considerable authority for the proposition that the PBGC must, in its role as
trustee of a defunct plan, remedy any breaches committed by previous trustees. See, e.g.,
Vanderkam v. PBGC, 943 F. Supp. 2d 130, 148 (D.D.C. 2013), aff’d sub nom. VanderKam v.

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VanderKam, 776 F.3d 883 (D.C. Cir. 2015); Stephens v. U.S. Airways Grp., 555 F. Supp. 2d 112,
119 (D.D.C. 2008), rev’d in part on other grounds, 644 F.3d 437 (D.C. Cir. 2011); see also 29
U.S.C. § 1105(a)(3) (providing that an ERISA fiduciary is liable “if he has knowledge of a
breach by . . . [an]other fiduciary, unless he makes reasonable efforts under the circumstances to
remedy the breach”).
In any event, the Court need not resolve the nature and scope of the PBGC’s obligations
here, because it is clear that the Appeals Board considered the agency bound to remedy—at least
to some extent—those errors made by the plan administrator. It explained that the PBGC “will
generally pay benefits that were due and payable as of a plan’s termination date,” at least where
permitted by the plan’s assets and by applicable law. Dkt. 24-1 at 6 (Appeals Board Decision at
5). Its decision not to honor Fisher’s request for a lump-sum payment rested not on a conclusion
that the PBGC was not obligated to pay those benefits due under the plan, but that applicable
law—namely, § 1341—superseded any such obligation. If it is the PBGC’s position that the
Appeals Board erred in this respect, it may press that position before the Appeals Board in the
first instance.
For these reasons, the Court will remand this matter to the PBGC for further proceedings
consistent with this opinion. The Court emphasizes two points, however, about the scope of this
opinion. First, nothing here should be read to cast doubt on the agency’s interpretation of § 1341
as embodied in Policy 5.4-9 and as applied to a request for lump-sum benefits that is made (but
is not denied) before a notice of plan termination is submitted to the PBGC. The validity of that
interpretation is not before the Court today. Second, nothing here should be read to suggest that
the agency in fact acted outside its authority in denying Fisher’s request for a lump-sum
payment. It is well settled that agency action that is “well within the agenc[y’s] scope of

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authority” but is “not supported by the reasons that the agenc[y] adduce[s]” must be set aside.
Allentown Mack, 522 U.S. at 374. Without opining on the scope of the PBGC’s authority, the
Court emphasizes that its decision to set aside the Appeals Board’s decision is based solely on
the agency’s failure to explain adequately its resolution of Fisher’s statutory and regulatory
challenges. If the Appeals Board concludes on remand that Fisher was entitled to a lump-sum
payment for reasons not provided—or not fully explicated—in its prior opinion, Fisher may seek
review of that decision and the Court will, at that time, evaluate Fisher’s claims (as well as the
agency’s response) on the merits.
CONCLUSION
For these reasons, the Court hereby GRANTS Fisher’s motion for summary judgment,
Dkt. 16, DENIES the PBGC’s motion for summary judgment, Dkt. 17, and DENIES as moot
Fisher’s motion under Federal Rule of Civil Procedure 56(d), Dkt. 19. The case is remanded to
the PBGC for further proceedings consistent with this Memorandum Opinion.
A separate Order will issue.

/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: February 25, 2016

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