*1 852 mandatory. 1821(d)(5)(C)22 See FDIC as
§ (D.R.I. F.Supp. diStefano, 839 TRUSTEES OF DIS- v. BOARD OF 1821(d)(5)(C) 1993) “may” in (reading the PENSION TRICT NO. 15 MACHINISTS’ Corp. “must”); Resolution Trust v. Scott FUND, Appellant, (Bankr. Scott), (In B.R. re withdrawn, W.D.Tex.1993) (same), 162 B.R. This, (Bankr.W.D.Tex.1994). Hudson KAHLE ENGINEERING process con states, the due would relieve CORPORATION, a New having discretion the FDIC raised cerns Jersey corporation. claims, which, if exer to hear certain
not No. 94-5160. jurisdiction in cised, to bar operate could courts. Appeals, Court of United States require- process the due Hudson reads Third Circuit. broadly. suggest not We did too ments pro- that due Argued Sept. or elsewhere National Union proce- separate claims two cess mandates Dec. Decided Rather, that where the we stated dures. contained
jurisdictional bar 1821(d)(13)(D) constitutionally be could jurisdiction over have
applied, a court would
Union,
the claim. the statute does 393 n. 22. Where
90 n. suggest recogni-
not otherwise direct procedures, we separate claims
tion of two jurisdictional apply bar where
decline to A yield an unconstitutional result.
it would procedure is more consistent
single claims Rosa, held
with our receiver, against the as well as claims
claims institution, subject were
against the failed requirement” “statutory exhaustion review before the courts had
administrative
jurisdiction them. 938 F.2d 392-93. over
Thus, constitu- appear there is no it would not decide that infirmity. But we need
tional jurisdictional bar possibility
here. The the facts of this case
does not arise under process review
because the administrative completed.
III. forth, judgment
For the reasons set court will be affirmed.
the district 1821(d)(5)(C). language "and such claim 22. That considered receiver.”
853 SLOVITER, Judge, Before: Chief *, MANSMANN and ALARCON Circuit Judges. THE
OPINION OF COURT SLOVITER, Judge. Chief The Board of Trustees of the District No. (Fund 15 Machinists’ Pension Fund or Pen- Fund) appeals sion the dismissal of their action to collect assessment of withdrawal against Engineering filed Kahle Corp. Multiemployer under the Pension Plan (MPPAA), Amendments Aet of 1980 Pub.L. (1980) 96-364, (codified No. 94 1208 Stat. 1001a, §§ amended at 29 U.S.C. 1381-1453 (1988 1993)), Supp. & V which amеnded the Employee Security Retirement Income Act (ERISA), 93-406, of 1974 Pub.L. No. 88 Stat. (codified as amended at 29 U.S.C. (1988 1993)). §§ Supp. 1001-1461 & V summary district court judgment entered against the Fund on the basis of the statute of limitations. appeal requires
This us to determine correctly whether the district court held that statute of limitations in the MPPAA began to run for the entire when the first missed an install- though payout peri- ment even years. Apparently, od was more than nine appellate no federal court has addressed this precise statutory interpretation issue of un- although der the MPPAA two other courts of Eames, (argued), Elizabeth Roberto Wil- appeals suggest have cases decided cox, Riddell, Detroit, Mastej, Bryant, Swift & possible, conflicting, interpretations. MI, appellant. for Grotta, Joseph (argued), Malcolm J. Glass- I. (James Hoffman, Roseland, man & NJ M. Statutory Scheme Beach), brief, appellee. on the for by Congress MPPAA was enacted Allen, Jacobs, Burns, Sugarman, David S. 1980 as amendment to ERISA to insure Stanton, IL, Chicago, & Orlove amicus- stability multiemployer pen- the financial Drivers, Chicago appellant Helpers Truck plans by imposing mandatory liability sion (Indepen- and Warehouse Union Workers employers withdrawing pension plan. from a dent) Pension Fund. See Laborers Health and Trust Welfarе Co., Peters, Associates, Lightweight Diana L.S. Feder & Fund v. Advanced Concrete DC, Washington, amicus-appellant Nat. 484 U.S. 108 S.Ct. (1987).
Coordinating Multiemployer Committee for L.Ed.2d 936 In IUE AFL-CIO Pen- Williamson, F.2d Plans. sion Fund v. Barker & * Alarcon, Hon. Arthur L. United States Circuit tion. Circuit, Judge sitting designa- for the Ninth any specific matter and to reassess Cir.1986), goals for review (3d two we identified “may identify any payments; protect the interests the schedule ‘“to
the MPPAA: financially inaccuracy in the determination and beneficiaries participants and ... multiemployer plans, vested allo- the unfunded benefits amount of distressed partici security employer;” and furnish benefit cable ensure *3 H.R.Rep. No. (quoting plan at 127 information to the Id. relevant pants.’” additional 71, 1399(b)(2)(A). in reprinted 869, Cong., plan 2d Sess. § The sponsor. Id. 96th 2939). 2918, princi The of a reasonable review sponsor 1980 U.S.C.C.A.N. must conduct goals are effectu these in which pal by employer, and noti- manner matter raised imposition of with by the by decision, act is for employer ated of its the basis fy the employer who with liability an on decision, any changes a drawal made as its and in pension plan multiemployer 1399(b)(2)(B). a from § draws Id. the review. result of unfund plan’s share proportionate wishes to contest the employer An who & Seal Crown Cork benefits. ed vested liability the amount initiate faсt of or must its 857, Fund, F.2d Pension 982 States Central not, right If it does waives arbitration. — U.S. -, denied, (3d Cir.1992), cert. 861 amounts the assessment and the to contest (1993); 2961, see L.Ed.2d 662 125 113 S.Ct. sponsor “due by plan become demanded Prods. v. Construc Pipe and also Concrete as set forth on the owing” and —Cal., S. Pension Trust tion Laborers for schedule, may for employer be sued and the -, 124 -, 113 S.Ct. U.S. Id. in state or federal court. collection (1993). L.Ed.2d 539 1401(b)(1). § an scheme sets forth intricate statute provision of the the acceleration Under of the with- and collection for calculation default, the in the event of a statute available disputes liability resolution of and drawal may require “plan sponsor immediate employer an respect thereto.1 When outstanding amount of the em- ment of the multiemployer plan, the a from withdraws liability, plus in- ployer’s accrued withdrawal amount of determine the plan sponsor must outstanding liability from total terest on the practica- liability, “as as and soon withdrawal of the first which the due date amount of employer of the notify the ble” 1399(e)(5); § see also timely not made.” Id. repayments for liability the schedule 2644.2(b)(2). purposes § For of 29 C.F.R. in with that accordance demand section, failure default is defined “the 1399(b)(1). §§ See 29 U.S.C. schedule. make, due, any pay- employer to of an up schedule for sponsor must set plan sixty days if cured (cid:127)within after ment may impose lia- which payments employer written notification receives years. twenty Id. bility a maximum of failure.” plan sponsor of such 29 U.S.C. 1399(c)(1). 1399(b)(l)(A)(ii), The first in- §§ 1399(c)(5)(A). “any § A default can also be is due on the schedule stallment plan other defined rules event sponsor’s de- sixty days plan of likelihood an em- indicates substantial 1399(c)(2). exception an § Under Id. mand. ployer be unable to its withdrawal will employer not be labor-disputes, shall 1399(c)(5)(B). § liability.” Id. plan withdrawn from to have considered contri- solely suspends because regulation prohibits a decla A PBGC involving dispute during a labor butions timely for failure to make ration of default § employees. sixty during period, and for payments thereafter, pend days that an arbitration is days ninety the em- No later than sponsor conducting the ing plan or that the plan sponsor ployer notice from the receives requested review. See 29 C.F.R. liability, of determination 2644.2(c)(1). However, pro- the statute sponsor to may ask program” regu- insurance supplemented by plan termination statutory scheme is 1. The statutory authority promul granted it the Benefit promulgated lations Pension purposes (PBGC). regulations carrying gate in out the in Guaranty Corporation As enacted —, Pipe, - See Concrete the De- ERISA. created the PBGC within ERISA U.S.at 1302(a)-(b)). (citing 29 U.S.C. S.Ct. at 2271 partment and enforce a of Labor "to administer Following vides accordance with union. dispute labor plan sponsor suspended schedule set forth must Kahle contributions to the Pen- “notwithstanding any request made April sion Fund. On in accordance appeal 1399(b)(1), §§ review determinations of the with 29 U.S.C. writing amount of such or of the schedule.” notified Kahle in that it had deter- 1399(c)(2). If miss- mined that Kahle had withdrawn from the may es a scheduled requested payment the fund seek Fund and of withdrawal by filing $271,746, to collect a collection action but it the amount payable during thirty-eight not accelerate quarterly the balance installment $9,467 protected period. each, arbitration See United Re beginning July Employees thirty-ninth tail and Wholesale Plan with a final $6,459, Pension McDonnell, (3d payable v. Yahn January, & 1994.3 April *4 Cir.1986), per by equally curiam letter also notified statutory Kahle of its aff'd nom., right request divided court sub PBGC v. Fund, Yahn & review from the McDonnell, 2171, identify any inaccuracies, 481 U.S. 107 S.Ct. 95 any and to furnish (1987) (hereinafter Yahn). L.Ed.2d 692 additional relevant information. An action for under the MPPAA response, In July on 1984 Kahle wrote
may brought by plan fiduciary, be employ- that it Fund,” “has not withdrawn from the er, plan participant, beneficiary or an em- the cessation of contributions was ployee organization represents such a solely by caused a strike which commenced plan participant beneficiary “adversely or af- on June 1981 and continued in any party” fected the act or omission of company ready remains willing employee under the statute or organi- negotiate with the Union. The letter stat- 1451(a)(1). § zation. 29 U.S.C. That action ed it constituted an request official under years must be filed within six 4219(b)(2) after the date section of ERISA [29 U.S.C. on 1399(b)(2) which “the cause of action” arose. § ] review of the Fund’s deter- 1451(f)(1).2 company withdrawn, mination that the that withdrawal occurred on June 1981 mind, statutory With the scheme in we figures and of the used to calculate the with- turn to the facts of this case. Our task is to drawal Kahle enclosed a first in- determine when the Pension Fund’s “cause $9,467 stallment with the letter. subject of action” that is the of this suit App. at 26-27. arose. August On the Fund’s counsel advised Kahle letter that he would raise II. request for review of the withdrawal History Facts and Procedural meeting determination at next contributing employer Kahle was a to the speak Fund Trustees and would pursuant Pension Fund to the collective bar- union about Kahle’s claims of continued ne- gaining agreements it entered gotiation representation. into with its Counsel also action; prong 2. Under another except the statute of limita- such cause of that in the case here, provision, may concealment, tions not at issue the action may of fraud or such action brought years also be within three after the brought years not later than 6 after the date plaintiff knew or should have known of the exis- discovery of the existence of such cause of except tence of such a cause of action that in the action. concealment, case "discovery of fraud or 1451(f). See 29 U.S.C. prong” years. is extended to six The full text of provision is: $366,- payment figures 3. We note that the total explained which the Pension Fund in the An action under this section not be district court was attributable to interest on the brought after the later of— $271,746. (1) principal objected amount of Kahle after the date on which cause interest, arose, objected but it is unclear whether it (2) years computation. to the fact of interest or its We the earliest date on which plaintiff acquired or should have ac- will leave that issue to the district court on quired knowledge actual of the existence of remand. in accordance with the rules “proceed claim of Kahle about its posеd questions pur- App. Association for all union. American Arbitration negotiation with the continuing any objections including poses,” reserving at 59-60. The Fund for the arbitrators. timeliness 13,1984 September response dated Kahle’s matters on a to discuss “these also offered negotiations to end no there were made clear App. at 61-62. less formal basis.” until picketing continued and that the strike parties remained “[b]oth April but communi- no evidence of further There is In the Mediator.” Federal at the call of the cations, proceed- negotiations, or arbitration letter, Kahle stated that last sentence did not ings after 1984. Kahle December 2644.2(c) the Com- 29 C.F.R. “pursuant to payments. Almost four make further payments.” quarterly pany discontinue will later, August fact, PBGC the referenced App. at 28-29. company Kahle “that the default notified Kahle to with- authorize regulation did not liability payments,” de- in its withdrawal merely pro- payments but hold the scheduled interest, past payments plus manded all due declaring dur- default hibited the if did not make such and stated that Kahle of arbitration. See ing pendency sixty days the Fund would § 2644.2. C.F.R. require “immediate of the total accruing liability, plus a letter on interest Fund’s counsel sent the Kahle 20, 1984, demanding due.” arbitration.5 from the date the first *5 December post a Fund also demanded that Kahle counsel received the Fund’s Before 1984, letter, $271,746, 20, full amount of with- he wrote bond for December liability. record App. December stat- at 63-64. The on drawal Kahle’s counsel no reason to of further communica- Trustees saw contains no evidence ing that filing that Kahle had of this suit. tions until the change their determination App. at 30. The the Plan. withdrawn complaint in The Pension Fund filed the stated, “Please be 21 letter also December for the Dis- the United States District Court is now in default your client ... advised 28, Jersey on-September 1993. trict of New it cures this default Unless payments. in its summary parties filed cross-motions 1985, January our client will by the 1st February judgment. Following hearing your to declare client alternative but have no 1994, granted the district court Kahle’s available to all remedies ‘in default’ and seek Summary Judgment and dis- Motion for legislation.” federal appropriate ... it under the case as time-barred under the missed App. at 30. six-year MPPAA’s statute of limitations. See the Fund noted On December 1451(f)(1). 29 U.S.C. of December Kahle’s letter receipt jurisdiction copy Fund’s The district court had another enclosed 1132(e)(1) 1451(c) calculations, §§ again that and stated under actuarial appellate jurisdiction pursuant to alter determi- and we have no rеason its the Fund saw withdrawal, grant A district court’s date of to 28 U.S.C. 1291. the fact of or nation of subject ple summary judgment is to our willingness to review its cal- of but indicated specifics. nary v. Commission on provided more review. Mitchell culations if Kahle Est, 10 F.3d acknowledged demand for Adult Entertainment Kahle’s The Fund (3d Cir.1993). parties Our review of the statute of suggested that arbitration issue, we we take of the statute of limitations September letter was never received 4. The although the Fund does not contest Fund counsel decide whether the allusion to arbitra- need not contents, letters that re- and there are later stopped would have tion appears suggested to have it. The Fund ferred to in length any the cause of action for accrual of September that the 13 letter court the district time. that tolled for arbitration constituted a demand and the conse- its cause of action the accrual of letter, particularly 5. The contents of this limitations, quent but the district court statute arbitration, demand for are referred to in the gave argument short shrift because it is subsequent letter of December Fund counsel's 28, any steps undisputed party took that neither App. at 61-62. procedure. the view 1984. invoke the arbitration similarly limitations under the MPPAA is The rule that the statute of limitаtions Doherty plenary. begins v. Teamsters Pension against to run each instalment of an Fund, (3d Cir.1994). 1386, 1389 obligation Trust payable by only instalments
from the time the instalment becomes due
applies although the
option
debtor has the
III.
the entire
indebtedness at
time.
Discussion
hand,
On the other
where there is an
filed,
On the date this lawsuit was
acceleration
giving
clause
the creditor the
September
Kahle was still -within
right upon
contingencies
certain
to declare
payout period
established
the Pension
due,
the whole sum
begins
the statute
pursuant
to the MPPAA for
run,
Kahle to
only
respect
instalment,
to each
complete payment
of its withdrawal
at the
due,
time the instalment becomes
period
That
expire
was not scheduled to
until
unless the creditor
option
exercises his
January
Although
statute
declare
due,
the whole indebtedness
precludes
of limitations
recovery
the Fund’s
which case
begins
the statute
to run from
any payments
due more than six
the date of the exercise of
option.
his
filing
before the
complaint,
of its
and the
51 Am.Jur.2d:
Limitation
Actions
concedes,
apparently
Pension Fund
so
we fail
explains,
As Corbin
any persuasive
to see
unless
why
repu-
reason
there is a
diation (analogous to
a default
pay
should
be entitled to
and aсcelera-
recover the
MPPAA),
tion under the
during
plaintiff
ments
preceding
due
the six
only
occurs,
sue for
filing of
each breach
its lawsuit.
and the
statute of
begins
limitations
to run from that
The district court reasoned that the Fund’s
989;
time. See
supra, §
Corbin
see also
cause of action arose when Kahle missed its
LaFrance,
United States v.
F.Supp.
and,
first
in October 1984
at the
(D.Del.1990)
1119-20
(holding that the
*6
latest,
December
1984.6 Under the dis-
cause of action for collection of installment
theory,
trict court’s
accepted by
and that
payments
under
Small Business Adminis-
case,
dissent
this
the failure of the Fund to
tration loan accrues on each installment from
years
file its suit within six
from that date
the date it
falls due
the absence of acceler-
meant that
untimely,
the Fund’s action was
ation).
though
even
it was-filed while there were still
payments to be made.
analogy
payments
The
of scheduled
under
the MPPAA to
installment
We believe that
the district court
adopted by the Eleventh Circuit when it held
erred when it
recognize
failed to
that
that interest accrues on overdue employer’s obligation to make the scheduled
liability from the due date of each missed
payments is akin
obligation
to make
payment rather than from the due date of
payments.
installment
In an installment
the first installment. See Carriers Container
contract, a new cause of action arises from
Ass’n,
Council v. Mobile S.S.
the date each
is missed.
4See A.
(11th Cir.1991).
1222-24
The court reasoned
Corbin,
(1951).
Corbin on Contracts
951
accruing
that
interest from the date of the
principles applying
the statute of limi-
first installment would amount to an improp
tations to installment
are well es-
er retroactive acceleration of interest.
Id. at
tablished:
1223. But
New York Teamsters
cf.
Confer
obligation
the case of an
payable by
ence Pension & Retirement Fund v. McNi
instalments, the statute of limitations runs
Co.,
Transp.
F.Supp.
cholas
658
against each instalment from the time it
(N.D.N.Y.1987) (ordering interest from first
due,
is,
becomes
from the time when
schedule),
date of
missed
under
might
an action
brought
to recover it.
(2d Cir.1988).
aff'd,
the context of Carriers Container was differ-
It is not clear from the record on what basis
for accrual of the cause of action was December
the district court concluded that the
latest date
control”
us,
group
of a
under “common
court’s members
ease before
ent
than
withdrawal liabili-
separate
for each other’s
as a
are liable
installment
of each
treatment
1301(b)(1)).
theory prof-
(citing 29 U.S.C.
ty.
Id. at 169
in line with
amount due
than six
against
was filed more
Fund.
Navco
Suit
by the Pension
fered
its affiliated
years after the first
Ludington
us to
refers
Fund also
dis-
due. Id. at 170. The
corporations was
UFCW/Drug Em
Michigan
News Co.
untimely,
suit as
trict court dismissed the
Fund Workers Union
Pension
ployers
pension funds that
rejecting the claim of the
Employers Joint Pen
Drug and Mercantile
discovery of
years from their
they had six
(BNA)
Fund, Employee Benefits Cas.
sion
The court
of Navco to file suit.
the existence
viewing
(1988),
an arbitrator’s
affirmed, agreeing that the statute
appeals
con
an installment
as
the withdrawal
accrual of the
limitations ran from the
“the statute
obligation under which
tract
the discov-
action rather than from
cause of
respect
run with
to a
begin to
does not
responsible
ery
identity of additional
that installment
until
particular installment
us.
an issue not before
persons, id.
Although
recog
at 1916.
we
falls due.”
precedential
Ludington
is without
nize that
than six
suit was filed more
Because
effect,
by another
cited as relevant
it was
was due
first scheduled
after the
Masonry,
Joyce Clyde
(but
v.
Sandoz
circuit. See
of the last scheduled
within six
denied,
(D.C.Cir.),
1119, 1124
cert.
F.2d
consider
payment),
court also had to
Conclusion ment. Because the current action for the unpaid years balance was filed nine after the statutory We conclude that under payment, first missed the district court dis- MPPAA, by scheme established by missed this matter as barred sponsor years pay- has six from the date statute of limitations. recovery. ment is due to sue for its Absent a by accelerate, the Fund to the cause The Board of Trustees of District No. 15 yet of action for not due does not (“Fund”) Machinists Pension Fund contends begin run when the first such filing its time for an action for the case, undisputed missed. this it is unpaid years balance runs six from the date great unpaid bulk of the installments of the last scheduled set forth in the by were due Kahle six of the Fund’s formal demand letter. Unfortunate- filing complaint by of the the Pension Fund. ly, majority persuaded by been this It follows that the Fund was not time-barred argument. majority today holds that a bringing quar- suit for the total of the cause of action for the balance of an terly payments which fell due within the six employer’s liability to a fund is not years prior filing of this suit.10 by barred the statute of limitations if it is above, For the set forth reasons we will filed within six of the last scheduled grant summary judgment reverse the dis- if even failed to make provision 8. We find significance curious dissent's concern that un- would have no if the man- opinion escape payment der datory Kahle will notice amount of withdrawal liabili- $150,000 (presumably ty over the amount the dis- were also to be viewed as a notice of accelera- sent calculates was due under the twelve tion. 1987), through July ments from October 1984 case, In this we need not decide whether the typescript op. dissent when under the plan sponsor right retain would to accelerate escape payment dissent’s view Kahle would previous- and sue for the total amount due had it remaining payments, rough which a cal- ly brought delinquent recover $250,000, culation shows would be more than happened because that is not what assuming computed by interest as the Fund. bring any here. The Fund did not earlier suit. Furthermore, because all of the accel- appears suggest 9. The dissent that the notice (from August erated as of the 1988 notice of default sent the Pension Fund to Kahle on August January, 1988 to the final due April 1984 could be viewed as the accelera- 1994) six-year period are covered before tion notice authorized under (which filing complaint sweep of the 1399(c)(5). argued Kahle has not so nor did 28, 1987), September back to we need not con- Nothing the district court so view it. in the August sider effect of the 1988 notice. language April suggested 1984 letter Presumably, quarterly payments the one or two argues acceleration. The Pension Fund filing complaint due after the will be mandatory there is a between the distinction by supplement covered or amendment notice that sets amount of withdrawal liabili- complaint. ty repayments, required and the schedule for 1382, 1399(b)(1), §§ dispositive under 29 U.S.C. and the 10.Because the view we take of the facts, discretionary any disputes parties notice of acceleration authorized between the as to the 1399(c)(5), under 29 U.S.C. which it contends effect letters sent in 1984 are irrelevant to reason, August disposition. it sent on 1988. There is some statuto- our For the same we need distinction, ry support equitable arguments as the two notices consider raised separate provisions, are in and the acceleration Pension Fund. *10 I. twenty years. for any quarterly my Because it is at 860-61. Majority opinion that moti- rationale explaining the Before finds no majority’s decision that view dissent, facts I set forth the my will vates MPPAA, and is of in the text support a mem- appeal. Kahle was pertinent to this Third Circuit contrary the law to plan spon- pension multiemployer of a ber of limi- of statutes application regarding the 1981, Kahle was Fund. sored tations, respectfully dissent. I must employ- its dispute with in a labor involved MPPAA, Congress provided two In the result, suspended its company ees. As a pension to a fund options straightforward April the Fund. On to contributions to a scheduled fails make an that the labor determined the Fund flowing a with- from payment on the obligation to Kahle’s dispute had terminated bring may an pension fund drawal. Fund con- making payments. The continue payment within six the missed action for complete that had effected cluded Kahle choose, in- may fund pension years. The plan. Accord- unpaid stead, for the entire bring action to notice of its Kahle a ingly, the sent Fund years of the missed within six balance first $271,746 along with obligation of assessment payment. and a de- quarterly payments a schedulе option for third majority has created a quarterly payment of initial mand for option, Under pension fund. $9,467. schedule obligation bring an action either not to may thirty-eight Fund elect addi- that Kahle make required payment, or for the first missed $9,467, pay- for the a final payments of and tional de- balance, years of the six unpaid $6,459. also notified The Fund ment of may Instead, fault. payment as begin to that the failure Kahle twenty years pursue to wait im- “cho[o]se to seek entitle the Fund required would balance, cause of action” full of with- payment of the amount mediate the last six “to collect would be able liability.1 drawal Majority opinion at 860. installments.” quarterly its initial Kahle made view, majority’s Contrary to the in- day, Kahle July That same on fixing of the date place the MPPAA does not withdrawn. that it had the Fund formed the un- of action accrues that the cause of the Fund’s requested also review Kahle unreview- in the exclusive paid balance completely with- it had determination fund, regardless control of able drawn. caused the defendant prejudice to requested Fund August The MPPAA On the claim. delay prosecuting information additional provide that Kahle filed within be provides must dispute order concerning the labor Be- employer defaults. six after claim that investigate Kahle’s Fund could than six the more was filed cause this action 13,1984, September not withdraw. On it did employer missed its first years after the request for responded to the Kahle Fund’s the dis- I affirm scheduled also informed the additional information dismissing this action. trict order court’s quar- required this amount in are You portion the demand letter is as 1. The relevant $9,467 terly payments, each in the amount follows: (except which will be in for the last company your determined We have $6,459). the amount Fund. In ac- withdrawal from effected a days begin than 60 Payments no later must Multi-Employer Pension cordance notice, notwithstanding receipt of this (the Act), we Act of 1980 Plan Amendments Accordingly, appeal. any request for review or payment of withdraw- hereby request for make company's quarterly installment is your first with the schedule accordance al July due on below. described begin payment of liabili- Failure records, complete withdraw- According to our default, ty required constitute 1981. Based on June al occurred require immediate will entitle accordance Trustees method chosen the withdrawal full amount of Act, compa- ment of the your computed we have with the $271,746. liability owed. ny's liability *11 Fund, making quar- company immediately that the that it would discontinue terly payments. past аll payments, plus make due inter- equal est. The interest shall be 20, 1984, Kahle sent On December rate, prime accruing current from the date included a demand to Fund a letter which you each such If was due. do not day, pension dispute. The next arbitrate the payments, interest, make such including in sent a letter to Kahle which it the Fund (60) sixty days you from the date explained that it had found no basis alter- letter, received this require, will prior that Kahle had com- ing its in Multiemployer accordance with the Pen- pletely The Fund also warned withdrawn. 1980, sion Plan Amendments Act of imme- payments Kahle that it had defaulted on its diate of the total lia- that, 1,1985, by January if and not cured bility, plus accruing interest from the date Fund would declare a default and “seek all the first necessary, was due. If against it” remedies available to Kahle.2 the Fund will file an action in the United 1984, the Fund’s attor- On December States District compa- Court to enforce the ney notified Kahle that Kahle’s “letter of ny’s obligation pay. 20,1984, December ... must have crossed in any Kahle did not the mails with mine of December 1984.” make in re- sponse to this The Fund’s December 28 letter reiterated its second notification of its de- later, reversing nearly fault. Over five position that there no basis for and nine after Kahle its its conclusion that Kahle had withdrawn from missed first September again on plan. The Fund advised Kahle Fund filed this seeking payment unpaid in in action it was default its and balance further that the missed Kahle’s withdrawal The district stated unless made, granted summary the Fund would “seek all court Kahle’s motion for ment was judgment on the that the remedies available to it.” basis Fund’s action year was barred the six statute of limita- Kahle did make further 1451(f)(1). period tions in 29 U.S.C. proceedings. nor did it initiate arbitration candidly argument in As the Fund admitted II. court, it no before the district took further against Kahle until 1988.3 The Fund contends that this action is not 9, 1988, August On the Fund sent Kahle a barred statute of limitations. letter which stated: argues It that its claim for the bal- you gave compa-
This letter is to inform that the ance did not accrue until it Kahle notice ny August past-due pay- in if all default its withdrawal on 1988 that demand, payments. hereby days, were not We behalf ments made within following colloquy letter 3. The Fund’s dated December occurred between the counsel, states: district court and Fund's Ms. Rober- you August our ... letter to Since to: the Trustees of the District No. 15 Machinists' 1985, '86,- happened THE COURT: What your Fund have Pension met and considered '87? Zero. July letter of Well, waiting MS. Fund was ROBERTO: part that at Please advised this time going happen for—to see what was with the your respond as a result of fаilure to to our dispute. arbitration with the labor letter, earlier the Trustees can see no reason '85, Waiting THE COURT: for what? In changing your their determination that '86, Thus, you got any papers you in '87? Have client has withdrawn from the Plan. your obligated client continues to be to show me that arbitration was com- want liability.' mencing, looking people were for arbitrators your Please be further advised client is reviewing? Nothing happened. I think payments. now in default in its Unless it cures is, part your Nothing candor on the client January default our the 1st of '85, '86, '87, happened so we de- sent the client will have no alternative but to declare fault in '88. your client "in default” seek all remedies dispute MS. ROBERTO: I don't that. I have appropriate [sic] available to it client under nothing you to show otherwise. legislation. federal *12 employers completely with- for the total well-drained file an Fund, multiemployer pension drawn from their According to the January 1984. Id. funds (2) for types of accrual dates are two there liability assess- collection 6,1984, Teamsters Fund sent April On when an installment occurs ment. One and a formal notice of withdrawal point the At that omitted. employers. Id. for to the demand' ' bring right to suit for has the fund pension sixty days employers given 170. The were at (1) The second is when payment. that оne payment. Id. No to make the demanded option to exercises its pension response to the de- payments were made outstanding balance after accelerate More than seven mand. Id. If to cure a default. failure employers 1, 1991, demand, May Teamsters on not meet the employer does cause of action. Id. Fund filed its outstanding the entire- demand fund’s granted court the defendants’ The district balance, accrues for the of action a cause summary judgment. Id. The motion amount. total by the held that the action was barred court Br. at 21. Opening Appellant’s limitations, began to six-year statute of the district court Fund asserts 5, 1984, when the demanded accrue on June erred appeal, delinquent. Id. On payment became argued Fund that the district the accrual the Teamsters distinguish between failing to began it that the claim court erred when held for one installment of action of a cause overdue. outstanding to accrue when the became for the total payment and Although the Id. assessment. amount following that it was stated court district Independent Fund On June Pension it held Sandoz notice, payment sched- employers sent the triggering the com- of action Fund’s cause ule, and demand for as a result of six-year stat- the MPPAA’s mencement fund. Id. their withdrawal 1984 accrued October limitations ute of schedule, quarterly pay- Pursuant 1984, actually followed the or December begin July and ments were to on for the Seventh Circuit’s Appeals Court of 1,1986. July employ- Id. The continue until Pension Fund v. States Central Nearly any payments. Id. ers never made (7th Cir.1993), Navco, cert. F.3d 167 demand, on March eight after its — U.S. -, denied, S.Ct. Independent filed its cause of Fund (1994). L.Ed.2d 382 action. Br. at .23-24.
Appellant’s Opening
granted
employers’
The district court
Joyce
Clyde
reliance
The Fund’s
summary judgment.
Id. The
motion for
(D.C.Cir.),
Masonry,
their
and in the MPPAA
un-
protecting
usual
*15
one
the beneficiaries of
III.
fund.”). Additionally,
permitting a fund
matter,
this
Fund’s cause
triggering
begins
to choose the
date which
for the balance of the withdrawal
running
of the
statute
limitations es-
1,1984,
arose on
Kahle missed
October
sentially
dilatory
makes the fund’s
payment
receiving
payment
after
a
sched
unreviewable
a court.
corresponding
ule and a
demand. See Nav
majority
point
The
has failed to
to
(cause
co,
begins
IUE AFL-CIO 21,1984 all Fund’s December threat to “seek (3rd Cir.1986) Williamson, only remedies available to it” could refer to omitted). (internal majority’s quotation *16 unpaid an action for the total balance. As 1399(c)(5) seriously interpretation of section Fund, conceded the the MPPAA does not Congressional intent. frustrates require a service of notice of default where pension that a fund act Congress’ concern pension plan bring the elects to an action for integrity promptly protecting in the of the Appellants Opening a Br. at 21. misconduct. pension requirement in the plan is reflected attempts escape The Fund to the conse- employ- of that demand for the the quences of its failure to file this action within a be made “as er’s after withdrawal period by arguing the limitation 1399(b)(1). practicable.” 29 U.S.C. soon as the of default it sent to notice Kahle dated may majority’s that a fund The conclusion “defective,” December 1984 was the total amount of delay filing an action for trigger running did not the of therefore outstanding liability up twenty to Appellant’s Opening statute of limitations. years contrary expressed concern of to the argument Br. at 29. This is frivolous. To timely Congress pension fund take outstanding accelerate of the with- dispute concerning to resolve 1399(c)(5), liability pursuant drawal to section employer’s liability. plan sponsor give must 1399(c)(5) place construing any written notification of its failure to make section running the statute of limitations in when due. The Fund’s December of 21,1984 majority pension plan, letter informed Kahle’s counsel “that hands of the your payments.” in apparently approve would of the loss of four- client is now default years employ- owed The letter further advised Kahle that unless teen cured, majority’s construction the default was the Fund would “seek ee the Fund. clearly with all of the MPPAA is inconsistent remedies available to it.” The December substantially complied congressional goal safeguarding 1984 letter requirements of integrity multiemployer plan. financial of the the notice of default section 1399(c)(5). of action until running of the statute cause arises unpaid refuses to meet the demand of the fund. for the total balance limitations Sandoz, above, at 1124. triggered by the December 871 F.2d As noted therefore analogy adopted to the law of contracts notice of default. majority expressly in this matter was VI. Navco, rejected by the Seventh Circuit. F.3d at 172-73. majority support for its conclu- Aids limitations for the the statute of sion begins to run anew from unpaid
total balance CONCLUSION the date of each scheduled Contrary majority’s resolution of the of contracts. The Seventh Cir- common law court, issue before this the MPPAA does rejected argument Navco: cuit a similar permit fund to file a cause of action 1399(c) ... is not under The schedule for the balance of an with- contractual; did not assent drawal six after the last longer period and suit. due, if ment is even no have been any extending the not seen case We have up twenty years. Regrettably, made for MPPAA, and approach to the contractual majority subjected running of the district court we believe would like the statute of limitations to the whim imprudent adopt a rule that relieves nothing Fund. I find in the law of the Third funds to pressure on trustees jurisdiction sup- other Circuit quite suffi- dispatch. Six act with ports extraordinary Accordingly, result. cient; them- the trustees not award join majority’s opinion. I I cannot more. selves judgment affirm the would well reasoned the district court. I not borrow from the law of con- negatе Congress that
tracts to the intent of promptly must act to avoid
pension funds integrity financial
compromising the requiring participants fund and other employers responsibility
to shoulder the majority’s withdraw. The reliance
who Ludington
the arbitrator’s decision
News
Employers
Michigan UFCW/Drug
Co. and
individually,
Benjamin
CADES,
F.
Drug
Pension Fund Workers Union
persons similarly
on behalf of all
*17
Employee
and Mercantile
Joint Pension
situated, Plaintiff-Appellant,
(BNA)
Fund, Employee
Benefits Cas.
v.
(1988),
theory
support its contractual
majority
questionable.
“[a]l-
states
INCORPORATED;
BLOCK,
RH &
recognize
Ludington with-
though we
Bank,
Beneficial National
effect,
precedential
cited as rele
out
was
Defendants-Appellees.
Joyce Clyde
circuit.
vant
another
See
Michigan;
Virginia;
Masonry, 871 F.2d
1124 State of West
State
Sandoz
Kentucky;
(D.C.Cir.),
denied,
of Connecti
[110
cert.