13-2681-cv
Casagrande v. Siemens Corporation, et al.

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
9th day of May, two thousand fourteen.

Present:    JOHN M. WALKER, JR.,
            ROSEMARY S. POOLER,
            RICHARD C. WESLEY,
                        Circuit Judges.
_____________________________________________________

L. KEITH CASAGRANDE,

                                  Plaintiff-Appellant,

                            -v-                                                 13-2681-cv

SIEMENS CORPORATION, SIEMENS ENERGY, INCORPORATED,
SIEMENS WESTINGHOUSE EXECUTIVE PENSION PLAN,
SIEMENS POWER GENERATION INC. EXECUTIVE PENSION PLAN,
ADMINISTRATIVE COMMITTEE OF SIEMENS CORPORATION,
BOARD OF DIRECTORS OF SIEMENS CORPORATION,

                        Defendants-Appellees.*
_____________________________________________________

Appearing for Appellant:          Kenneth F. McCallion, McCallion & Associates LLP, New York,
                                  N.Y.

Appearing for Appellees:          Helena Almeida, Siemens Corporation, New York, N.Y. (Dana
                                  Rust, McGuireWoods LLP, Richmond, VA, and Philip A.
                                  Goldstein, McGuireWoods LLP, New York, N.Y., on the brief)


        *
            The Clerk of the Court is directed to amend the caption as above.
      Appeal from the United States District Court for the Southern District of New York
(Berman, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

       Plaintiff-Appellant L. Keith Casagrande appeals from the June 11, 2013 judgment of the
United States District Court for the Southern District of New York (Berman, J.), which was
entered after a bench trial in this case that was brought under the Employee Retirement Income
Security Act, 29 U.S.C. § 1001 et seq. (“ERISA”). We assume the parties’ familiarity with the
underlying facts, procedural history, and specification of issues for review.

        There is a preliminary issue regarding whether the 2002 or 2007 version of Siemens’s
Executive Pension Plan (the “EPP”) applies in this case. In the pension benefits decision at issue
here, the Administrative Committee of Siemens Corporation (the “Committee”) referenced the
EPP “as of 2002 and as amended and restated effective December 2007.” In its analysis
regarding Casagrande’s ability to “buy back” certain years of service, the Committee applied a
provision from the 2002 EPP. The district court concluded that the 2007 EPP was the operative
plan. However, like the Committee, the district court applied the 2002 EPP to determine whether
Casagrande could “buy back” certain years of service. On appeal, Casagrande primarily argues
that the 2002 EPP applies in this case. In their appellate brief, defendants at times rely on the
2002 EPP, and at other times cite to the 2007 EPP. We need not resolve this issue because we
conclude that under either plan the district court’s judgment in favor of defendants must be
affirmed.

        After a bench trial in an ERISA case, “[w]e review the district court’s findings of fact for
clear error, and its conclusions of law de novo.” Harris Trust & Sav. Bank v. John Hancock Mut.
Life Ins. Co., 302 F.3d 18, 26 (2d Cir. 2002) (citation omitted). “We review de novo the district
court’s application of [its factual] findings to draw the legal conclusion that the defendant’s
decision to deny benefits was not arbitrary or capricious.” Zuckerbrod v. Phoenix Mut. Life Ins.
Co., 78 F.3d 46, 49 (2d Cir. 1996).

       In this case, the district court did not err in granting deference to the Committee’s
pension benefits decision. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).
The 2002 and 2007 EPPs contain language reserving to the Committee substantial discretion
with respect to the administration, interpretation, and application of the provisions of the EPPs.
Based on that language in the EPPs, the Committee’s decision merited Firestone deference. See
Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 763–64 (2d Cir. 2002).

        Nor did the district court err in its conclusion that the Committee’s pension benefits
decision in this case was reasonable. First, in view of the years during which Casagrande worked
for defendants and their predecessors, as well as the years during which he contributed to the
applicable pension plan, it was not arbitrary or capricious for the Committee to conclude that
Casagrande should be credited with 27.963 years of Executive Benefit Service. Second, it was
reasonable for the Committee to conclude that the provisions in the 2002 EPP allowing
executives to “buy back” prior years of service were not applicable to the years of service that
Casagrande wanted to “buy back,” namely 1985 to 1990. Third, the Committee did not act in an

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arbitrary or capricious manner when it used a calculation based on the lump-sum amount that
Casagrande received in 1992 as an offset against his EPP benefit.

        With respect to the issue of whether Casagrande’s 2010 bonus should have been included
in his Average Annual Compensation, the district court dismissed that claim as unexhausted
because Casagrande did not raise the issue with the Committee. While Casagrande mentioned his
2010 bonus in the facts section of his opening brief, he did not challenge the district court’s
decision that his claim was not exhausted. And Casagrande conceded in his reply brief that this
issue was not exhausted. Accordingly, we will not address this issue on appeal. See JP Morgan
Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005) (absent
manifest injustice, “arguments not made in an appellant’s opening brief are waived even if the
appellant pursued those arguments in the district court”).

        Finally, Casagrande argues that the district court erred by not admitting into evidence
documents that were outside of the administrative record, which is to say documents that were
not considered by the Committee in its determination of plaintiff’s executive pension benefit. He
specifically takes issue with the district court’s exclusion of the 1997 Westinghouse Executive
Pension Plan. “[A] district court’s review under the arbitrary and capricious standard is limited
to the administrative record.” Miller v. United Welfare Fund, 72 F.3d 1066, 1071 (2d Cir. 1995).
Under Miller, the district court could not have properly admitted into evidence the 1997
Westinghouse Executive Pension Plan, as it appears that document was not considered by the
Committee. If it was arbitrary or capricious for the Committee to have failed to adequately
consider that document, it would have been “a useless formality” for the district court to remand
this case to the Committee, id. (internal quotation marks omitted), because the 1997
Westinghouse Executive Pension Plan does not change the outcome here. In fact, the district
court did consider the 1997 Westinghouse Executive Pension Plan, and did not conclude that it
changed the outcome in this case. With respect to the “numerous other documents” that
Casagrande contends were erroneously excluded from evidence by the district court, he has not
stated with sufficient specificity why those documents should have been admitted, and we will
not attempt to divine his arguments.

       We have considered the remainder of Casagrande’s arguments and find them to be
without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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