                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-2512


NOORALI SAM SAVANI, individually and on behalf of others
similarly situated; ROBERT P. TAYLOR, JR., individually and
on behalf of others similarly situated,

                Plaintiffs - Appellees,

          v.

URS PROFESSIONAL SOLUTIONS, LLC, f/k/a Westinghouse Safety
Management    Solutions,    LLC,   f/k/a   Washington     Safety
Management   Solutions,    LLC;  URS   PROFESSIONAL   SOLUTIONS
PENSION PLAN, f/k/a Washington Safety Management Solutions,
LLC Pension Plan, f/k/a WSMS Pension Plan; URS ENERGY &
CONSTRUCTION, INC., f/k/a Washington Group International,
Inc.; ROGER ALLEN, as Trustee and Member of the Benefits now
Administrative Committee of URS Professional Solutions
Pension Plan; JULIE TSCHIDA BROWN, as Trustee and Member of
the   Benefits    now    Administrative   Committee    of    URS
Professional Solutions Pension Plan; DAVE HOLLAN, as Trustee
and Member of the Benefits now Administrative Committee of
URS Professional Solutions Pension Plan; DELOYD CAZIER, as
Trustee and Member of the Benefits now Administrative
Committee of URS Professional Solutions Pension Plan,

                Defendants – Appellants,

          and

WASHINGTON SAVANNAH RIVER COMPANY, LLC, f/k/a Westinghouse
Savannah River Company, LLC; WESTINGHOUSE SAFETY MANAGEMENT
SOLUTIONS, LLC PENSION PLAN; PAUL HARPER, as Trustee and
Member of the Benefits now Administrative Committee of URS
Professional Solutions Pension Plan; LEO SAIN, as Trustee of
Westinghouse Safety Management Solutions, LLC Pension Plan;
PRES RAHE, as Trustee of Westinghouse Safety Management
Solutions, LLC Pension Plan; WASHINGTON SAVANNAH RIVER
COMPANY'S PENSION PLAN; RALPH DISIBIO, as director of
Washington     Safety      Management     Solution,     LLC;
PAUL GREFENSTETTE,    as  Director   of   Washington   Safety
Management Solutions, LLC; ROBERT PEDDE, as Director of
Washington      Safety    Management      Solutions,     LLC;
AMBROSE SCHWALLIE,    as  Director   of   Washington   Safety
Management   Solutions,  LLC;   WSMS   PENSION   PLAN,  f/k/a
Westinghouse Savannah River Company-Bechtel Savannah River
Inc Pension Plan, f/k/a Westinghouse Safety Management
Solutions, LLC Pension Plan, f/k/a Washington Safety
Management Solutions, LLC Pension Plan; WASHINGTON SAFETY
MANAGEMENT SOLUTIONS, LLC; WASHINGTON SAFETY MANAGEMENT
SOLUTIONS, LLC PENSION PLAN; WASHINGTON GROUP INTERNATIONAL,
INC.,

                Defendants.



Appeal from the United States District Court for the District of
South Carolina, at Aiken.   J. Michelle Childs, District Judge.
(1:06-cv-02805-JMC)


Argued:   September 16, 2014         Decided:   November 17, 2014


Before WILKINSON, GREGORY, and KEENAN, Circuit Judges.


Affirmed by unpublished opinion.       Judge Gregory wrote      the
opinion, in which Judge Wilkinson and Judge Keenan joined.


ARGUED:   H. Douglas Hinson, ALSTON & BIRD, LLP, Washington,
D.C., for Appellants.       Stanley G. Jackson, JACKSON LAW
OFFICES, Aiken, South Carolina, for Appellees.        ON BRIEF:
Emily   S. Costin, ALSTON & BIRD, LLP, Washington, D.C.;
Gray T. Culbreath, GALLIVAN, WHITE & BOYD, P.A., Columbia, South
Carolina, for Appellants.


Unpublished opinions are not binding precedent in this circuit.




                                2
GREGORY, Circuit Judge:

       Noorali      “Sam”       Savani    filed      this   class   action      under   the

Employee          Retirement           Income         Security       Act        (“ERISA”),

§ 502(a)(1)(B), 29 U.S.C. § 1132 (a)(1)(B)(2006), claiming that

Washington         Safety           Management       Solutions,      LLC’s       (“WSMS”) 1

termination of an early retirement pension supplement violated

ERISA’s anti-cutback provision.                     As we held in the first appeal

of this case, the “clear terms” of the WSMS Pension Plan (the

“Plan”) “include the [early retirement pension supplement] in

the definition of ‘accrued benefit.’”                        Savani v. Wash. Safety

Mgmt. Solutions, LLC (Savani I), 474 F. App’x 310, 316 (4th Cir.

Mar.       20,   2012)    (per       curiam)   (unpublished).         In     this     second

appeal, WSMS argues that it may lawfully eliminate that early

retirement         pension           benefit        as      to    another       employee,

Robert Taylor,           and    a    similarly      situated     subset    of   the   class

(defined below).               We again hold that the unambiguous terms of

the Plan clearly include the pension benefit at issue within the

Plan’s definition of “accrued benefit,” and that WSMS may not

lawfully eliminate the benefit.                     We therefore affirm the grant

of summary judgment to the plaintiffs-appellees.

       1
       WSMS is now called URS Professional Solutions, LLC, and
both WSMS and the appellees’ previous employer, Westinghouse
Savannah River Company (“WSRC”), are wholly owned subsidiaries
of a company called URS Energy & Construction.     For ease of
reference and consistency with this Court’s prior opinion, this
memorandum refers only to WSMS and WSRC.


                                                3
                                          I.

      While Savani was the focus of the first appeal, Taylor and

the   subclass    now    take    center    stage.       Much     of    the   relevant

background is set forth in great detail in Savani I, 474 F.

App’x at 312-14, and is repeated below to the extent necessary.

      Taylor, like Savani, was an employee of the Westinghouse

Savannah River Company (“WSRC”) in 1997 when WSMS was formed.

“At its inception, WSMS recruited a number of WSRC employees,

including Savani [and Taylor], to transfer to the newly formed

company.”       Id. at 312.        Taylor and the other WSRC employees

“were informed of the employee benefit plans available to newly

transferred employees.”           Id.      Taylor was then and remains a

participant in the Plan.

      Prior to a 2004 amendment, the Plan provided in relevant

part:       “‘Accrued      Benefit’        means,     as    of        any    date   of

determination,     the    normal    retirement        Pension     computed      under

Section 4.01(b) . . . less the WSRC Plan offset as described in

Section   4.13,    plus    any    applicable        supplements        described    in

Section 4.12 . . . .”           Additionally, the Plan provided that an

“early retirement Pension shall be a deferred Pension beginning

on the first day following the Member’s Normal Retirement Date

and . . . shall be equal to his Accrued Benefit.                        However, the

Member    may    elect    to    receive        an   early   retirement        Pension



                                          4
beginning before his Normal Retirement Date.                 . . .”       Finally,

the Plan described the following supplemental benefit:

       4.12 Supplemental Benefits

       (a) If a Member who:

       (i) otherwise satisfies the requirements for a Pension
       under this Plan; and

       (ii) has at least one year of service with WSMS; and

       (iii) transferred to the Plan from an Affiliated
       Employer on or before January 1, 1998 or transfers to
       the Plan from WSRC; and

       (iv) retires before his Normal Retirement                   Age   from
       active service on or before October 1, 1998,

       he shall be entitled to a monthly supplement (which
       shall commence with the first Pension payment under
       the Plan on account of such retirement and the last
       payment shall be in the month preceding the Member’s
       attainment of Normal Retirement Age) equal to the
       following: [omitted] 2

       “On   December     28,   2004,    the   Plan’s      benefits      committee

amended the Plan to eliminate § 4.12(a), which granted a $700

monthly      benefit     to   Plan   members    electing      to     take        early

retirement on or after January 1, 2005.”              Savani I, 474 F. App’x

at    313.    Later,     on   January   3,   2006,   the   benefits      committee

further amended the Plan, effective December 31, 2005 (“the 2005

Amendment”).       Among other things, the 2005 Amendment included

the    following       provision:    “Notwithstanding       anything        to     the

       2
       As discussed in our first opinion, § 4.12(b) of the Plan
sets forth an additional $200 benefit payable upon reaching
Normal Retirement Age.    The $200 benefit is not at issue for
purposes of the current appeal.


                                        5
contrary    in     this    Plan,       a   Member’s          Accrued     Benefit     shall   be

‘frozen’     as    of     December         31,       2005        and   shall   not   increase

thereafter.”        Further, it provided:                        “Notwithstanding anything

to the contrary in this Plan, effective December 31, 2005, no

additional Credited Service will be awarded or earned under the

Plan for any purpose.            In other words, all Credited Service will

be ‘frozen’ as of December 31, 2005.”                             The 2005 Amendment also

“added the following sentence at the end” of § 1.13 of the Plan:

“Although    the     Plan       is    frozen         as     of    December     31,   2005,   an

Employee     shall        continue         to        earn        Eligibility     Service     in

accordance        with    the        terms      of        the     Plan   for    purposes     of

determining eligibility for certain benefits and eligibility for

a vested Pension.”

     During the first appeal of this case, Savani successfully

challenged the 2004 elimination of § 4.12(a) as a violation of

ERISA’s anti-cutback provision.                      See id. at 316 (“[W]e hold that

the Plan’s clear terms include the § 4.12(a) supplement in the

definition of accrued benefits.”).                          The 2005 Amendment was not

directly at issue at that time.

     Upon remand, the district court certified Savani’s case as

a class action.           Savani is the lead plaintiff for the class,

which is defined to be:

     Employees of Washington Safety Management Solutions,
     LLC,    formerly  Westinghouse   Safety   Management
     Solutions, LLC [collectively “WSMS”] who (1) are

                                                 6
     members of the WSMS Plan, (2) have at least one year
     of service with WSMS, and (3) transferred to the Plan
     from an Affiliated Employer as defined in § 1.02 of
     the Plan on or before January 1, 1998, or transferred
     to the Plan from Washington Savannah River Company,
     LLC, formerly, Westinghouse Savannah River Company,
     LLC [collectively, “WSRC”].

During    the     course      of     the    district      court    proceedings,      WSMS

“opposed paying certain members of the above class who after

December 31, 2005 have or may have become eligible for § 4.12(a)

WSMS [Plan] benefits as related to freeze of benefits as of

December 31, 2005.”           The appellees therefore moved to add Taylor

as a party and subclass representative, and the district court

granted the motion.            Thus, Taylor is the lead plaintiff of the

subclass, which is defined to be:

     All members of the Class defined above who, as of
     December 21, 2005, either (1) did not have 15 total
     years of service with WSMS or an Affiliated Employer
     as defined in § 1.02 of the Plan, or (2) was not 50
     years of age, or (3) did not meet the 25 years of
     service and age 45 but less than 50 years of age
     requirements for an Optional Retirement Pension as
     defined in § 4.04 of the WSMS Plan.

     On    July    31,     2012,      the   parties       filed   cross   motions    for

summary    judgment      on    the    issue       of   whether    the   2005   Amendment

resulted in the lawful elimination of the § 4.12(a) benefit for

Taylor and the members of the subclass.                           In considering the

parties’    motions,       the     district       court    observed     that   the   2005

Amendment permitted Plan members to continue to earn Eligibility

Service years in order to determine the members’ “eligibility



                                              7
for certain benefits and eligibility for a vested Pension.”                                  In

light of the unambiguous language of the 2005 Amendment, as well

as   this   Circuit’s      prior     holding       that      the    elimination         of   the

§ 4.12(a)        supplement      violated    ERISA’s         anti-cutback         provision,

the district court granted summary judgment in favor of Taylor

and the subclass members and held that they are entitled to

receive the supplement.              WSMS subsequently filed a motion to

remand the matter to the Plan’s benefits committee, or in the

alternative, for the district court to reconsider its summary

judgment ruling.          WSMS argued that the district court had “erred

by not remanding the case back to the Committee for an initial

interpretation       of    the    language        of   the    2005       Amendment.”          It

argued      in     the    alternative       that        the        district       court      had

misconstrued the nature of the parties’ dispute.                                The district

court    denied     the    motion,    reasoning           that      it    had     interpreted

unambiguous       Plan    language,    and       that     remand         “would    be   futile

because a different interpretation of this clear language would

be an abuse of the committee’s discretion.”                               On December 13,

2013, WSMS timely filed this appeal.



                                            II.

      On appeal, the WSMS argues that Taylor and the members of

the subclass are not eligible for the § 4.12(a) benefit because

they did not satisfy the requisite eligibility requirements for

                                             8
the benefit prior to the effective date of the 2005 Amendment.

Alternatively, the WSMS argues that the district court erred by

failing to remand this matter to the Plan’s benefits committee.

                                                A.

       We    review     a   court’s          order    granting   summary     judgment        de

novo.       United McGill Corp. v. Stinnett, 154 F.3d 168, 170 (4th

Cir. 1998).        And “[i]n an appeal under ERISA, we . . . employ[]

the same standards governing the district court’s review of the

plan administrator’s decision.”                       Williams v. Metro. Life. Ins.

Co.,       609   F.3d   622,      629    (4th    Cir.     2010).      Where      “the   plan

expressly grants the plan administrator discretionary authority

to    construe      the     provisions,         the    administrator’s       decision        is

reviewed for abuse of discretion.”                        United McGill Corp., 154

F.3d at 170 (citing Firestone Tire & Rubber Co. v. Bruch, 489

U.S. 101, 115 (1989)).                  “Under this deferential standard, ‘the

administrator or fiduciary’s decision will not be disturbed if

it    is    reasonable,      even       if    this    court   would   have    come      to    a

different        conclusion       independently.’”            Id.   (quoting      Ellis      v.

Metro. Life Ins. Co., 126 F.3d 228, 232 (4th Cir. 1997)).                               Here,

the    Plan      grants     the    benefits          committee   “total    and    complete

discretion to interpret the Plan.”                       But “even as an ERISA plan

confers discretion in its administrator to interpret the plan,

the administrator is not free to alter the terms of the plan or

to construe unambiguous terms other than as written.”                              Colucci

                                                 9
v. Agfa Corp. Severance Pay Plan, 431 F.3d 170, 176 (4th Cir.

2005), abrogated on other grounds by Champion v. Black & Decker

(U.S.), Inc., 550 F.3d 353 (4th Cir. 2008).                            The discretionary

authority to interpret a plan “is not implicated . . . [where]

the terms of the plan itself are clear.”                         Kress v. Food Emp’rs

Labor Relations Ass’n, 391 F.3d 563, 567 (4th Cir. 2010).

                                               B.

       WSMS       argues    that    because     Taylor     and    the    members      of   the

subclass       did    not     satisfy     the       age    and    service       eligibility

requirements for the § 4.12(a) benefit prior to the effective

date    of    the    2005    Amendment,        they   never      accrued      the    benefit.

Thus,    the      argument     goes,     the    elimination       of    the    benefit     for

Taylor and the subclass does not constitute an unlawful cutback

of accrued benefits.                This argument does not square with our

previous holding in this case that the unambiguous language of

the Plan’s definition of accrued benefit includes the § 4.12(a)

benefit.       Savani I, 474 F. App’x at 315-16.

       Under the law of the case doctrine, “when a court decides

upon a rule of law, that decision should continue to govern the

same issues in subsequent stages in the same case.”                              TFWS, Inc.

v. Franchot, 572 F.3d 186, 191 (4th Cir. 2009) (quoting United

States       v.     Aramony,       166   F.3d       655,   661    (4th        Cir.    1991)).

Accordingly,



                                               10
       once the decision of an appellate court establishes
       the law of the case, it “must be followed in all
       subsequent proceedings in the same case in the trial
       court or on a later appeal [] unless:           (1) a
       subsequent   trial  produces  substantially  different
       evidence, (2) controlling authority has since made a
       contrary decision of law applicable to the issue, or
       (3) the prior decision was clearly erroneous and would
       work manifest injustice.”

Id. (quoting Aramony, 166 F.3d at 661) (alteration in original).

Here,    the    parties    have   not   presented        substantially    different

evidence, we are aware of no new controlling authority, and WSMS

has not argued that our prior decision was clearly erroneous.

Therefore, our analysis must be guided by our prior holding that

the $700 monthly supplement set forth in § 4.12(a) of the Plan

is an accrued benefit.

       There is no dispute that an employer sponsored retirement

plan    cannot    eliminate    an    “accrued      benefit”    without    violating

ERISA’s    anti-cutback       provision.            29     U.S.C.    § 1054(g)(1).

Importantly,      “ERISA    defines     ‘accrued     benefit’       as   ‘. . .   the

employee’s accrued benefit determined under the plan and . . .

expressed in the form of an annual benefit commencing at normal

retirement age . . . .’”            Savani I, 474 F. App’x at 315 (quoting

26 U.S.C. § 411(a)(7)(A)(i) (2010)).                This statutory definition

of an accrued benefit is “a signpost, directing us to look at

the terms of the plan at issue.”              Bd. of Trs. of the Sheet Metal

Workers’ Nat’l Pension Fund v. Comm’r, 318 F.3d 599, 602-03 (4th

Cir.    2003)    (emphasis    added).         As    we    previously     held,    the

                                         11
§ 4.12(a) benefit is an accrued benefit.                      Savani I, 474 F. App’x

at 316.       Because Taylor and the members of the subclass can or

already do satisfy the requisite eligibility requirements for

the    § 4.12(a)    benefit,      WSMS    may     not      lawfully      eliminate      that

benefit as to Taylor and the subclass.

       WSMS argues that Taylor and the members of the subclass had

a    mere,    unprotected       expectation       of       receiving      the   § 4.12(a)

benefit      because   they      did    not     satisfy       the      age   and     service

requirements       prior   to    December       31,    2005.        In   advancing      this

argument, WSMS relies heavily on the Eleventh Circuit’s ruling

in Cinotto v. Delta Air Lines, Inc., 674 F.3d 1285 (11th Cir.

2012).       There, part of the Delta retirement plan definition of

“Accrued Benefit” stated:

       No Participant shall have an Accrued Benefit based on
       future or projected service or Earnings regardless of
       the use of future dates by the Plan.      Such future
       dates and the result of projected service on future
       Earnings on a Participant’s potential retirement
       benefit are not part of the Participant’s Accrued
       Benefit.

Cinotto, 674 F.3d at 1287-88.              The Delta plan, like the Plan in

this     case,    froze    pension       benefits          with   an     amendment     that

provided:        “Effective December 31, 2005, all benefits under the

Plan   are    frozen   for      all    Participants         and   there      shall    be   no

further accruals of benefits under this plan after that date.”

Id. at 1289.       The amendment “also added this language to the end

of    the    [Delta]   Plan’s     definition          of    ‘Accrued     Benefit’:         ‘A

                                           12
Participant shall not accrue any additional benefits under the

Plan after December 31, 2005.’”                Id.        Under the amendment, “no

additional months of service or earnings would be taken into

account    in    calculating       either     [an    employee’s]         retirement     or

termination benefit under the [Delta] Plan.”                       Id.     As a result

of the Delta plan language, the Eleventh Circuit held that the

plaintiff, who had not reached the age required to receive the

benefit    at    issue   before     December        31,    2005,   “had    at   most    an

expectation of a future accrual.”              Id. at 1297.

    Unlike the amendment to the Delta plan, the 2005 Amendment

to the Plan at issue here explicitly incorporated future service

into the calculation of an accrued benefit.                         Indeed, the 2005

Amendment       stated   that   Plan     members          would    continue     to   earn

Eligibility       Service    years      “to    determin[e]          eligibility        for

certain     benefits,”      including       the      § 4.12(a)       benefit.          The

unambiguous terms of the Plan provide that Eligibility Service

years     determine      whether    a   Member        “otherwise      satisfies        the

requirements for a Pension under this Plan” such that he becomes

eligible for the § 4.12(a) $700 supplement. 3                       Accordingly, the

appellants’ reliance on Cinotto -- which involved a pension plan


     3
        Pensions include, for example, the normal retirement
pension set forth in Plan § 4.01, the early retirement pension
set forth in Plan § 4.03, and the optional retirement pension
set forth in Plan § 4.04.    Each of these pensions references
“Eligibility Service.”


                                         13
with a materially different definition of an “accrued benefit” -

- is misplaced.             See Sheet Metal Workers’ Nat’l Pension Fund v.

Comm’r, 318 F.3d at 602-03 (stating that courts “look at the

terms of the plan at issue”).

       WSMS     also       argues     that      the       district       court     should       have

remanded       this    matter       to   the       benefits          committee     because       the

reference       to    “certain       benefits”           in    the     Plan’s     definition      of

“Eligibility Service” is ambiguous.                           Specifically, WSMS contends

that     it     is     unclear       whether            the     term     “certain       benefits”

encompasses the § 4.12(a) benefit.                        This argument is unavailing.

Before     the       2005     Amendment,           the    definition         of    “Eligibility

Service” included a single reference to “certain benefits,” and

the    2005      Amendment          added      a    second        reference        to    “certain

benefits.”          It is undisputed that the single, pre-2005 Amendment

reference to “certain benefits” included the § 4.12(a) benefit.

To credit WSMS’s ambiguity argument would require a finding that

the second use of the phrase means something different than the

first.        There is no valid reason for the two uses of the same

term   within        the     same    definition           to    have    different       meanings.

Rather,       the    language       of   the       2005       Amendment      is   clear:        Plan

members       may    continue       to   earn       Eligibility           Service       years    for

certain benefits, including the § 4.12(a) benefit.                                 The benefits

committee’s discretion is not implicated given the unambiguous

language       of      the     amendment.                 Kress,       391      F.2d     at     567.

                                                   14
Accordingly, it was not error for the district court to decline

to remand the matter.

       Somewhat relatedly, WSMS argues that “Fourth Circuit law is

clear that an ERISA plan participant is ‘required’ to exhaust

his/her      administrative        remedies    before     bringing     suit.”       It

contends      that    the    original     lead       plaintiff,    Savani,       “never

challenged     the    meaning      of   ‘certain     benefits’    of   ‘Eligibility

Service’ in the Freeze Amendment,” and that “Taylor has never

made   any    claim    to   the”    benefits     committee.       Therefore,      WSMS

continues, because the district court’s summary judgment ruling

involved     the     interpretation      of    the    Plan’s    terms,     the   court

should have first remanded the matter to the benefits committee

for it to interpret the Plan in the first instance.                      We need not

decide whether any procedural error has occurred.                        In reaching

its decision, the district court did not engage in any novel

interpretation of the Plan’s language.                  Rather, the law of this

case is that the Plan’s definition of accrued benefit includes

the § 4.12(a) benefit, and as discussed above, the term “certain

benefits”      unambiguously        encompasses        the     § 4.12(a)     benefit.

Thus, the benefits committee’s authority to interpret the Plan

is not implicated.          See Kress, 391 F.2d at 567.

       Finally, although the parties devote a substantial amount

of their briefing to whether the § 4.12(a) benefit is an “early

retirement benefit” as that term is defined in the applicable

                                          15
regulations, we need not resolve the issue.                     Regardless of how

the benefit is characterized from a statutory perspective, the

fact remains -- however much WSMS might wish to deny it –- that

the   specific       language    of    the     WSMS    Plan     incorporates      the

§ 4.12(a) benefit into the definition of “accrued benefit.”                       And

“[w]hile we have held that unfunded, contingent early retirement

benefits or severance payments are not secured by ERISA itself,

the   drafters    of   a   retirement     plan   may    choose     to   define    any

benefits   as    accrued    or    vested,      and    thereby    trigger     ERISA’s

protections.”        Savani I., 474 F. App’x at 314 n.3 (citing Pierce

v. Sec. Trust Life Ins. Co., 979, F.2d 23 (4th Cir. 1992)); see

id. at 316 (“Stand-alone, ancillary welfare benefits generally

are not independently protected by ERISA.                     Here, however, the

Plan plainly incorporated . . . [§ 4.12(a)] into its definition

of ‘accrued benefit.’” (citation omitted)).                     Because WSMS made

the   choice    to   include     the   § 4.12(a)      benefit    as   part   of   the

Plan’s accrued benefit, it is protected under the anti-cutback

provision of ERISA.         The WSMS must accept the consequences of

that choice.



                                        III.

      We reaffirm our holding that the Plan’s clear terms include

the § 4.12(a) supplement in the definition of “accrued benefit.”

Taylor and the subclass members are thus entitled to receive

                                         16
that   benefit   so   long   as   they    satisfy   the   age   and   service

requirements if and when they elect early retirement.                 For the

foregoing reasons, the judgment of the district court is

                                                                  AFFIRMED.




                                     17
