Western States Office Fund v. Wpas ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BOARD OF TRUSTEES OF THE No. 20-35545
WESTERN STATES OFFICE AND
PROFESSIONAL EMPLOYEES PENSION D.C. No.
FUND, 3:19-cv-00811-
Plaintiff-Appellant, SB
v.
OPINION
WELFARE & PENSION
ADMINISTRATION SERVICE, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Stacie F. Beckerman, Magistrate Judge, Presiding
Argued and Submitted October 5, 2021
Portland, Oregon
Filed January 31, 2022
Before: William A. Fletcher, Sandra S. Ikuta, and
Daniel A. Bress, Circuit Judges.
Opinion by Judge Ikuta
2 WESTERN STATES OFFICE FUND V. WPAS
SUMMARY*
ERISA
The panel affirmed the district court’s summary judgment
in favor of the defendant in an ERISA action brought by a
multiemployer pension plan, seeking a recalculation of
defendant’s annual withdrawal liability payments following
its withdrawal from the plan.
When an employer withdraws from a multiemployer
pension plan, it is required to pay for its share of unfunded
benefits. That share, called withdrawal liability, may be paid
in annual installments, calculated in part based on the
“highest contribution rate” the employer was required to pay
into the plan during a specified time period. In addition,
when a multiemployer plan is underfunded and in critical
status, the employer must pay a surcharge of five or ten
percent of the total amount of contributions the employer was
required to make to the plan each year.
The panel held that, for purposes of determining an
employer’s annual withdrawal payment, a surcharge paid by
the employer when a plan is in critical status is not included
in the calculation of the “highest contribution rate.”
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WESTERN STATES OFFICE FUND V. WPAS 3
COUNSEL
Robert B. Miller, Kilmer Voorhees & Laurick PC, Portland,
Oregon, for Plaintiff-Appellant.
Jeremy E. Roller, Arete Law Group PLLC, Seattle,
Washington, for Defendant-Appellee.
OPINION
IKUTA, Circuit Judge:
Under Employee Retirement Income Security Act of 1974
(ERISA), 29 U.S.C. § 1001–1461, when an employer
withdraws from a multiemployer pension plan, the employer
is required to pay for its share of unfunded benefits.
29 U.S.C. § 1381. That share of unfunded benefits is called
“withdrawal liability,” see id., and can be paid in annual
installments, see id. § 1399(c)(1)(A)(i). The calculation of
the employer’s annual withdrawal payments is based in part
on the “highest contribution rate” the employer was required
to pay into the plan during a specified time period. Id.
§ 1399(c)(1)(C)(i)(II). Such a contribution rate is usually
stated as dollars per compensable employee hour. A different
section of ERISA provides that when a multiemployer plan
is underfunded and in critical status, the employer is required
to pay a surcharge of five or ten percent of the total amount
of contributions the employer was required to make to the
plan each year. Id. § 1085(e)(7)(A).
This appeal raises the question whether a surcharge paid
by an employer when a plan is in critical status is included in
the calculation of the “highest contribution rate” for purposes
4 WESTERN STATES OFFICE FUND V. WPAS
of determining the employer’s annual withdrawal payment.
We hold it is not, and affirm the judgment of the district
court.
I
This case involves an issue of statutory interpretation. An
explanation of the relevant statutory framework is necessary
to understand the parties’ arguments.
In 1974, Congress enacted ERISA to “mak[e] sure that if
a worker has been promised a defined pension benefit upon
retirement—and if he has fulfilled whatever conditions are
required to obtain a vested benefit—he actually will receive
it.” Nachman Corp. v. Pension Ben. Guar. Corp., 446 U.S.
359, 375 (1980). To this end, “ERISA required employers to
make contributions that would produce pension plan assets
sufficient to meet future vested pension liabilities; it
mandated termination insurance to protect workers against a
plan's bankruptcy; and, if a plan became insolvent, it held any
employer who had withdrawn from the plan during the
previous five years liable for a fair share of the plan's
underfunding.” Milwaukee Brewery Workers' Pension Plan
v. Joseph Schlitz Brewing Co., 513 U.S. 414, 416 (1995).
In a multiemployer pension plan (i.e., a plan created
through an agreement among multiple employers and one or
more unions), “[t]he contributions made by employers
participating in such a multiemployer plan are pooled in a
general fund available to pay any benefit obligation of the
plan.” Concrete Pipe & Prods. of Cal., Inc. v. Constr.
Laborers Pension Tr. for S. Cal., 508 U.S. 602, 605 (1993).
Multiemployer pension plans “provide the participating
employers with such labor market benefits as the opportunity
WESTERN STATES OFFICE FUND V. WPAS 5
to offer a pension program (a significant part of the covered
employees’ compensation package) with cost and risk-sharing
mechanisms advantageous to the employer.” Id. at 606.
Multiemployer pension plans also give rise to distinctive
risks. As ERISA was originally enacted, “the possibility of
liability upon termination of a plan created an incentive for
employers to withdraw from weak multiemployer plans.” Id.at 608 (citing Connolly v. Pension Benefit Guar. Corp.,
475 U.S. 211, 215 (1986)). When an employer withdrew
from a plan before fully funding the benefits owed to its
employees, the remaining employers were required to absorb
the cost. See Connolly, 475 U.S. at 216 (citation omitted).
“[T]his scheme encouraged an employer to withdraw from a
financially shaky plan and risk paying its share if the plan
later became insolvent, rather than to remain and (if others
withdrew) risk having to bear alone the entire cost of keeping
the shaky plan afloat.” Milwaukee Brewery, 513 U.S. at416–17. After one employer withdrew, the remaining
employers had an increased incentive to withdraw as well,
further imperiling the plan in a “vicious downward spiral.”
Connolly, 475 U.S. at 216 (citation omitted). In light of this
risk, “a plan’s financial troubles could trigger a stampede for
the exit doors, thereby ensuring the plan’s demise.”
Milwaukee Brewery, 513 U.S. at 417.
In 1980, Congress addressed this problem by amending
ERISA to hold employers withdrawing from a multiemployer
pension plan liable for their share of unfunded benefits. See
Multiemployer Pension Plan Amendments Act (“MPPAA”),
29 U.S.C. §§ 1381–1461. Under the MPPAA, when an
employer withdraws from a multiemployer pension plan, “the
employer is liable to the plan in the amount determined under
[the amendments] to be the withdrawal liability.” 29 U.S.C.
6 WESTERN STATES OFFICE FUND V. WPAS
§ 1381(a). In imposing this liability for the employer’s share
of unfunded benefits, Congress sought “to discourage
withdrawals ex ante and cushion their impact ex post.” Bay
Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar
Corp. of Cal., Inc., 522 U.S. 192, 201 (1997).
An employer’s withdrawal liability is “the allocable
amount of unfunded vested benefits” subject to various
adjustments as determined by a complex formula. 29 U.S.C.
§ 1381(b). An employer can satisfy its withdrawal liability
by either paying a single lump sum or making a series of
annual payments over a specified amortization period. See id.§ 1399(c)(1)(A)(i).
If the employer chooses to pay on an annual basis, the
amount of each annual payment is determined by a different
formula. The annual withdrawal payment amount is the
product of: (1) the “average annual number of contribution
base units for the period of 3 consecutive plan years [during
the 10 plan years preceding the employer’s withdrawal] in
which the number of contribution base units for which the
employer had an obligation to contribute under the plan is the
highest”; and (2) the “highest contribution rate at which the
employer had an obligation to contribute under the plan
during the 10 plan years” preceding the employer’s
withdrawal. Id. § 1399(c)(1)(C)(i).1 A “contribution base
1
29 U.S.C. § 1399(c)(1)(C)(i) states:
Except as provided in subparagraph (E), the amount of
each annual payment shall be the product of—
(I) the average annual number of contribution base
units for the period of 3 consecutive plan years,
during the period of 10 consecutive plan years
WESTERN STATES OFFICE FUND V. WPAS 7
unit” is defined as “a unit with respect to which an employer
has an obligation to contribute under a multiemployer plan.”
Id. § 1301(a)(11). “For example, an employer’s contribution
under a collective bargaining agreement may be based on a
participant’s hours of covered work.”2 When the
amortization period exceeds twenty years, the employer
satisfies its withdrawal liability by making the first twenty
annual payments. See 29 U.S.C. § 1399(c)(1)(B).
After addressing the problem of employer withdrawal by
enacting the MPPAA, Congress subsequently enacted the
Pension Protection Act of 2006 (“PPA”), 29 U.S.C. § 1085,
to tackle the problem of helping “severely underfunded
multiemployer pension plans recover,” Lehman v. Nelson,
862 F.3d 1203, 1207 (9th Cir. 2017). This amendment to
ERISA “requires plan actuaries for multiemployer plans to
annually certify ‘whether or not the plan is or will be in
ending before the plan year in which the
withdrawal occurs, in which the number of
contribution base units for which the employer had
an obligation to contribute under the plan is the
highest, and
(II) the highest contribution rate at which the
employer had an obligation to contribute under the
plan during the 10 plan years ending with the plan
year in which the withdrawal occurs.
For purposes of the preceding sentence, a partial
withdrawal described in section 1385(a)(1) of this title
shall be deemed to occur on the last day of the first year
of the 3-year testing period described in section
1385(b)(1)(B)(i) of this title.
2
Glossary, Pension Benefit Guaranty Corporation (last updated
Sept. 21, 2021), https://www.pbgc.gov/glossary.
8 WESTERN STATES OFFICE FUND V. WPAS
critical status for such plan year or for any of the succeeding
5 plan years’ within ninety days of the start of the plan year.”
Id. (quoting 29 U.S.C. § 1085(b)(3)(A)(i)). A multiemployer
pension plan is in “critical status” if it is less than 65 percent
funded and meets certain other criteria. 29 U.S.C.
§ 1085(b)(2)(A). When a plan is in critical status, each
employer who is “otherwise obligated to make contributions
for the initial critical year” must pay a surcharge into the
plan, calculated as a percentage of the employer’s
contributions required under a Collective Bargaining
Agreement (“CBA”) or other agreement. Id. § 1085(e)(7)(A).
During the first year of critical status, the surcharge is five
percent of the amount of contributions the employer is
otherwise obligated to make. Id. For each succeeding critical
year, the surcharge is ten percent of those contributions. Id.
The surcharges “shall be due and payable on the same
schedule as the contributions on which the surcharges are
based.” Id. § 1085(e)(7)(B). The surcharge terminates when
a new CBA is adopted in accordance with a rehabilitation
plan. Id. § 1085(e)(7)(C).
In 2014, Congress made another effort to help critically
underfunded plans. In the Multiemployer Pension Reform
Act of 2014 (MPRA), Pub. L. No. 113-235, 128 Stat. 2130,
2773–882 (2014), Congress again amended ERISA to allow
a multiemployer pension plan to reduce pension benefits if
the plan was projected to run out of money before all
promised benefits are paid. These amendments to the
MPPAA “apply to . . . surcharges the obligation for which
accrue on or after December 31, 2014.” MPRA § 109(c),
128 Stat. at 2792. Because the surcharge in this case accrued
prior to this date, the parties agree that the MPRA does not
apply to this dispute.
WESTERN STATES OFFICE FUND V. WPAS 9
II
In 2007, Welfare & Pension Administration Service, Inc.
(WPAS) entered into a CBA with Office and Professional
Employees International Union Local No. 8, AFL-CIO (the
Union) from January 1, 2007 to December 31, 2016. The
CBA required WPAS to contribute to a multiemployer
pension plan administered by the Board of Trustees of the
Western States Office and Professional Employees Pension
Fund (the Fund). In Article 12 of the CBA, WPAS agreed to
be bound by the terms of the multiemployer pension plan and
to “contribute on behalf of each regular full-time and each
regular part-time employee covered by this Agreement, not
to exceed thirty-seven and one half (37 1/2) hours in any one
week.” The article then sets out the following contribution
rates:
Section 12.1(a) Effective April 1, 2007, the
Employer pension contribution rate will
increase to $2.50 per compensable hour . . .
Section 12.1(d) Effective April 1, 2010, the
Employer pension contribution rate will
increase to $2.95 per compensable hour . . .
For the purpose of this Article, a compensable
hour shall be defined as any time for which an
employee has received compensation,
including vacation, holidays, sick leave, jury
duty, etc.
In 2009, the multiemployer pension plan administered by
the Fund was determined to be in critical status, as defined in
Id. § 1085(b)(2). This determination triggered the automatic
10 WESTERN STATES OFFICE FUND V. WPAS
employer surcharge, meaning that each employer had an
obligation to pay a surcharge of five or ten percent of the
contributions the employer was required to make under the
CBA. 29 U.S.C. § 1085(e)(7)(A). WPAS paid a 5 percent
surcharge in 2009, and then a 10 percent surcharge each year
thereafter, in addition to the contributions required by the
CBA.
In 2016, WPAS withdrew from the multiemployer
pension plan. Under § 1381, this made WPAS liable to the
plan for the amount of withdrawal liability calculated under
§ 1391. Using the statutory formula, the Fund calculated
WPAS’s total withdrawal liability as $24,436,947.
As permitted under § 1399, WPAS elected to satisfy its
withdrawal liability through annual withdrawal payments
rather than in a lump sum. WPAS’s decision required the
Fund to calculate the amount of the annual withdrawal
payments using the formula in § 1399(c)(1)(C)(i), which
required the calculation of two numbers.3 The Fund first had
to calculate WPAS’s highest “average annual number of
contribution base units for the period of 3 consecutive plan
years.” Id. § 1399(c)(1)(C)(i)(I). Under WPAS’s CBA, the
“contribution base units” were the compensable hours of
employees, because WPAS’s contribution rate in the CBA
was based on a specified dollar amount per compensable
hour. The Fund determined that the relevant number of
contribution base units was 296,213 annual compensable
employee hours.
Second, the Fund had to calculate the “highest
contribution rate at which the employer had an obligation to
3
See supra at 6 n.1.
WESTERN STATES OFFICE FUND V. WPAS 11
contribute under the plan during the 10 plan years” preceding
WPAS’s withdrawal. Id. § 1339(c)(1)(C)(i)(II). Although
the highest contribution rate stated in Section 12.1 of the
CBA was $2.95 per compensable hour (beginning April 1,
2010), the Fund determined that the relevant contribution rate
was $3.245 per compensable hour. The Fund arrived at this
number by taking ten percent of $2.95 ($.295) and adding it
to $2.95. The Fund justified this approach on the ground that
in 2010, WPAS was required under § 1085(e)(7) to pay a ten
percent surcharge of its total contributions to the plan,
because the plan was in critical status, see 29 U.S.C.
§ 1085(e)(7)(A). According to the Fund, paying a surcharge
of ten percent of contributions is equivalent to paying a ten
percent higher contribution rate. Therefore, the Fund
reasoned, the contribution rate of $2.95 per compensable hour
was actually $2.95 plus ten percent, or $3.245 per
compensable hour. The Fund contends that under this
formulation, $3.245 per compensable hour is the “highest
contribution rate” that WPAS paid under the plan for
purposes of calculating the annual withdrawal payment.
Multiplying $3.245 by 296,213 compensable hours, the Fund
concluded that WPAS’s annual withdrawal payment was
$961,211.
WPAS does not dispute that the number of contribution
base units is 296,213 compensable hours. However, WPAS
contends that its “highest contribution rate” was $2.95 per
compensable hour, as stated in the CBA, and that the Fund
erred in characterizing the surcharge imposed on WPAS
under § 1085(e)(7) (because the plan was in critical status) as
part of the contribution rate. If the Fund had calculated
WPAS’s annual withdrawal payment using $2.95 per
compensable hour, WPAS argues, its annual withdrawal
payment would be $873,828.
12 WESTERN STATES OFFICE FUND V. WPAS
WPAS challenged the Fund’s assessment by initiating an
arbitration proceeding on July 10, 2018. The arbitrator found
in favor of WPAS and issued a partial final award ordering
the Fund to recalculate WPAS’s annual withdrawal payment
using a highest contribution rate of $2.95.
On May 24, 2019, the Fund filed a complaint to vacate
the arbitrator’s award in district court. The district court
granted WPAS’s motion for summary judgment, affirming
the arbitrator’s finding that WPAS’s “highest contribution
rate” was $2.95.4 The Fund timely appealed.
III
We must decide whether the term “highest contribution
rate,” as used in the formula for calculating an employer’s
annual withdrawal payments, see 29 U.S.C.
§ 1399(c)(1)(C)(i)(II), includes the percent of the surcharge
imposed on an employer when a multiemployer plan is in
critical status, see id. § 1085.
4
While courts’ review of arbitration awards is typically governed by
the Federal Arbitration Act, that act is not applicable here. ERISA
mandates arbitration for disputes regarding the calculation of an
employer’s annual withdrawal payment, see 29 U.S.C. § 1401(a)(1), and
authorizes federal courts to review the arbitrator’s decision and “enforce,
vacate, or modify the arbitrator’s award,” id. § 1401(b)(2). This language
includes “the authority to decide de novo all issues of law . . .” Bd. of Trs.
of W. Conf. of Teamsters Pension Tr. Fund v. Thompson Bldg. Materials,
Inc., 749 F.2d 1396, 1406 (9th Cir. 1984). Because the underlying
arbitration here was mandated by ERISA, its standards—and not those of
the FAA—govern our review.
WESTERN STATES OFFICE FUND V. WPAS 13
A
We start with the text of the statute, which provides a
formula for determining an employer’s annual withdrawal
payment that includes “the highest contribution rate at which
the employer had an obligation to contribute under the plan
during the 10 plan years ending with the plan year in which
the withdrawal occurs.” Id. § 1399(c)(1)(C)(i)(II). Because
the term “contribution rate” is not defined in the statute, we
interpret these words according to “their ordinary,
contemporary, common meaning.” Transwestern Pipeline
Co., LLC v. 17.19 Acres of Prop. Located in Maricopa Cnty.,
627 F.3d 1268, 1270 (9th Cir. 2010) (internal quotation marks
omitted). The relevant dictionary definition of “rate” around
the time § 1399 was enacted was “the amount, degree, etc. of
anything in relation to units of something else.” Webster’s
New World Dictionary, Third College Edition (1986). A
specified dollar amount per compensable hour is a “rate”
because it meets this definition. We consider these words
“with a view to their place in the overall statutory scheme,”
Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 953 (9th
Cir. 2009) (internal quotation marks omitted). In this case,
the statute indicates that the definition of “contribution rate”
is the rate imposed on the employer “under the plan.”
29 U.S.C. § 1399(c)(1)(C)(i)(II). ERISA defines “plan” in
relevant part as “an employee pension benefit plan.” Id.§ 1002(3). Article 12 of the CBA requires WPAS to
contribute pursuant to the multiemployer plan, and describes
the employer’s “contribution rate” as dollar amount per
compensable employee hour. Therefore, the most
straightforward reading of § 1399(c)(1) is that the “highest
contribution rate” is the highest dollar amount per
compensable hour specified in the pension plan.
14 WESTERN STATES OFFICE FUND V. WPAS
By contrast, the section for calculating the employer’s
surcharge, § 1085(e)(7)(A), refers to a “surcharge” that is a
specified percentage of the contributions required by a plan.
See 29 U.S.C. § 1085(e)(7) (“Each employer otherwise
obligated to make contributions for the initial critical year
shall be obligated to pay to the plan for such year a surcharge
equal to 5 percent of the contributions otherwise required
under the applicable collective bargaining agreement (or
other agreement pursuant to which the employer
contributes).”). The surcharge does not increase “the amount,
degree, etc. of anything in relation to units of something
else,” and therefore does not constitute a rate or part of a rate.
Instead, the surcharge required by § 1085 is imposed after the
total amount of contributions has been determined (i.e., after
the dollar amount in the contribution rate has been multiplied
by the total number of compensable hours). Rather than
increasing the rate (the dollar amount per each hour) by ten
percent, the surcharge requires a payment of ten percent of
the total amount of contributions. See id.
Therefore, the surcharge automatically imposed on an
employer when a plan is in critical status, see id., does not
increase the applicable contribution rate, which in this case is
the dollar amount per compensable hours. In short, we join
the well-reasoned opinion by the Third Circuit in concluding
that the surcharge is not the “highest contribution rate”
because it is not a “contribution rate” at all. Bd. of Trs. of IBT
Loc. 863 Pension Fund v. C & S Wholesale Grocers, Inc.,
802 F.3d 534, 544–45 (3d Cir. 2015). Nothing in ERISA
suggests that the imposition of a surcharge when a plan is in
critical status increases the employer’s contribution rate by
ten percent. Accordingly, the “highest contribution rate” in
this context means the highest dollar amount per compensable
WESTERN STATES OFFICE FUND V. WPAS 15
hour that the employer is obligated to contribute under the
plan,5 here $2.95.
B
The Fund advances several arguments to counter this
interpretation. The Fund argues that the surcharge imposed
when a plan is in critical status, 29 U.S.C. § 1085(e)(7), must
be included in WPAS’s “highest contribution rate” for annual
withdrawal liability, see id. § 1399(c)(1)(C)(i)(II), because
the surcharge increases the contribution WPAS was required
to make to the multiemployer plan. This interpretation is
contradicted by the language of the statute, which makes clear
that the surcharge is not a contribution, let alone an increase
to a contribution rate.
First, the section imposing a surcharge on employers
when a plan is in critical status, id. § 1085(e)(7), distinguishes
between the surcharge imposed on the employer by statute,
and the contribution required by the plan. For instance,
§ 1085(e)(7)(B) provides that surcharges are “due and
5
The statute providing the calculation for the annual withdrawal
penalty refers to “the highest contribution rate at which the employer had
an obligation to contribute under the plan.” 29 U.S.C.
§ 1399(c)(1)(C)(i)(II) (emphasis added). The phrase “obligation to
contribute” is defined to mean “an obligation to contribute
arising—(1) under one or more collective bargaining (or related)
agreements, or (2) as a result of a duty under applicable labor-management
relations law.” Id. § 1392(a). Although the parties make various
arguments regarding the meaning of the phrase “obligation to contribute,”
we do not need to address these arguments here. Given our holding that
the surcharge imposed under § 1085 when a plan is in critical status is not
a “contribution rate” at all, the source of the employer’s obligation to
contribute to a multiemployer pension plan (whether the CBA or labor-
management relations law) is not relevant.
16 WESTERN STATES OFFICE FUND V. WPAS
payable on the same schedule as the contributions on which
the surcharges are based.” Id. (emphasis added). If the
employer fails to pay the surcharge, it “shall be treated as a
delinquent contribution.” Id. (emphasis added). This
language makes clear that the surcharge is based on the
contribution, but is not itself deemed to be part of the
contribution.
Second, even if the surcharge is considered part of the
employer’s contribution as a practical matter, the surcharge
does not cause an increase in a “contribution rate.” The Fund
fails to point to any statutory language supporting its
recharacterization of the surcharge as increasing the number
of dollars owed (in the dollars-per-compensable-hour
contribution rate set forth in the CBA) by ten percent.
Indeed, ERISA undercuts the Fund’s interpretation, because
it expressly distinguishes between an employer’s
“contribution” to a multiemployer plan and the employer’s
“contribution rates.” For example, in addressing the rules for
additional funding when a plan is in critical status, the statute
states that “[a]ny failure to make a contribution under a
schedule of contribution rates provided under this subsection
shall be treated as a delinquent contribution.” Id.
§ 1085(e)(3)(C)(iv) (emphasis added). “[W]ere contributions
the same as contribution rates, that provision would be
redundant.” C & S Wholesale Grocers, Inc., 802 F.3d at 545.
Because the surcharge is neither a contribution nor a
contribution rate under the statute, it does not affect § 1399’s
formula for calculating annual withdrawal payments.
The Fund also argues that our interpretation is
inconsistent with Congress’s intent in enacting withdrawal
liability provisions. The Fund relies on Milwaukee Brewery
Workers’ Pension Plan v. Joseph Schlitz Brewing Co.,
WESTERN STATES OFFICE FUND V. WPAS 17
513 U.S. 414, which described the effect of the 1980
amendments adding the withdrawal liability provisions to
ERISA. Id. at 417. According to Milwaukee Brewery,
because “maintaining level funding for the plan is an
important goal of” ERISA, the amendment “fixes the amount
of each annual payment at a level that (roughly speaking)
equals the withdrawing employer’s typical contribution in
earlier years.” Id. at 418. The Fund argues that because our
interpretation today results in an annual withdrawal payment
that is ten percent lower than what the employer would make
if it did not withdraw (because it does not include the
surcharge for the plan being in critical status), our
interpretation undermines Congress’s intent in enacting the
MPPAA.
The Fund’s reliance on Milwaukee Brewery is misplaced,
because it was decided eleven years before Congress enacted
the amendment providing for a surcharge, and therefore did
not consider the relationship between the annual withdrawal
payments and the surcharge on employers when plans were
in critical status. Milwaukee Brewery sheds no light on how
the annual withdrawal payments and the surcharge for plans
in critical status may interact. Indeed, the current version of
ERISA contemplates that an employer’s payments to
multiemployer pension plans in critical status may decrease
after the employer withdraws from the plan. See 29 U.S.C.
§ 1399(c)(1)(B) (extinguishing an employer’s withdrawal
liability after it makes 20 annual payments, even where these
payments do not equal the total withdrawal liability).
The Fund also argues that ERISA requires us to infer that
annual withdrawal payments include the surcharge for plans
in critical status. The Fund notes that when Congress enacted
the surcharge provisions in the 2006 PPA, it clarified that the
18 WESTERN STATES OFFICE FUND V. WPAS
imposition of the surcharge on the employer would not affect
the calculation of an employer’s total withdrawal liability,
which had been imposed in the MPPAA in 1980. See
29 U.S.C. § 1085(e)(9)(B) (2006) (providing that “[a]ny
surcharges . . . shall be disregarded in determining an
employer’s withdrawal liability under section 1391 of this
title,” subject to certain exceptions).6 But the 2006 PPA did
not use similar language to clarify that the surcharge would
not affect the calculation of an employer’s annual withdrawal
payments. Therefore, the Fund argues, we must infer that the
annual withdrawal payment includes the surcharge. We
reject this argument. In interpreting § 1399(c)(1)(C)(i), and
its formula for calculating the annual withdrawal payment,
we give effect to the statutory language, which was enacted
in the 1980 MPPAA; we do not change our interpretation
based on negative inferences that may be drawn from a
subsequent amendment to ERISA in 2006. “Congress may
amend a statute simply to clarify existing law, to correct a
misinterpretation, or to overrule wrongly decided cases.”
Hawkins v. United States, 30 F.3d 1077, 1082 (9th Cir. 1994).
We must not attempt to deduce the “intent behind one act of
Congress from the implication of a second act passed years
later.” Schrader v. Idaho Dep’t of Health & Welfare,
768 F.2d 1107, 1114 (9th Cir. 1985).
For the same reason, we reject the Fund’s similar
argument based on Congress’s amendment of ERISA in the
2014 MPRA. The MPRA added the language the Fund notes
is missing from the PPA: it expressly excluded the surcharge
6
As effective December 16, 2014, this subsection reads: “Any
surcharges . . . shall be disregarded in determining the allocation of
unfunded vested benefits to an employer under Section 1391 of this title
. . .” See 29 U.S.C. § 1085(g)(2) (2014).
WESTERN STATES OFFICE FUND V. WPAS 19
from an employer’s “highest contribution rate.” 29 U.S.C.
§ 1085(g)(2).7 According to the Fund, this change raises the
inference that, prior to 2014, the surcharge was a part of an
employer’s contribution rate. Again, we conclude that this
inference is unwarranted. See Hawkins, 30 F.3d at 1082;
Schrader, 768 F.2d at 1114. Given that nothing in ERISA
supports an interpretation that the surcharge is a component
of a contribution rate, a more plausible inference is that
Congress amended the statute to correct—once and for
all—the type of misinterpretations urged by the Fund.8
AFFIRMED.
7
29 U.S.C. § 1085(g)(2) (effective December 2014) states:
(2) Surcharges
Any surcharges under subsection (e)(7) shall be
disregarded in determining the allocation of unfunded
vested benefits to an employer under section 1391 of
this title and in determining the highest contribution
rate under section 1399(c) of this title, except for
purposes of determining the unfunded vested benefits
attributable to an employer under section 1391(c)(4) of
this title or a comparable method approved under
section 1391(c)(5) of this title.
8
The Fund also cites legislative history concerning the MPRA to
supports its interpretation of ERISA as it existed prior to that amendment.
Even if it were appropriate to examine legislative history in this case,
“[p]ost-enactment legislative history (a contradiction in terms) is not a
legitimate tool of statutory interpretation.” Bruesewitz v. Wyeth LLC, 562
U.S. 223, 242 (2011). Therefore, we do not address these arguments.