Amicus Curiae Brief — M & K Employee Solutions, LLC, et al., Petitioners v. Trustees of the IAM National Pension Fund

Supreme Court briefOct 21, 2025

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No. 23-1209

In The

Supreme Court of the United States

M & K Employee Solutions, LLC, et al.,

Petitioners,

Trustees of the IAM Pension Fund,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

For the District of Columbia

BRIEF OF THE AMERICAN FEDERATION OF

LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS AS AMICUS CURIAE IN

SUPPORT OF RESPONDENT

Matthew J. Ginsburg

Darin M. Dalmat

(Counsel of Record)

AFL-CIO

815 Black Lives Matter Plaza, N.W.

Washington, DC 20006

202-637-5021

ddalmat@aflcio.org

Counsel for American Federation of Labor

and Congress of Industrial Organizations

Mosaic - (301) 927-3800 - Cheverly, MD

49261_Ltrhd.indd

6/11/08

12:44:0

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE.....................

SUMMARY OF ARGUMENT.............................

ARGUMENT ........................................................

I. The MPPAA allows plan actuaries, after

the measurement date, to set

assumptions necessary to calculate

withdrawal liability....................................

A. Background............................................

B. Reading the Act’s plain language in

context, an actuary must

retrospectively determine the value of

the plan’s assets and liabilities as of

the valuation date, using the best assumptions available on the

calculation date…..................................

II. Permitting actuaries to use current

assumptions best protects participants,

beneficiaries, remaining employers,

and the PBGC.............................................

III. Nothing in the MPPAA requires a

contrary reading.........................................

CONCLUSION.....................................................

iii

TABLE OF AUTHORITIES

Page

Cases

Bay Area Laundry and Dry Cleaning Pension

Tr. Fund v. Ferbar Corp. of California, Inc.,

522 U.S. 192 (1997)..................................... 6, 9, 18

Bouarfa v. Mayorkas,

604 U.S. 6 (2024)..............................................

Carr v. United States,

560 U.S. 438 (2010)).........................................

Concrete Pipe and Products of California, Inc. v.

Constr. Laborers Pension Tr. for S. Cal.,

508 U.S. 602 (1993)................................ 5, 7, 9, 11

Connolly v. PBGC,

475 U.S. 211 (1986).......................................

4, 6, 7

Dubin v. United States,

599 U.S. 110 (2023)..........................................

Epic Sys. Corp. v. Lewis,

584 U.S. 497 (2018)..........................................

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000)..........................................

FTC v. Mandel Brothers, Inc.,

359 U.S. 385 (1959)..........................................

Hamilton v. Lanning,

560 U.S. 505 (2010)..........................................

Harris v. Viegelahn,

575 U.S. 510 (2015)..........................................

Kennedy v. Braidwood Mgt., Inc.,

145 S. Ct. 2427 (2025)......................................

TABLE OF AUTHORITIES—Continued

Page

Milwaukee Brewery Workers’ Pension Plan v.

Joseph Schlitz Brewing Co.,

513 U.S. 414 (1995)............. 7, 9, 10, 15, 19, 20-21

National Retirement Fund v. Metz Culinary

Mgmt., Inc.,

946 F.3d 146 (2d Cir. 2020).............................

Pension Benefit Guaranty Corp. v.

R. A. Gray & Co.,

467 U.S. 717 (1984).................................

4, 6, 7, 11

Robers v. United States,

572 U.S. 639 (2014).......................................

Rudisill v. McDonough,

601 U.S. 294 (2024)...........................

14-15

13, 14, 19-20

Stanley v. City of Sanford, Fla.,

145 S. Ct. 2058 (2025)......................................

Taylor v. Riojas,

946 F.3d 150 (5th Cir. 2019).......................

22, 23

Trustees of IAM Nat’l Pension Fund v.

Ohio Magnetics,

656 F. Supp.3d 112 (D.D.C. 2023)...................

United States v. Wilson,

503 U.S. 329 (1992)..........................................

Ysleta Del Sur Pueblo v. Texas,

596 U.S. 685 (2022)..........................................

TABLE OF AUTHORITIES—Continued

Statutes and Regulations

Page

1 U.S.C. § 1...........................................................

26 U.S.C. § 412.....................................................

29 U.S.C.

§ 186(c)(5).........................................................

§ 1001a(a).........................................................

§ 1001a(a)(4)(a)................................................ 20, 23

§ 1001a(c).......................................................... 6, 23

§ 1001a(c)(3).....................................................

§ 1002................................................................

§ 1021(l)..................................................... 23, 24, 26

§ 1021(l)(1)(A)...................................................

§ 1021(l)(1)(B)...................................................

§ 1021(l)(2)(A)(i)...............................................

§ 1053................................................................

§ 1054(g)...........................................................

§ 1082(c)(9).......................................................

§ 1301(a)(10).....................................................

§ 1301(a)(3)(B)..................................................

§ 1381................................................................

§ 1382(1)........................................................... 9, 15

§ 1382(2)...........................................................

§ 1391......................... 10, 15, 17, 22, 23, 26, 28, 29

§ 1391(a)........................................................... 6, 10

§ 1391(b)(1)....................................................... 7, 14

§ 1391(b)(2)(E)(i).............................................. 7, 14

§ 1391(c)(2)(B)(i).......................................... 7, 8, 14

TABLE OF AUTHORITIES—Continued

Page

§ 1391(c)(3).......................................................

§ 1391(c)(3)(A).................................................. 7, 14

§ 1391(c)(4).......................................................

§ 1391(c)(4)(A)(i)............................................... 7, 14

§ 1391(c)(2)(C)(i)(I)...........................................

§ 1391(c)(5)(A)..................................................

§ 1393...................... 7, 10, 13, 15, 16, 17, 27, 28, 29

§ 1393(a)......................................................... 13, 26

§ 1393(a)(1)............. 8, 11, 12, 13, 14, 18, 19, 23, 26

§ 1393(b)(1).......................................................

§ 1393(c)............................................................ 7, 10

§ 1399(b)(1)(A)(i).............................................. 9, 15

§ 1399(b)(1)(B)..................................................

§ 1399(b)(2)(A)..................................................

§ 1399(c)............................................................ 9, 23

§ 1399(c)(1).......................................................

§ 1399(c)(1)(A)(ii)..............................................

§ 1399(c)(4).......................................................

§ 1401............................................................. 13, 21

§ 1401(a)(1).......................................................

§ 1401(a)(3)(B)(i)..............................................

§ 1401(d)...........................................................

MPPAA, § 3(c), Pub. L. 96-364, 94 Stat. 1028

(Sept. 26, 1980).................................................

29 C.F.R.

§ 2530.210(c)(1)................................................

§ 4211.3.............................................................

vii

TABLE OF AUTHORITIES—Continued

Page

Other Authority

Actuarial Standards Board, ASOP No. 4,

Measuring Pension Obligations and

Determining Pension Plan Costs or

Contributions (Dec. 2021).............................. 28, 29

Actuarial Standards Board,

ASOP No. 27, Selection of Assumptions

for Measuring Pension Obligation

(Dec. 2023)...............................................

11, 16, 17

Report of the Committee on Ways & Means on

H.R. 3904, H. Rept. 96-869

(Apr. 23, 1980)............................. 6, 7, 8, 14, 18, 20

Historical Inflation Rates: 1914-2025,

https://www.usinflationcalculator.com/inflation/

historical-inflation-rates/...................................

PBGC, Actuarial Assumptions for Determining

an Employer’s Withdrawal Liability—

Proposed Rule, 87 Fed. Reg. 62,316

(Oct. 14, 2022)..................................................

PBGC, American Rescue Plan Act FAQs,

https://www.pbgc.gov/arp-sfa/faqs .................

PBGC, Multiemployer Study Required by

P.L. 95-214 (July 1, 1978)............................

Russell Laurence Hirschhorn et al., Employee

Benefits Law (2024)..........................................

4, 5, 6

INTEREST OF AMICUS CURIAE

The American Federation of Labor and Congress of

Industrial Organizations (AFL-CIO) is a federation of

63 national and international labor organizations that

represent 15 million working people, including more

than 10 million who participate in over 1,300 multiemployer plans.1 The retirement security of those

workers and their families depends on these plans’

solvency. Yet, around 4 million of them participate in

underfunded plans. The principal statutory safeguard

for ensuring the retirement security of participants in

underfunded plans is withdrawal liability. The AFLCIO accordingly has a strong interest in the proper

calculation of such liability under the Multiemployer

Pension Plan Amendments Act (MPPAA or Act),

which amended the Employee Retirement Income Security Act (ERISA).

SUMMARY OF ARGUMENT

Congress enacted the MPPAA in 1980 to establish

withdrawal liability. It did so not to punish employers

who withdraw from underfunded multiemployer pension plans but to ensure that withdrawing employers

don’t leave behind a debt they helped create. Doing so,

Congress feared, would unduly burden employers who

remain in underfunded plans, risking the retirement

security of plan participants and beneficiaries as well

as the solvency of the Pension Benefit Guarantee Corporation (PBGC), which insures pensions. Withdrawal liability thus helps make good on ERISA’s principal

aim to ensure that workers promised a pension in fact

receive one.

1 No counsel for a party authored this brief in whole or in part,

and no person or entity, other than the amicus curiae, made a monetary contribution to the preparation or submission of this brief.

The Act contains two interlocking provisions central to the question presented. The first, 29 U.S.C.

§ 1391, requires plans to compute withdrawal liability

using one of several specified formulas. The second,

§ 1393,2 regulates the actuarial assumptions plan actuaries must use in performing those calculations.

The actuarial assumptions provision requires the

plan to use reasonable assumptions, account for plan

experience and reasonable expectations, and offer the

actuary’s best estimate of anticipated plan experience—all in a sentence that speaks in the present

tense. The same provision makes clear that the present tense is the time when the actuary actually calculates underfunding for withdrawal-liability purposes.

The computation provision, § 1391, in turn requires

actuaries to determine the value of, and then fairly

allocate, the plan’s underfunding “as of” a date in the

past—i.e., the end of the plan year preceding the withdrawal. That date is commonly referred to as the “valuation date” or the “measurement date.” And the statutory context makes clear that the actuary must

perform those calculations after the valuation date.

Reading both provisions together, the statute requires

plan actuaries to use actuarial assumptions current

through the calculation date in order to retrospectively

value and allocate a plan’s underfunding as of the valuation date based on historical facts existing on that date.

This rule honors all relevant statutory language of the

MPPAA while best serving its stated purposes.

The policy of the MPPAA, which Congress specified

expressly, is to protect plan participants and beneficia2 All statutory citations are to Title 29 of the United States

Code, unless otherwise specified.

ries, along with employers who remain in multiemployer plans and the PBGC, against the loss of funding

that otherwise would attend withdrawals. Using assumptions current through the calculation—as Congress plainly provided by § 1393—helps plan actuaries

make sure they are accounting for all relevant plan

experience and expectations. The Second Circuit’s

rule, in contrast, straightjackets actuaries with stale

assumptions (sometimes over a year old) but serves no

discernable statutory purpose. Sometimes, it would

even reward employers who exit multiemployer plans.

But, while Congress made sure employers had the

freedom to leave, nothing in the statute sought to reward them for doing so. Quite the opposite: Congress

was deeply concerned that withdrawing employers not

leave remaining employers solely responsible for digging underfunded plans out of fiscal holes.

The Second Circuit’s contrary approach elevates its

own policy preferences over both the plain text of the

operative provisions and the policies Congress enshrined in law. While the D.C. Circuit rightly rejected

that approach and allows actuaries to adopt assumptions at the time of calculation, in a misguided effort

to “harmonize” §§ 1391 and 1393, it requires them to

do so using only information known by the valuation

date. That approach goes astray because there is nothing discordant about the two provisions. Section 1393

plainly speaks in the present tense and requires actuaries to use assumptions that are current on the calculation date and section 1391 speaks in the past and

requires valuation of assets and liability as of an earlier date. Together, the provisions require the actuary

to apply current assumptions and methods to historical data—the standard approach actuaries take in

conducting retrospective valuations. Because the two

provisions, by their terms, are already in harmony,

the D.C. Circuit’s limitation on information known as

of the valuation date has no warrant.

The Court should read both provisions by their

terms, permit actuaries to use current assumptions,

and, for these reasons, affirm the judgment below.

ARGUMENT

I. The MPPAA allows plan actuaries, after the

measurement date, to set assumptions

necessary to calculate withdrawal liability.

A. Background.

Multiemployer pension plans have existed since

the 1940’s. PBGC, Multiemployer Study Required by

P.L. 95-214, 1 (July 1, 1978) (PBGC Study)3 (cited in

PBGC v. R.A. Gray & Co., 467 U.S. 717, 722 (1984);

Connolly v. PBGC, 475 U.S. 211, 215–17 (1986)).They

are established and maintained through collective

bargaining, id. at 2; § 1301(a)(3)(B), and administered

by boards of trustees, equally represented by employer- and union-appointed members. § 186(c)(5); PBGC

Study at 2.

Multiemployer plans provide advantages to employees and employers, alike. For employees, they typically credit work at all contributing employers with

pensionable service, thus enabling a worker who

changes jobs within an industry to continue to build

credit toward a vested pension. PBGC Study at 3; 29

C.F.R. § 2530.210(c)(1). This pension portability is

particularly important in the construction, manufacturing, trucking and transportation, entertainment,

and services sectors, where employment is often mo3 Available at https://www.pbgc.gov/sites/default/files/leghist_

pbgc-multiemployer-study-1978.pdf.

bile and employees may have stronger ties to a union

than to a particular employer. PBGC Study at 3; Employee Benefits Security Administration, U.S. Department of Labor, Private Pension Plan Bulletin, 13 (Sept.

2024) (Table B3). They also protect employees’ pensions in the event that any particular employer leaves

the plan, for example, due to bankruptcy or other distress. See PBGC Study at 3. For employers, multiemployer plans help recruit trained workers seeking good

benefits, while spreading administrative costs and the

risks inherent in providing deferred compensation,

such as pensions. Concrete Pipe and Products of California, Inc. v. Constr. Laborers Pension Tr. for S. California, 508 U.S. 602, 606–07 (1993).

Before Congress enacted ERISA in 1974, multiemployer plans rarely terminated because they were

prevalent in growing industries and plans facing financial stress could reduce benefits to avoid termination. PBGC Study at 4. By establishing minimum vesting requirements and prohibiting cutback of accrued

benefits, §§ 1053, 1054(g), ERISA strengthened benefit

protections but inadvertently reduced plans’ options

for responding to financial stress. PBGC Study at 4.

Multiemployer plans faced particularly acute problems when employers withdrew from underfunded

plans. In the wake of ERISA’s enactment, employers

could withdraw individually from multiemployer plans

without replacing their lost contributions. PBGC Study

at 12.4 At Congress’s direction, PBGC studied the matter and proposed making withdrawing employers liable to underfunded plans for their fair share of the

funding shortfall that arose while the withdrawing

4 Substantial employers, who contributed 10% or more to a

plan, faced sanctions payable to the PBGC but were not required

to compensate the plan for lost contributions. PBGC Study at 12.

employer was in the plan. Id. Doing so, PBGC concluded, would fairly compensate the plan for withdrawals,

reduce incentives to withdraw, protect troubled plans

against contribution erosion, protect remaining employers from increased contributions to make up for

lost contributions, and strengthen the insurance system. Id. at 12–13, 24, 63, 96–97. See also R.A. Gray,

467 U.S. at 722; Bay Area Laundry and Dry Cleaning

Pension Tr. Fund v. Ferbar Corp. of California, Inc.,

522 U.S. 192, 201 (1997) (withdrawal liability “designed

to discourage withdrawals ex ante and cushion their

impact ex post”); Connolly, 475 U.S. at 215–16 (withdrawing employers reduced plans’ contribution base,

requiring remaining employers to pay higher contribution rates to cover inherited liabilities, making plans

unsustainable and leading to further withdrawals).

In framing the MPPAA, the House adopted these

rationales, Report of the Committee on Ways & Means

on H.R. 3904, HR 96-869 at 60, 67 (Apr. 23, 1980), and

Congress enshrined into law the statutory policy,

among others, to “provide reasonable protection for

the interests of participants and beneficiaries of financially distressed multiemployer pension plans . . . .”

MPPAA, §3(c), Pub. L. 96-364, 94 Stat. 1028, 1209–10

(Sept. 26, 1980), codified at 29 U.S.C. § 1001a(c).

The MPPAA is not a penalty on exiting employers.

Cf., HR 96-869 at 73; Bay Area Laundry, 522 U.S. at

201 (statute does not “prohibit[] employers from leaving their plans”). Instead, it imposes liability only

when an employer leaves an underfunded plan, only

to the extent that the funding shortfall accrued during

the exiting employer’s participation in the plan, and

only in proportion to the exiting employer’s participation in the plan. § 1391(a); Milwaukee Brewery Workers’ Pension Plan v. Joseph Schlitz Brewing Co., 513

U.S. 414, 417 (1995). Such employers, Congress realized, had made promises to their employees but, when

exiting, left behind a debt to which they had contributed, making those promises more difficult to fulfill.

HR 96-869 at 51–52. Withdrawal liability thus shores

up ERISA’s fundamental goal to ensure private-sector

workers would receive the pensions upon retirement

they had been promised while working. See, e.g., Milwaukee Brewery Workers’, 513 U.S. at 416; Concrete

Pipe, 508 U.S. at 607; Connolly, 475 U.S. at 214, 227;

R.A. Gray, 467 U.S. at 720.

B. Reading the Act’s plain language in

context, an actuary must retrospectively

determine the value of the plan’s assets

and liabilities as of the valuation date,

using the best assumptions available on

the calculation date.

The question presented requires the Court to read

together two statutory provisions—one specifying the

formulas for computing withdrawal liability (§ 1391)

and the other regulating the assumptions and methods an actuary must use to value plan liabilities in

those computations (§ 1393). The two provisions fit

seamlessly together through the express statutory

definition of “unfunded vested benefits” in § 1393(c).

The computation provision speaks of the past, requiring a plan’s actuary to determine its liabilities “as

of” the end of the plan year preceding withdrawal.

§§ 1391(b)(2)(E)(i); 1391(c)(2)(B)(i), (c)(2)(C)(i)(I);

1391(c)(3)(A); 1391(c)(4)(A)(i).5 The actuarial assump5 Respondent correctly notes that, as used in § 1391(b)—the

formula applicable here—“as of” refers only to the continuation

of the 5% reduction (in the presumptive method) through the end

of the year prior to withdrawal. Resp. Br. at 22 n.8. See also

tions provision, in turn, speaks in the present tense,

requiring the actuary to perform the requisite computation using assumptions that “are reasonable” and

collectively “offer” the actuary’s best estimate of anticipated experience under the plan. § 1393(a)(1).

Reading the statute as a whole—including the various provisions specifying the procedures for conducting the mandated computations—makes sense of these

two time frames: the actuary, when calculating withdrawal liability, should calculate the value of the plan’s

assets and liabilities on a date certain in the past (a

past that preceded the withdrawal date) but should do

so using assumptions and methods that are as current

as practicable through the date of computation.

Doing so, first and foremost, is faithful to all relevant text in the MPPAA. This reading also best serves

the statute’s express policy to protect participants,

beneficiaries, remaining employers, and the PBGC. It

does so by allowing the actuary to use all current information available in calculating how much an exiting employer should pay to “continue funding a proportional share of the plan’s unfunded benefit

obligations.” HR 96-869 at 67.

An overview of the statutory process helps put the

operative provisions’ associated time frames in context. So we start with that process.

1. The Statutory Process: The process begins

when a previously contributing employer withdraws

from a multiemployer plan. After that happens, the

plan sponsor (its trustees, § 1301(a)(10)) “determine[s]

§ 1391(b)(2)(B) (presumptive method driven initially by calculation of “the unfunded vested benefits at the end of the plan year,”

not “as of” that time) (emphasis added).

the amount of the employer’s withdrawal liability.”

§ 1382(1) (liability to be determined “[w]hen an employer withdraws from a multiemployer plan.”). See

also § 1399(b)(1)(A)(i) (“As soon as practicable after an

employer’s . . . withdrawal, the plan sponsor shall notify the employer of the amount of the liability . . . .”)

(emphasis added); accord Bay Area Laundry, 522 U.S.

at 202 (following withdrawal, “the trustees must calculate the debt, set a schedule of installments, and

demand payment . . . .).

Once the plan completes that determination, it must

then “notify the employer of the amount of the withdrawal liability,” § 1382(2), and “demand payment

. . . .” Bay Area Laundry, 522 U.S. at 202; § 1399(b)(1)

(B). The withdrawing employer’s full liability isn’t due

immediately—although it may pay in a lump sum if it

wishes. § 1399(c)(4); Milwaukee Brewery Workers’, 513

U.S. at 418. Instead, the withdrawal liability is amortized over time (up to a 20-year period). § 1399(c)(1);

Milwaukee Brewery Workers’, 513 U.S. at 418–19. The

plan must therefore also calculate the amortized payments and include that information, too, in the notice.

§ 1399(c); Bay Area Laundry, 522 U.S. at 196–197.

The withdrawing employer may then object to the

plan’s determination. § 1399(b)(2)(A); Concrete Pipe,

508 U.S. at 611. If the parties can’t agree, the matter

goes to arbitration at either party’s request. § 1401(a)

(1); Concrete Pipe, 508 U.S. at 611. Either party may

then seek judicial review. Under the Act’s “pay now,

dispute later” approach, the withdrawing employer

“must still pay according to the trustees’ scheduling”

pending resolution of the dispute. Bay Area Laundry,

522 U.S. at 197 (cleaned up) (discussing § 1401(d)).

In this case, for example, Philips withdrew on April

7, 2018; Ohio Magnetics on June 30; Toyota Logistics

Services, on December 29; and M&K, on December 31.

JA 61, 262; Pet. App. 83a. The measurement date for

all four petitioners, then, was December 31, 2017. The

plan actuaries completed their valuation for plan year

2017, including that year’s underfunding, four months

after the final withdrawal, in April 2019. JA 60, 260.

Two months later, in June 2019, the plan notified

M&K and Toyota Logistics of their withdrawal liability assessments, along with their payment schedules.

JA 61, 263.6 See also, e.g., Milwaukee Brewery Workers’, 513 U.S. at 420 (employer withdrew on August

14, 1981; plan completed calculations in September

1981; and plan notified employer of payment schedule

by November 1, 1981).

2. The Computations and Assumptions: The

amount of withdrawal liability is a function of the

“amount of the unfunded vested benefits allocable to”

the withdrawing employer. § 1391(a). More plainly,

that’s the “withdrawing employer’s fair share of a

plan’s underfunding.” Milwaukee Brewery Workers’,

513 U.S. at 417. This calculation has two basic components: the funding shortfall (the plan’s “unfunded

vested benefits”) and the withdrawing employer’s fair

share of that shortfall (the amount statutorily “allocable” to the withdrawing employer). § 1391(a); Milwaukee Brewery Workers’, 513 U.S. at 417.

a. The MPPAA defines the critical phrase, “unfunded vested benefits” (i.e., the shortfall), for withdrawal liability purposes, as the value at a given time

of the plan’s “nonforfeitable benefits” minus its assets.

§ 1393(c). This definition appears in the actuarial assumption provision (§ 1393) not the computation

6 Phillips and Ohio Magnetics received their assessments in

April 2019. Pet. App. 83a.

methods provision (§ 1391) or any general definition

provision (§§ 1002, 1381). The assumptions and computations are inherently linked because calculating

the present value of future obligations necessarily requires use of actuarial assumptions and methods. See

Actuarial Standards Board, Actuarial Standard of

Practice (ASOP) No. 27, Selection of Assumptions for

Measuring Pension Obligations, § 3.1 (Dec. 2023)7

(“[T]o convert future expected payments into present

values[]” and “measure a pension obligation, the actuary will typically need to select or assess assumptions

underlying the obligation.”); R.A. Gray, 467 U.S. at

725 (characterizing the MPPAA’s calculation directives as seeking the “present value of vested benefits”).

The assumptions typically include “such matters as

mortality of covered employees, likelihood of benefits

vesting, and, importantly, future interest rates.” Concrete Pipe, 508 U.S. at 610. See also ASOP No. 27, § 3.3

(Dec. 2023) (assumptions cover inflation, investment

return, discount rate, compensation increases, retirement, termination of employment, mortality, disability, election of optional benefit forms, expenses and

various other items).

The Act directs actuaries to use “actuarial assumptions and methods which, in the aggregate, are reasonable (taking into account the experience of the plan

and reasonable expectations) and which, in combination, offer the actuary’s best estimate of anticipated

experience under the plan.” § 1393(a)(1).8

Available at https://www.actuarialstandardsboard.org/wpcontent/uploads/2024/05/asop027_211.pdf.

8 Alternatively, the plan may use actuarial assumptions and

methods set forth in PBGC regulations. § 1393(2). The PBGC has

proposed, but not issued, such regulations. See PBGC, Actuarial

Assumptions for Determining an Employer’s Withdrawal Liabil-

“ ‘To ascertain a statute’s temporal reach, this Court

has frequently looked to Congress’ choice of verb

tense.’ ” Stanley v. City of Sanford, Fla., 145 S. Ct.

2058, 2063 (2025) (cleaned up) (quoting Carr v. United

States, 560 U.S. 438, 448 (2010)). In particular, it reads

present-tense verbs to refer to the time period of the

action specified by the statutory context. Stanley, 145

S. Ct. at 2063-64 (provision proscribing discrimination

against a worker who “can perform the essential functions of” of the job she “holds or desires” protects current employees but not retirees, who no longer hold or

desire a job); Carr, 560 U.S. at 448 (law’s use of present-tense verbs referred to travel starting with the

statute’s effective date, but not earlier); United States

v. Wilson, 503 U.S. 329, 333 (1992) (statute using past

and present perfect tenses indicated that the Attorney

General, not the sentencing court, had to compute sentencing credit because the sentencing court had no involvement after the sentence commenced).

The Dictionary Act buttresses this ordinary-language reading of §1393(a)(1) because Congress there

commanded that “[i]n determining the meaning of any

Act of Congress, unless the context indicates otherwise[,] . . . words used in the present tense include the

future as well as the present.” 1 U.S.C. § 1. Accordingly, present-tense words generally exclude the past.

Carr, 560 U.S. at 448. See also Kennedy v. Braidwood

Mgt., Inc., 145 S. Ct. 2427, 2459 (2025).

Here, the present tense refers to the time when the

actuary actually calculates the underfunding. That’s

because it requires reasonable, experience-based assumptions that offer best estimates “in determining

ity—Proposed Rule, 87 Fed. Reg. 62316 (Oct. 14, 2022). Nothing

in the proposed rule would settle the question presented here.

the unfunded vested benefits of a plan for purposes of

determining an employer’s withdrawal liability under

this part.” § 1393(a). The several present-tense verbs

in § 1393(a)(1) thus refer to the time when the actuary

determines the underfunding for withdrawal liability

purposes, as specified in § 1393(a). The section’s heading underscores the point. § 1393(a) (“Use by plan actuary in determining unfunded vested benefits of a

plan for computing withdrawal liability of employer”).

See Rudisill v. McDonough, 601 U.S. 294, 309 (2024)

(looking to section headings for cues of Congressional

intent); Dubin v. United States, 599 U.S. 110, 121

(2023) (similar).

What the text says, context confirms. When the Act

addresses arbitral review of actuarial assumptions in

§ 1401(a)(3)(B)(i), it uses the past tense. The arbitrator conducting review must assess whether “the actuarial assumptions and methods used in the determination were . . . unreasonable” or the plan’s actuary

“made a significant error in applying” them. Id. (emphasis added).

Arbitral review, of course, comes after the calculation itself, so the past tense is necessary in the review

context. Juxtaposing § 1401’s use of the past tense for

review of the actuary’s assumptions with § 1393’s use

of the present tense when selecting and deploying the

assumptions during the withdrawal-liability determination leaves no doubt that the Act directs actuaries

to use assumptions that are current at the time of the

underfunding calculation.

Petitioners are thus mistaken when they assert (at

42) that § 1393(a)(1) says nothing about timing. Petitioners can reach that conclusion only by ignoring

§ 1393(a)(1)’s present tense verbs along with the statutory text and context that indicate that the present

tense, in § 1393(a)(1), refers to the time of determining underfunding for withdrawal-liability purposes—

the time of underfunding calculation.

b. Once the plan’s actuary has determined the

funding shortfall, the plan must then calculate the

withdrawing employer’s fair share of the shortfall. In a

separate section, § 1391, the Act directs the plan to do

so using one of four methods. § 1391(b)(1), (c)(2) (presumptive method and its two-pool variant)9; 1391(c)(3)

(rolling-five year method);1391(c)(4) (direct attribution); 1391(c)(5)(A) (other PBGC-approved methods

prescribed by regulation). See also H.R. 96-869 at 77–

82 (describing methods); Russell Laurence Hirschhorn

et al., Employee Benefits Law, 17-7 through -11 (2024).

The statutory directives for each method are precise

and complex. Most of the details don’t matter here. The

statutory term that does matter is common across the

three specified methods. Namely, each such method requires calculation of the “unfunded vested benefits” (or,

for the presumptive method, unamortized changes in

them) as of a particular date. §§ 1391(b)(2)(E)(i); 1391(c)

(2)(B)(i), (c)(2)(C)(i)(I); 1391(c)(3)(A); 1391(c)(4)(A)(i).10

Namely, the actuary must calculate the value of the

unfunded vested benefits “as of the end of the plan year

preceding the plan year in which the employer withdraws.” Id. (We refer to these as the “measurementdate” or “valuation-date” provisions.) This rule imposes

a retrospective focus on the value of the unfunded obligations on the valuation date, viewed from a later time.

See, e.g., Rudisill, 601 U.S. at 309; Harris v. Viegelahn,

575 U.S. 510, 517 (2015); Robers v. United States, 572

Subject to limited exceptions, construction industry plans

are required to use the presumptive method. 29 C.F.R. § 4211.3.

See note 5, supra.

U.S. 639, 642–43 (2014). Accord Websters’ Third New

Int’l Dictionary 129 (1965) (“as of” means “at or on (a

specific time or date)”). For example, in this case, petitioners all withdrew in 2018, making their measurement dates December 31, 2017. Pet. Br. 2; supra at 9–15.

That retrospective perspective makes sense because

an actuary doesn’t actually perform the computations

on the measurement date. Nor could he: the end-ofyear contributions and investment performance aren’t

known or knowable until after the plan year closes. So

the statute directs the actuary to perform the computations after the valuation date. Supra at 8–9 (discussing §§ 1382(1), 1399(b)(1)(A)(i)). In this case, the

plan actuary calculated the 2017 funding shortfall in

April 2019, four months after M&K’s and Toyota Logistics Services’ December 2018 withdrawal and 16

months after the December 2017 valuation date. To

give another example, the plan in Milwaukee Brewery

Workers’ completed the calculations in September

1981, just weeks after the employer’s August 14, 1981,

withdrawal, and nine months after the December 31,

1980, valuation date. 513 U.S. at 420–21.

c. Reading the two provisions together, then,

the MPPAA requires actuaries to apply assumptions

current through the time of calculation (§ 1393) to

historical facts and data underpinning the plan’s assets and liabilities as they stood at the end of the plan

year before withdrawal (§ 1391). This application of

present-day assumptions to historical data is standard in construing statutes requiring retrospective

valuations. See, e.g., Hamilton v. Lanning, 560 U.S.

505, 513–19 (2010) (construing “projected disposable

income” to permit forward-looking adjustments for

foreseeable changes, not mechanical computations of

past experience).

Here, for example, § 1393 directed the actuaries to

use assumptions that were reasonable in April 2019

for computing 2017-plan-year liabilities. Thus, with

respect to the assumptions and methods specified by

ASOP No. 27, § 1393 directed the actuary to:

• Inflation: Assume 2.0% inflation (reflective of April

2019) not 2.1% (reflective of December 2017)11;

• Investment Returns: Account for the plan’s recent returns of 13.31% through 2018 (Ct.App.

JA153), 12 rather than the 6.5% it had earned

through 2017 (Ct.App.JA075);

• Compensation Increases: Determine whether

any participating employers had negotiated successor CBAs in 2018 that provided wage increases unforeseen in December 2017;

• Retirement: Determine whether the retirement

rates had changed, or were anticipated to change,

from what had been foreseen in December 2017;

• Termination of Employment: Determine whether any participating employers had recent mass

layoffs that might have affected the number of employees in the plan;

• Mortality: Account for any unforeseen changes to

mortality—for example from pandemics or natural

disasters, or, in other direction, from miracle drugs—

that may have occurred since December 2017;

https://www.usinflationcalculator.com/inflation/historicalinflation-rates/

12 All references to “Ct.App.JA” are to the February 22, 2023,

Joint Appendix submitted to the D.C. Circuit in USCA Case #227157.

•

Plan-Paid Expenses: Account for any changes to

actuarial firms since December 2017 that may have

triggered a change in plan-paid expenses;

•

Discount Rate: Determine a discount rate consistent with these other assumptions and what the actuary knows, in April 2019, about the plan’s recent

and anticipated experience.13

Ignoring all these developments and requiring the

actuary to stick unwaveringly at the time of calculation to earlier assumptions the actuary used before

the valuation date—perhaps for a different purpose in

a different context—would dishonor § 1393’s directive

that the actuary account for the plan’s experience and

reasonable expectations and give her best estimate of

anticipated plan experience when calculating withdrawal liability.14

For example, if the plan’s largest contributing employer went out of business after the December 31,

2017, measurement date (say, in June 2018) but before the actuary calculated the 2017 funding shortfall

(here, in April 2019), must the actuary ignore those

known lost contributions when valuing the 2017 funding shortfall in April 2019? Or, if the plan had used an

aggressive investment strategy before the measure13

See ASOP No. 27, § 3.8.

14 In this case, petitioners’ view would also dishonor its own

reading of § 1391 because the plan had not conducted a valuation

on December 31, 2017. If the actuary were not allowed to use assumptions current as of the time of the calculation, it would need

to rely on the valuation that preceded the valuation date. That

valuation issued on November 2, 2017, and reflected plan data as

of January 1, 2017. Ct.App.JA069. The result? The assumptions

would not reflect how things stood “as of” December 31, 2017, as

§ 1391 commands. They would reflect how things stood 364 days

earlier on January 1, 2017.

ment date but switched to a more conservative bond

ladder after the measurement date (say, in June

2018), must the actuary ignore that shift in its investment portfolio when calculating the 2017 shortfall in

April 2019?15

The plain terms of § 1393(a)(1) answer these questions with a resounding “no.” In April 2019, when calculating the 2017 funding shortfall, the actuary must

use assumptions that “are”—in April 2019—reasonable, that “account” for the experience of the plan

through April 2019, that also “account” for the plan’s

reasonable expectations from an April 2019 vantage

point, and that “offer”—in April 2019—the actuary’s

best estimate of “anticipated experience” as the actuary foresees it in April 2019.

To account for current experience and make reasonable forecasts, the actuary must receive up-to-date information from the plan and must have time to analyze it—all of which unquestionably impose significant

administrative burdens. Bay Area Laundry, 522 U.S.

at 205 (noting Congress recognized that plans needed

time to gather information and “perform[] the complex calculations” needed for determining withdrawal

liability). To mitigate those burdens, the MPPAA gave

plans “a great deal of flexibility to strike a balance

among the competing considerations of encouraging

new entrants, discouraging withdrawals, easing administrative burdens, and protecting the financial

soundness of a fund.” HR 96-869 at 67. The Act thus

allows (“may”), but does not require, plan actuaries to

“rely on the most recent complete actuarial valuation

15 The U.S. Chamber of Commerce argues (at 11–12) that actuaries should reflect these developments in their assumptions

but then ignore them. It makes no effort to square that approach

with the plain text of § 1393.

used” to calculate contributing employers’ minimum

funding obligations. § 1393(b)(1) (referring to 26

U.S.C. § 412). This option serves the plan’s “administrative convenience.” See Milwaukee Brewery Workers’, 513 U.S. at 418 (citing § 1082(c)(9)).

Here, the plan did just that and completed the withdrawal liability calculations in June 2019 based on

the underfunding calculations—the valuation of “unfunded vested liabilities”—for plan year 2017 in April

2019. So, here, § 1393(a)(1)’s present-tense verbs refer

to April 2019, when the shortfall calculation took

place. The assumptions must be reasonable at that

time and offer the actuary’s best estimate from that

vantage point.

Petitioners, however, demand more. Disregarding

§ 1393(b)(1)’s express authorization for actuaries to

use the most recent complete actuarial valuation, petitioners insist that the plan actuary should have

stuck to the assumptions set forth in the valuation

that preceded the one for the relevant plan year—

which occurred in November 2017 based on data

through January 1, 2017. Ct.App.JA073.

When the plan calculated withdrawal liability between April and June 2019, however, the November

2017 valuation was not the most recent—the April

2019 valuation was. Petitioners would effectively rewrite § 1393(b)(1) to require use of the second-most

recent complete actuarial valuation.

That argument is doubly wrong. The “most recent”

actuarial valuation is not the second-most recent one.

And § 1393(b)(1) does not require actuaries to use the

most recent valuation; it simply gives them the option

to do so. See, e.g., Bouarfa v. Mayorkas, 604 U.S. 6, 13

(2024) (“ ‘may’ clearly connotes discretion.”); Rudisill.

601 U.S. at 310 (same). Where, as here, a plan exercises its statutory option to use assumptions from the

“most recent” actuarial valuation, it shouldn’t be

faulted for failing to use assumptions from an even

earlier valuation.

II. Permitting actuaries to use current

assumptions best protects participants,

beneficiaries, remaining employers, and the

PBGC.

The MPPAA enacted withdrawal liability to ensure

that exiting employers would “continue funding a proportional share of the plan’s unfunded benefit obligations.” HR 96-869 at 67. It seeks to ameliorate the “substantially increased funding obligations” imposed on

employers who remain in multiemployer plans after a

withdrawing employer leaves, while also “provid[ing]

reasonable protection for the interests of participants

and beneficiaries of financially distressed multiemployer pension plans . . . .” § 1001a(a)(4)(A), (c)(3).

An underfunded plan has only two roads to recovery: favorable investment returns or employer contributions. When a previously contributing employer

leaves an underfunded plan, it leaves behind not only

its share of the funding shortfall that arose while it

participated but also the promise of future contributions that could have helped recover from the shortfall. It often takes years for underfunded plans to return to full funding, if they can do so at all. See PBGC,

American Rescue Plan Act FAQs, https://www.pbgc.

gov/arp-sfa/faqs (“How do I know if my plan is eligible

for special financial assistance?”). While the exiting

employer’s liability needn’t perfectly match the lost

contributions that attend withdrawal, withdrawal-liability payments certainly soften the lost-contribution

blow. See Milwaukee Brewery Workers’, 513 U.S. at

419 (although the “statute forgives all debt [of the exiting employer] after 20 years, 29 U.S.C. §1399(c)(1)

(B),” its payment schedule indicates “that maintaining level funding for the plan is an important goal”).

All of this counsels for recognizing actuaries’ freedom to use the most current information practicable

when calculating withdrawal liability. If actuaries are

hamstrung with stale assumptions, their liability calculations will not reflect all known experience or forecast all foreseeable events—leading to less-than-best

assessments.

And the Act’s dispute-resolution procedures make

any subpar assumptions a one-way ratchet. That’s because withdrawing employers may challenge liability

calculations, § 1401, but participants, remaining employers, and the PBGC have no statutory route to do

likewise. Cf., id. As a result, withdrawing employers

are likely to challenge what they perceive to be errors

resulting in overassessments of liability. But withdrawing employers are not likely to challenge what

they perceive to be errors resulting in underassessments of liability. And no other party—not participants, remaining employers, or the PBGC—has a procedural path to bring a similar challenge, even where

an underassessment would leave the remaining employers with an unfair share of contributions, risk

participants’ benefits, or unduly burden the PBGC.

The statutory cure for this problem is to require

plans to use outside actuaries, guided by professional

standards and responsibilities, to make calculations

based on assumptions that are as accurate as practicably possible at the time of calculation.

Thankfully, that approach is precisely what the express language of the MPPAA plainly requires—man-

dating that assumptions be present-day reasonable at

the time of calculation, account for all relevant information practicably available at that time, and account, too, for forward-looking plan experience reasonably foreseeable at calculation time. Honoring the

words Congress wrote happily serves the policies Congress enshrined in law.

III. Nothing in the MPPAA requires a contrary

reading.

1. The Second Circuit: The Second Circuit reached a

contrary result because it did not begin with or focus on

the operative text of the statute. Without quoting or

analyzing the text itself, that court baldly asserted that

§ 1393 is “silent” regarding when actuarial assumptions must be adopted. Nat’l Retirement Fund v. Metz

Culinary Mgmt., Inc., 946 F.3d 146, 150 (2d Cir. 2020).

But § 1393 speaks loudly enough to those who listen.

As shown above, it speaks with present-tense verbs

that regulate the assumptions actuaries must use

when calculating withdrawal liability through the

statutorily prescribed formulas. Supra at 10–14. The

present tense is no accident, as the arbitral review

provisions refer to the same substantive regulations

in the past when viewed from a different, later point

in the process. Supra at 13. And it is entirely consistent with the command in § 1391 to measure the value

of the funding shortfall on a particular date—one that

will necessarily be in the past, from the vantage point

of the calculations themselves. Supra at 14–15. That’s

because the statute, as this Court made clear in Bay

Area Laundry and other cases, requires the actuary to

calculate withdrawal liability after the valuation date.

Having overlooked the operative statutory language, Metz relied instead on the atextual policy that

“interest rate assumptions cannot be altered daily and

must have a degree of stability.” 946 F.3d at 150.

Whatever merit that policy concern may have, it ill

accords with the statutory choice to require actuaries

to select reasonable actuarial assumptions when calculating withdrawal liability (§ 1393(a)(1)) while requiring actuaries to use “assumptions used for the

most recent actuarial valuation” when setting payment schedules (§ 1399(c)(1)(A)(ii)).

Metz also professed concern for withdrawing employers’ notice, before withdrawing, of how much liability they would face upon withdrawal. 946 F.3d at

150. To the extent Metz offers this point based on statutory purposes, it does not track the MPPAA’s stated

policies: the protection of participants, beneficiaries,

remaining employers, and the PBGC. § 1001a(a)(4)(A),

(c)(1)–(4). Withdrawing employers are not among the

entities for whom the Act’s express policies show concern. They are, instead, the cause of the problem Congress sought to ameliorate through the Act.16

Metz next argued that another provision, which requires notice of potential withdrawal liability and is

housed in ERISA’s reporting and disclosure subtitle

two subchapters away from §§ 1391 and 1393, would

be “of no value” if “interest rate assumptions may be

made at any time.” 946 F.3d at 151 (discussing

§ 1021(l)). That argument fails for several reasons.

16 To be sure, the MPPAA’s operative provisions do accommodate withdrawing employers’ interests by capping their annual

liability payments and limiting those payments to 20 years.

§ 1399(c). But when Congress stated the Act’s policies and identified its intended beneficiaries, participants, beneficiaries, remaining employers, and the PBGC all made the cut; withdrawing employers did not. § 1001a(a), (c).

First, by its terms, § 1021(l) gives notice only of “potential” withdrawal liability and requires plans to

provide only “the estimated amount” of that liability.

§ 1021(l)(1)(A). Estimates are, of course, only estimates and no guarantee of a precise calculation. A degree of uncertainty necessarily inheres in the process

of forecasting the present-day value of liabilities that

accrue only years, sometimes decades, in the future.

Trustees, of course, must navigate that uncertainty in

administering the plan. Nothing in the MPPAA or

ERISA more generally suggests that Congress intended to insulate from that uncertainty employers considering withdrawing.

Second, § 1021(l) requires plans to provide participating employers estimates based on the counterfactual scenario that they had withdrawn on the “last

day of the plan year preceding the date of the request.”

Id. This scenario is counterfactual because if the requesting employer had actually withdrawn then, it

would not have “an obligation to contribute to the

plan”—and would have no right to request a liability

estimate. § 1021(l)(1)(A). What’s more, the valuation

date used for the estimate won’t correspond with the

valuation date for the actual withdrawal. The valuation date for the estimate is the end of the plan year

two years before the request (because § 1021(l)(1)(A)

requires plan to base the estimate on the assumption

that the employer withdrew on the last day of the plan

year preceding the request, which triggers a valuation

date a year earlier), but the valuation date for the actual withdrawal-liability calculation is the end of the

plan year that precedes the withdrawal. Supra at 7

(citing valuation-date provisions).

Consider an employer who requests an estimate on

October 1, 2025. The plan has until March 30, 2026, to

respond to the estimate. § 1021(l)(2)(A)(i). Suppose

the employer withdraws the next day, on April 1,

2026. In those circumstances, the valuation date for

estimation purposes is December 31, 2023 (because

it’s based on the assumption the employer had withdrawn on December 31, 2024), but for liability purposes is December 31, 2025. Those two valuation dates

are two years apart. There is no reason in law or logic

to think actual liability would precisely—or even

closely—match the estimate.

Third, the plan’s response to a requested estimate

must disclose the assumptions underlying the estimate. § 1021(l)(1)(B). Doing so allows employers considering withdrawing to make their own assessments

of whether their actual liability might increase or decrease from the estimate given intervening events that

could affect those assumptions. That disclosure would

make little sense if the plan were forever bound to use

the assumptions it used for estimation purposes.

Metz also mistakenly charges plans with retroactively applying post-withdrawal interest rates instead of those that were “in effect” as of the measurement date. 946 F.3d at 151. That charge misses the

mark here because the November 2, 2017, valuation—the most recent that preceded the December

31, 2017, measurement date here—advised that it

was a valuation as of January 1, 2017, and that “the

next valuation will reflect all membership and investment experience changes through December 31,

2017.” Ct.App.JA073. By its terms, then, the November 2017 valuation did not purport to set assumptions that would be in effect on December 31, 2017.

That’s the normal course. Nothing in the MPPAA

generally, or in this particular plan’s valuation reports specifically, supports Metz’s contention that as-

sumptions are set indefinitely and remain in effect

until replaced.

Finally, although petitioners echo Metz (at 4, 34) in

contending that § 1021(l)’s estimates are worthless unless assumptions are frozen indefinitely, that echo rings

especially hollow here. Petitioners withdrew in mid to

late 2018, Trustees of IAM Nat’l Pension Fund v. Ohio

Magnetics, Inc., 656 F. Supp.3d 112, 120 (D.D.C. 2023),

months after the plan actuary issued updated assumptions in January 2018. Pet. Br. 10. They were not blindsided by new, unforeseen assumptions when they withdrew. They knew the assumptions specified in January

2018 when they later withdrew.

2. The D.C. Circuit: The lower court in this case

rightly rejected Metz’s categorical rule. But, unfortunately, it made its own statutory error by reading

§ 1391 to require alignment of the plan’s “experience,

reasonable expectations, and the best estimate of anticipated experience ‘as of ’ the measurement date,

rather than the date of the calculation.” Pet. App. 13a.

While the D.C. Circuit rightly attended to the Act’s

text, it divorced that text from its context. The terms

“experience,” “reasonable expectations,” and “best estimate of anticipated experience” all appear in

§ 1393(a)(1), not § 1391. They appear in a sentence

using present-tense verbs. And additional text in

§ 1393(a) makes clear that the context for those present-tense verbs is the actuary’s determination of the

plan’s underfunding for the purpose of computing

withdrawal liability of employer. § 1393(a) (heading;

first sentence; second sentence). That process, to repeat, occurs after the valuation date—by statutory

fiat and as recognized by this Court. Supra at 8–9. The

present-tense verbs thus indicate that the experience,

expectations, and anticipated experience all must be

assessed from the vantage point of the calculation

date, even though the task at hand is to calculate underfunding at an earlier date—the valuation date.

The lower court thus created an atextual limitation—requiring the actuarial assumptions to be based

on information through the valuation date but not

through the calculation date—in an effort to align

dual directives it mistakenly believed to be misaligned.

Pet. App. 12a–15a.

To be sure, this Court reads statutes as a whole in

an effort to “ ‘fit, if possible, all parts into an harmonious whole.’ ” FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 133 (2000) (quoting FTC v. Mandel Brothers, Inc., 359 U.S. 385, 389 (1959)). That harmonization rule, however, is not a license to rewrite

statutory provisions that fully align as written.

That’s because this Court also reads statutes to give

effect to each provision so that none are inoperative.

See, e.g., Ysleta Del Sur Pueblo v. Texas, 596 U.S. 685,

698-99 (2022). Statutes may be harmonized, then,

only by resolving genuine ambiguities in favor of reading the statute to work together; they cannot be “harmonized” by rendering one of the provisions a dead

letter. See Epic Sys. Corp. v. Lewis, 584 U.S. 497, 510

(2018) (because the Court isn’t at liberty to “pick and

choose among congressional enactments” and must

“strive to give effect to both,” harmonization cannot

yield “repeals by implication”) (cleaned up). And that’s

exactly what the D.C. Circuit’s approach does: it renders § 1393’s present-tense verbs inoperative and requires the actuary to pretend that she does not know

what she actually knows at the time of calculation. It

requires her, in this case, to ignore the last 16 months

of “the experience of the plan” or any changes in investment strategies or asset allocations within the

last 16 months that would affect the plan’s “reasonable expectations,” and to disregard her truly “best

estimate of anticipated experience” by performing a

challenging exercise—putting herself in a 16-monthsago mindset and trying to predict the future from

there, all the while disregarding what she actually

knows about market developments in the last year

and a quarter.

If the statute truly required that difficult exercise,

the actuary’s duty, of course, would be to accept the

charge and don the assumptions-with-blinders task,

no matter how difficult. Yet, this Court’s respect “for

Congress as drafter” counsels against “too easily finding irreconcilable conflicts” in federal statutes. Epic

Systems, 598 U.S. at 511. Heeding that counsel, this

Court should look for interpretations that give life to

both §§ 1391 and 1393, without sacrificing either.

Fortunately, it can easily do so. Here’s how:

First, the actuary should gather and analyze the objective, historical facts necessary to the calculation as

they existed on the valuation date (e.g., December 31,

2017). These would include the number of plan participants, the plan rules applicable to them regarding

vesting schedules, the extent to which participants

had earned vesting credit as of the valuation date, and

other basic historical data. See, e.g., Actuarial Standards Board, ASOP No. 4, Measuring Pension Obligations and Determining Pension Plan Costs or Contributions, § 3.6 (Dec. 2012) (actuary must gather data

before making assumptions).17 Next, the actuary

should formulate the assumptions needed to complete

17 Available at https://www.actuarialstandardsboard.org/asops/

asop-no-4-measuring-pension-obligations-and-determiningpension-plan-costs-or-contributions.

the calculations based on information current through

the calculation date. See, e.g., ASOP No. 4, § 3.8 (actuary formulates assumptions separately from gathering historical data); ASOP No. 27 (detailed rules for

formulating assumptions).

Fixing the historical, objective data by the valuation date while allowing actuaries, when calculating

liability, to use (inherently judgment-based) assumptions based on information current through the calculation data gives full effect to both § 1391 and § 1393

and harmonizes them simply by reading each according to its terms.

In short, carefully reading each provision by its

terms avoids the need for the lower courts’ atextual

limitation18 and “harmonizes” the statute in precisely

the manner Congress envisioned through the text it

enacted: actuaries must use historical data for valuations as of the in-the-past valuation date but current

information must inform the assumptions needed for

present-day calculations.

Here, petitioner challenges only plan actuaries’ authority to use assumptions set after the measurement

date in withdrawal-liability calculations. Its challenge

fails under both the D.C. Circuit rule and the plainlanguage rule advocated here.

18 The district court, for its part, thought that the operative

provisions “fix the factual underpinnings for determining actuarial assumptions and methods at the measurement date, just as

Section 1391 fixes the factual composition of the plan’s assets

and liabilities.” Pet. App. 50a–51a. While the court rightly read

the § 1391’s “as of” language to fix the factual composition of the

plan’s assets and liabilities at the measurement date, it misread

§ 1393 to do the same with respect to the actuarial assumptions:

§ 1393 contains no “as of” language and speaks only in the present tense. Supra at 10–14.

CONCLUSION

The judgment below should be affirmed on the ground

that actuaries have authority to set assumptions at the

time they calculate withdrawal liability, based on information current through the calculation date.

Respectfully Submitted,

/s/ Darin M. Dalmat

MaTThew J. GInSburg

darIn M. dalmaT

(Counsel of Record)

AfL-CIO

815 Black Lives Matter Plaza, N.W.

Washington, DC 20006

202-637-5021

ddalmat@aflcio.org

Counsel for American Federation of Labor

and Congress of Industrial Organizations

Dated: October 21, 2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.