Consolidated Freight v. Aetna, Inc. , 564 F.3d 1161 ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In the Matter of: CONSOLIDATED 
FREIGHTWAYS CORPORATION OF
DELAWARE,
Debtor,
No. 07-56720
CONSOLIDATED FREIGHTWAYS  D.C. No.
CV-07-00545-JFW
CORPORATION OF DELAWARE
Appellant, OPINION
v.
AETNA, INC.,
Appellee.

Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted
April 13, 2009—Pasadena, California
Filed May 6, 2009
Before: Ferdinand F. Fernandez, Barry G. Silverman, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Fernandez
5285
IN THE MATTER OF CONSOLIDATED FREIGHTWAYS 5287
COUNSEL
David L. Neale, Levene, Neale, Bender, Rankin & Brill,
L.L.P., Los Angeles, California, for the appellant.
Robert S. Gebhard, Sedgwick, Detert, Moran & Arnold, LLP,
San Francisco, California, for the appellee.
5288 IN THE MATTER OF CONSOLIDATED FREIGHTWAYS
OPINION
FERNANDEZ, Circuit Judge:
K. Morgan Enterprises, Inc., Trustee of the Trust of Certain
Creditors of Consolidated Freightways Corp. and Certain
Affiliates (“Trustee”) appeals from a decision of the district
court affirming a determination by the bankruptcy court
regarding certain claims of priority made by Aetna, Inc. Aetna
claimed priority for “claims for contributions to an employee
benefit plan.” 11 U.S.C. § 507(a)(5).1 The bankruptcy court
agreed with Aetna and accorded priority. We affirm in part,
reverse in part, and remand.
BACKGROUND
Consolidated Freightways Corporation of Delaware and its
Affiliates2 (collectively “CFC”) operated a trucking and long-
haul freight transportation business. CFC maintained self-
funded medical health plans for non-union employees (“the
Plans”), and Aetna administered the Plans. When employees
or retired former employees or their providers had claims,
they submitted the claims to Aetna, which reviewed them,
determined if they should be allowed, and reimbursed the
claimants when appropriate. Once Aetna issued the reim-
bursements, it submitted a request for payment to CFC,
which, in principle, would then repay Aetna.
Alas, CFC fell on hard times and after ceasing business
operations, it terminated its employees and the Plans, and
immediately thereafter filed its petition in bankruptcy on Sep-
tember 3, 2002. As of the date of filing, employees and retir-
1
References to section numbers hereafter will be to Title 11 of the
United States Code, unless otherwise stated.
2
The Affiliates are: Consolidated Freightways Corporation; Consoli-
dated Freightways Airfreight Corporation; CFMovesU.com, Inc.; Leland
James Service Corporation; and Redwood Systems, Inc.
IN THE MATTER OF CONSOLIDATED FREIGHTWAYS 5289
ees had outstanding claims that had not been reimbursed by
Aetna or CFC. Moreover, Aetna itself had not been reim-
bursed for amounts it had advanced in payment of other
employee and retiree claims.
On November 22, 2004, the bankruptcy court issued an
“Order Confirming Debtors’ Consolidated Plan of Liquidation
Dated July 1, 2004 (As Amended).” The Trustee was
appointed to administer that trust.
On February 2, 2003, Aetna had filed a proof of claim in
an unliquidated amount for fees and costs related to its admin-
istration of the Plans, and on April 21, 2003, had amended its
claim to fix the claimed amount at $1,498,026. The Trustee
conceded that the non-retiree-related portion of Aetna’s
asserted claims, including Aetna’s costs in administering the
Plans, was entitled to priority under § 507(a)(5); however, it
asserted that the claims relating to retirees were not entitled
to priority treatment. The bankruptcy court heard arguments
on the Trustee’s objection, but ultimately granted priority to
the claims regarding Plan contributions for retirees. See In re
Consol. Freightways, Corp. of Del., 363 B.R. 110 (Bankr.
C.D. Cal. 2007) (CFC I). The Trustee appealed to the district
court, which affirmed on November 6, 2007. This appeal fol-
lowed.
STANDARDS OF REVIEW
We review a “bankruptcy court’s decision independently,
without deference to the district court.” Zurich Am. Ins. Co.
v. Int’l Fibercom, Inc. (In re Int’l Fibercom, Inc.), 503 F.3d
933, 940 (9th Cir. 2007). “The bankruptcy court’s conclusions
of law, including its interpretation of the Bankruptcy Code,
are reviewed de novo and its factual findings are reviewed for
clear error.” Id.DISCUSSION
[1] This case presents a question of statutory construction.
Therefore, we start with the salient provisions of the Bank-
ruptcy Code. Sections 507(a)(4) and (5) read as follows:
5290 IN THE MATTER OF CONSOLIDATED FREIGHTWAYS
(a) The following expenses and claims have prior-
ity in the following order: . . .
(4) Fourth, allowed unsecured claims, but only to
the extent of $4,650[3 ] for each individual or corpo-
ration, as the case may be, earned within 180 days
before the date of the filing of the petition or the date
of the cessation of the debtor’s business, whichever
occurs first, for —
(A) wages, salaries, or commissions,
including vacation, severance, and sick
leave pay earned by an individual; or
(B) sales commissions earned by an indi-
vidual or by a corporation with only 1
employee, acting as an independent con-
tractor in the sale of goods or services for
the debtor in the ordinary course of the
debtor’s business if, and only if, during the
12 months preceding that date, at least 75
percent of the amount that the individual or
corporation earned by acting as an indepen-
dent contractor in the sale of goods or ser-
vices was earned from the debtor.
(5) Fifth, allowed unsecured claims for contribu-
tions to an employee benefit plan—
(A) arising from services rendered within
180 days before the date of the petition or
the date of the cessation of the debtor’s
business, whichever occurs first; but only
3
This is the amount that applies to this case. It changes regularly due to
legislation and § 104; it is now $10,950.
IN THE MATTER OF CONSOLIDATED FREIGHTWAYS 5291
(B) for each such plan, to the extent of —
(i) the number of employees covered by
each such plan multiplied by $ 4,650[4];
less
(ii) the aggregate amount paid to such
employees under paragraph (4) of this
subsection, plus the aggregate amount
paid by the estate on behalf of such
employees to any other employee benefit
plan.
§ 507(a)(4), (5) (2002). Because we must construe
§ 507(a)(5), our examination must begin with the words of the
provision itself. See Einstein/Noah Bagel Corp. v. Smith (In
re BCE West, L.P.), 319 F.3d 1166, 1170-71 (9th Cir. 2003)
(“Our analysis under the general rules of statutory construc-
tion begins with the language of the statute itself.”) Of course,
that does not mean that we limit ourselves to the provision in
perfect isolation. We must, instead, construe that provision
with the statutory scheme in which it is embedded. Id. at
1170. For example, when language is used in one section of
a statute and the same language is used in another section, we
can infer that Congress intended the same meaning. See
Sorenson v. Sec’y of the Treasury, 475 U.S. 851, 860, 106
S. Ct. 1600, 1606, 89 L. Ed. 2d 855 (1986). Similarly, when
“Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is
generally presumed that Congress act[ed] intentionally and
purposely” in so doing. Barnhart v. Sigmon Coal Co., 534
U.S. 438, 452, 122 S. Ct. 941, 951, 151 L. Ed. 2d 908 (2002)
(internal quotation marks omitted); see also Tang v. Reno, 77
F.3d 1194, 1197 (9th Cir. 1996) (stating same principle). In
particular, “[s]tatutory construction of the Bankruptcy Code is
‘a holistic endeavor’ requiring consideration of the entire stat-
4
Id.5292 IN THE MATTER OF CONSOLIDATED FREIGHTWAYS
utory scheme.” BCE West, 319 F.3d at 1171. When an analy-
sis of a statute using our usual tools of construction leads to
a determination that “the statutory language is unambiguous
and the statutory scheme is coherent and consistent,” we need
look no further. See Barnhart, 534 U.S. at 450, 122 S. Ct. at
950 (internal quotation marks omitted).
[2] With that said, we will look at the section in question.
In particular, we will consider if the Plans are “employee ben-
efit plan[s]”;5 what is meant by “contributions”;6 what the
scope of “arising from services rendered” is;7 what is meant
by “employees”;8 and, finally, whether the limitation of pay-
ments is an aggregate of all that is paid or a limitation per
employee.9 When the provisions of § 507(a)(5) are scruti-
nized, we think it pellucid that the reference to “employee
benefit plans” does, at the very least, encompass the medical
plans involved here. See Howard Delivery Serv., Inc. v.
Zurich Am. Ins. Co., 547 U.S. 651, 658-59, 126 S. Ct. 2105,
2111, 165 L. Ed. 2d 110 (2006). Moreover, it is plain that the
word “contributions” refers to amounts that an employer (here
CFC) was required to remit to a plan.
The next question is: For purposes of this priority, what is
meant by “employees” and “arising from services rendered”?
While at first blush there may be some ambiguity in that
regard, we think that a consideration of § 507(a)(5) in the con-
text of the statute renders the answer quite clear.
There was a time when the provisions of current § 507(a)(5)10
5
Section 507(a)(5).
6
Id.
7
Section 507(a)(5)(A).
8
Section 507(a)(5)(B)(i) & (ii).
9
Section 507(a)(5)(B)(ii).
10
Lest there be confusion, we note that all references to the relevant pro-
visions of the Bankruptcy Code use the current numbering. However, an
IN THE MATTER OF CONSOLIDATED FREIGHTWAYS 5293
did not exist, but there was a priority for employee wages pro-
vided in § 507(a)(4). Perhaps the concept of “wages” captured
enough when that provision was first adopted, but as the
economy evolved, many workers began receiving compensa-
tion with other, less direct, benefits, such as the medical cov-
erage provided by the Plans. There the 507(a)(5) saga starts.
The Supreme Court has given us a description of that start,
including its own part in it. Howard Delivery, 547 U.S. at
657-60, 126 S. Ct. at 2110-12. It recalled that 507(a)(4),
which referred to “wages” and the like, said “nothing of
‘employee benefits plans’ or anything similar.” Id. at 658, 126
S. Ct. at 2111. It, therefore, had determined that unpaid con-
tributions to welfare plans that “provided life insurance,
weekly sick benefits, hospital and surgical benefits” or annui-
ties were not accorded priority. Id. Congress then remedied
that by adopting § 507(a)(5). The Court went on to further
describe that in the following words:
Beyond genuine debate, the main office of
§ 507(a)(5) is to capture portions of employee com-
pensation for services rendered not covered by
§ 507(a)(4). The current Code’s juxtaposition of the
wages and employee benefit plan priorities manifests
Congress’ comprehension that fringe benefits gener-
ally complement, or “substitute” for, hourly pay.
Congress tightened the linkage of (a)(4) and (a)(5)
by imposing a combined cap on the two priorities,
currently set at $10,000 per employee. Because
(a)(4) has a higher priority status, all claims for
wages are paid first, up to the $10,000 limit; claims
enactment after this matter commenced changed the numbering system.
See Bankruptcy Abuse Prevention and Consumer Protection Act of 2005,
Pub. L. 109-8, § 212(2), 119 Stat. 51. Pursuant to that, what was then
§ 507(a)(3) (wages) became (a)(4), and what was previously § 507(a)(4)
(employee benefit plan) became (a)(5).
5294 IN THE MATTER OF CONSOLIDATED FREIGHTWAYS
under (a)(5) for contributions to employee benefit
plans can be recovered next up to the remainder of
the $10,000 ceiling. No other subsections of § 507
are joined together by a common cap in this way.
Id. at 659-60, 126 S. Ct. at 2111-12 (citations and footnote
omitted). The fact of that tight connection had not been lost
on other courts. See, e.g., State Ins. Fund v. S. Star Foods,
Inc. (In re S. Star Foods, Inc.), 144 F.3d 712, 716 (10th Cir.
1998) (noting, as the Court did later, the relationship between
the provisions); In re Unimet Corp., 100 B.R. 881, 883-84
(Bankr. N.D. Ohio 1989) (same).
[3] Nor is that connection lost on us. Rather, that connec-
tion, that relationship, powerfully indicates that what Con-
gress had in mind was employees who had rendered services
during the relevant period. They are the ones who would have
been earning wages; they are the ones whose wages were,
presumably, lower during that same period because funds
were supposed to be diverted to payments to the benefit plan.
Were there any remaining doubt about the intended cover-
age, it is removed by the fact that the maximum to be devoted
to priority claims under § 507(a)(5) is determined by the num-
ber of employees covered by the plan less the amount paid to
those employees pursuant to the § 507(a)(4) priority. See
§ 507(a)(5)(B).
[4] Considering, then, the provisions as a whole,11 and giv-
ing similar language similar meaning,12 we find the intent of
Congress and the purpose of the provisions to be far from
opaque; rather they are hyaline. In general, the scope of ser-
11
See United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs.,
484 U.S. 365, 371, 108 S. Ct. 626, 630, 98 L. Ed. 2d 740 (1988); see also
King v. St. Vincent’s Hosp., 502 U.S. 215, 221, 112 S. Ct. 570, 574, 116
L. Ed. 2d 578 (1991).
12
See Sorenson, 475 U.S. at 860, 106 S. Ct. at 1606.
IN THE MATTER OF CONSOLIDATED FREIGHTWAYS 5295
vices rendered is those services performed by persons
employed by the debtor during the 180-day period preceding
bankruptcy. There are, however, a couple of loose ends that
we will address briefly.
[5] First, much ink has been spilled over whether retired
individuals should be included in the word “employees.”
While we think that normal usage shrinks from that construc-
tion,13 we do not think that it makes much difference here.
The operative principle is that the priority is for those who
rendered services during the 180-day period, whether they
were retired or not at the moment of the filing of the bank-
ruptcy petition.14 Cf. Air Line Pilots Assoc., Int’l v. Shugrue
(In re Ionosphere Clubs, Inc.), 154 B.R. 623, 631-32 (Bankr.
S.D.N.Y. 1993) (vacation pay claims are not dependent on
whether person retired at time of bankruptcy).
Second, we need not enter the debate over whether a third
party plan servicer’s claim can be entitled to § 507(a)(5) pri-
ority. Compare In re Braniff, Inc., 218 B.R. 628, 631 (Bankr.
M.D. Fla. 1998) (insurance company has priority for services
rendered to the plan during the relevant period), with State
13
See Allied Chem. & Alkali Workers of Am. v. Pittsburgh Plate Glass
Co., 404 U.S. 157, 168, 92 S. Ct. 383, 392, 30 L. Ed. 2d 341 (1971) (“The
ordinary meaning of ‘employee’ does not include retired workers; retired
employees have ceased to work for another for hire.”); see also Crafts
Precision Indus., Inc. v. U.S. Healthcare, Inc. (In re Crafts Precision
Indus., Inc.), 244 B.R. 178, 184 (B.A.P. 1st Cir. 2000) (per curiam)
(same). Moreover, Congress certainly knew how to specifically provide
bankruptcy protection for retirees when it so intended. See, e.g., § 1114;
Crafts Precision Indus., Inc., 244 B.R. at 184.
14
Incidentally, if that principle somewhat narrows the class of individu-
als who can seek this priority, that is not shocking. It accords with the
overarching consideration that the scope of priorities should be strictly
construed because “preferential treatment of a class of creditors is in order
only when clearly authorized by Congress.” Howard Delivery, 547 U.S.
at 655, 126 S. Ct. at 2109; see also Cal. Self-Insurers’ Sec. Fund v. Lorber
Indus. of Cal. (In re Lorber Indus. of Cal.), 373 B.R. 663, 667-68 (B.A.P.
9th Cir. 2007).
5296 IN THE MATTER OF CONSOLIDATED FREIGHTWAYS
Ins. Fund v. Mather (In re S. Star Foods, Inc.), 210 B.R. 838,
841 (B.A.P. 10th Cir. 1997) (insurance company may not
recover for premiums due during the relevant period), aff’d by
State Ins. Fund v. S. Star Foods, Inc., (In re S. Star Foods,
Inc.), 144 F.3d 712 (10th Cir. 1998). The parties here do not
dispute that Aetna can recover; they only dispute the scope of
Aetna’s claim. Of course, what we have said regarding the
coverage of § 507(a)(5) priority will similarly limit Aetna to
claims related to those employees who rendered services
within the last 180 days of the dying employer.
[6] That leaves the “aggregate” issue for consideration. The
Trustee contends that §§ 507(a)(4) and (5) impose a total limit
of $4,650 for each individual employee. The bankruptcy court
disagreed. See CFC I, 363 B.R. at 122-23. We agree with the
bankruptcy court. A plain reading of § 507(a)(5) demonstrates
that it provides an aggregate limit on recovery under that pro-
vision; not an individualized recovery per employee. Had
Congress intended it to be individualized, it had the
§ 507(a)(4) pattern close at hand; there, the limit is “for each
individual[.]” However, in writing § 507(a)(5), Congress
stated the total amount available for priority claims and then
set out the aggregate amount for covered “employees” rather
than an amount for each employee. The use of quite different
language in that portion of the two provisions bespeaks a dif-
ferent intent. See Russello v. United States, 464 U.S. 16, 23,
104 S. Ct. 296, 300, 78 L. Ed. 2d 17 (1983) (“We refrain from
concluding here that the differing language in the two subsec-
tions has the same meaning in each.”); In re Edgar B, Inc.,
200 B.R. 119, 123-24 (M.D.N.C. 1996) (using aggregate
approach due to language differences between § 507(a)(4) and
§ 507(a)(5)). The result is, therefore, that an individual
employee’s claim under § 507(a)(5) will not be limited by the
amount that the employee may have recovered under
§ 507(a)(4). No doubt the overall fund will be limited by the
(a)(4) recovery, but individual claims to benefits will not be.
Of course, many employees may not have contribution claims
to assert at all (for example, for the purpose of the Plans at
IN THE MATTER OF CONSOLIDATED FREIGHTWAYS 5297
hand they may have had no illnesses or expenses), whereas
others might have considerable claims. But the aggregate of
those claims will simply be limited by the aggregate cap pro-
vided by Congress.
CONCLUSION
[7] We disagree with the bankruptcy court’s determination
that individuals who did not render services within the 180-
day period are to be counted in determining the number of
employees and are entitled to a priority claim under
§ 507(a)(5). See CFC I, 363 B.R. at 117-22. However, we
agree with the bankruptcy court that the recovery cap under
§ 507(a)(5) is to be treated as an aggregate cap. See id. at
122-23.
We, therefore, remand to the bankruptcy court for further
proceedings consistent with this opinion.
AFFIRMED in part; REVERSED in part; and
REMANDED.
Each party shall bear its own costs on appeal.