USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

____________________

No. 95-1032

GIROUX BROS. TRANSPORTATION, INC.,

Plaintiff, Appellant,

v.

NEW ENGLAND TEAMSTERS & TRUCKING INDUSTRY PENSION FUND,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

___________________

____________________

Before

Boudin, Circuit Judge,

_____________

Aldrich and Coffin, Senior Circuit Judges.

_____________________

____________________

John D. O'Reilly, III with whom

_______________________

O'Reilly & Grosso

_________________

was on br

for appellant.
Christopher N. Souris with
______________________

whom Feinberg, Charnas & Birming

_____________________________

was on brief for appellee.

____________________

January 4, 1996
____________________

ALDRICH,

Senior Circuit Judge.

______________________

Giroux

Bros.

Transportation,

Inc.

(Giroux)

appeals

from

the grant

of

summary judgment in favor of New England Teamsters & Trucking

Industry

Pension

multi-employer

participated.

for the

Fund (the

employee

benefit

plan

Fund's assessment of withdrawal

the Multiemployer

(MPPAA),

the plan

29 U.S.C.

was barred by

sponsor

in

Giroux sought a declaration

Employee Retirement Income

by

Fund),

which

Giroux

of non-liability

liability under the

Security Act (ERISA), as

Pension

of a

Plan Amendments

amended

Act of

1980

1381 et seq, claiming the Fund's demand

______

the statute of limitations, and

that hardship

should excuse it from the obligation to make interim payments

of the Fund's demand pending resolution of this dispute.

Fund

counterclaimed to

the contrary.

The

The

court concluded

that

the Fund's demand was not barred, that Giroux failed to

allege facts sufficient

avoid

its

to show irreparable harm in order to

obligation to

resolution of its

make

interim

payments, and

withdrawal liability dispute

in the first instance to arbitration.

that

is committed

We affirm.

The parties agreeing to the material facts, we take

a moment to trace

controversy.

the Fund

the genesis and procedural history

Giroux had been making pension contributions to

on behalf of

pursuant to

of the

its employees for

a standard, industry-wide

agreement to which it

a number

of years

collective bargaining

periodically renewed its allegiance by

-2-

executing "supplements"

to

with a Teamsters local.

It decided

stop with the last executed agreement upon its expiration

in 1981

Fund.

or 1982, but neglected

In light of a

to notify the local,

common industry tolerance

or the

for delay in

executing renewals,1 failure to execute a new agreement would

not necessarily give rise to an inference that an employer no

longer intended

to be

interruption, to make

bound, and Giroux

continued, without

employee contributions

to the

Fund's

pension plan until early

the Fund

1994.

When these payments

responded by sending Giroux

notice,

to which

Giroux responded

15-20

years,"

contributions.

and

thus

had

The Fund then

a standard delinquency

that it

collective bargaining agreement with

no

ceased,

had "not

had a

the Teamsters for

obligation

to

some

continue

verified that Giroux had never

executed any successors to the agreement that expired in 1981

or

1982,

and

conceded

Giroux

thus

had

obligation to contribute after that point.

that

Giroux therefore

meaning of the

MPPAA,

"withdrew" from

1383(a)(1),

no

contractual

The parties agree

the Fund

within the

upon expiration of

last

collective bargaining

agreement, sometime

1982.

The Fund therefore

assessed and demanded

in 1981

its

or

payment of

withdrawal liability from Giroux as of September 30, 1981, as

____________________

1.

The

between

district

court noted

expiration and

thousands
bargaining

of

renewal are

employers

agreement

that

that

through

executing

-3-

29 U.S.C

1381 et seq.
_______

of several

not uncommon

adhere

Teamsters locals.

provided.

gaps

to

the

years

among the
collective

supplements

with

In

October,

1994,

Giroux

initiated

arbitration

according to the MPPAA's mandatory arbitration provision, id.

___

at

1401,

liability

claiming

payment

the

some

Fund's

12

demand

for

withdrawal

after

its

effective

years

withdrawal was untimely, and, even if timely, it was entitled

to

credit

for

simultaneously

post-withdrawal

instigated

contributions.

this action

in

the

Giroux

District of

Massachusetts for declaratory judgment that the Fund's demand

was statutorily

in

1451(f),

under

liability

The

year limitation contained

and for injunctive relief from

1399(c)(2) to

withdrawal

claims.

barred by the six

Fund

make interim

its obligation

payments of

assessment pending

counterclaimed to

the Fund's

resolution

the

contrary.

of its

It

stressed

that

exclusively

committed

the timeliness

by

1399(b),

to resolution

of

its

which

through

in

demand was

turn

is

arbitration, 29

governed

statutorily

U.S.C.

1401(a)(1), and sought declaratory relief.

In December,

the

1994, the

district court ruled

Fund's demand was not barred by

allegations

"irreparable

obligation to

dispute

through

of

financial

harm"

1451(f), that Giroux's

hardship

sufficient to

that

did

not

exempt it

make interim payments, and

amount

to

from statutory

that any remaining

with respect to the Fund's demand had to be resolved

arbitration.

Giroux's

-4-

appeal

was

argued

in

September, 1995.

In October, 1995, the arbitrator ruled, inter alia,

__________

that

Giroux was

demand was

actions,

untimely by

and that

practicable" under

rule on

estopped

from contending

its own "equivocal"

the Fund's

demand was

that the

and "deceitful"

made "as

1399(b)(1) in any event; it

Giroux's offset

claim.

Fund's

soon as

declined to

Both parties briefed

this

court on the implications of

the arbitration award for

this

appeal.

I. Withdrawal Liability
________________________

The

MPPAA

facing multi-employer

withdrawn in

was enacted

in

response

to a

crisis

pension plans from which employers had

increasing numbers,

adequate funds to pay vested

leaving the

plans without

employee benefits.

See Pension
___ _______

Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 722______________________
_______________

25 (1984).

plan

The act makes an employer withdrawing from such a

liable

for

its

proportionate

unfunded vested benefits.

1391.

Withdrawal

Id.
___

generally

permanently ceases to have

share

at 725; 29

occurs

of

the

U.S.C.

when

an

plan's

1381,

employer

an obligation to contribute under

the

plan,

1383(a).

or

ceases

all

covered

operations.

at

The plan sponsor must assess, schedule and demand

withdrawal liability payment "[a]s soon as

an

Id.
___

employer's

1399(b)(1),

complete

and

or

partial

an employer

-5-

must

practicable after

withdrawal,"

pay

id.
___

at

according to

the

Fund's schedule notwithstanding any

1399(c)(2).

pending dispute.

Id. at
___

-6-

II. Statute of Limitations

___________________________

Giroux

withdrawal

seeks

liability

to

avoid

payment

the

Fund's

by invoking

the

demand

limitations

provision of the MPPAA, which states, in relevant part,

a plan fiduciary

who is

adversely affected by the

for

act or

that

omission of any party under this subtitle

with

respect

plan, . . .

to

may

bring

multiemployer
an

action

for

appropriate legal or equitable relief, or

both,

29 U.S.C.

1451(a)(1), but no later than

(1) 6

years after the date

on which the

cause of action arose, or

(2) 3

years after

which

the

have

the earliest date

plaintiff acquired

acquired

actual

on

or should

knowledge of

the

existence of such cause of action; except

that in the case of fraud or concealment,
such action may be brought not later than
6 years after

the date

of discovery

of

the existence of such cause of action.

Id. at
___

not demand

1451(f).

Giroux

claims that because the

withdrawal liability payment until

after Giroux's

withdrawal from the Fund's

Fund did

some 12 years

pension plan, its

demand is barred by this provision.

The Fund contends on appeal that its demand in this

case is not governed by

1451(f) because this provision is a

limitation only on litigation, and since it did not instigate

__

this

lawsuit but

merely demanded

payment according

to its

statutory rights, it has not commenced an "action" within the

meaning of

1451.

Thus, according to

-7-

the Fund, the statute

of limitations cannot have

begun to run with respect

to any

action it could bring to enforce these rights.

__
_______

We cannot

non-liability

agree that an action

asserting a

statute

of

for declaration of

limitations

defense

renders the statute inapplicable simply by virtue of the fact

that

the

action,

party

claiming

especially

where

liability did

(but

not

not

commence

because)

that

the

party

counterclaimed for declaration and enforcement of its rights.

However,

whether

the principal question

the

governed by

As

Fund

timely

raised by

made its

Giroux's action,

demand,

is

explicitly

1399, which provides:

soon

as

practicable

after

an

employer's

complete

or

partial

withdrawal, the plan sponsor shall--

(A)

notify the employer of--

(i) the amount of the liability, and

(ii) the schedule for liability payments,

and

(B) demand payment in accordance with the

schedule.

29 U.S.C.

1399(b)(1).

the Fund's

demand for withdrawal liability

"as

soon

as

notwithstanding

and

(2),

"immediate

and

practicable,"

then

it

is

a pending dispute, id. at

___

the

payment"

1399(c)(5)

The MPPAA further provides

and

Fund

of

can

any

bring

an

outstanding

1451(a), subject

to

that if

payment was made

due

and

owing,

1399(c)(1)(A)(i)

action

to

amounts,

compel

id.
___

the statutory

at

time

-8-

limitation.

framework

Id.
___

1451(f).

governing a plan

liability payment

not intend

it

We

find this

sponsor's demand

sufficiently clear

the general 6 year

did

at

statutory

for withdrawal

so that to

the extent

limitation on actions conflicts, Congress

to override.

We therefore

hold

that

questions

demand

concerning

are

resolution

Fund's

the

governed

exclusively

of Giroux's

demand

was

timeliness of

claim

made

by

soon

sponsor's

1399(b)(1).

turns solely

"as

plan

as

Thus

on whether

practicable"

the

after

Giroux's withdrawal.2

However,

any dispute

the Fund's demand under

to

arbitration

1401(a)(1).3

regarding the

timeliness of

1399(b)(1) is statutorily committed

in

the

This

is

first

no less

of statutory

instance.

so

29

because it

may

also

involve

a measure

Sexton,
______

975 F.2d 498, 502 (8th Cir. 1992), cert. denied, ___
____________

U.S. ___, 113

S. Ct.

cases

3d,

of 2d,

interpretation.

U.S.C.

1268, 122 L.Ed.2d

4th, 6th

and

664 (1993)

D.C. circuits);

Vaughn v.
______

(citing

Teamsters

_________

____________________

2.

We

express

1451(f) to a
made

"as

no

views

on the

significance

of

determination of whether the Fund's

soon as

practicable"

within

the

section

demand was

meaning

of

1399(b)(1), as this question is not before us.

See post.
___ ____

3.

the

Any dispute between

___

an employer and

sponsor

multiemployer

concerning
sections

of
a

determination

made

plan
under

1381 through 1399 of this title

shall be resolved through arbitration.

_____

29 U.S.C.

1401(a)(1) (emphasis added).

-9-

Pension Trust Fund v. Allyn Transp. Corp., 832 F.2d 502, 504
___________________
___________________

(9th Cir. 1987); Trustees of Colorado Pipe Ind. Pension Trust

____________________________________________

v. Howard Electrical & Mech., Inc., 909 F.2d 1379, 1386 (10th
_______________________________

Cir. 1990), cert. denied, 498 U.S. 1085 (1991).

____________

Although the arbitration provision is an exhaustion

of

administrative

jurisdictional

remedies

bar, see,
___

1385 (citing cases),

requirement,

rather

e.g., Colorado Pipe, 909

____ ______________

there can

be no question

than

F.2d at

that it

aptly applied here, when arbitration was already underway.

was

III. Relationship of this Appeal

__________________________________

to Parallel Arbitration Proceedings

___________________________________

It

now

seems to

be

Giroux's

arbitrator's determination that the

1399(b)(1) is before this

this

issue, never raised before the

in

this instance to

the

Fund's demand was timely

under

for our consideration.

position that

court for review, or, that

district court, is open

Although it might conserve resources

concur, we disagree.

Rather, Giroux's

only recourse is to pursue judicial review of the arbitration

award:

Upon

completion

proceedings

in

parties,any

party

action, no later
issuance

of

the

favor

of

arbitration
one

thereto may
than 30 days

of

the

bring an
after the

of an arbitrator's award, in an

appropriate United
in

States district court

accordance with section

title to enforce,

1451 of this

vacate, or modify

the

arbitrator's award.

29

U.S.C.

1401(b)(2).

This simultaneously pending action,

-10-

brought separately

to assert a claim

provision of the MPPAA,

under a non-arbitrable

does not qualify as a

proper appeal

of

the arbitrator's ruling.

We see no

reason to undertake

review of the arbitrator's analysis when it is beyond serious

dispute that issues

litigated in

arising under

federal court

1399

cannot normally be

independent of

arbitration, and

the process for appealing an arbitration award is clear.

We are well

aware that

enforcing the

statutorily

mandated procedure in this case could land it again before us

in substantially the same posture after additional expense on

both

sides, and

MPPAA included

that the

legislative

lessening the

liability dispute resolution.

Fund v.
____

aim in

costs and delay

enacting the

of withdrawal

See, e.g., I.A.M. Nat. Pension

___ ____ ___________________

Clinton Engines Corp., 825 F.2d 415 at 426 and n. 20

_____________________

(D.C. Cir. 1987) (citing legislative history).

Yet,

to hold

otherwise would create a loophole for employers to bypass the

statutory

scheme

by

presentation directly

then

disguising

in federal court, as

invoking legislative

appellate consideration.

of the

purpose

and we decline

arbitrable claims,

the Fund's demand was

in order

disputes

for

Giroux did here,

to get

prompt

Because this is not a proper appeal

arbitrator's award,

reach Giroux's

arbitrable

we do not

to independently

review whether

made "as soon as practicable,"

other arbitrable issues.

IV. Interim Payment of the Fund's Demand

_________________________________________

-11-

or any

The

hardship were

obligation

district

court held

insufficient

to make

pending

ultimate

dispute.

29

meeting its

statutory

payments of

resolution

Merchants Terminal Corp.,

_________________________

claims of

to avoid

interim

U.S.C.

that Giroux's

of

its

1399(c)(2).4

889

F.2d 1,

the Fund's

withdrawal

See
___

4 (1st

demand

liability

Debreceni
_________

v.

Cir. 1989);

Trustees of the Plumbers and Pipefitters National Pension

_____________________________________________________________

Fund
____

v. Mar-Len, Inc., 30
______________

Giroux contended

that the Fund's claim

be found barred by

would

require

employee

F.3d 621,

624 (5th

Cir. 1994).

would most certainly

1451(f), and that meeting these payments

partial

layoffs,

hence

discretion in failing

liquidation

the

court

of

its

assets

and

therefore

abused

its

to suspend payment.

We have

already

disposed of Giroux's first contention; we turn to the second.

The MPPAA indisputably creates a

later"

mechanism, deeming

the protection

"pay now, dispute

of multi-employer

pension plans and their beneficiaries paramount.

624

(citing cases); Debreceni, 889

_________

____________________

F.2d at 5.

See id. at
___ ___

This scheme

4.

This section states, in relevant part:

Withdrawal liability shall be

_____

payable in

accordance with the schedule set forth by

the plan sponsor under
of this section
60

days

subsection (b)(1)

beginning no later than

______________

after the

date

of

the demand

notwithstanding any request for review or

_______________
appeal of determinations of the amount of
such liability or of the schedule.

29 U.S.C.

1399(c)(2) (emphasis added).

-12-

puts payment ahead of decision even though the employer might

prevail in

the

end.5

Trustees of Chicago Truck Drivers

____________________________________

Pension Fund v. Central Transp., Inc., 935 F.2d 114, 118 (7th
____________
_____________________

Cir. 1991).

Although we have therefore

interim liability payment must be

paid . . . notwithstanding

pending arbitrable dispute," Debreceni, 889

_________

have never

squarely decided

exists.6

Id.
___

at 7.

congressional intent to

in

held that "assessed

withdrawal liability

whether an

However,

in

F.2d at 4, we

equitable exception

light

of

the

clear

protect multi-employer pension plans

disputes,

we have

indicated

that

should an equitable exception exist it would "require no less

than the threat of imminent insolvency."

___________________

Giroux's allegations,

Id. at 7 and n. 6.
___

even if accepted, do

not suggest such

harm.

Affirmed.
________

____________________

5.

The

MPPAA requires

accordance

with

sponsor],"

29 U.S.C.

supra;
_____

[the

Debreceni, 889
_________

"actual
schedule

payment
set

shall commence

forth

1399(c)(1)(A)(i) and
F.2d at

6; the

by

the

(2), note

plan has a

in
plan
4,

right to

"immediate payment" of any outstanding amount, plus interest,

"from the due date of the first
made," 29 U.S.C.
id.
___

at

payment which was not timely

1399(c)(5); a plan may enforce this right,

1451(a)(1);

employers are entitled

any overpayment, with interest, 29 C.F.R.

6.

Other circuits

have held

to recovery of

2644.2(d).

an employer may

avoid interim

payment

only if the pension plan's claim is frivolous or not

colorable.

Mar-Len,
_______

Truck Drivers v.
_____________

30

F.3d at

626; Trustees of Chicago

____________________

Central Transport, Inc., 935 F.2d

_______________________

(7th Cir. 1991).

-13-

114, 119