Trustees of Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) Pension Fund v. Central Transport, Inc.

• Decision Date: 11 June 1991
• Docket Number: Nos. 90-2819 and 91-1105,s. 90-2819 and 91-1105
• Citation: 935 F.2d 114
• Parties: 13 Employee Benefits Ca 2637 TRUSTEES OF THE CHICAGO TRUCK DRIVERS, HELPERS AND WAREHOUSE WORKERS UNION (INDEPENDENT) PENSION FUND, et al., Plaintiffs-Appellees, Cross-Appellants, v. CENTRAL TRANSPORT, INC., GLS Leasco, Inc., and Centra, Inc., Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 114

935 F.2d 114

13 Employee Benefits Ca 2637

TRUSTEES OF THE CHICAGO TRUCK DRIVERS, HELPERS AND WAREHOUSE WORKERS UNION (INDEPENDENT) PENSION FUND, et al Plaintiffs-Appellees, Cross-Appellants, v. CENTRAL TRANSPORT, INC., GLS Leasco, Inc., and Centra, Inc. Defendants-Appellants, Cross-Appellees.

Nos. 90-2819 and 91-1105.

United States Court of Appeals Seventh Circuit.

Argued April 8, 1991.

Decided June 11, 1991.

Joseph M. Burns, Martin J. Burns, Stephen B. Horwitz, David S. Allen, Jacobs, Burns, Sugarman & Orlove, Chicago, Ill., for plaintiffs-appellees, cross-appellants.

Leonard R. Kofkin, Fagel & Haber, Chicago, Ill., Patrick A. Moran, Michael A. Nedelman, Terri L. North, Simpson & Moran, Birmingham, Mich., Michael D. Leroy, Neal & Associates, Chicago, Ill., Fredric A. Smith, Nedelman, Romzek, Smith & Frank, Southfield, Mich., for defendants-appellants, cross-appellees.

Before BAUER, Chief Judge, and CUDAHY and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

More than seven years ago Mason and Dixon Lines, Inc., filed a bankruptcy petition and stopped making payments to the truck drivers pension fund. The Fund filed an untimely, and therefore unavailing, claim in the bankruptcy case. But Central Transport, Inc., GLS Leasco, Inc., and Centra, Inc., firms under common control with Mason & Dixon, were (and are) solvent; the Fund has pursued them as entities liable for Mason & Dixon's pension obligations under 29 U.S.C. Sec. 1301(b)(1). We call them "Centra" for convenience. Centra did not demand arbitration within the 60 days given by 29 U.S.C. Sec. 1401(a)(1). In 1988 the district court held that this omission entitled the Fund to immediate judgment for the full amount of withdrawal liability it demands. We disagreed, holding that the Mason & Dixon bankruptcy gave Centra additional time to pursue arbitration. 888 F.2d 1161 (7th Cir.1989). After Centra made the formal demand, the Fund responded with a claim for interim withdrawal payments pending the arbitrator's decision. See 29 U.S.C. Secs. 1399(c)(2), 1401(d), 1451. In July 1990 the district court ordered Centra to pay $706,112 immediately and to pay additional sums in October 1990 and January 1991. 1990 WL 114658, 1990 U.S.Dist. LEXIS 9167. Centra appeals from this order. It has so far paid not a dime, and the Fund appeals from the district court's refusal to hold Centra in contempt of court.

I

When ordering Centra to pay, the district court entered a judgment under Fed.R.Civ.P. 54(b). This rule allows immediate appeal of separate disputes comprised within a larger litigation. It does not, however, allow appeal when damages have been partially but not completely determined, or when the district court will revisit the issues. Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976); Buckley v. Fitzsimmons, 919 F.2d 1230, 1237 (7th Cir.1990); Horn v. Transcon Lines, Inc., 898 F.2d 589 (7th Cir.1990). The district judge viewed his order to pay as a preliminary computation of damages, to be made final after the arbitrator's award. If that is the correct way to characterize the order, then Rule 54(b) does not allow the entry of final decision, and we lack jurisdiction of Centra's appeal.

The Multiemployer Pension Plan Amendments Act of 1980 (MPPAA) requires a firm that withdraws from a multiemployer pension trust to cover its share of any unfunded pension obligations. 29 U.S.C. Sec. 1381. If the employer and the fund do not agree on the employer's obligation, they must arbitrate. While the arbitration proceeds, the employer must either pay the whole sum or make periodic payments in an amount determined by the trustees. 29 U.S.C. Secs. 1399(c)(2), 1401(d). If the employer does not pay the sums demanded, the trust may file a civil action in federal court to collect. 29 U.S.C. Sec. 1451(a)(1).

The interaction of arbitration, litigation, and interim payments produces devilish questions of appellate jurisdiction. Most of these involve doubly contingent orders. All judicial orders under Secs. 1399(c)(2) and 1401(d) are "interim" in the sense that the arbitrator's decision (and any proceedings in court to review or enforce it) ultimately fixes the liability; the employer may end up paying more or receiving a refund. Some judicial orders are interim even within the litigation: the employer may seek an injunction against the arbitration or collection, and the court may order "interim interim" payments pending its disposition of that request. Orders of this kind are neither final judgments nor traditional injunctions because the court plans to issue additional orders about the same subject in the same case.

Following a variant of the Forgay doctrine, see Forgay v. Conrad, 47 U.S. (6 How.) 201, 12 L.Ed. 404 (1848), courts have held that these "interim interim" orders to pay are injunctions (and hence appealable even though interlocutory) if and only if they expose the employer to irreparable harm. E.g., I.A.M. National Pension Fund v. Cooper Industries, Inc., 789 F.2d 21 (D.C.Cir.1986); Korea Shipping Corp. v. New York Shipping Ass'n, 811 F.2d 124 (2d Cir.1987). The cases do not rely expressly on Forgay but deal with the appealability of an interlocutory order to pay money or turn over assets, the core of the Forgay principle. Cf. Palmer v. Chicago, 806 F.2d 1316, 1319-20 (7th Cir.1986) (orders requiring the immediate payment of money are appealable as "collateral" orders only when there is irreparable harm); Uehlein v. Jackson National Life Insurance Co., 794 F.2d 300 (7th Cir.1986) (orders determining who holds the money stakes of a suit during litigation ordinarily are not appealable, as injunctions or collateral orders). Rule 54(b) is not a good candidate for another way to make "interim interim" payments appealable. Cf. People Who Care v. Rockford Board of Education, 921 F.2d 132, 134-35 (7th Cir.1991).

If the employer simply seeks relief from the statutory obligation to pay while the arbitration proceeds, then the district court will enter only one order. That is what happened here. The Fund obtained a judgment compelling Centra to pay its accrued liability and to make future payments as they come due. The order was entered on the form appropriate to civil judgments. Such an order is final and appealable under 28 U.S.C. Sec. 1291. It is the end of the case. The invocation of Rule 54(b) is a distraction, for there is no other open claim in the litigation. A request to enforce (or set aside) the award initiates a new suit.

The possibility that the arbitrator will establish a different measure of liability does not make a decision nonfinal. An order to make interim payments differs from an interim order to make payments. Suppose a court orders a construction company to post a bond, as its contract requires, while it works on a project; that it might never pay on the bond would not deprive the order of finality, because bonding during the interim is the whole dispute. So here: interim payments are the dispute; the court is deciding who holds the stakes during the interim, not what the final tally shall be; the arbitrator's award will not affect one way or the other the only subject of this litigation. Similarly, when the civil suit requests only an order to engage in arbitration, the order to arbitrate is a final decision under Sec. 1291. Goodall-Sanford, Inc. v. United Textile Workers, 353 U.S. 550, 77 S.Ct. 920, 1 L.Ed.2d 1031 (1957). The terminating order of a case is a "final decision" by definition. Many such decisions may be revised, as by motion under Fed.R.Civ.P. 60, but the possibility of revision does not destroy finality.

Robbins v. McNicholas Transportation Co., 819 F.2d 682, 685 (7th Cir.1987), raises the question whether this straightforward approach should be followed. One paragraph of McNicholas characterized even the ultimate disposition of a suit seeking interim payments as non-final, on the ground that the reckoning would abide the outcome of the arbitration. The court concluded, however, that the final decision in that case was appealable because it caused irreparable injury. This approach makes appellate jurisdiction turn on "irreparable injury", which implies that some final decisions are not appealable. Yet 28 U.S.C. Sec. 1292(a)(1) gives appellate courts jurisdiction of appeals from all injunctions, not just those that cause demonstrable injury. Irreparable injury may be important in deciding whether a decree is an injunction, see Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 107 S.Ct. 1177, 94 L.Ed.2d 389 (1987); In re Springfield, 818 F.2d 565, 567-68 (7th Cir.1987), but any "injunction" is appealable. McNicholas suggests that all dispositions of requests for interim payments are "injunctions", which if true would create a conflict with I.A.M., which held that an "interim interim" order to pay is an injunction only if it causes irreparable injury.

McNicholas did not suggest that it was creating a conflict, so perhaps the panel did not mean its approach literally. More recent decisions conclude that an order designating who shall hold the stakes of a dispute during arbitration is a money judgment rather than an injunction. E.g., Pacific Reinsurance Management Corp. v. Fabe, 929 F.2d 1215 (7th Cir.1991). Cf. Rosenfeldt v. Comprehensive Accounting Service Corp., 514 F.2d 607, 609-10 (7th Cir.1975) (Stevens, J.) (an attachment transferring control of the assets involved in the case pending final decision is not an injunction). The need to characterize the order as an injunction in McNicholas arose only because the panel thought that the pending arbitration sapped the district court's disposition of finality. Yet a judgment requiring the employer to pay money to the pension trust may be the only order the district court ever will enter. In this case, for example, the complaint asked for one thing, money, and the entire litigation has been concluded. The...