Michael Holland v. Bibeau Construction Company

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 14, 2014 Decided December 16, 2014
No. 13-7093
MICHAEL H. HOLLAND, ET AL.,
APPELLEES
v.
BIBEAU CONSTRUCTION COMPANY, A CORPORATION,
APPELLANT
VALLEY SERVICES, INC., A CORPORATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cv-00178)
John R. Woodrum argued the cause and filed the briefs
for appellants.
Kathleen B. Burns argued the cause for appellees. With
her on the briefs were David W. Allen and Larry D. Newsome.
Before: ROGERS, GRIFFITH and WILKINS, Circuit Judges.
ROGERS, Circuit Judge: The Coal Industry Retiree Health
Benefit Act of 1992 (“the Coal Act”), 26 U.S.C. §§ 9701–9722,
created multiemployer benefit plans to provide health care to
2
retired and disabled coal miners and to collect premiums from
their former employers. Bibeau Construction Company, Inc.
(“Bibeau”) appeals the grant of summary judgment and order
directing it, as a “related person” to a disabled miner’s former
employer, to pay health insurance premiums, interest, and
liquidated damages to the United Mine Workers of America
1992 Benefit Plan (“the Plan”). Bibeau contends that the district
court erred in ruling that the equitable doctrine of laches did not
apply even though it received no notice of its payment
obligation until nine years after premiums started to accrue.
Whatever merit Bibeau’s laches claim might have had when it
filed its notice of appeal, it is now precluded under Petrella v.
Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962 (2014), because
each premium installment gives rise to a separate cause of action
for legal relief for which Congress has enacted a statute of
limitations to govern timeliness. Bibeau also contends the
district court should not have awarded interest and liquidated
damages, but the statutory damages provision plainly requires
otherwise. Accordingly, we affirm.
I.
The history of the Coal Act is well documented elsewhere.
See, e.g., Eastern Enterprises v. Apfel, 524 U.S. 498 (1998);
Holland v. Williams Mountain Coal Co., 256 F.3d 819, 821
(D.C. Cir. 2001); Penn Allegh Coal Co., Inc. v. Holland, 183
F.3d 860, 861–62 (D.C. Cir. 1999). From the turn of the 20th
century until the 1940s, health care for coal miners was largely
provided by “company doctors” in rural settings where care was
often deficient. The efforts of their union, the United Mine
Workers of America (“UMWA”), to obtain better health care
proved unsatisfactory, and a nationwide strike was called in
1946. The strike ended when the UMWA president, John L.
Lewis, and the Secretary of Interior, Julius Krug, agreed to fund
miners’ health care and pensions through national trust funds.
3
Similar trust funds were part of collective bargaining agreements
between miners and coal mine operators signed in 1947 and
1950.
In 1974, Congress enacted the Employee Retirement
Income Security Act (“ERISA”), Pub. L. No. 93-406, 88 Stat.
829, codified at 29 U.S.C. §§ 1001 et seq. Based on ERISA’s
funding and vesting requirements, the UMWA and the mining
companies entered into a new collective bargaining agreement
in 1974, which provided for retirees’ health benefits. The 1974
benefit plan also provided benefits for spouses and widows,
which significantly expanded the number of beneficiaries, and
quickly imperiled the financial health of the plan. To remedy
the funding shortfall, the 1978 collective bargaining agreement
departed from the royalty funding model. Instead of requiring
a defined contribution based on coal production, signatory coal
operators were made responsible for providing defined benefits
for all of their current and former employees. The 1978
agreement also included “guarantee” and “evergreen” clauses by
which operators promised to fund health care benefits as long as
they stayed in the coal industry.
Valley Services, Inc., operated a strip mine in Wyoming
County, West Virginia, beginning in the late 1960s. Ovila
Bibeau, the owner of Bibeau Construction, Inc., acquired Valley
Services in 1975. Valley Services was a signatory to the 1974
and 1978 collective bargaining agreements. It ceased operations
in 1979, and by 1982 had paid off its debts and dissolved. A
number of other mining companies also ceased operations in the
1980s. See Penn Allegh Coal, 183 F.3d at 861. To address the
resulting shortfall in funding for miners’ health care and
pensions, the Secretary of Labor appointed a commission to
conduct a study of health care in the coal industry and develop
a “solution for assuring that orphan retirees . . . will continue to
receive promised medical care.” Report of the Coal Advisory
4
Comm’n on UMWA Retiree Health Benefits 2 (1990). Based
on the Commission’s recommendations, Congress enacted the
Coal Act, which mandated the creation of the UMWA 1992
Benefit Plan to pay health care benefits and collect premiums
from former employers and their successors. See Pub. L. No.
102-486, 106 Stat. 3036, codified at 26 U.S.C. §§ 9701–9722;
Penn Allegh Coal, 183 F.3d at 861–62.
The Coal Act requires a “last signatory operator” — defined
as “a signatory to a coal wage agreement” who was a retiree’s
“most recent coal industry employer,” 26 U.S.C. § 9701(c)(1),
(4) — to pay a monthly premium for former employees who are
receiving benefits from the 1992 Plan. 26 U.S.C. §§ 9711,
9712(d)(1), (3). If a last signatory operator has gone out of
business, then a “related person” is jointly and severally liable
for premiums. 26 U.S.C. § 9712(d)(4). A “related person” is
defined to be, among other things, “a member of the controlled
group of corporations . . . which includes such signatory
operator.” Id. § 9701(c)(2)(A)(i).
The Coal Act incorporates ERISA’s enforcement scheme,
providing that “[t]he provisions of [29 U.S.C. § 1451] shall
apply, in the same manner as any claim arising out of an
obligation to pay withdrawal liability under [ERISA], to any
claim — (1) arising out of an obligation to pay any amount
required to be paid by [the Coal Act] . . . .” 26 U.S.C. § 9721.
These ERISA provisions impose liability on employers for
delinquent contributions to a multiemployer plan, 29 U.S.C. §
1145, and provide for a civil action to recover unpaid
contributions, id. § 1451(a). A remedial section provides:
[When] judgment in favor of the plan is awarded,
the court shall award the plan — (A) the unpaid
contributions, (B) interest on the unpaid
contributions, (C) an amount equal to the greater of
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[interest or contractual liquidated damages, if less
than 20% of unpaid contributions], (D) reasonable
attorney’s fees and costs of the action, to be paid by
the defendant, and (E) such other legal or equitable
relief as the court deems appropriate.
Id. § 1132(g)(2). The cause of action is subject to a statute of
limitations: “the later of — (1) 6 years after the date on which
the cause of action arose, or (2) 3 years after the earliest date on
which the plaintiff acquired or should have acquired actual
knowledge of the existence of [the] cause of action.” Id. §
1451(f).
One of Valley Services’ employees was Arthur Marcum,
whose benefit premiums are the subject of this appeal. He
suffered a back injury on the job in 1979. His injury developed
into a permanent disability, and in 1991 he received a disability
determination from the Social Security Administration. In 1995,
the UMWA 1974 Pension Plan assigned him a disability
pension, and he was enrolled for health care benefits under the
Coal Act’s 1992 Plan, which determined that his eligibility for
health benefits dated back to 1993. The Plan discovered that
Valley Services — his last coal industry employer — was no
longer in business and determined in 2004 that Bibeau was a
“related person” to Valley Services. By letter of December 6,
2004 the Plan notified Bibeau it was a “related person” and
therefore jointly and severally liable for payment of monthly
per-beneficiary premiums for Valley Services’ eligible
beneficiaries; it requested payment for Marcum’s premiums for
the period beginning in 1993. When Bibeau did not pay, the
Plan, by letter of October 17, 2005 advised that a failure to pay
within fifteen days would be treated as a delinquency for which
the Plan would seek payment of all amounts owed, including
interest, liquidated damages, attorney’s fees, and costs. When
Bibeau still did not pay, the Plan filed suit on February 1, 2006.
6
After discovery, Bibeau moved for summary judgment on the
grounds that the complaint was untimely and, alternatively, that
the doctrine of laches barred the lawsuit. The Plan also moved
for summary judgment.
The district court granted summary judgment to the Plan for
premiums that became due after May 15, 2001. Holland v.
Valley Services, Inc., 612 F. Supp. 2d 75, 79 (D.D.C. 2009).
Ruling that Bibeau’s laches defense was unavailable under the
Coal Act, the district court explained that a new cause of action
accrued as each monthly premium became due. See id. at
79–80. The district court initially rejected as time-barred all
premiums due before 2001, but upon granting the Plan’s motion
to amend, calculated the limitations period by counting back six
years from the date the complaint was filed, to 2000. Holland
v. Valley Services, Inc., 845 F. Supp. 2d 220, 223–24 (D.D.C.
2012). The district court awarded damages for the period
February 1, 2000 through March 15, 2012, leaving to the parties
to resolve damages that had accrued since March 15, 2012 and
any other future liabilities. Order, May 23, 2013. Bibeau
appeals, and our review of the grant of summary judgment is de
novo, see CarrAmerica Realty Corp. v. Kaidanow, 321 F.3d 165,
170 (D.C. Cir. 2003).
II.
As a threshold matter, the court must determine whether it
has subject-matter jurisdiction of this appeal. See Citizens for
the Abatement of Aircraft Noise, Inc. v. Metro. Wash. Airports
Auth., 917 F.2d 48, 53 (D.C. Cir. 1990), aff’d, 501 U.S. 252
(1991). This court’s jurisdiction extends to “appeals from all
final decisions of the district courts . . . .” 28 U.S.C. § 1291. To
be “final,” a decision must determine not just liability, but also
remedies. See Franklin v. Dist. of Columbia, 163 F.3d 625,
628–30 (D.C. Cir. 1998).
7
The district court’s Order of May 23, 2013 directed Bibeau
to pay $241,227.21 for the period February 1, 2000 through
March 15, 2012 for unpaid contributions, interest, liquidated
damages, attorney’s fees, and costs. For the period after March
15, 2012 the district court ordered:
[T]he parties shall confer in good faith to resolve in
accordance with this Order any remaining damages
issues, including any necessary recalculation of
unpaid premiums, interest, liquidated damages,
attorney’s fees, and costs that have accrued since
March 15, 2012 and any other liabilities that may
accrue going forward.
Id. Further, if “the parties desire to have a magistrate judge
assigned to assist with the resolution of the remaining
calculation of damages or for settlement purposes, the parties
shall file a . . . Joint Motion for Appointment of a Mediator.” Id.
(internal quotation marks omitted). The district court set a daily
interest payment of $13.12 to be applied to the remaining
calculations.
In Brown Shoe Co. v. United States, 370 U.S. 294 (1962),
which involved a government antitrust challenge to the merger
of two manufacturers and sellers of shoes, the Supreme Court
held that a district court order requiring divestiture was “final”
under 15 U.S.C. § 29 despite the order’s requirement that one
party “propose in the immediate future a plan for carrying into
effect the court’s order of divestiture.” Id. at 308. This left the
district court the “remaining task” of “acceptance of [the] plan”
and “administering its decree.” Id. The Court explained that the
order was final because any further rulings by the district court
would be “sufficiently independent of, and subordinate to, the
issues presented by this appeal.” Id. The issues presented on
appeal were “on an ‘all or nothing’ basis,” and “[r]epetitive
8
judicial consideration of the same question in a single suit will
not occur here.” Id. at 309. This court has recognized the
possibility that a remedy decision that leaves open only
“mechanical and uncontroversial” calculations may be “final”
for purposes of 28 U.S.C. § 1291. See A&S Council Oil Co.,
Inc. v. Lader, 56 F.3d 234, 238 (D.C. Cir. 1995). Other circuit
courts of appeals have so held. See Cook v. Rockwell Int’l
Corp., 618 F.3d 1127, 1137–38 (10th Cir. 2010); Marshak v.
Treadwell, 240 F.3d 184, 190–91 (3d Cir. 2001); Parks v.
Pavkovic, 753 F.2d 1397, 1401 (7th Cir. 1985).
Not all damages calculations under 29 U.S.C. § 1132(g)(2)
will be “mechanical and uncontroversial.” See, e.g., Dieser v.
Continental Cas. Co., 440 F.3d 920, 924 n.3 (8th Cir. 2006).
But here the district court addressed the Plan’s requested
remedies in detail and left for future resolution only the amount
of damages that had accrued since the parties filed their last
estimates in March 2012. The remaining dollar amounts are
predetermined by the Plan’s premium schedule, the
unchallenged rate of interest set by the district court, and the
statutory formula for liquidated damages, see 29 U.S.C. §
1132(g)(2)(C). The district court also prescribed, if needed, an
informal method for resolution of the remaining amounts.
Bibeau’s contentions on appeal — the availability of laches as
a defense to liability, and the propriety of the awards of pre-
notice interest and liquidated damages — are separate from and
“subordinate to,” Brown Shoe, 370 U.S. at 308, the amount of
damages that has accrued since March 15, 2012.
Given the mechanical nature of the remaining calculations,
the danger of “[r]epetitive judicial consideration of the same
question[s],” id. at 309, appears remote at best, and any danger
that the remaining calculations will produce an appealable issue
is no greater than was true in Brown Shoe. The Order of May
23, 2013 is thus sufficiently final for this court to have subject-
9
matter jurisdiction under 28 U.S.C. § 1291.
III.
The defense of laches bars a suit filed within the statute of
limitations when a plaintiff unreasonably delays filing suit and
the defendant is prejudiced. See Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 121–22 (2002). Nine years elapsed
between the time the Plan enrolled Marcum in 1995 and notified
Bibeau of its premium obligations in 2004. Bibeau maintains
that the Plan’s failure to search diligently for a “related person”
to Valley Services was prejudicial because, in the intervening
years, Valley Services’ records and other evidence by which
Bibeau might have been able to contest Marcum’s injury, or the
injury’s relation to his employment with Valley Services, were
destroyed by fire and flood. Consequently, it maintains, the
district court erred by not applying laches and dismissing the
Plan’s suit.
The Coal Act requires coal operators and “any related
person” to pay for miners’ health care in monthly installments.
26 U.S.C. § 9712(d)(3), (4); see 29 U.S.C. § 1145. A cause of
action to collect such installment payments separately accrues
with each missed payment. In Bay Area Laundry and Dry
Cleaning Pension Trust Fund v. Ferbar Corporation of
California, Inc., 522 U.S. 192 (1997), a pension fund sued to
recover for withdrawal liability under the Multiemployer
Pension Plan Amendments Act of 1980 (“MPPAA”), Pub. L.
No. 96-364, 94 Stat. 1208, codified at 29 U.S.C. §§ 1381–1461,
which imposes “withdrawal liability” on employers who
withdraw from a multiemployer pension plan, in order to ensure
that those employers continue to fund their employees’
pensions. See id. § 1381(a). When an employer withdraws, the
plan must calculate the benefits due and notify the employer of
its withdrawal liability “[a]s soon as practicable,” id. §§
10
1399(b)(1), 1382. The Supreme Court explained that under the
MPPAA, a “withdrawing employer’s basic responsibility . . . is
to make each withdrawal liability payment when due.” Bay
Area Laundry, 522 U.S. at 208. Because “the plan generally
[must] wait until the employer misses a particular payment
before suing to collect that payment,” each missed payment
carries its own statute of limitations. Id. (emphasis in original).
Liability under the Coal Act works in a similar way. The
responsibility of the employer (or “any related person”) is to
“make [Plan] contributions,” 29 U.S.C. § 1145, as they become
due each month, 26 U.S.C. § 9712(d). Like the MPPAA
installment liability considered in Bay Area Laundry, Coal Act
installment liability separately accrues with each missed
payment. Bibeau suggests in its reply brief that the Plan’s right
to assert “related person” liability is a separate cause of action
that accrues on the date a miner is enrolled in the Plan. Under
this theory, because Marcum was enrolled in 1995, the Plan had
only “until 2001 to locate a ‘related person’ to Valley Services
and sue for a judicial declaration establishing its joint and
several responsibility.” Reply Br. 3. The court generally does
not consider arguments made for the first time in a reply brief.
See, e.g., Students Against Genocide v. Dep’t of State, 257 F.3d
828, 835 (D.C. Cir. 2001). Bibeau offers no explanation for its
failure to include this argument in its opening brief, much less
suggests extraordinary circumstances as might excuse its failure.
In any event, Bibeau can point to no statutory reference to a
separate declaratory action to establish “related person” liability.
The Coal Act instead provides that “any related person to any
[last signatory coal] operator shall be jointly and severally liable
with such operator for any amount required to be paid by such
operator under this section.” 26 U.S.C. § 9712(d)(4); see id. §
9712(d)(3). The incorporated provisions of ERISA regarding
the cause of action, 29 U.S.C. §§ 1145, 1451(a)(1), and
remedies, id. § 1132(g)(2), also do not include such a reference.
11
Bibeau thus offers no reason to conclude that the Coal Act’s
separate accrual works differently than the installment payments
held in Bay Area Laundry to accrue with each delinquency.
Because the claims that the district court ordered Bibeau to
pay were timely filed, the doctrine of laches cannot bar the suit
under the Supreme Court’s recent instruction in Petrella, 134 S.
Ct. 1962. In that case, the Supreme Court held that laches were
unavailable as a defense to copyright infringement claims filed
within the three-year statute of limitations, 17 U.S.C. § 507(b),
because “courts are not at liberty to jettison Congress’ judgment
on the timeliness of suit.” Petrella, 134 S. Ct. at 1967.
Although addressing a different statute, the Court’s reasoning as
to legal claims was categorical: “[W]e have never applied laches
to bar in their entirety claims for discrete wrongs occurring
within a federally prescribed limitations period.” Id. at 1975.
The Court explained that a “statute of limitations . . . itself takes
account of delay,” because “a successful plaintiff can gain
retrospective relief only three years back from the time of suit.”
Id. at 1973. Because Congress had provided “a right to sue for
infringement occurring no more than three years back from the
time of suit,” there was “little place for a doctrine that would
further limit the timeliness of a copyright owner’s suit.” Id. at
1977 (internal quotation marks omitted).
The circumstances of Petrella are analogous to Bibeau’s.
There, the infringing movie studio had used a copyrighted
screenplay under assignment from the author. When the author
died, “renewal rights reverted to his heirs, who could renew the
copyrights unburdened by any assignment previously made by
the author.” Id. at 1971. The remaining heir, see id. at 1971 n.8,
renewed the copyright in 1991 and sued in 2009, decades after
the screenplay was copyrighted (initially in 1963) and the movie
was released (in 1980). See id. at 1970–71. Citing Bay Area
Laundry, the Court held that the infringement cause of action re-
12
accrued with each act of infringement. See id. at 1969. Under
the Copyright Act, 17 U.S.C. § 507(b), the studio could
therefore be sued for unauthorized reproduction or use of the
movie that had occurred within three years prior to suit. Id. at
1968–69. Dismissing concerns about the type of evidentiary
prejudice Bibeau claims, the Court explained that in enacting
rights exercisable by an author’s heirs decades after a work was
copyrighted, “Congress must have been aware that the passage
of time and the author’s death could cause a loss or dilution of
evidence. Congress chose, nonetheless, to give the author’s
family a second chance to obtain fair remuneration.” Id. at 1976
(internal quotation marks omitted).
The Court in Petrella distinguished the cases on which
Bibeau relies. For example, the Court distinguished the Title
VII “hostile-work-environment claims” in National Railroad
Passenger Corp. v. Morgan, 536 U.S. 101, 121 (2002), that are
“cumulative in effect and extend[] over long periods of time,”
where a laches defense was allowed, from “discrete wrongs, all
of them occurring within a federal limitations period,” like the
copyright infringement claims before it. Petrella, 134 S. Ct. at
1975 n.16; see id. at 1970 n.7. The Court also addressed a
suggestion in Bay Area Laundry, 522 U.S. at 205, that an
employer facing MPPAA withdrawal liability could raise a
laches defense in arbitration if the plan trustees “failed to
comply with their ‘as soon as practicable’ responsibility.” The
Court noted that the Bay Area Laundry “opinion considered
laches only in the context of a federal statute calling for action
‘[a]s soon as practicable.’” Petrella, 134 S. Ct. at 1975 n.16
(emphasis added) (quoting 29 U.S.C. § 1399(b)(1)). The
Copyright Act, by contrast, contained no equivalent language.
Neither does the Coal Act, which, consistent with its purpose “to
stabilize plan funding,” Ass’n of Bituminous Contractors, Inc. v.
Apfel, 156 F.3d 1246, 1248 (D.C. Cir. 1998) (citation omitted),
permits imposition of liability on employers and related persons
13
even though assignment of the beneficiaries to employers was
not performed in a timely manner, see Barnhart v. Peabody
Coal Co., 537 U.S. 149, 171 (2003).
Of the two circumstances identified in Petrella in which
delay might still serve as a defense when a claim is filed within
the statute of limitations, see Petrella, 134 S. Ct. at 1967 & n.1,
both concerned equitable relief, which is not at issue here. The
Coal Act damages awarded by the district court were legal (not
equitable) and mandatory.
IV.
Bibeau also contends that the district court erred in
awarding interest and liquidated damages for the period prior to
the Plan’s December 2004 notice of Bibeau’s payment
obligations. Because the remedial provisions of the Coal Act
are mandatory, we find no error, much less an abuse of
discretion, by the district court. See Kifafi v. Hilton Hotels
Retirement Plan, 701 F.3d 718, 725 (D.C. Cir. 2012); Brayton
v. Office of the U.S. Trade Representative, 641 F.3d 521, 524
(D.C. Cir. 2011) (quoting Kickapoo Tribe v. Babbitt, 43 F.3d
1491, 1497 (D.C. Cir. 1994)).
A.
Under the Coal Act, 26 U.S.C. § 9721 (incorporating
ERISA’s enforcement scheme), a “plan fiduciary . . . may bring
an action for appropriate legal or equitable relief,” 29 U.S.C. §
1451(a)(1), to enforce an employer’s “obligat[ion] to make
contributions to a multiemployer plan . . . ,” id. § 1145. The
damages provision mandates that “[i]n any action . . . to enforce
section 1145 . . . in which a judgment in favor of the plan is
awarded, the court shall award the plan . . . (B) interest on the
unpaid contributions.” Id. § 1132(g)(2) (emphasis added). By
its plain terms, the award of “interest on the unpaid
14
contributions” is mandatory, and because the contributions for
which Bibeau was found to be liable dated back to 2000, the
district court ordered interest for that period.
Bibeau’s reasons for contending the district court erred are
unavailing. Bibeau maintains that it owes interest only on
delinquent contributions, and that it “could not have been
delinquent in payments to the Plan until it was provided notice
of its obligation and failed to pay.” Reply Br. 22–23; see
Appellant’s Br. 39–41. The remedial provision, 29 U.S.C. §
1132(g)(2), does not distinguish between unpaid contributions
and interest; the word “delinquent” appears only in § 1145,
which imposes the obligation to pay premiums, not interest.
Accepting Bibeau’s approach would mean that if employers
were not “delinquent” for purposes of interest until they
received notice from the Plan, then they would also not be
“delinquent” for purposes of unpaid contributions. Yet Bibeau
acknowledges that its liability extends to pre-notice “unpaid
contributions,” see id. § 1132(g)(2)(A). See Reply Br. 22–23,
24.
Similarly, in relying on the phrase in the Coal Act that
liability shall apply “in the same manner as . . . withdrawal
liability,” 26 U.S.C. § 9721, Bibeau assumes that all aspects of
Coal Act liability work in the same way as withdrawal liability
under the MPPAA. The MPPAA provides that a failure to pay
“within the time prescribed shall be treated in the same manner
as a delinquent contribution [under § 1145].” 29 U.S.C. §
1451(b). Bibeau reasons that “within the time prescribed” in the
Coal Act context “necessarily means the time prescribed by the
1992 Benefit Plan,” which shows that “an employer cannot be
delinquent in the payment of an obligation that it did not and
could not know existed.” Appellant’s Br. 42. Again, this
reasoning would necessarily extend to pre-notice unpaid
contributions, and must be rejected. Furthermore, under the
15
MPPAA, the multiemployer plan prescribes the time for
payment, see 29 U.S.C. § 1382, whereas under the Coal Act,
liability accrues without any action by the plan, see 26 U.S.C. §
9712(d). Bibeau fails to demonstrate that the structure of the
Coal Act’s enforcement scheme relieves it from paying pre-
notice interest.
Bibeau’s reliance on Huber v. Casablanca Industries, Inc.,
916 F.2d 85 (3d Cir. 1990) (overruled on other grounds in
Milwaukee Brewery Workers’ Pension Plan v. Jos. Schlitz
Brewing Co., 513 U.S. 414 (1995)), is misplaced. Huber
involved an arbitrator’s denial of pre-notice interest on
withdrawal liability, and the Third Circuit reasoned that “[t]here
is no inequity in this result, as the delay in making the demand
was attributable to the Fund.” Id. at 99–100. The equity of an
arbitration award is not at issue in the instant case. Further, in
Huber, the interest was calculated under 29 U.S.C. § 1399(c)(1),
which addresses withdrawal liability, not 29 U.S.C. §
1132(g)(2), which damages calculations Bibeau challenges here.
Huber does not address the scope of damages under the Coal
Act.
Moreover, ordering Bibeau to pay pre-notice interest does
not create the unfairness that Bibeau suggests in maintaining
that “the loss of the use of money which interest aims to protect
properly falls on the 1992 Plan,” Appellant’s Br. 43, because
Bibeau “had no way of knowing it had an obligation to pay
premiums to the 1992 Plan until it received notice of the Plan’s
claim,” Reply Br. 24. Interest merely equalizes the time value
of money, making the same amount similarly valuable when
paid at different times. See Motion Picture Ass’n of America,
Inc. v. Oman, 969 F.2d 1154, 1157 (D.C. Cir. 1992); Oklahoma
Aerotronics, Inc. v. United States, 943 F.2d 1344, 1348 (D.C.
Cir. 1991). Bibeau does not challenge the correctness of the
interest rate, which should therefore have made it indifferent
16
between paying one amount in the past and the same amount
plus interest at a later date.
B.
Bibeau’s challenge to the award of liquidated damages
flounders on the plain text of section 1132(g)(2), which provides
that “the court shall award the plan . . . (C) an amount equal to
the greater of—(i) interest on the unpaid contributions, or (ii)
liquidated damages provided for under the plan . . . .” 29 U.S.C.
§ 1132(g)(2). The text admits of no exceptions, and the district
court awarded the Plan double interest on the unpaid premiums
within the limitations period.
Bibeau emphasizes that the Plan initially demanded it pay
premiums back to 1993, far overstating its actual liability, and
maintains that the Coal Act “does not address a situation where”
the initial demand overstates the liability. Appellant’s Br. 47.
The text of § 1132(g)(2)(C) contains no such exception. The
purpose of the liquidated damages provision is to “enforce
prompt payment.” I.A.M. Nat’l Pension Fund, Benefit Plan A v.
Monal Mfg. Co., 607 F. Supp. 512, 514 (D.D.C. 1985), vacated
on other grounds, 1987 WL 12796 (D.D.C. June 10, 1987).
That purpose was borne out here. Liquidated damages apply
only to the “unpaid contributions.” 29 U.S.C. § 1132(g)(2)(c)
(emphasis added). After receiving the Plan’s December 2004
demand letter, Bibeau could have paid the premiums that fell
within the limitations period and challenged the Plan’s demand
for additional unpaid contributions if the Plan filed suit. Had
Bibeau done so, it could have cited authority from six other
circuit courts of appeals concluding that liquidated damages
apply only to contributions that are unpaid as of the time a plan
files suit, as well as another circuit concluding § 1132(g)(2)(B)
applies only if there are unpaid contributions as of the date of
the award. See United Automobile Workers Local 259 Social
Sec. Dep’t v. Metro Auto Ctr., 501 F.3d 283, 289 (3d Cir. 2007)
17
(discussing cases). In any event, Bibeau explains that it did not
think it owed any premiums because of laches. See Oral Arg.
Rec. at 36:58–37:23. Yet the liquidated damages provision was
designed to prevent having “simple collection actions” turn into
“lengthy, costly and complex litigation concerning claims and
defenses unrelated to the employer’s promise and the plans’
entitlement to the contributions.” Senate Comm. on Labor and
Human Resources, 96th Cong., 2d Sess., S. 1076, The
Multiemployer Pension Plan Amendments of 1980: Summary
and Analysis of Consideration, at 45 (Comm. Print 1980).
Alternatively, Bibeau maintains that the district court
should not have awarded liquidated damages for the pre-notice
period because it “could not have been delinquent in any
obligation to the Plan” before it received notice. Appellant’s Br.
48. This argument fails for the same reason it failed as to pre-
notice interest. Bibeau further maintains that awarding
liquidated damages for the pre-notice period would “reward[]
the Plan” for its delay in notifying Bibeau of its obligations and
for overstating the amount that was owed. Id. Bibeau does not
suggest that the Plan intentionally delayed notification, and the
Plan gave Bibeau an opportunity to pay its obligations before
filing suit. Bibeau fails to demonstrate any error by the district
court in adhering to the plain text of 29 U.S.C. § 1132(g)(2).
Accordingly, we affirm the judgment and the May 23, 2013
Order on damages.