609 F.

2d 686
1 Employee Benefits Ca 1998

Joseph W. BAKER, Plaintiff-Appellant,

v.
OTIS ELEVATOR COMPANY, U.T.I. Products, Inc., Local
490,
International Union of Electrical, Radio and Machine
Workers, A.F.L.-C.I.O., United Technologies Corporation,
Bankers Trust Company, and Citibank N. A., DefendantsAppellees.
No. 79-1185.

United States Court of Appeals,

Third Circuit.
Argued Oct. 15, 1979.
Decided Nov. 13, 1979.

Joseph W. Baker, Karcher, Reavey & Karcher, P. A., Sayreville, N. J., for
plaintiff-appellant.
S. Joseph Fortunato, Warren J. Casey, Pitney, Hardin & Kipp,
Morristown, N. J., for defendants-appellees.
Before SEITZ, Chief Judge, and GARTH and SLOVITER, Circuit
Judges.
OPINION OF THE COURT
GARTH, Circuit Judge.

This appeal requires us to decide whether 206(a) of the Employee Retirement

Income Security Act of 1974 (ERISA), 29 U.S.C. 1056(a) (1976), extends its
coverage to an employee who voluntarily left work before that provision of
ERISA became effective. We conclude, as did the district court, that it does not.
We therefore affirm the district court's order granting summary judgment to the
defendants.1 I.

Joseph Baker, Sr. was employed by the Otis Elevator Company from 1943 to
1970. In 1970, when he was 50 years old, Baker voluntarily left Otis to accept
other employment. At the time of his departure from Otis, a pension plan
instituted for the benefit of certain hourly-paid employees included Baker
within its coverage. The plan provided both regular retirement benefits and
early retirement benefits. Regular benefits were afforded to those who worked
at Otis for ten years and who reached age 35 before leaving employment.
These benefits, however, would begin and be paid only when the employee
reached age 65. Early benefits were available to employees who had completed
fifteen years of service, and who then left Otis after reaching age 55.2 Such
benefits would begin immediately upon retirement.

Sometime about 1975, some five years after Baker had left Otis, Otis
experienced a sharp drop in demand for elevator equipment due to a decline in
new construction. As a result, Otis experienced large scale layoffs during 1976
and 1977. Otis and Baker's Union entered into a series of agreements designed
to cushion the impact of the layoffs on the affected workers. One feature of
these agreements expanded the availability of early retirement benefits. The
first such agreement provided early benefits to employees Laid off (as distinct
from voluntary departures) between March 1 and July 1, 1976, with fifteen
years of service, who were between 54 and 55 years old at the time of layoff.
The second agreement consisted of an oral extension of the first agreement to
cover those employees Laid off between July 1, 1976 and March 31, 1977. The
third agreement was included in a new collective bargaining contract entered
into by Otis and the Union, which went into effect April 1, 1977. This last
agreement provided early benefits to all employees with fifteen years of service
who were Laid off prior to their 55th birthday.

In 1971, shortly after Baker left the company, Otis advised him by letter that he
was entitled only to regular retirement benefits, which would not commence
until 1985, after his 65th birthday.3 In July, 1976, when Baker was 56, he wrote
Otis seeking "early" retirement benefits. Otis denied his request and restated its
original position, that he was entitled only to regular retirement benefits, which
would commence in 1985. Baker then filed this action in which he seeks
payments now for early retirement.

After a complicated procedural history in the district court, which need not be
recited here, summary judgment was granted to the defendants and against
Baker on all of Baker's claims. This appeal followed.

II.

Baker's sole substantial claim4 rests on 206(a) of ERISA, 29 U.S.C. 1056(a)

(1976) (hereinafter 206(a)). In relevant part, this section provides:

7 the case of a plan which provides for the payment of an early retirement benefit,
In
such plan shall provide that a participant who satisfied the service requirements for
such early retirement benefit, but separate(d)5 from the service (with any
nonforfeitable right to an accrued benefit) before satisfying the age requirement for
such early retirement benefit, is entitled upon satisfaction of such age requirement to
receive a benefit not less than the benefit to which he would be entitled at the normal
retirement age, actuarially reduced under regulations prescribed by the Secretary of
the Treasury.
8

On its face, this provision, if applicable, would plainly support Baker's claim:
he is a participant who is now 55 years old, who satisfied the service
requirement for early benefits (15 years), but separated from the service before
satisfying the 55 year age requirement. The statute requires that a former
employee in Baker's position be given early benefits once he reaches the
retirement age specified, and, as we have previously observed, Baker has
reached age 55. But the question we then must resolve is whether this section
of the statute applies to an employee, like Baker, who left work prior to the date
on which this section became effective.

A.
9

To assist us in answering this question, we have had our attention called to an

administrative regulation which bears on the very issue presented here, and
which, if deemed controlling, would oblige us to deny relief to Baker. In order
to understand the relevance of this regulation, however, we must first briefly
review the structure of ERISA.

10

As enacted, ERISA consisted of four titles, two of which have no bearing on

the issue in this case. Referring then to the two titles relevant here, we find that
Title I contains provisions for the protection of employee benefit rights. These
provisions are codified in Title 29 of the United States Code. Title II contains
amendments to the Internal Revenue Code regarding taxation of pension plans,
which are codified in Title 26 of the U.S. Code. These tax provisions of Title II
embody requirements for pension plans that must be satisfied to make the plan
eligible for certain favorable tax treatment, an essential feature of the
legislation. The tax terms in Title II are closely analogous to, and almost
identical to, the employee benefit provisions for pension plans set forth in Title
I. Thus, 206(a) of Title I, on which Baker rests his claim, has a substantively
correspondent tax analogue in 1021(d) of Title II. Section 1021(d) has been

codified in the U.S. Code as 26 U.S.C. 401(a)(14) (1976), and provides in

part:
11 the case of a plan which provides for the payment of an early retirement benefit, a
In
trust forming a part of such plan shall not constitute a qualified trust under this
section unless a participant who satisfied the service requirements for such early
retirement benefit, but separated from the service (with any nonforfeitable right to an
accrued benefit) before satisfying the age requirement for such early retirement
benefit, is entitled upon satisfaction of such age requirement to receive a benefit not
less than the benefit to which he would be entitled at the normal retirement age,
actuarially, reduced under regulations prescribed by the Secretary.
12

To demonstrate the coincidence between the two sections, and the identical
language utilized to effectuate the legislative purpose, we reproduce below a
combination of the relevant portions of 206(a) of Title I and 1021(d) of Title
II, bracketing that segment of 1021(d) which does not appear in 206(a) and
underlining those segments of 206(a) which do not appear in 1021(d). This
exercise is virtually conclusive proof that the two sections were intended to be
the same for all practical purposes and should be so construed:

13 the case of a plan which provides for the payment of an early retirement benefit,
In
(a trust forming a part of such plan shall not constitute a qualified trust under this
section unless) Such plan shall provide that a participant who satisfied the service
requirements for such early retirement benefit, but separated from the service (with
any nonforfeitable right to an accrued benefit) before satisfying the age requirement
for such early retirement benefit, is entitled upon satisfaction of such age
requirement to receive a benefit not less than the benefit to which he would be
entitled at the normal retirement age, actuarially, reduced under regulations
prescribed by the Secretary Of the Treasury.
14

We stress the identity of Title I and Title II because Congress specifically

delegated to the Treasury Department, rather than to the Labor Department,
authority to issue regulations concerning participation, vesting and funding
standards. Congress further provided that the regulations issued by Treasury
would apply as well to the analogous employee benefit sections of Title I in
these areas.6 Moreover, Congress required that any violation of Title I must be
referred by the Secretary of Labor to the Treasury Department.7 It is therefore
not surprising that the relevant sections of Titles I and II were drawn in
identical fashion to require uniform results in their interpretation.

15

In light of this clear delegation to the Treasury Department of rule making

power respecting participation standards, and Congress's clear directive that

Treasury regulations shall govern the employee benefit provisions as well as

the tax provisions of ERISA, we conclude that our analysis must begin with the
Treasury Department regulations relevant to the issue presented by Baker. And,
indeed, the Treasury Department has addressed this very question.
B.
16

The Treasury Department, in a regulation promulgated under 206(a)'s tax

analogue, 1021(d) of Title II, has ruled that 1021(d), and hence 206(a),
does Not include or cover participants who retired before the date on which
both sections became effective. The regulation, 26 C.F.R. 1.401(a)-14(c)(3)
(1978), which is unequivocal in this respect, reads:

17

(3) Separation prior to effective date of this section. The provisions of this
paragraph shall not apply in the case of a plan participant who separates from
service before attainment of early retirement age and Prior to the effective date
of this section set forth in paragraph (e) of this section.

18

26 C.F.R. 1.401(a)-14(c)(3) (1978) (emphasis added). This section of the

regulation became applicable to Otis's plan no earlier than December 31, 1975,
some years after Baker had left the company. 8

19

Thus, if the regulation, 26 C.F.R. 1.401(a)-14(c)(3) (1978), which, as we

have held, pertains to 206(a) of Title I as well as to 1021(d) of Title II,
withstands attack and is to be sustained, Baker's claim for relief predicated on a
retroactive application of 206(a) must fail. We turn to a consideration of that
issue.

C.
20

There can be no question but that the regulation with which we are here
concerned is a legislative regulation which was issued pursuant to a clear
delegation of rule making authority, See 29 U.S.C. 1202(c) (1976). As
Professor Davis has explained,

21

A legislative rule is the product of an exercise of delegated legislative power to

make law through rules. An interpretative rule is any rule an agency issues
without exercising delegated legislative power to make law through rules.

22

The distinction between the two kinds of rules is fundamental. . . . Valid

legislative rules have about the same effect as valid statutes; they are binding

on courts. . . .
23

(By contrast, however,) (c)ourts always have power to substitute their judgment
for administrative judgment as to the content of interpretative rules, but they
refrain in varying degrees from substituting judgment in various circumstances
....

24

2 K.C. Davis, Administrative Law Treatise, 7:8 at 36-37 (1979). We

recognize the distinction in the nature of the two types of rules, leading in turn
to a distinction in our standard of review. Our scope of review of legislative
rules is far more restricted than the scope of our review of interpretative rules.
See id. at 37.

25

In its recent opinion in Batterton v. Francis, 432 U.S. 416, 97 S.Ct. 2399, 53
L.Ed.2d 448 (1977), the Supreme Court described the scope of review to be
applied to a Legislative regulation, which in that case defined unemployment,
and which had been issued by the Secretary of Health, Education and Welfare:

26

Ordinarily, administrative interpretations of statutory terms are given important

but not controlling significance. This was the Court's approach, for example,
when it had under consideration the question whether the term "wages" in Title
II of the Social Security Act included a backpay award.

27

Unlike the statutory term in Title II, however, Congress in 407(a) expressly
Delegated to the Secretary the power to prescribe standards for determining
what constitutes "unemployment" for purposes of AFDC-UF eligibility. In a
situation of this kind, Congress entrusts to the Secretary, rather than to the
courts, the primary responsibility for interpreting the statutory term. In
exercising that responsibility, the Secretary adopts regulations with legislative
effect. A reviewing court is not free to set aside those regulations simply
because it would have interpreted the statute in a different manner.

28

The regulation at issue in this case is therefore entitled to more than mere
deference or weight. It can be set aside only if the Secretary exceeded his
statutory authority or if the regulation is "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law."

29

432 U.S. at 424-26, 97 S.Ct. at 2405-2406 (footnotes and citations omitted;

emphasis in original). The Court also stated that a Legislative regulation could
be set aside only if it bore no relationship to the governing statutory section or
tended to defeat the purpose of the statutory scheme. See id. at 428, 97 S.Ct.

2399. In a footnote, the Court contrasted, as we have here, review of legislative

rules with review of interpretative rules:
30

Legislative, or substantive, regulations are "issued by an agency pursuant to

statutory authority and . . . implement the statute, as, for example, the proxy
rules issued by the Securities and Exchange Commission . . . . Such rules have
the force and effect of law."

31

By way of contrast, a court is not required to give effect to an interpretative

regulation. Varying degrees of deference are accorded to administrative
interpretations, based on such factors as the timing and consistency of the
agency's position, and the nature of its expertise.

32

432 U.S. at 425 n.9, 97 S.Ct. at 2405-2406 n.9 (citations omitted).

33

Thus, to sustain the Treasury Department regulation at issue here, we need only
determine, as we do, that its promulgation is not an abuse of discretion, that it is
neither arbitrary or capricious, nor contrary to the governing statutory section
and ERISA as a whole. We have been shown nothing which would indicate
that, pursuant to this standard, 26 C.F.R. 1.401(a)-14 (1978) should be set
aside. To the contrary, that regulation, and particularly subsection (c)(3), carry
forward the policy of prospectiveness which this court acknowledged in its
recent decision discussing another aspect of ERISA. In Reuther v. Trustees of
the Trucking Employees of Passaic and Bergen County Welfare Fund, 575 F.2d
1074 (3d Cir. 1978), we examined a different section of ERISA, 29 U.S.C.
1103(c)(2)(A) (1976), which provides that employer contributions mistakenly
made to a pension fund may be returned, but only within one year from the date
of such payment. We there considered whether the one year time limit should
be applied to contributions made Before the effective date of ERISA. We held
that ERISA should be given only Prospective effect, and that the one year time
limit therefore did not apply:

34

We find even more formidable support for (the employer's) case when we
examine the entire statutory schema for an understanding of Congress' intention
as to acts, omissions or circumstances which arose prior to ERISA's effective
date. ERISA's supersedure provision declares that the Act "shall supersede any
and all State laws insofar as they may now or hereafter relate to any employee
benefit plan . . . ," 29 U.S.C. 1144(a), but it immediately qualifies this
proposition with a provision that we believe is most persuasive, if not
absolutely controlling, in our quest for congressional intention: "This section
shall not apply with respect to any cause of action which arose, or any act or

omission which occurred, before January 1, 1975." 29 U.S.C. 1144(b) (1).

This language compels the inference that acts or omissions that occurred prior
to the effective date of ERISA are not controlled by the provisions of the Act.
35

Any doubt as to this reading has been totally dissipated by a recent

pronouncement of the Supreme Court in a case involving pre-ERISA activities
in a pension plan similar to the one before us: "Because ERISA did not become
effective until January 1, 1975, and Expressly disclaims any effect with regard
to events before that date, it does not apply to the facts of this case." E. I.
Malone v. White Motor Corp., 435 U.S. 497, 499 n.1, 98 S.Ct. 1185, 1187 n.1,
55 L.Ed.2d 443 (1978) (emphasis added).

36

575 F.2d at 1077-78 (footnote omitted).

37

While we recognize that the legislative history 9 preceding ERISA's enactment

is of little assistance to us in reaching our determination, we are satisfied in
light of our own analysis and that of Reuther (leading to the holding that
ERISA should be applied only prospectively), that the Treasury Regulation
mandating only prospective effect for 206(a) is completely consistent with
the governing statute and is neither arbitrary nor capricious, and must therefore
be accorded "the force and effect of law," Batterton v. Francis, 432 U.S. at 425
n.9, 97 S.Ct. at 2405, n.9.

38

Baker, however, does not agree that the regulation is consistent with 206(a).
Nor does he agree that the language of 206(a) compels only prospective
application. He relies on one segment of our Reuther decision, in which the
court engaged in a grammatical analysis involving the use of tenses:

39 trustees' case stands or falls on the interpretation of one clause in the

The
comprehensive statute: "a contribution which Is made by an employer (may be
returned) to the employer within one year after the payment of the contribution."
(Emphasis added). The provision went into effect January 1, 1975.
40

The trustees would have us expand the congressionally expressed present tense
of the copulative verb, "is", to the past tense, "was", or the present perfect
tense, "has been", in order to encompass contributions made prior to the
effective date of the Act. We believe that the plain meaning of the statutory
language militates against this broad interpretation. . . . Simply put, the use of
the present tense "is" indicates that this provision is to apply only to
contributions made After the effective date of ERISA; if Congress had intended
otherwise, it could have stated "In the case of a contribution that is, was, or has

been made by an employer".

41

575 F.2d at 1077.

42

Although that analysis concerned a different section of ERISA, Baker has

sought to extend the discussion and reasoning expressed there to the present
context of this case and to 206(a). Baker claims that since 206(a) employs
the past tense ("a participant who Satisfied the service requirements . . . but
Separated from the service . . ."), Reuther would require that 206(a) be
applied retroactively rather than prospectively.

43

This argument need not detain us long, for it fails in every respect. Baker reads
Reuther far too technically. Reuther stands broadly for the proposition that
ERISA should be applied prospectively. It is not authority for a narrow view
that the present tense requires prospectivity and the past tense, retroactivity.
Although, as we have pointed out, the Reuther court acknowledged the
argument as to the effect of tenses in the interpretation of the statute, it can
hardly be contended that Reuther's holding was confined to, or wholly
dependent upon, that analysis. As Judge Aldisert, writing in Reuther, stated,
"we heed (the) admonition 'not to make a fortress out of the dictionary,' Cabell
v. Markham, 148 F.2d 737, 739 (2d Cir. 1945)." Moreover, that discussion did
no more than explain or perhaps amplify the court's primary grounds for
holding ERISA to be prospective. Reuther found "even more formidable
support," 575 F.2d at 1077, for Congress's prospective intention in the entire
statutory scheme, and in particular in 29 U.S.C. 1144 (1976), which expresses
the same prospective thrust of ERISA as is expressed in 26 C.F.R. 1.401(a)14(c)(3) (1978). Finally, Reuther relied on Malone v. White Motor Corp., 435
U.S. 497, 98 S.Ct. 1185, 55 L.Ed.2d 443 (1978), to confirm its conclusion of
prospectivity. Thus, we are satisfied that the same prospective result would
have been reached in Reuther regardless of the discussion of tense presented
there. Furthermore, Baker in any event misreads 206(a): the past tense there,
as the language makes clear, refers not to the time before the statute went into
effect, but rather to the time before the participant reached the early retirement
age set forth in the pension plan.

44

Thus, we adhere to the conclusion we have reached that the regulation must be
upheld.

III.
45

Baker advances several other arguments that we find to be without merit. He

maintains that he is entitled to early retirement benefits under the original

pension plan. This claim must fail in light of the plain provision of the plan that
early benefits are available only to those who retire after reaching 55. Baker left
Otis's employ at age 50.10
46

Baker next attacks the modifications made to the original pension plan. While
he does not contend, nor could he, that these modifications confer any benefits
on him,11 he maintains that they were precluded by the pension agreements of
1970 and 1974 and that their adoption constituted a breach of fiduciary duty.
We disagree on both counts. Any provision in the pension agreements
prohibiting modification of the pension plan was simply overridden by the
consensual modifications entered into by Otis and the Union. Moreover, we fail
to understand how a modification of the plan which confers added benefits on
victims of a massive layoff program, but withholds such benefits from
voluntary retirees who left employment years earlier, can be said to violate any
fiduciary duty.

47

Finally, we observe that even if the concerned parties failed to amend the plan
to incorporate the provisions of the 1976 and 1977 agreements into the plan
instrument, so that technically the payments made under the special agreements
were not made "in accordance with the documents and instruments governing
the plan," in violation of 29 U.S.C. 1104(a)(1)(D), Baker's position would
hardly improve: his rights would continue to be governed by the original plan,
and that plan, as we have previously noted, clearly denies him early benefits.

IV.
48

Having concluded that 206(a) must be given prospective effect only, and that
Baker is entitled to no relief under ERISA or under the terms of Otis's original
pension plan or the modifications thereto, we will affirm the order of the
district court granting summary judgment in favor of the defendants12 and
against Baker.

No issue is raised as to any dispute of material fact. The defendants named by

Baker include Baker's former employer, Otis; the former and present trustees of
the pension plan, Bankers Trust and Citibank, N.A., respectively; Local 490,
International Union of Electrical, Radio and Machine Workers, A.F.L.-C.I.O.,
with whom Otis had a collective bargaining agreement; and United
Technologies, Otis's parent company. For ease in reference, we will refer to the
defendants collectively as Otis

The early retirement provision of the pension plan read as follows:

(2) Early Retirement
A Covered Employee who has completed 15 years of Credited Service may,
upon 30 days' advance notice to the Company on the proper form provided by
the Company, retire on the first day of any month following his 55th birthday,
and shall be entitled to a monthly pension under this Plan as provided in Section
IV, Subsection (2), provided that if he is eligible for and does not elect a
pension under Subsection (3) of this Section III, such Early Retirement Pension
shall not commence prior to the expiration of his recall rights, unless he has
waived his recall rights.

Baker's birth date was June 24, 1920

On this appeal, Baker has also asserted numerous other claims for relief. We
briefly discuss and dispose of these in part III, Infra

The word "separated" appears as "separate" in the United States Code

compilation, 29 U.S.C. 1056(a) (1976). It appears as "separated" in the
official publication of the statute, Employee Retirement Income Security Act of
1974, Pub.L.No.93-406, 206(a), 88 Stat. 864 (1976), and it is clear from the
context that the past tense is intended

29 U.S.C. 1202(c) (1976) provides:

(c) Regulations prescribed by the Secretary of the Treasury under sections
410(a), 411, and 412 of Title 26 (relating to minimum participation standards,
minimum vesting standards, and minimum funding standards, respectively)
shall also apply to the minimum participation, vesting, and funding standards
set forth in parts 2 and 3 of subtitle B of subchapter I of this chapter (which
include 206(a)). Except as otherwise expressly provided in this Act, the
Secretary of Labor shall not prescribe other regulations under such parts, or
apply the regulations prescribed by the Secretary of the Treasury under sections
410(a), 411, 412 of Title 26 and applicable to the minimum participation,
vesting, and funding standards under such parts in a manner inconsistent with
the way such regulations apply under sections 410(a), 411, and 412 of Title 26.

29 U.S.C. 1202(a) (1976) provides in part:

Except as otherwise provided in this Act, the Secretary of Labor shall not
generally apply part 2 of subchapter I of this chapter (which includes 206(a))
to any plan or trust subject to sections 410(a) and 411 of Title 26, but shall refer
alleged general violations of the vesting or participation standards to the

Secretary of the Treasury. (The preceding sentence shall not apply to matters
relating to individuals benefits.)
Section 1202 refers to participation and vesting regulations issued by Secretary
of the Treasury under 410(a), 411 and 412 of the Internal Revenue Code.
The codification of 1021(d) of Title II, 206(a)'s tax analogue, does Not
appear in one of these three Code sections, but rather appears in 401(a) (14)
of the Code. The early benefit rule of 401(a)(14), however, is clearly as much
a participation standard as are the provisions of 410(a), and we construe the
Treasury Department's regulatory authority to embrace the early benefit
provision. Inasmuch as there is no express or implied delegation to the Labor
Department of rule making power on early benefits, we find no reason to leave
this single aspect of participation standards outside the Treasury Secretary's
domain.
8

Subsection (e) of the regulation provides that the "section shall apply to a plan
for those plan years to which section 411 of the (Internal Revenue) Code
applies without regard to section 411(e)(2)." 26 C.F.R. 1.401(a)-14(e) (1978).
Section 411 provides that it applies to plan years beginning after December 31,
1975, if the plan, as in this case, was in existence on January 1, 1974. See 26
U.S.C. 411 note, Effective Date (1976). Section 411 also contains a variety of
exceptions that in certain circumstances serve to postpone, but which never
advance, the effective date

Perhaps the only pertinent legislative discussion was that between Senators
Nelson and Jackson:
Mr. Nelson. Is the Senator talking about someone who worked for 30 years and
is laid off before this bill becomes law?
Mr. Jackson. That is correct. There are tens of thousands of them, and the
employer was able to deduct the cost of covering them in the program as part of
his pension plan; that is, he is able to deduct that amount from his overall
taxable income.
Mr. Nelson. I think I am correct in saying no, he is not covered. The provisions
of the bill do not go back and give rights to people prior to the applicable
provisions of the law.
Mr. Jackson. In other words, anyone who is laid off and is no longer employed
prior to the time this bill becomes effective; anyone prior to that is stuck. Am I
right or wrong?
Mr. Nelson. This bill does not retroactively convey rights to people who have

been laid off from plants that closed prior to the effective date of the law.
2

Legislative History of the Employee Retirement Income Security Act of 1974,

at 1808-09 (1976)
This discussion, while certainly not determinative of the issue before us,
nevertheless inclines towards and supports our conclusion that ERISA should
be applied prospectively.

10

See note 2 Supra

11

The agreements extended the early retirement benefits to employees who were
laid off, not to those who, like Baker, voluntarily left

12

Another issue briefed on this appeal involved the doctrine of Res judicata. This
issue was raised by Otis in resisting Baker's claim. Otis urged that a prior
decision of the district court, which awarded summary judgment to Otis on the
206(a) claim, should be given Res judicata effect as a result of Baker's failure
to appeal from that order, which had been certified as final under F.R.Civ.P.
54(b). Thus, Otis contends on this appeal that the doctrine of Res judicata bars
Baker's present claim. The procedural history giving rise to this theory is
complex, but, in light of our disposition in favor of Otis on the grounds stated,
we find no need to explain that history, nor to reach or decide Otis's Res
judicata argument