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FIRESTONE TIRE & RUBBER CO. v. PENSION BEN. GUAR.

December 1, 1988

THE FIRESTONE TIRE & RUBBER COMPANY, Plaintiff,
v.
PENSION BENEFIT GUARANTY CORPORATION, et al., Defendants


Oliver Gasch, United States District Judge.


The opinion of the court was delivered by: GASCH

OLIVER GASCH, UNITED STATES DISTRICT JUDGE

 This case concerns the proper disposition of the residual assets of a terminated pension plan. Plaintiff Firestone Tire & Rubber Company ("Firestone") challenges the Pension Benefit Guaranty Corporation's ("PBGC") rejection of Firestone's proposed alternative method for calculating how much, if any, of the nine million dollars left in Firestone's terminated pension fund are attributable to employee contributions. Under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq. (1982), when participants contribute to a pension plan and the plan is terminated, the residual assets "attributable . . . to employee contributions" are to be returned to the employees in a pro rata distribution. 29 U.S.C. § 1344(d)(2). At the time the plan at issue was terminated the statute provided no direction as to how the assets attributable to employee contributions were to be calculated. *fn1"

 I. Background

 There is no dispute as to the essential facts in this case. In 1941 Firestone established the Contributory Retirement Income Fund (the "Contributory Plan"). Administrative Record ("A.R.") at 36. The Contributory Plan provided a fixed level of benefits to its participants and required them to contribute a fixed percentage of their compensation to the Plan. Firestone also contributed to the plan. In 1950 Firestone established another plan, the Non-Contributory Pension Plan for Salaried Employees (the "Non-Contributory Plan"), which was funded entirely by Firestone. A.R. at 72. In 1968 Firestone consolidated the two plans and created the Firestone Tire & Rubber Company Retirement Plan ("the Plan"). A.R. at 38. From 1968 to 1977 the Plan was funded by Firestone and the Plan's participants. In 1977 the Plan was modified to eliminate employee contributions and was funded entirely by Firestone. In August 1984, Firestone filed with the PBGC a notice of intent to terminate the Plan pursuant to section 4041(a) of ERISA, 29 U.S.C. § 1341(a). At that time, Plan assets ($ 647 million) exceeded liabilities ($ 363 million) by approximately $ 284 million. The Plan was terminated in September, 1984. To satisfy the liabilities accrued at the time of termination, Firestone purchased a participating group annuity contract from an insurance company.

 In February 1985, Firestone requested the PBGC to approve a proposed alternative method for calculating whether any residual plan assets were attributable to employee contributions. One month later, the PBGC, in an initial determination, rejected Firestone's proposed method. A.R. at 857-58. The PBGC refused to issue a Notice of Sufficiency permitting Firestone to complete the termination process until either a suitable method of calculation was agreed upon or Firestone placed the residual assets in question in escrow pending their final disposition. In April 1985, Firestone placed nine million dollars of excess fund assets in escrow, at which time the PBGC issued a Notice of Sufficiency which permitted the reversion of the remaining $ 275 million in excess assets to Firestone. A.R. 865-67. The nine million dollar escrowed amount was arrived at by calculating employee contributions by the method set forth in 29 C.F.R. § 2618.31(b), which came to $ 8,120,895, an amount rounded up to nine million dollars.

 Firestone then requested the PBGC to reconsider Firestone's proposed method of calculation. In June 1985, the PBGC denied Firestone's request for reconsideration unless it intended to present new information. After further discussions between the parties, Firestone submitted additional data and analysis in support of its alternative calculation. A.R. at 448-75, 850. When the PBGC had not issued a final determination by December 1986, Firestone filed suit in this Court to compel a decision. In August 1987, the PBGC issued its final determination, disapproving Firestone's proposed alternative method for determining the amount of residual assets attributable to employee contributions. A.R. at 1-13. It is that decision that Firestone challenges in its motion for summary judgment.

 II. Standard of Review

 The parties agree that the PBGC's determination is subject to judicial review under the Administrative Procedure Act ("APA"). Firestone contends that de novo review is appropriate because there is no factual matter in dispute, only a question of law. *fn2" The question of law, in Firestone's view, is how the statutory phrase "assets . . . attributable to employee contributions" should be interpreted. See 29 U.S.C. § 1344(d)(2). Firestone urges the Court to interpret this statutory language without regard for the PBGC's construction.

 Questions of statutory construction are decided without deference to agency interpretation when there is congressional intent to be ascertained or the statute is unambiguous on its face. INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S. Ct. 1207, 1221, 94 L. Ed. 2d 434 (1987). When determining whether there is unambiguous congressional intent underlying the statutory provision at issue, courts are "not required to grant any particular deference to the agency's parsing of statutory language or its interpretation of legislative history." Rettig v. PBGC, 240 U.S. App. D.C. 118, 744 F.2d 133, 141 (D.C. Cir. 1984). If, however, Congress' intent is not clear, deference should be given to the agency's interpretation of the statute:

 
When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, the question is whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter . . . If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

 Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S. Ct. 2778, 81 L. Ed. 2d 694. The proper standard of review thus turns on whether Congress provided explicit guidance as to the meaning of the phrase "assets . . . attributable to employee contributions."

 After reviewing the legislation and the legislative history, the Court concludes that Congress did not clearly express its intent as to how assets were to be attributed to employee contributions. Thus, the question before the Court is whether the PBGC's application of the statute was reasonable. INS v. Cardozo-Fonseca, 107 S. Ct. at 1220 n.29, 1221-22 (quoting Chevron 467 U.S. at 845). Such deference is especially proper where, as here, "a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations." Chevron, 467 U.S. at 844 (quotations omitted); see, e.g., Rettig, 744 F.2d at 141; Belland v. PBGC, 234 U.S. App. D.C. 8, 726 F.2d 839, 843-45 (D.C. Cir.), cert. denied, 469 U.S. 880, 83 L. Ed. 2d 183, 105 S. ...


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