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October 23, 1985


Louis F. Oberdorfer, United States District Judge.

The opinion of the court was delivered by: OBERDORFER




 Plaintiff, I.A.M. National Pension Fund Benefit Plan A ("the Plan"), *fn1" is a "multiemployer pension plan" as defined by 29 U.S.C § 1002(37). Defendant, Dravo Corporation, is an employer which contributed to the Plan from 1969 to 1982 for the account of its employees at a fabricating division in Hastings, Nebraska. On April 27, 1982, Dravo agreed to and did sell the assets of that division to Hastings Industries, Inc. Pursuant to the assets sale agreement, Hastings Industries assumed Dravo's obligation for contributions to the Plan under 29 U.S.C. § 1384 and secured that obligation with a bond as contemplated by 29 U.S.C. § 1384(a)(1)(B). By letter dated August 11, 1982, the Plan advised Dravo that the Plan accepted documents submitted by Dravo as "permitting the avoidance of the payment of a withdrawal liability by Hastings Industries." By letter dated July 27, 1984, the Plan notified Dravo that withdrawal liability was due and assessed $ 339,418.00, payable in eight quarterly installments. Dravo disputed this assessment, has not paid any portion of it, and the withdrawal liability dispute is now in arbitration pursuant to 29 U.S.C. § 1401(a)(1). A hearing on that arbitration was scheduled and was conducted July 12, 1985.

 The Plan brought this suit on the theory that Dravo is obligated to pay the withdrawal liability upon demand and that arbitration does not suspend that obligation. It seeks a summary judgment for the installments which would be due if Dravo had not contested its withdrawal liability, plus interest, penalties and attorney fees which are imposed by 29 U.S.C. § 1132(g) upon employers who force a plan to sue for past due contributions.

 Defendant opposes the summary judgment motion on the theory that the statute does not require payment of withdrawal liability pending arbitration of a dispute as to whether an employer is liable. According to defendant, arbitration suspends the employer's withdrawal payment obligation except where the dispute in arbitration is the amount of the liability. Defendant further contends that the Plan has a burden of proving withdrawal before it can be awarded a judgment, and that there is a material issue as to whether defendant had withdrawn from the Plan when it transferred its Hastings assets.


 While certain equities might support defendant's theory, its position is overwhelmed by the plain language of the Multiemployer Pension Plan Amendments Act of 1980 ("MPPAA"), its legislative history and several court decisions in this district and elsewhere. 29 U.S.C. § 1399(c)(2) (emphasis added) provides that:


withdrawal liability shall be payable in accordance with the schedule set forth by the plan sponsor . . . no later than 60 days 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.

 This provision is implemented by 29 U.S.C. § 1401(d) relating to "payments by employer prior and subsequent to determination by arbitrator." It provides that:


Payments shall be made by an employer in accordance with the determinations made under this part until the arbitrator issues a final decision with respect to the determination submitted for arbitration, with any necessary adjustments in subsequent payments for overpayments or underpayments arising out of the decision of the arbitrator with respect to the determination.

 The legislative history of MPPAA indicates that one of its purposes was to reduce the incentive inherent in the original act for employers to withdraw from financially troubled plans. See H.R. Rep. No. 96-869, Part I, 96th Cong., 2d Sess. 60, 67, reprinted in 1980 U.S. Code Cong. & Ad. News 2918 at 2928 and 2935. As succinctly summarized in a Second Circuit decision:


no matter what disputes arise between the old plan sponsor and the employer over the amount of liability, the employer is obligated to pay the withdrawal liability demanded as soon as the plan sponsor has provided notice of the payment schedule. . . .


. . . Congress made the requirement that the employer promptly pay its withdrawal liability obligations crystal clear. . . .

 T.I.M.E.-DC, Inc. v. Management-Labor Welfare & Pension Funds of Local 1730 International Longshoremen's Assoc., 756 F.2d 939, 946 (2d Cir. 1985).

 In this spirit courts have held that the employer must make assessed withdrawal payments even when the employer sought in court to contest the assessment as unconstitutional. Trustees of the Retirement Fund of the Fur Mfg. Industry v. Lazar-Wisotzky, Inc., 550 F. Supp. 35, 38 (S.D.N.Y. 1982), aff'd, 738 F.2d 419 (2d Cir. 1984). The law in this jurisdiction is similar. See Combs v. Manor Mines, Inc., 5 Empl. Benefits Cases (BNA) 1475, 1477-78 (D.D.C. March 16, 1984). *fn2" In Combs v. Miss.-Ala. Electrical Contractors, Inc., No. 85-604. slip op. at 4 (D.D.C. April 18, 1985), the law in this jurisdiction was again clarified:


ERISA, 29 U.S.C. §§ 1399(c)(2) and 1401(d), mandate that an employer must make its withdrawal liability payments in accordance with the schedule established by the Plan pending the arbitration of any dispute over the employer's liability.

 These authorities establish that the pending arbitration does not suspend Dravo's obligation to pay the withdrawal liability which has been assessed. *fn3" Moreover, they afford no support to Dravo's alternate argument that arbitration suspends liability when the fact of liability (as distinguished from the amount of liability) is at issue in the arbitration. Dravo is in substantially the same posture here as if there were no arbitration pending. In such a case, the Plan is entitled to summary judgment unless there is a dispute over a material issue of fact.

 Dravo opposes a summary judgment on the additional ground that there is a factual dispute as to whether it has withdrawn. But that is the very issue to be resolved by the arbitrator. In fact, a summary judgment against Dravo in this court proceeding need not reach or resolve the question whether it has withdrawn. If the arbitrator decided that Dravo had no withdrawal liability or less than the amount assessed, the statute plainly provides for adjustments to reimburse Dravo for any overpayment with interest. See T.I.M.E.-DC, Inc., supra, 756 F.2d at 947; 29 C.F.R. § 2644.2(d) (1985). A judgment here against Dravo merely secures for the Plan's beneficiaries the amount assessed for withdrawal liability, free from the credit risks of the employer's business. A judgment requiring such a payment, subject to reimbursement with interest (if indicated) after arbitration, is merely a judgment requiring a set aside of a disputed amount pending resolution of the dispute by arbitration, which arbitration award is itself subject to judicial review.

 Dravo does not contest the constitutionality of arbitration to resolve the dispute. It merely challenges the requirement that it pay out, subject to reimbursement, the amount disputed in the arbitration. Such a "stake-holding arrangement" is well within Congress' power in the circumstances here.

 Applying these principles, plaintiffs have established the material facts necessary to sustain a judgment, and they are not in dispute, namely: collective bargaining agreements obligated Dravo to make contributions to the Plan from 1969 to 1982. In 1982, Dravo ceased making contributions to the Plan after being notified that it was deemed to have withdrawn. Shortly before that date it had transferred that segment of its business which employed the personnel benefitting from the contributions to Hastings Industries and Hastings began making contributions for the benefit of those employees. The Plan has notified Dravo of its withdrawal obligation and it has disputed that liability by submitting it to arbitration. These undisputed facts require the Court to grant plaintiffs' motion for summary judgment.

 As for the other relief sought by plaintiffs, 29 U.S.C. §§ 1132(g)(2), 1145, and 1451(b) in combination indicate that penalty interest, attorneys' fees and costs shall be awarded to the Plan when forced to sue to recover delinquent contributions. On the other hand, 29 U.S.C. §§ 1132(g)(1), 1451(e), and 1401(d) in combination indicate that the Court's award of costs, expenses and fees is discretionary in an action such as this one unless the "employer fails to make timely payment in accordance with [the arbitrator's] final decision," § 1401(d) (emphasis added). Accordingly, plaintiffs' request for penalty interest, attorneys' fees and costs under 29 U.S.C. § 1132(g)(2) will be denied without prejudice to renewal upon the effective date of the arbitrator's decision. An accompanying order will reflect this result. [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 641 F. Supp.]


 The Court has examined and considered the arguments offered in favor of and in opposition to plaintiffs' Motion for Summary Judgment, defendant's Motion to Compel Answer to Requests for Admission, and defendant's Motion for Stay Pending Arbitration. For the reasons stated in an accompanying Memorandum, it is this 23rd day of October, 1985, hereby

 ORDERED: that defendant's Motion to Compel Answer to Requests for Admissions is DENIED; and it is further

 ORDERED: that defendant's Motion for Stay Pending Arbitration is DENIED; and it is further

 ORDERED and DECLARED: that plaintiffs' request for penalty interest, attorneys' fees and costs should be, and hereby is, DENIED without prejudice to renewal after the effective date of the arbitrator's decision; and it is further

 ORDER, ADJUDGED and DECREED: that plaintiffs recover of the defendant, Dravo Corporation, all withdrawal liability installments that have or may, before the effective date of the arbitrator's decision, become payable under the Plan's payment schedule, together with interest thereon as calculated under 29 C.F.R. Part 2644 (1985); and it is further

 ORDERED that counsel for the parties shall confer on or before October 30, 1985, in an effort to agree upon the amount due for interest on installment payments owed by defendant; and it is further

 ORDERED that counsel for the parties shall appear at a status conference in Courtroom No. 3 at 9:30 A.M. on October 31, 1985.

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