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 NATIONAL PENSION FUND,

Respondents.

————

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

————

BRIEF OF AMICUS CURIAE

THE PENSION RIGHTS CENTER

IN SUPPORT OF RESPONDENTS

————

THERESA S. GEE

NORMAN P. STEIN

Of Counsel

PENSION RIGHTS CENTER

1050 30th Street, NW

Washington, D.C. 20007

(202) 296-3776

TGee@pensionrights.org

NStein@pensionrights.org

ISRAEL GOLDOWITZ

Counsel of Record

THE WAGNER LAW GROUP

1701 Pennsylvania Avenue, NW

Suite 200

Washington, D.C. 20006

(202) 969-2800

IGoldowitz@

wagnerlawgroup.com

Counsel for Amicus Curiae

October 21, 2025

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

iii

STATEMENT OF INTEREST ............................

STATEMENT OF THE CASE ............................

BACKGROUND...................................................

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

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

I. TEXTUAL INTERPRETATION COMPELS THE CONCLUSION THAT A

WITHDRAWAL LIABILITY VALUATION NEED NOT BE DONE “ON,” “BY,”

OR ”BEFORE” THE END OF A PLAN

YEAR BUT ONLY “AS OF” THAT

DATE .........................................................

A. “As of” Has a Settled Meaning in the

Valuation Context ...............................

B. Temporal Prepositions Have Significance.....................................................

C. The “Disparate Language” Canon Is

Particularly

Applicable

the

Meaning of “As Of” as Compared with

Other Temporal Prepositions Used in

the Statute ...........................................

II. THERE IS NO SIGNIFICANT POTENTIAL FOR MANIPULATION AND NO

COMPELLING NEED FOR MORE

ACCURATE ESTIMATES........................

A. Professional Standards and Judicial

Review Standards Suffice to Prevent

Manipulation .......................................

(i)

TABLE OF CONTENTS—Continued

Page

B. Employers Can Adapt to Lagging

Estimates .............................................

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

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Barnhardt v. Peabody Coal Co.,

537 U.S. 149 (2003) ...................................

Bay Area Laundry and Dry Cleaning Pension

Trust Fund v. Ferbar Corp. of Cal.,

522 U.S. 192 (1997) ...................................

Central States, Southeast and Southwest

Areas Pension Fund v. Safeway, Inc.,

229 F.3d 605 (7th Cir. 2000) ....................

Chi. Truck Drivers, Helpers and Warehouse

Workers Union (Independent) Pension

Fund v. CPC Logistics, Inc.,

698 F.3d 346 (7th Cir. 2012) ......... 11, 19, 23, 24

City of Dallas Texas v. Federal

Communications Commission,

118 F.3d 393 (5th Cir. 1997) .....................

Clay v. United States,

535 U.S. 522 (2003) ...................................

Commonwealth v. McCoy,

962 A.2d 1160 (Pa. 2009) ..........................

Concrete Pipe & Products of Cal., Inc. v.

Construction Laborers Pension Trust

for Southern Cal.,

508 U.S. 602 (1993) ........................ 8, 11, 22, 23

Connelly v. PBGC,

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

6, 8

Cuyamaca Meats, Inc. v. San Diego &

Imperial Counties Butchers’ & Food

Employers’ Pension Trust Fund,

827 F.2d 491 (9th Cir. 1987) .....................

TABLE OF AUTHORITIES—Continued

Page(s)

Feliciano v. Department of Transportation,

605 U.S. ___,145 S Ct. 1284 (2025) .......... 9, 12

Huber v. Casablanca Industries, Inc.,

916 F.2d 85 (CA3 1990) ............................

INS v. Cardoza-Fonseca,

480 U.S.412 (1987) .................................... 20, 21

Ithaca Trust Co. v. United States,

279 U.S. 151 (1929) ................................... 9, 13

Lewis v. Benedict Coal,

361 U.S. 459 (1960) ...................................

McDermott International, Inc. v. Wilander,

498 U.S. 337 (1991) ...................................

Milwaukee Brewery Workers’ Pension Plan

v. Jos. Schlitz Brewing Co.,

513 U.S. 414 (1995) ................................... 8, 20

National Retirement Fund v. Metz

Culinary Management, Inc.,

946 F.3d 146 (2d Cir. 2020) ...................... 3, 22

Okerlund v. United States,

365 F. 3d 1044 (Fed. Cir. 2004) ................

PBGC v. R. A. Gray & Co.,

467 U.S. 717 (1984) ................................... 5, 6, 8

Russello v. United States,

464 U.S. 16 (1983) ..................................... 10, 21

Teamsters Pension Fund v.

Central Michigan Trucking,

857 F.2d 1107 (6th Cir. 1988) ...................

TABLE OF AUTHORITIES—Continued

Page(s)

Trustees of the Mo-Kan Teamsters Pension

Fund v. Union Asphalts and Roadoils, Inc.,

857 F.2d 1230 (8th Cir. 1988) ...................

United States v. Miller,

604 U.S. ___, 145 S Ct. 839 (2025) ...........

United States v. Wong Kim Bo,

472 F.2d 720 (CA5 1972) ..........................

STATUTES AND REGULATIONS

26 U.S.C. § 166 .............................................

26 U.S.C. § 381(a) .........................................

26 U.S.C. § 401(c)(6) .....................................

26 U.S.C. § 401(c)(7) .....................................

26 U.S.C. § 412(a)(1976)............................... 9, 14

26 U.S.C. § 412(a)(2).....................................

26 U.S.C. § 412(c)(3) (1976) ..........................

26 U.S.C. § 431 .............................................

26 U.S.C. § 431(a) .........................................

26 U.S.C. § 431(c)(3) .....................................

26 U.S.C. § 801 .............................................

26 U.S.C. § 1031 ...........................................

26 U.S.C. § 1031(a) ....................................... 9, 12

26 U.S.C. § 1032 ...........................................

26 U.S.C. § 1032(a) ....................................... 9, 12

26 U.S.C. § 1092 ...........................................

TABLE OF AUTHORITIES—Continued

Page(s)

26 U.S.C. § 7701(a)(35).................................

29 U.S.C § 1001a(a)(3)..................................

29 U.S.C. § 1001a(a)(4)(A)............................

29 U.S.C. § 1021(l) ........................................

29 U.S.C. § 1021(l)(1)(a) ...............................

29 U.S.C. § 1023 ........................................... 9, 18

29 U.S.C. § 1023(a)(1)...................................

29 U.S.C. § 1024(a)(3)...................................

29 U.S.C. § 1023(a)(3)(B)..............................

29 U.S.C. § 1024(a)(4)...................................

29 U.S.C. § 1023(a)(4)(B)..............................

29 U.S.C. § 1023(d) ....................................... 10, 18

29 U.S.C. § 1023(f) ........................................

29 U.S.C. § 1023(f)(2) ...................................

29 U.S.C. § 1024 ...........................................

29 U.S.C. § 1024(a) ....................................... 10, 18

29 U.S.C. § 1024(a)(1)(A)..............................

29 U.S.C. § 1085(e) .......................................

29 U.S.C. § 1241 ........................................... 7, 22

29 U.S.C. § 1242 ........................................... 7, 22

29 U.S.C. § 1306(a)(3)...................................

29 U.S.C. § 1306(a)(3)(A)(i) ..........................

29 U.S.C. § 1306(a)(3)(A)(vi) ........................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

29 U.S.C. § 1306(a)(3)(E)..............................

29 U.S.C. § 1306(a)(3)(G) .............................

29 U.S.C. § 1306(a)(3)(L) ..............................

29 U.S.C. § 1322(a) .......................................

29 U.S.C. § 1322a .........................................

29 U.S.C. § 1322a(c)(1) .................................

29 U.S.C. § 1322a(b)(3).................................

29 U.S.C. § 1381, et seq. ...............................

29 U.S.C. § 1383(a) .......................................

29 U.S.C. § 1383(e) .......................................

29 U.S.C. § 1384(a)(1)(A)..............................

29 U.S.C. § 1384(a)(1)(B)..............................

29 U.S.C. § 1384(a)(1)(C)..............................

29 U.S.C. § 1384(a)(2)...................................

29 U.S.C. § 1384(b)(1)...................................

29 U.S.C. § 1385(a) .......................................

29 U.S.C. § 1385(b) .......................................

29 U.S.C. § 1391 ................................. 9, 15, 17, 19

29 U.S.C. § 1391(b) ....................................... 3, 15

29 U.S.C. § 1391(b)(2)(B)..............................

29 U.S.C. § 1391(b)(2)(D) ......................... 8, 16, 17

29 U.S.C. § 1391(b)(2)(E)..............................

29 U.S.C. § 1391(b)(2)(E)(i) ..........................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

29 U.S.C. § 1391(b)(3)...................................

29 U.S.C. § 1391(b)(4)(D)(i) .......................... 8, 16

29 U.S.C. § 1391(b)(4)(E)(i) ..........................

29 U.S.C. § 1391(c)(2) ...................................

29 U.S.C. § 1391(c)(2)(B) ..............................

29 U.S.C. § 1391(c)(2)(C)(i)(I) .......................

29 U.S.C. § 1391(c)(3) ...................................

29 U.S.C. § 1391(c)(3)(A) ..............................

29 U.S.C. § 1391(c)(4) ...................................

29 U.S.C. § 1391(c)(4)(A)(i) ..........................

29 U.S.C § 1391(c)(5)(E) ...............................

29 U.S.C. § 1391(e) .......................................

29 U.S.C. § 1393 ...........................................

29 U.S.C. § 1393(a) ....................................... 15, 23

29 U.S.C. § 1393(a)(1)...................................

4, 7

29 U.S.C. § 1393(b)(1)...................................

29 U.S.C. § 1394 ...........................................

29 U.S.C. § 1399(a)(1)...................................

29 U.S.C § 1401(a) ........................................ 3, 23

29 U.S.C. § 1401(a)(1)...................................

29 U.S.C. § 1401(a)(3)(A)..............................

29 U.S.C. § 1401(a)(3)(B)(i) ..........................

29 U.S.C. § 1401(b)(2)...................................

TABLE OF AUTHORITIES—Continued

Page(s)

American Rescue Plan Act of 2021, Pub. L.

No. 117-2, Subtitle H, § 9704, 135 Stat. 4,

190-195 (2021) ...........................................

Multiemployer Pension Plan Amendments

Act of 1980, Pub. L. No. 93-364, 94 Stat.

1208 (1980) ................................................

Multiemployer Pension Reform Act of 2014,

Pub. L. No. 113-235, Division O, § 201,

128 Stat. 2129, 2798-2822 (2015) .............

Pension Protection Act of 2006, Pub. L. No.

109-280, 120 Stat. 780 (2006) .....................

§ 202, 120 Stat. 868-886 .................................

§ 204(c)(2), 120 Stat. 887 ..........................

Pub. L. No. 93-406, 88 Stat. 829 (1974) .......

§ 1013, 88 Stat. 914 ..................................

§ 1013(c)(6)-(7), 88 Stat. 916-17 ..................

20 C.F.R. § 900.3 ..........................................

20 C.F.R. § 901.11(m) ...................................

29 C.F.R. § 4211.12(d) ..................................

29 C.F.R. § 4211.12(e) ..................................

LEGISLATIVE MATERIALS

H. R. Rep. No. 93-807 (1974)........................

S. Rep. No. 93-383 (1973) .............................

TABLE OF AUTHORITIES—Continued

COURT FILINGS

Page(s)

Brief of Amici Curiae Actuarial Firms, filed

in Trustees of the IAM Nat’l Pension

Fund v. M&K Employee Solutions, LLC

(filed March 30, 2023), No. 22-7157 (D.C.

Cir.) ............................................................

OTHER AUTHORITIES

Actuarial Board for Counseling and

Discipline, Resources, https://www.abcdb

oard.org/resources (last visited Oct. 18,

2025) ..............................................................

Am. Academy of Actuaries, Actuarial

Standards of Practice, https://actuary.

org/professionalism/actuarial-standardsof-practice (last visited Oct. 18, 2025) ........

Am. Academy of Actuaries, Code of

Professional Conduct, https://actuary.org/

professionalism/code-of-conduct (last visited

Oct. 18, 2025) ................................................ 11, 23

Antonin Scalia and Bryan Garner, Reading

Law: The Interpretation of Legal Texts

(2012) .........................................................

IAM National Pension Fund, Rehabilitation Plan, Adopted April 17, 2019,

Rehabilitation Plan 1.pdf, https://www.ia

mnpf.org/sites/iamnpf.org/files/Rehabilit

ation%20Plan%201.pdf

(last

visited

October 20, 2025) ......................................

TABLE OF AUTHORITIES—Continued

Page(s)

Martin D. Ginsburg, Jack S. Levin, Donald.

E. Rocap, Mergers, Acquisitions &

Buyouts (Wolters Kluwer 2025) ...............

PBGC, Introduction to multiemployer plans,

https://www.pbgc.gov/employers-practiti

onerss/multiemployer/introduction (last

visited October 18, 2025) ..........................

PBGC Op. Ltr. 92-1 (March 30, 1992),

https://www.pbgc.gov/sites/default/files/l

egacy/docs/oplet/92-1.pdf (last visited

Oct. 18, 2025) ............................................

PBGC, Premium Rates, https://www/pbgc.

gov.employers-practioners/premiumfilings/

rates (last visited Oct. 18, 2025) ...............

PBGC, Guaranteed Benefits, https://www.

pbgc.gov/workers-retirees/learn/guarante

edbenefits (last visited Oct. 18, 2025) ......

PBGC, Multiemployer Insurance Program

Facts, https://www/pbgc.gov/workers-retir

ees/learn/guaranteedbenefits/multiempl

oyer-plan-facts (last visited Oct. 18,

2025) ..........................................................

Pension Plan Termination Insurance Issues:

Hearings before the Subcommittee on

Oversight of the House Committee on

Ways and Means, 95th Cong., 2nd Sess.,

22 (1978) ....................................................

Rev. Rul. 59-60, 1959-1 C.B. 237 .................

STATEMENT OF INTEREST

The Pension Rights Center (“Center”) is a Washington,

DC non-profit, nonpartisan consumer organization.1

The Center was established in 1976, less than two

years after the Employee Retirement Income Security

Act of 1974 (“ERISA”) was enacted, with a mission

largely co-extensive with that of the statute, to protect

and promote the retirement security of American

workers, retirees, and their families.

For almost fifty years, the Center has sought to

protect the retirement security of participants in

traditional defined benefit pension plans, including

multiemployer plans, through engagement with Congress,

the ERISA agencies, and the courts. The Center has

played a leading role in shaping multiemployer plan

legislation and implementing Pension Benefit Guaranty

Corporation (“PBGC”) rules, such as the rescue of

severely troubled multiemployer plans in the American

Rescue Plan Act of 2021 (“ARPA”), Pub. L. No. 117-2,

Subtitle H, § 9704, 135 Stat. 4, 190-195 (2021). Many

multiemployer plans have adjusted benefits downward

under rehabilitation plans mandated by the Pension

Protection Act of 2006 (“PPA ‘06”), Pub. L. No. 109-280,

§ 202, 120 Stat. 780, 868-886 (2006). Some even suspended

benefits in pay status under the Multiemployer Pension

Reform Act of 2014, Pub. L. No. 113-235, Division O,

§ 201, 128 Stat. 2129, 2798-2822 (2015), before ARPA

restored and funded those benefits. Such plans have

long suffered from adverse economic and demographic

trends including increased employer withdrawals.

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

No person other than amicus curiae, its members, or its counsel

made a monetary contribution to this brief’s preparation or

submission.

The issue in this case is whether the actuary for a

multiemployer pension plan must select an interest

rate assumption to compute a withdrawn employer’s

liability for its share of the plan’s underfunding under

ERISA, as amended by the Multiemployer Pension

Plan Amendments Act of 1980 (“MPPAA”), Pub. L. No.

93-364, 94 Stat. 1208 (1980), by the last day of the plan

year preceding withdrawals as long the actuary does

so “as of ” that date and based on data existing at that

date. The District of Columbia Circuit held that the

last day of the plan year is a measurement date and

not a deadline for completion of the valuation, and that

the assumptions therefore may be selected after the

last day of the plan year.

Though the issue is technical, for this Court to

overturn the D.C. Circuit could invite opportunistic

withdrawals. That could destabilize more than 1,200

multiemployer plans covering more than ten million

employees, retirees, and their dependents nationwide.

See PBGC, Introduction to multiemployer plans,

https://www.pbgc.gov/employers-practitionerss/multie

mployer/introduction (last visited October 18, 2025).

STATEMENT OF THE CASE

This case involves challenges by four employers to a

valuation by the actuary to the IAM National Pension

Fund (“Fund”) of vested benefits for purposes of withdrawal liability under ERISA. The employers claimed

before arbitrators, district judges, and the court of

appeals that in performing a valuation of benefits “as

of ” the last day of a plan year, as required by 29 U.S.C.

§ 1391(b), the actuary must select the interest rate for

discounting to present value by that date.

The Plan is a multiemployer pension plan whose

plan year runs from January 1 to December 31. Pet.

App. 6a-7a. Cheiron, Inc. (“Cheiron”) serves as the

Plan’s actuary and prepares annual valuations of the

Plan’s assets and liabilities. Pet. App. 21a.

In November 2017, Cheiron determined that, as of

December 31, 2016, the Plan was underfunded by

nearly $450 million for withdrawal liability purposes.

JA7a. In making this determination, Cheiron assumed

a rate of 7.5% to discount future benefit payments to

present value. Id. Employers withdrawing in 2017

would therefore owe a share of $450 million.

On January 24, 2018, Cheiron selected a 6.5%

assumption as of December 31, 2017, for employers

withdrawing in 2018. Along with changes in the value

of Plan assets and other valuation assumptions, this

meant that such employers would owe a share of about

$3 billion, rather than about $450 million under the

prior 7.5% assumption. Pet. App. 8a-9a, 24a.

Petitioners are employers who withdrew from the

Plan in 2018 after Cheiron had selected the 6.5%

discount rate. In April 2019, the Plan assessed each

employer withdrawal liability, and each employer commenced arbitration under 29 U.S.C § 1401(a) challenging

the use of the 6.5% discount rate assumption. In each

case, the arbitrator held for the employer, relying on

the Second Circuit’s holding in National Retirement

Fund v. Metz Culinary Management, Inc., 946 F.3d 146

(2d Cir. 2020). Metz held that a discount rate assumption may not be selected after the end of the plan year

to which it applies, while acknowledging that an

actuarial assumption, adopted under 29 U.S.C. § 1393,

is not a plan “rule” or “amendment” subject to a

statutory bar on retroactivity in 29 U.S.C. § 1394.

Respondent Trustees sued in the United States

District Court for the District of Columbia to challenge

the arbitration decisions. Three of the cases were

consolidated before Judge Moss; the fourth was

assigned to Judge Lamberth.

Both district judges held that ERISA does not

require actuaries to select their assumptions on or

before the valuation date. Pet. App. 18a–119a. The

judges relied on the statutory text, which is “silent” on

when a valuation must be performed and thus does

not “impose any [year-end] limitation” for selecting

valuation assumptions. The judges also relied on

29 U.S.C. § 1393(a)(1)’s requirement that actuaries

select assumptions that offer their “best estimate of

anticipated experience under the plan,” which entails

consideration of information about the plan that may

not be available before the end of the plan year in

question. If actuaries could not select assumptions

after the plan year ends, the judges explained, they

might need to use stale assumptions that are “disconnected from reality” and that do not reflect their “best

estimate” of the plan’s anticipated experience. Pet.

App. 54a-55a, 95a–96a.

A unanimous panel of the court of appeals affirmed.

Pet. App. 1a–17a. The court of appeals largely relied on

the analyses of the district judges. Pet. App. 12a–15a.

As the court of appeals explained, “[i]t would be

contrary to 29 U.S.C. § 1393(a)(1)’s requirement that

an actuary use its ‘best estimate’ of the plan’s anticipated

experience as of the measurement date to require an

actuary to determine what assumptions to use before

the close of business on the measurement date.” “[T]he

value of unfunded vested benefits ‘as of ’’ the measurement date constitutes a snapshot of the information

available ‘as of ’ that date.” Pet. App. 13-14a.

BACKGROUND

This Court has long been concerned with the

financial well-being of multiemployer plans and has

recognized the implicit inter-employer compact that

sustains them. In Lewis v. Benedict Coal, 361 U.S. 459

(1960), the Court declined to allow an employer to

offset damages for a union breach of contract against

a plan’s claim for employer contributions. The Court

explained:

[U]nlike the usual third-party beneficiary

contract, this is an industrywide agreement

involving many promisors. If Benedict and

other coal operators having damage claims

against the union for its breaches may curtail

[contributions], the burden will fall in the

first instance upon the employees and their

families across the country. This might result

in pressures upon the other coal operators to

increase their [contributions] to maintain the

planned schedule of benefits.

Id. at 469.

As discussed in this Court’s decision in PBGC v. R.

A. Gray & Co., 467 U.S. 717 (1984), in enacting ERISA

Congress deferred mandatory pension insurance coverage

for multiemployer plans out of concern for the capacity

of the PBGC insurance system. Congress directed

PBGC to report on the need for additional legislation.

PBGC’s report concluded that it was necessary to “provide

a disincentive to voluntary employer withdrawals,”

among other things, and suggested new rules “under

which a withdrawing employer would be required to

pay whatever share of the plan’s unfunded vested

liabilities was attributable to that employer’s participation.” Id. at 723.

In MPPAA, Congress adopted this suggestion,

imposing liability on a withdrawn employer for its

share of the plan’s unfunded vested benefits determined by several mathematical formulae. R.A. Gray,

467 U.S. at 720-725; see 29 U.S.C. § 1381, et seq.

Congress designed withdrawal liability to reduce

incentives to withdraw by fairly allocating the burden

of funding promised benefits between remaining and

withdrawn employers and to shore up the plan’s

finances, thereby protecting participants and beneficiaries and the PBGC insurance system. Connelly v.

PBGC, 475 U.S. 211, 216-217 (1986). In addition to the

PBGC report, Congress relied on succinct testimony by

PBGC’s Executive Director:

. . . . Employer withdrawals reduce a plan’s

contribution base. This pushes the contribution rate for remaining employers to higher

and higher levels in order to fund past service

liabilities, including liabilities generated by

employers no longer participating in the plan,

so-called inherited liabilities. The rising costs

may encourage—or force—further withdrawals,

thereby increasing the inherited liabilities to

be funded by an ever decreasing contribution

base. This vicious downward spiral may

continue until it is no longer reasonable or

possible for the pension plan to continue.

Connelly, 475 U.S. at 215-216 (quoting Pension Plan

Termination Insurance Issues: Hearings before the

Subcommittee on Oversight of the House Committee

on Ways and Means, 95th Cong., 2nd Sess., 22 (1978)

(statement of Matthew M. Lind)).

In MPPAA, Congress also amended the pension

insurance rules to provide a limited benefit guaranty

for minimal premiums for multiemployer plans, given

their expected stability as compared to single-employer

plans. 29 U.S.C. §§ 1306(a)(3), 1322(a), 1322A.2

ERISA provides for the enrollment by an interagency Joint Board for the Enrollment of Actuaries

(“JBEA”) of actuaries who perform valuations of pension

plans. 29 U.S.C. §§ 1241-1242; 20 C.F.R. § 900.3.

MPPAA requires a plan’s enrolled actuary to determine

the plan’s unfunded vested benefits (the difference

between the present value of vested benefit liabilities

and the value of assets) based on assumptions and

methods that “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.” 29 U.S.C. § 1393(a)(1). Under the

“presumptive” allocation method the Respondent

Fund uses, though the formula is complex, the

unfunded vested benefits are to be determined “as of”

the last day of the plan year before the employer’s

Though they have been increased since MPPAA, the

multiemployer plan guaranty and the premiums remain modest

compared to those for single-employer plans. Compare 29 U.S.C.

§§ 1306(a)(3)(vi), 1322a(c)(1) (annual premiums of $39 per

participant and guaranty of benefits (unindexed) equating to

about $13,000 per year with 30 years’ service for multiemployer

plans) with §§ 1306(a)(3)(A)(i), (E), (G), (L), 1322(b)(3) (annual

premiums of $106 per participant plus $52 per $1,000 of

unfunded vested benefits and guaranty of benefits (indexed) up

to about $89,000 per year at age 65 for single-employer plans).

https://www/pbgc.gov.employers-practioners/premiumfilings/rates;

https://www/pbgc.gov/workers-retirees/learn/guaranteedbenefits;

https://www/pbgc.gov/workers-retirees/learn/guaranteedbenefits/

multiemployer-plan-facts (all last visited Oct. 18, 2025).

withdrawal. 29 U.S.C. § 1391(b)(2)(D), (b)(4)(E)(i),

(b)(4)(D)(i).

MPPAA provides for mandatory arbitration of disputes,

followed by judicial review. 29 U.S.C. § 1401(a)(1), (b)(2). In

the case of actuarial assumptions, the arbitrator can

overturn the actuary’s assumptions if they are “in the

aggregate, unreasonable (taking into account the

experience of the plan and reasonable expectations).”

29 U.S.C. § 1401(a)(3)(B)(i). On questions of fact, the

employer has the burden of “disprov[ing] a challenged

factual determination by a preponderance.” Concrete

Pipe and Products of Cal., Inc. v. Construction Laborers

Pension Trust for Southern Cal., 508 U.S. 602, 629

(1993) (interpreting 29 U.S.C. § 1401(a)(3)(A)). On

questions of law, judicial review is plenary. Trustees of

the Mo-Kan Teamsters Pension Fund v. Union Asphalts

and Roadoils, Inc., 857 F.2d 1230 (8th Cir. 1988).

The Court upheld MPPAA against a substantive due

process challenge in Gray, a takings challenge in

Connelly, and a procedural due process challenge to

MPPAA’s actuarial valuation and arbitral review

standards in Concrete Pipe. The Court has dealt with

a withdrawal liability calculation issue in Milwaukee

Brewery Workers’ Pension Plan v. Jos. Schlitz Brewing

Co., 513 U.S. 414 (1995) (accrual of interest on permitted installment payments of withdrawal liability), and

withdrawal liability collection in Bay Area Laundry

and Dry Cleaning Pension Trust Fund v. Ferbar Corp.

of Cal., 522 U.S. 192 (1997) (accrual of claim for unpaid

installments). Despite its complexities, therefore, MPPAA

is familiar ground for the Court.

SUMMARY OF THE ARGUMENT

“[T]he words of a statute must be read in their

context and with a view to their place in the overall

statutory scheme.” United States v. Miller, 604 U.S. ___,

___, 145 S. Ct. 839, 853 (2025) (citation omitted). And

Congress may use a term of art with a “long-encrusted

connotation in a given field.” Feliciano v. Department

of Transportation, 605 U.S. ___, ___,145 S. Ct. 1284,

1291 (2025).

In this case, “as of ” has a settled meaning in federal

law governing valuations. For instance, a decedent’s

estate is to be valued “at” the time of death, or,

alternatively, “as of ” a date no more than six months

later. 26 U.S.C. §§ 1031(a), 1032(a).

Valuations under the Internal Revenue Code are

generally based on things “as they stood” on the

measurement date. Ithaca Trust Co. v. United States,

279 U.S. 151, 155 (1929). But that does not suggest

that the valuation must be performed by that date.

This is true of ERISA’s minimum funding standard,

enacted in 1974, 26 U.S.C. § 412(a) (1976), and it is true

of 29 U.S.C. § 1391, the controlling provision in this

case, enacted six years later. Section 1391 requires

valuations to be done “as of ” the end of a plan year

under each of the four permitted methods for

allocating unfunded vested benefits to withdrawn

employers. This is true even though the provision uses

other temporal prepositions, including “at,” “in,”

“before,” and “after.”

This understanding is confirmed by ERISA’s

requirements for an annual report under 29 U.S.C.

§§ 1023, 1024. The report must contain an actuarial

statement that represents the actuary’s “best estimate

of anticipated experience under the plan,” and a

financial audit, for which the accountant may rely on

the actuarial report. 29 U.S.C. § 1023(a)(3), (4). The

annual report must contain requisite actuarial information and additional information “as of the end of

the plan year to which the report relates.” 29 U.S.C.

§ 1023(d), (f). The annual report is due within 210 days

after the end of the plan year. 29 U.S.C. § 1024(a). This

strongly suggests that the plan and its professionals

mayand indeed shouldwait until all the year-end

information is received and analyzed before the

actuary finalizes his assumptions for that plan year.

Under a textual analysis of the statutory framework,

even prepositions matter. In this case, Congress understood that “as of ” is different from “on,” by,” or “before.”

Other MPPAA provisions show that Congress was

aware of the import of temporal words and phrases.

For example, the date of withdrawal is the “date of ” a

permanent cessation of covered operations or the obligation to contribute. Even that cannot be determined

immediately, as it takes time to judge whether the

cessation is permanent.

The canon that Congress’s use of disparate language

is presumed to be intentional, Russello v. United

States, 464 U.S. 16, 23 (1983), applies with great force

in this case. Though textual canons are not applied in

a vacuum, in this case Congress did not equate the

time the valuation assumptions are selected with the

measurement date.

Therefore, when Congress said that a withdrawal

valuation is to be done “as of ” the close of the plan year

preceding withdrawal, it did not mean that the assumptions must be selected on, by, or before that date. To

make its “best estimate” of a plan’s anticipated experience

as of the measurement date, the actuary must often

wait until after that date when it has more complete

information and time to analyze that information.

No different rule is needed to protect against abuse.

In Concrete Pipe & Products Of Cal. v. Constr. Laborers

Pension Trust for Southern Cal., 508 U.S. 602, 632

(1993), the Court noted that “actuaries are trained

professionals subject to regulatory standards.” The

Court also noted that if a plan sponsor “exercised

decisive influence” over an actuary, that influence

could be corrected. Id. at 633 n.19. That continues to

be the case, as illustrated by Chi. Truck Drivers,

Helpers and Warehouse Workers Union (Independent)

Pension Fund v. CPC Logistics, Inc., 698 F.3d 346, 356357 (7th Cir. 2012).

Moreover, enrolled actuaries under ERISA are

subject to standards of practice, a code of professional

conduct with disciplinary enforcement, and reciprocal

enforcement by an inter-agency enrollment board. The

standards require an actuary to “disclose any pertinent

information that could impact their independence,”

Standard of Practice 41, and the code of conduct requires

the actuary to ensure that his “ability to act fairly is

unimpaired.” Code of Professional Conduct, Precept 7.

When plans overreach on points of law, or when

employers do, the courts have not hesitated to correct

them. Legal combat where large sums are involved

should come as no surprise. But it hardly shows that

actuaries are motivated to oppress withdrawn employers,

in this case or in general.

Withdrawal liability estimates are important to

employers considering withdrawal and in transactional

work. But Congress enacted MPPAA to protect participants, whose benefits are subject to reduction, and it

was concerned that withdrawals lead to increased

contributions for remaining employers. Successful

challenges to valuation norms may lead to opportunistic withdrawals, undercutting these protections.

A more recent estimate would still lag, particularly

given the time it can take to negotiate the sale of a

business. Fortunately, techniques for managing such

uncertainty are well known. The predictability that

comes from a nationwide rule should satisfy those

valid business concerns.

ARGUMENT

I. TEXTUAL INTERPRETATION COMPELS

THE CONCLUSION THAT A WITHDRAWAL LIABILITY VALUATION NEED

NOT BE DONE “ON,” “BY,” OR ”BEFORE”

THE END OF A PLAN YEAR BUT ONLY

“AS OF” THAT DATE.

A. “As of” Has a Settled Meaning in the

Valuation Context.

“[T]he words of a statute must be read in their

context and with a view to their place in the overall

statutory scheme.” United States v. Miller, 604 U.S. ___,

___, 145 S Ct. 839, 853 (2025) (citation omitted). And

Congress may use a term of art with a “long-encrusted

connotation in a given field.” Feliciano v. Department

of Transportation, 605 U.S. ___, ___,145 S Ct. 1284,

1291 (2025). Accord City of Dallas Texas v. Federal

Communications Commission, 118 F.3d 393 (5th Cir.

1997), citing McDermott International, Inc. v. Wilander,

498 U.S. 337 (1991).

In this case, “as of ” has a settled meaning in federal

law governing valuations. For instance, a decedent’s

estate is to be valued “at” the time of death, or,

alternatively, “as of ” a date no more than six months

later. 26 U.S.C. § 1031(a), 1032(a). A corporate

acquiror of another corporation’s assets succeeds to

and must take into account certain tax attributes “as

of ” the close of the day of the transaction. 26 U.S.C.

§ 381(a). The phrase has also been used in that sense

for bad debts (26 U.S.C. § 166), life insurance reserves

(26 U.S.C. § 801), and straddles (offsets with respect to

personal property) (26 U.S.C. § 1092).

Valuations under the Internal Revenue Code are

based on things “as they stood” on the measurement

date. Ithaca Trust Co. v. United States, 279 U.S. 151,

155 (1929) (estate tax); Okerlund v. United States, 365

F. 3d 1044, 1053 (Fed. Cir. 2004) (gift tax).3 That does

not suggest that the valuation must be performed by

that date.4

This was true of ERISA’s original minimum funding

standard. The minimum funding standard required

the use of actuarial assumptions and methods that “in

the aggregate are reasonable (taking into account the

See Rev. Rul. 59-60:

[V]aluation is not an exact science. A sound valuation

will be based upon all the relevant facts, but the

elements of common sense, informed judgment and

reasonableness must enter into the process of

weighing those facts and determining their aggregate

significance. . . . Valuation of securities is, in essence,

a prophesy as to the future and must be based on facts

available at the required date of appraisal.

1959-1 C.B. 237.

That understanding holds true for counting “as of” a given

date, though it may be even more forgiving in that context. See

Barnhardt v. Peabody Coal Co., 537 U.S. 149, 170 (2003)

(assignments of beneficiaries to operators under the Coal Act “as

of” of a given date means “as they shall be on that date” not as

they “actually stand,” even if the assignment is made after the

statutory deadline).

experience of the plan and reasonable expectations)”

and “in combination, offer the actuary’s best estimate

of anticipated experience under the plan.” 26 U.S.C.

§ 412(c)(3) (1976).5

Using such assumptions, Congress specified that:

[a] plan to which this section applies shall

have satisfied the minimum funding standard

for [a] plan year for such plan if as of the end

of such plan year, the plan does not have an

accumulated funding deficiency.

Pub. L. No. 93-406, § 1013, 88 Stat. 829, 914 (1974),

codified as 26 U.S.C. § 412(a) (1976) (emphasis added).6

The quoted provision has changed slightly for multiemployer

plans, to require that “each” assumption be reasonable. 26 U.S.C.

§ 431(c)(3).

The provision defined an accumulated funding deficiency as

the excess of the total charges to the funding standard account

"for" all plan years over the total charges "for" such year. Id.

Current law contains the same requirements in substance.

26 U.S.C. §§ 412(a)(2) (contributions to a multiemployer plan

must be ”sufficient to ensure that the plan does not have an

accumulated funding deficiency under section 431 as of the end

of the plan year”), 431(a) (accumulated funding deficiency of a

multiemployer plan is the amount, “determined as of the end of

the plan year, equal to the excess (if any) of the total charges to

the funding standard account of the plan for all plan years . . .

over the total credits to such account for such years.”

Congress also used the phrase “as of” in connection with the

full funding limit on contributionsthe excess of the accrued

liability over the value of assets:

If, as of the close of a plan year, a plan would . . . have

an accumulated funding deficiency . . . in excess of the

full funding limitation

(A) the funding standard account shall be credited with

the amount of such excess, and

Mirroring ERISA’s minimum funding standard, in

MPPAA Congress required the actuary to use assumptions for withdrawal liability purposes that “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” (or

assumptions prescribed by PBGC). 29 U.S.C § 1393(a).

In doing so, Congress permitted the actuary to “rely on

the most recent complete actuarial valuation used for

purposes of section 412 of title 26.” 29 U.S.C. § 1393(b)(1).

Thus, Congress must have used the 1974 minimum

funding standard as a model for MPPAA six years later.

Like that minimum funding standard, Section 1391

requires valuations to be done “as of ” the end of a

plan year under the default “presumptive” method

(used by the Respondent Fund) or one of three elective

methods for allocating unfunded vested benefits to

withdrawn employers.

Greatly simplified, under the presumptive method,

29 U.S.C. § 1391(b), the employer has a share of three

components, the unamortized changes in unfunded

benefits since an initial year, the unamortized initial

year unfunded vested benefits, and the unamortized

unfunded vested benefits that are not assessable

against or collectible from other withdrawn employers.

While each requires a number of intermediate calculations, the amounts are determined “as of” the end of the

plan year, and ultimately the employer has a share of

the unamortized amount of each year’s change

in unfunded vested benefits “as of the end of

(B) all amounts described [in certain preceding subparagraphs] shall be considered fully amortized . . . .

88 Stat. 916-17 (adding 26 U.S.C. § 401(c)(6), (7)) (emphasis added).

the plan year preceding the plan year in which

the employer withdraws,” § 1391(b)(2)(E)(i), plus

the unamortized amount of unfunded vested

benefits for the initial year “as of the end of

that plan year,” § 1391(b)(2)(D),7 plus

the unamortized amount of the reallocated

unfunded vested benefits, again “as of the

end of the plan year preceding the plan

year in which the employer withdraws.”

§ 1391(b)(4)(D)(i) (all emphases added).

Under the modified presumptive method, 29 U.S.C.

§ 1391(c)(2), also simplified, the employer has a share of:

the plan’s unfunded vested benefits “as of the

end” of an initial plan year,8 reduced as if

those obligations were being fully amortized

in level annual installments over 15 years, plus

the plan’s unfunded vested benefits “as of

the end of the plan year preceding the plan

year in which the employer withdraws. . . .”

§ 1391(c)(2)(B), (C)(i)(I) (emphases added).

Under the rolling-five method, 29 U.S.C. § 1391(c)(3),

again simplified, the employer has a share of:

Under MPPAA, the initial plan year was the year ending

before September 26, 1980, MPPA’s enactment date. As the initial

year’s unfunded vested benefits would have been reduced to zero

by the year 2000, in PPA ’06 Congress permitted use of a “fresh

start” in a year when the plan had no funded vested benefits. PPA

§ 204(c)(2), 120 Stat. 887, adding 29 U.S.C § 1391(c)(5)(E). See

also 29 C.F.R. § 4211.12(d).

Under PBGC rules, there is also a fresh start for this method,

as the initial year’s unfunded vested benefits would have been

reduced to zero by 1995. 29 C.F.R. § 4211.12(e).

the plan’s unfunded vested benefits “as of

the end of the plan year preceding the plan

year in which the employer withdraws.” §

1391(c)(3)(A) (emphasis added).

And under the direct attribution method, 29 U.S.C.

§ 1391(c)(4), again simplified, the employer has a share

of :

the unfunded vested benefits attributable to

participants’ service with the employer, “determined as of the end of the plan year preceding

the plan year in which the employer withdraws.”

§ 1391(c)(4)(A)(i) (emphasis added).9

See also § 1391(e) (reduction of withdrawal liability for

value “as of” last day of plan year preceding withdrawal

of unfunded vested benefits transferred to another plan).

In addition to “as of,” the minimum funding rules

used other temporal prepositions, such as “on,” “after,”

“at any time in,” and “in.” So does Section 1391, such

as “over” a period of years, “at,” “before,” “preceding” or

“after” a date, “during,” “in,” or “with respect to” a

period, and a period of “more than . . . but not more

than. . . .” Whether these varying words and phrases

are used systematically or not, at bottom, the

valuation is done “as of ” the close of the plan year

before withdrawal, not “on,” “by,” or “before” that date.

“As of ” therefore connotes a measurement date and not

a deadline.

Congress sometimes used the term “at” and sometimes the

phrase “as of” for the presumptive method. 29 U.S.C.

1391(b)(2)(B), (D), (E), (3). In context, both define a measurement

date rather than a deadline, as they apparently do for estate tax

purposes. See 26 U.S.C. §§ 1031, 1032 (decedent’s estate is valued

“at” death or “as of” six months later), as appraisals presumably

are not done on the date of death itself.

That understanding is confirmed by ERISA’s requirements for an annual report, in 1974 and today. Under

29 U.S.C. § 1023, a plan must file an annual report

(known as Form 5500), with a financial audit and an

actuarial statement (now known as Schedule MB for a

multiemployer plan). 29 U.S.C. § 1023(a)(1). Similar to

the minimum funding and withdrawal liability rules,

the actuary is to use assumptions that enable him to

form an opinion that the matters he reports are “in the

aggregate reasonably related to the experience of the

plan and to reasonable expectations; and . . . represent

his best estimate of anticipated experience under the

plan.” 29 U.S.C. 1023(a)(4)(B). The actuarial statement

is “applicable to” a plan year, 29 U.S.C. § 1023(d), and

the accountant may “rely” on the actuarial statement

in its audit, 29 U.S.C. 1023(a)(3)(B). The actuarial

statement must detail participant information, employer

contributions, and the plan’s funding level. 29 U.S.C.

§ 1023(d).

The annual report, together with the audit and the

actuarial report, is to be filed within 210 days after the

close of the plan year. 29 U.S.C. 1024(a)(1)(A). These

reporting rules strongly suggest that the plan and its

professionals mayand indeed shouldwait until all

the year-end information is received and analyzed

before the actuary finalizes his assumptions for that

plan year.10

Current law requires additional information about multiemployer plans “as of” the end of the plan year. 29 U.S.C. § 1023(f)(2).

But there is no suggestion that the audit or the actuarial

statement must be prepared or finalized “on,” “by,” or “before” the

last day of the plan year. To the contrary, the requirement that

the report be filed within 210 days after the end of the plan year

establishes that that is not the correct interpretation. Moreover,

requiring actuarial assumptions “on,” “by,” or “before” the last day

B. Temporal Prepositions Have Significance.

Under a textual analysis, even prepositions matter.

Antonin Scalia and Bryan Garner, Reading Law:

The Interpretation of Legal Texts, at 71 (discussing

Commonwealth v. McCoy, 962 A.2d 1160 (Pa. 2009),

which held that discharging a firearm within an

occupied structure did not constitute a prohibited

discharge “into” such a place).

A comparison of Section 1391’s phrase “as of ” with

other MPPAA provisions shows that Congress was

aware of the import of temporal words and phrases.

For example, a complete withdrawal occurs “when” an

employer permanently ceases to have an obligation to

contribute to a plan or covered operations under the

plan, and the date of withdrawal is the “date of ” the

cessation. 29 U.S.C. § 1383(a), (e). Similarly, a partial

withdrawal occurs “on” the last day of a plan year if,

“during” that year, an employer incurs a 70-percent

contribution base unit (“CBU”) decline or permanently

ceases to have an obligation to contribute at one but

fewer than all collective bargaining agreements or

facilities but continues the operations on a noncontributory basis. 29 U.S.C. § 1385(a)(b).11

of the plan year ignores the complexities of year-end information

gathering, much of which is not available until after year-end.

See Chi. Truck Drivers, Helpers and Warehouse Workers Union

(Independent) Pension Fund v. CPC Logistics, Inc., 698 F.3d 346,

348-49 (7th Cir. 2012) (describing numerous factors needed to

calculate withdrawal assumptions and liability); Brief of Amici

Curiae Actuarial Firms at 8, 11, filed in Trustees of the IAM Nat’l

Pension Fund v. M&K Employee Solutions, LLC (filed March 30,

2023), No. 22-7157 (D.C. Cir.).

As with a valuation, the fact of withdrawal cannot be

determined on the date of the cessation, as it takes time for a

Continuing with this analysis, withdrawal liability

is stated as a lump sum but is payable in installments.

Under 29 U.S.C. § 1399(a)(1), the annual payment is

the product of the employer’s highest contribution rate

and its highest three-year average contribution base

units (typically hours worked) “during” overlapping

10-year periods leading up to the withdrawal and is

calculated as if the first payment is due “on” the

first day of the plan year following withdrawal.

See Milwaukee Brewery Workers’ Pension Plan v. Jos.

Schlitz Brewing Co., 513 U.S. 414 (1995).

The textual evidence therefore demonstrates that

Congress did not equate “as of” with “on,” by,” or “before.”

Rather, it presumably was aware that a valuation “as

of ” a given date can depend on assumptions selected

after that date.

C. The “Disparate Language” Canon Is

Particularly Applicable to the Meaning

of “As Of” as Compared with Other

Temporal Prepositions Used in the

Statute.

In INS v. Cardoza-Fonseca, 480 U.S. 412 (1987), this

Court stated:

“[Where] Congress includes particular language in one section of a statute but omits it

in another section of the same Act, it is

generally presumed that Congress acts intentionally and purposely in the disparate inclusion

cessation to mature into permanence. See, e.g., Cuyamaca

Meats, Inc. v. San Diego & Imperial Counties Butchers’ & Food

Employers’ Pension Trust Fund, 827 F.2d 491, 497 (9th Cir. 1987)

(“The mere existence of an impasse in negotiations does not lead

to withdrawal, even if contributions by the employer to the

pension fund cease. . . .”).

or exclusion.’” Russello v. United States, [464

U.S. 16, 23 (1983)] (quoting United States v.

Wong Kim Bo, 472 F.2d 720, 722 (CA5 1972)).

480 U.S. at 432.

Contrary to Petitioners’ suggestion (Pet. Br. at 32),

the disparate language canon has great force here, and

Clay v. United States, 535 U.S. at 522 (2003), is

distinguishable. Clay involved Judicial Code provisions

for post-conviction review of “final” federal and state

judgments. Congress defined a final state judgment as

one that had become final “by the conclusion of direct

review or the expiration of the time for seeking such

review.” The Court concluded that it was necessary to

define “final” to establish a uniform federal rule for

state court judgments, but not for federal judgments

as they are by definition subject to a federal rule. Thus,

the federal finality standard was “no less broad” than

the state rule despite the disparate language. 535 U.S.

at 530-531.

The disparate language canon, of course, does not

exist in a vacuum. In Clay, the disparate language

logically had the same meaning. In this case, however,

Congress did not equate the time for selecting

valuation assumptions with the measurement date,

any more than with other “pinpointed” dates (Clay,

535 U.S. at 531) such as the backward-looking date of

withdrawal or deemed date of the first installment

payment. Nor does it logically follow that Congress

meant to do that.

Therefore, when Congress said that a withdrawal

liability valuation is to be done “as of ” the close of the

plan year preceding withdrawal, it did not mean that

the assumptions must be selected “on,” “by,” or “before”

that date.

The statutory history does not require a contrary

conclusion. To be sure, Congress considered making

the measurement date the date of withdrawal or the

last day of the plan year of withdrawal before settling

on the last day of the plan year before withdrawal (Pet.

Br. at 20-21). But that does not bear on the meaning of

“as of,” which would have been an issue regardless of

which measurement date Congress chose.

II. THERE IS NO SIGNIFICANT POTENTIAL

FOR MANIPULATION AND NO COMPELLING NEED FOR MORE ACCURATE

ESTIMATES.

A. Professional Standards and Judicial

Review Standards Suffice to Prevent

Manipulation.

The employers in this case withdrew after the plan’s

actuary selected his assumptions. There is no aura of

manipulation, at least on this record, unlike that

suggested in the Second Circuit’s decision in Metz.

As this Court said in Concrete Pipe & Products of

Cal. v. Constr. Laborers Pension Trust for Southern Cal.,

508 U.S. 602, 632 (1993), “[a]lthough plan sponsors

employ them, actuaries are trained professionals

subject to regulatory standards. See 29 U.S.C. §§ 1241,

1242; 26 U.S.C. § 7701(a)(35).”

The Court was aware of one case “in which a plan

sponsor exercised decisive influence over an actuary

whose initial assumptions it disliked, see Huber v.

Casablanca Industries, Inc., 916 F.2d 85, 93 (CA3

1990),” but “none in which a plan sponsor was found to

have replaced an actuary’s actuarial methods or

assumptions with different ones of its own.” Concrete

Pipe, 508 U.S. at 633 n. 19. The Court noted that the

legislative history of the analogous minimum funding

rules “suggests that the actuarial assumptions must

be ‘independently determined by an actuary,’ and that

it is ‘inappropriate for an employer to substitute his

judgment … for that of a qualified actuary with respect

to these assumptions. S. Rep. No. 93-383, p. 70 (1973);

see also H. R. Rep. No. 93-807, p. 95 (1974).” Id.

MPPAA’s arbitral standard for actuarial assumptions,

29 U.S.C. § 1401(a) mirrors Section 1393(a)’s “reasonable[ness]” standard. Though it does not include a

“best estimate” component, arbitrators and courts

have examined that question as well. E.g., Chi.

Truck Drivers, Helpers and Warehouse Workers Union

(Independent) Pension Fund v. CPC Logistics, Inc., 698

F.3d 346, 356-357 (7th Cir. 2012) (stating that an

actuary is “a professional, assumed to be neutral and

disinterested” and reversing on grounds that trustees’

direction that actuary use assumptions that did not

represent his best estimate was “unreasonable”).

Moreover, enrolled actuaries under ERISA are

subject to Actuarial Standards of Practice, https://

actuary.org/professionalism/actuarial-standards-ofpractice, and a Code of Professional Conduct enforced

by the Actuarial Board of Counseling and Discipline,

https://actuary.org/professionalism/code-of-conduct;

https://www.abcdboard.org/resources (all last visited

Oct. 18, 2025). Standard 41 bears on an actuary’s

independence, requiring the actuary to “disclose

any pertinent information that could impact their

independence,” as does Precept 7 of the Code of

Professional Conduct, requiring an actuary to ensure

that his “ability to act fairly is unimpaired” when a

conflict of interest exists. So do the JBEA’s rules,

which require that an actuary under disciplinary

action re-enroll before he may perform a valuation or

prepare a report. 20 C.F.R. § 901.11(m).

When plans overreach on points of law, the courts

have not hesitated to correct them, as the HR Policy

Association points out (Br. at 11-13). See, e.g., Teamsters

Pension Fund v. Central Michigan Trucking, 857 F.2d

1107 (6th Cir. 1988) (rejecting a theory that contingent

withdrawal liability “accrued” to a controlled group

member and remained with it after a controlled group

breakup); Chi. Truck Drivers, 698 F.3d at 356-357

(concluding that trustee’s direction to actuary to use

improper assumptions constituted grounds for reversal).

Withdrawn employers also take aggressive litigation

positions, however, and they too are not always correct.

E.g., Central States, Southeast and Southwest Areas

Pension Fund v. Safeway, Inc., 229 F.3d 605,614 (7th

Cir. 2000) (commenting on a “broadside” attack on the

method for crediting liability for a partial withdrawal

against that for a complete withdrawal: “Congress

could have come up with (or could have had PBGC

come up with) more sophisticated methods that would

more perfectly match a plan’s UVBs with a particular

plan year. But it is only accounting fiction because

Safeway is unhappy with the result. Everywhere else,

it is just accounting.”)

Legal combat where large sums are involved should

come as no surprise. But it hardly shows that actuaries

are motivated to oppress withdrawn employers, in this

case or in general.

B. Employers

Estimates.

Can

Adapt

Lagging

Withdrawal liability estimates are important to

employers considering withdrawal from, or, more rarely,

entry into a multiemployer plan. They are also important

in mergers and acquisitions, as they can affect the

form of the transaction and the purchase price.12

But Congress enacted MPPAA to protect participants’

and beneficiaries’ “well-being and security.” 29 U.S.C

§ 1001a(a)(3). Their benefits are subject to downward

adjustment under a PPA ’06 rehabilitation plan to

assure plan solvency. See 29 U.S.C. § 1085(e). Indeed,

the Respondent Fund adopted a rehabilitation plan

that eliminated “adjustable benefits” effective January

1, 2022, including early retirement subsidies, unreduced

age and service benefits such as “30 and out,” unreduced

disability pensions, and survivors’ benefits for unmarried

participants. See IAM National Pension Fund, Rehabilitation Plan, Adopted April 17, 2019, Rehabilitation

Plan 1.pdf, https://www.iamnpf.org/sites/iamnpf.org/fil

es/Rehabilitation%20Plan%201.pdf (last visited Oct.

20, 2025).

Successful challenges to valuation norms are apt

to encourage opportunistic withdrawals, undercutting

MPPAA’s protections for both participants and

continuing employers. “[W]ithdrawals of contributing

employers . . . frequently result in substantially

increased funding obligations for employers who

continue to contribute to the plan. . . .” 29 U.S.C.

§ 1001a(a)(4)(A). Again, the Court need not look

beyond this case, as the Fund’s rehabilitation plan

increases employer contributions 2.5% per year under

A stock sale ordinarily would not result in a withdrawal. See

PBGC Op. Ltr. 92-1, https://www.pbgc.gov/sites/default/files/lega

cy/docs/oplet/92-1pdf. An asset sale ordinarily would result in a

withdrawal, but the sale can be structured so as not to trigger

withdrawal, with the buyer inheriting the seller’s exposure and

the seller retaining secondary liability. 29 U.S.C. § 1384(a)(1)(A),

1384(a)(1)(B), 1384(a)(1)(C), 1384(a)(2), 1384(b)(1).

a “preferred schedule” without providing additional

benefit accruals.

Petitioners assert that a plan’s required estimate of

an employer’s withdrawal liability (29 U.S.C. § 1021(l))

would have “very little value” if the valuation

assumptions are not selected by the end of the plan

year to which they pertain (Pet. Br. at 34). But such an

estimate would still lag, as it would assume that the

employer withdrew in the year before the estimate is

provided, e.g., 2024 for a 2025 estimate. See 29 U.S.C.

§ 1021(l)(1)(A).

Moreover, the sale of a business can take months to

negotiate, so an estimate may lag even more by the

closing date. Fortunately, techniques for managing

such uncertainty are well known. As with other contingencies, sellers provide “diligence” materials on exposure

to withdrawal liability. And buyers can negotiate representations and warranties, purchase price adjustments,

conditions to closing, and termination rights accordingly,

in consultation with their actuaries and other expert

advisors. See Martin D. Ginsburg, Jack S. Levin,

Donald. E. Rocap, Mergers, Acquisitions & Buyouts

(Wolters Kluwer 2025), ¶ 1702.3.5 et seq. (ERISA

Group Liabilities) and, e.g., ¶¶4 (Representations and

Warranties Concerning Target and Its Subsidiaries), 7

(Conditions to Obligation to Close), 9 (Termination),

and 2205 n.7 (Purchase Price Adjustment for multiemployer plan liability). The predictability that comes

from a nationwide rule, rather than greater precision,

should satisfy those valid business concerns.

CONCLUSION

This case involves the stability of multiemployer

plans for the benefit of their participants and contributing employers, which Congress sought to assure in

MPPAA. The D.C. Circuit’s decision is correct as a

matter of law and appropriately weighs the interest of

stakeholders and should therefore be affirmed.

Respectfully submitted,

THERESA S. GEE

NORMAN P. STEIN

Of Counsel

PENSION RIGHTS CENTER

1050 30th Street, NW

Washington, D.C. 20007

(202) 296-3776

TGee@pensionrights.org

NStein@pensionrights.org

ISRAEL GOLDOWITZ

Counsel of Record

THE WAGNER LAW GROUP

1701 Pennsylvania Avenue, NW

Suite 200

Washington, D.C. 20006

(202) 969-2800

IGoldowitz@

wagnerlawgroup.com

Counsel for Amicus Curiae

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.