Central States Southeast & Southwest Areas Pension Fund v. O'Neill Bros. Transfer & Storage Co.

In the

United States Court of Appeals
For the Seventh Circuit

No. 09-2608

C ENTRAL STATES SOUTHEAST A ND
S OUTHWEST A REAS P ENSION F UND,
et al.,
Plaintiffs-Appellees,
v.

O’N EILL B ROS. T RANSFER & S TORAGE
C O ., an Illinois corporation,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:07-cv-05220—Samuel Der-Yeghiayan, Judge.

A RGUED D ECEMBER 11, 2009—D ECIDED A UGUST 31, 2010

Before B AUER, R IPPLE and K ANNE, Circuit Judges.
R IPPLE, Circuit Judge. Central States Southeast and
Southwest Areas Pension Fund (“Central States”) brought
this action against O’Neill Bros. Transfer & Storage
Company (“O’Neill”), seeking interim payment of with-
drawal liability under the Employee Retirement Income
2 No. 09-2608

Security Act (“ERISA”), 29 U.S.C. §§ 1001 et seq. The
district court granted summary judgment for Central
States, and O’Neill appeals. For the reasons set forth in
this opinion, we affirm the judgment of the district court.

I
BACKGROUND
A.
A multiemployer pension plan is created when various
employers agree to make contributions to a common
pension fund on behalf of their respective employees.
Congress has recognized that the reliability of multi-
employer pension funds is of extreme importance to
the workers who rely upon them and of vital importance
to the economic and social well-being of the Nation. To
achieve and maintain the requisite level of financial
security, multiemployer pension plans must maintain
adequate funding levels to ensure their capacity to fund
the benefits of workers who have a legitimate expectation
that those funds will be available to meet their needs.
The Multiemployer Pension Plan Amendments Act
(“MPPAA” or “the Act”), an amendment to ERISA, there-
fore requires that an employer pay “withdrawal liabil-
ity” if it withdraws from a multiemployer pension fund.
The Act provides a mechanism for calculating the
amount of withdrawal liability and the schedule ac-
cording to which it should be paid. See 29 U.S.C. §§ 1391,
1399(c)(1), (3). The mechanism calculates the amount of
liability to equal the employer’s proportionate share of
No. 09-2608 3

the plan’s unfunded vested benefits; 1 the amount of each
annual payment is roughly equal to the withdrawing
employer’s typical past contributions. Milwaukee Brewery
Workers’ Pension Plan v. Jos. Schlitz Brewing Co., 513 U.S.
414, 418 (1995). Congress conceived of withdrawal
liability as a substitute for the annual payments that
an employer would have made had it not withdrawn.
Cent. States, Se. & Sw. Areas Pension Fund v. Basic Am. Indus.,
252 F.3d 911, 918 (7th Cir. 2001) (citing Milwaukee
Brewery, 513 U.S. at 418-19). The statutory mechanism
seeks to maintain level funding for the plan, despite the
employer’s withdrawal. Milwaukee Brewery, 513 U.S. at 419.
The Act provides that, in addition to calculating with-
drawal liability, the pension plan also must calculate
an installment schedule in accordance with 29 U.S.C.
§ 1399(c). The employer may seek review of these cal-
culations and then challenge the plan’s determination
in arbitration, but it must pay even while the review
and arbitration are pending. 29 U.S.C. §§ 1399(c)(2),
1401(d). Thus, payment is placed ahead of decision.
Trustees of the Chicago Truck Drivers, Helpers & Warehouse
Workers Union (Indep.) Pension Fund v. Cent. Transp., Inc.,
935 F.2d 114, 118 (7th Cir. 1991). Of course, if the em-
ployer eventually prevails in its challenge, overpayments
are returned to it. See 29 U.S.C. § 1401(d).

1
Unfunded vested benefits are the difference between the
vested benefits being paid and to be paid in the future, and
the current value of the plan’s assets. Concrete Pipe & Prods. of
Cal. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602,
609 (1993).
4 No. 09-2608

To further ensure the financial stability of the plan, the
statute specifically provides that, in the event of a
default, the pension plan may demand immediate pay-
ment of the outstanding amount of withdrawal liability.
Id. § 1399(c)(5). The statute provides two definitions of
default:
(A) the failure of an employer to make, when due,
any payment under this section, if the failure is not
cured within 60 days after the employer receives
written notification from the plan sponsor of
such failure, and
(B) any other event defined in rules adopted by
the plan which indicates a substantial likelihood
that an employer will be unable to pay its with-
drawal liability.
Id. The Pension Benefit Guaranty Corporation (“PBGC”)
has promulgated a regulation that provides, among other
things, that “[a] default as a result of failure to make
any payments shall not occur until the 61st day after”
the issuance of the arbitrator’s decision. 29 C.F.R.
§ 4219.31(c)(1).
With this description of the underlying statutory
scheme in mind, we now shall turn to the facts of the case.

B.
Central States administers a multiemployer pension
fund. O’Neill was, until early 2007, one of the employers
who contributed to the fund. At that time, however,
O’Neill ceased operations and informed Central States that
No. 09-2608 5

the company was “ ‘preparing for its termination and
liquidation.’ ” R.35, Attach. 1 at 3. Central States deemed
this notification a withdrawal; furthermore, because
O’Neill was liquidating, Central States, acting under the
terms of the plan, deemed O’Neill to be in default and
required immediate payment of the entire amount of
the withdrawal liability. See 29 U.S.C. § 1399(c)(5)(B).
On May 16, 2007, Central States sent O’Neill a letter
demanding “immediate payment of the entire amount
due.” R.35, Attach. 1 at 19.2 On August 16, 2007, Central
States sent O’Neill a second letter that revised upward
the amount of withdrawal liability to $1,689,191.36; this
increase was due to a revision in the total amount of
unfunded vested benefits.
On September 14, 2007, Central States filed its original
complaint in the district court. It sought an interim pay-
ment of the entire amount of the withdrawal liability
owed by O’Neill. O’Neill then moved for a dismissal or
a stay of proceedings pending the outcome of man-
datory arbitration.
Pretrial proceedings before the district court took
several twists and turns. The district court first ordered
the complaint amended in order to clarify that Central
States was, in fact, seeking only interim payment. Conse-
quently, O’Neill did not file an answer until April 2008.
One month later, Central States moved for summary
judgment.

2
The letter states that it includes “[a] copy of . . . the minimum
required payment schedule,” R. 35, Attach. 1 at 19, but
such copy is not included in the record.
6 No. 09-2608

In October 2008, the district court denied summary
judgment without prejudice; the court stated that
“the record does not reflect whether O’Neill Company
is able to make payments in the form of a payment sched-
ule as opposed to a lump sum payment.” R.40 at 1. It
ordered Central States to offer O’Neill a “feasible pay-
ment schedule” if Central States had not already done
so. Id. at 1-2. In response to this order, on December 12,
2008, Central States calculated and submitted a pay-
ment schedule, as required by 29 U.S.C. § 1399(c)(1).
Under that schedule, the first payment was due on Septem-
ber 1, 2007.
In February 2009, the district court ordered Central
States to submit another schedule comprised of future
due dates.3 Central States complied and submitted what
was essentially the same schedule, except that payments
did not begin until April 5, 2009, one month after the
filing was submitted. O’Neill then filed a response in
which it contended that this schedule violated the
statute because it called for payments to begin less than
60 days after the schedule was provided. It asked that
the schedule be stricken.
On April 1, the district court granted summary judg-
ment for Central States. The court took the view that
O’Neill “in effect, ha[d] rejected the proposed payment
schedule,” R.51 at 4-5, and that O’Neill’s liquidation

3
In the interim, O’Neill had paid the first installment. R.48 at 3.
As far as the record reveals, that payment represents the
only money paid to Central States since O’Neill was deter-
mined to be in default.
No. 09-2608 7

presented “an immediate and compelling need for
O’Neill Company to provide a lump sum payment to
Plaintiffs at this juncture to protect such funds,” id. at 5.
The parties then filed cross-motions to alter the judg-
ment. On May 27, the court granted Central States’
motion, adding interest and liquidated damages to the
judgment, bringing the total to $2,243,529.03. The court
denied O’Neill’s motion. It rejected the argument that
it had entered summary judgment sua sponte because
Central States’ original motion had been fully briefed.
The court also clarified that Central States “had provided
O’Neill with a proper demand for payment in com-
pliance with ERISA prior to bringing this action,” id. at 6,
and that O’Neill never had notified the court that it
accepted the revised payment schedule.

II
DISCUSSION
A.
O’Neill now submits that it had no obligation to pay
the entire amount due during the pendency of arbitration.
Interim payments, O’Neill contends, are necessarily
installment payments, and, even in case of a default, there
can be no acceleration until arbitration is complete.4

4
O’Neill also attacks the district court’s conclusion that Central
States provided a valid payment schedule. In this regard, it
argues that the Act provides that the first payment is not due
(continued...)
8 No. 09-2608

Central States, for its part, makes little attempt to defend
the district court’s reasoning. Rather, it submits that
summary judgment should have been granted when
its motion was first filed, before the briefing about a
feasible payment schedule. It contends that the default
provisions of the statute are separate from the interim
payment provisions, and it is the default provisions that
operate to allow immediate acceleration. For a default
under § 1399(c)(5)(B), the kind of default at issue here,
acceleration may occur even while arbitration is pend-
ing. Therefore, Central States contends, it is entitled to
payment of the entire amount due on an interim basis.
Because this case involves important issues in the
administration of the ERISA statute, we invited the
PBGC to file a brief as amicus curiae.5

4
(...continued)
until 60 days after the schedule is provided. The schedule
submitted by Central States called for the first payment to be
due 30 days after it was provided. O’Neill also makes other
arguments that, as we shall see, we need not address. O’Neill
argues that it had not defaulted on a payment schedule
because mere objection is not a default under the Act.
O’Neill also challenges the internal consistency of the district
court’s reasoning, asks for attorney’s fees and argues that the
reinstatement of summary judgment without additional
briefing was improper.
5
The court expresses its thanks to the PBGC for accepting
its invitation and submitting a fine brief which has been of
great assistance to the court.
No. 09-2608 9

B.
In construing a statute, we must, of course, start with
the words of the statute itself. In the opening section of
this opinion, we set forth, in broad strokes, the statutory
scheme that constitutes the decisional framework for the
case before us. Now, as we begin our discussion of the
parties’ precise contentions, a more explicit statutory
analysis is required. Therefore, we return to the statute
and focus on the text.

1.
The MPPAA ordinarily provides for an employer to
pay its withdrawal liability according to a schedule,
calculated by the pension fund in accordance with the
statutory formula. 29 U.S.C. § 1399(c)(2). A default, how-
ever, has special consequences. As noted earlier, the
MPPAA provides for two kinds of default and states the
consequences of either kind. Specifically, 29 U.S.C.
§ 1399(c)(5) provides:
In the event of a default, a plan sponsor may
require immediate payment of the outstanding
amount of an employer’s withdrawal liability,
plus accrued interest on the total outstanding
liability from the due date of the first payment
which was not timely made. For purposes of this
section, the term “default” means—
(A) the failure of an employer to make,
when due, any payment under this sec-
tion, if the failure is not cured within
10 No. 09-2608

60 days after the employer receives written
notification from the plan sponsor of
such failure, and
(B) any other event defined in rules
adopted by the plan which indicates a
substantial likelihood that an employer
will be unable to pay its withdrawal lia-
bility.
This case concerns the second kind of default, commonly
referred to as an “insecurity default.” Notably, the
first kind of default, commonly referred to as a “missed-
payment default,” is not at issue in this case.
Subsection B, set forth immediately above, allows
pension plans to adopt rules specifying examples of
events that indicate a “substantial likelihood” of inability
to pay. When these events occur, the plans may accelerate
the entire amount of withdrawal liability. Id. § 1399(c)(5);
see also 29 C.F.R. § 4219.31(b)(1) (defining “default” in
nearly identical language).
Here, the plan’s Appendix E, entitled “Rules and Regula-
tions Pertaining to Employer Withdrawal Liability,”
section 5(e)(2), provides that a default occurs if:
The Trustees, in their discretion, deem the Fund
insecure as a result of any of the following events
with respect to the Employer:
(A) the Employer’s insolvency, or any assignment
by the Employer for the benefit of creditors, or
the Employer’s calling of a meeting of creditors
for the purpose of offering a composition or ex-
No. 09-2608 11

tension to such creditors, or the Employer’s ap-
pointment of a committee of creditors or liquidat-
ing agent, or the Employer’s offer of a composition
or extension to creditors, or . . .
(C) the commencement of any proceedings by or
against the Employer . . . pursuant to any bank-
ruptcy or insolvency laws or any laws relating
to the relief of debtors, or the readjustment, compo-
sition or extension of indebtedness, or to the
liquidation, receivership, dissolution or reorganiza-
tion of debtors; . . .
(E) any other event or circumstance which in the
judgment of the Trustees materially impairs the
Employer’s credit worthiness or the Employer’s
ability to pay its withdrawal liability when due.
R.35, Attach. 1 at 13.
O’Neill, through counsel, informed Central States by
e-mail that O’Neill “was ‘preparing for its termination
and liquidation.’ ” 6 R.35, Attach. 1 at 3. In response to
this news, Central States, acting pursuant to this provi-
sion, determined that the fund was insecure, placing
O’Neill in default pursuant to the plan rules. The plan
determined that in ceasing operations, O’Neill had

6
O’Neill admits that it ceased doing business, but denies that
it sent this e-mail. R.37 ¶ 8. However, it puts forth no evidence
that supports this denial—not even an affidavit stating that
O’Neill sent no such e-mail. In any event, the ceasing of opera-
tions was the essential component of the default.
12 No. 09-2608

shown a substantial likelihood that it would be unable
to pay its withdrawal liability.
The MPPAA provides that “[a]ny dispute between an
employer and the plan sponsor . . . concerning a deter-
mination made under sections 1381 through 1399 of this
title shall be resolved through arbitration.” 29 U.S.C.
§ 1401(a)(1). O’Neill therefore concedes that the propri-
ety of the plan’s default determination is beyond the
scope of our review at this juncture. See Reply Br. 5
(“Whether Central States is correct in its determination
regarding its withdrawal liability assessment and the
existence of a default making said assessed amount
immediately due and owing are questions relating to the
merits of the underlying dispute which must be resolved
by an arbitrator.”).7
Subsection 1399(c)(5) states that “a plan sponsor
may require immediate payment” in the event of default;
Central States made such a demand. We therefore must
resolve whether the default provisions of § 1399(c)(5)
apply during the pendency of the arbitration proceeding.

7
We note that the plan rules never specifically define “liquida-
tion” as grounds for a default. We also note that in the pre-
amble to the final version of its regulation, the PBGC stated
that “[s]uch a substantial likelihood [of default] would exist, for
example, when an employer declares bankruptcy, makes an
assignment for the benefit of creditors, or begins liquidating
all of its assets.” 49 Fed. Reg. 22644 (May 31, 1984).
No. 09-2608 13

2.
At the outset, it is important to note that, even in the
absence of a declaration of default, withdrawal liability
is ordinarily payable during the pendency of the arbitra-
tion. The statutory language requires that the employer
pay even while challenging the plan’s determination; if
the employer prevails on its challenge, it will get its
money back. Two statutory provisions speak to this
procedure, sometimes referred to as “pay now,
dispute later.” Subsection 1399(c)(2), the provision of the
statute that discusses payment, states that:
Withdrawal liability shall be payable in accordance
with the schedule set forth . . . notwithstanding
any request for review or appeal of determina-
tions of the amount of such liability or of the
schedule.
29 U.S.C. § 1399(c)(2). Similarly, § 1401(d), which relates
specifically to arbitration, states that:
Payments shall be made by an employer in accor-
dance with the determinations made under this
part until the arbitrator issues a final decision . . . .
Id. § 1401(d).
These provisions are not redundant. Subsection
1399(b)(2) provides that the employer may request a
review by the plan sponsor; section 1401 provides for
arbitration. The two processes are different. Nevertheless,
the provisions are analogous, and, notably, both make
clear that payment must begin immediately and is not
suspended during challenge.
14 No. 09-2608

3.
Having concluded that § 1399(c)(2) and § 1401(d) place
no restrictions on a plan’s ability to declare a default
during the pendency of arbitration, we turn to the de-
fault provision itself. We set forth § 1399(c)(5) for ease
of reference:
In the event of a default, a plan sponsor may
require immediate payment of the outstanding
amount of an employer’s withdrawal liability,
plus accrued interest on the total outstanding
liability from the due date of the first payment
which was not timely made. For purposes of this
section, the term “default” means—
(A) the failure of an employer to make,
when due, any payment under this section,
if the failure is not cured within 60 days
after the employer receives written notifi-
cation from the plan sponsor of such fail-
ure, and
(B) any other event defined in rules
adopted by the plan which indicates a
substantial likelihood that an employer
will be unable to pay its withdrawal lia-
bility.
Id. § 1399(c)(5).
We pause, first of all, to note the structure of the provi-
sions. They consist of a general paragraph, which we
shall refer to as the “main body” of the section, and two
alternative definitions of default. There is nothing in
the text of the main body of the provision, or in subsec-
No. 09-2608 15

tion (B), suggesting any kind of limitation on when ac-
celeration can occur. In these parts of the text, there is
no indication that default payments should be treated
differently from any other withdrawal liability payments,
which must be made before the decision on liability is
made. These provisions, then, echo the general rule of
“pay now, dispute later,” and in no way indicate that
acceleration due to default is an exception to this
general rule.
The PBGC has given a different interpretation to sub-
section (A), which deals with default due to non-pay-
ment. Addressing directly the matter in 29 C.F.R.
§ 4219.31(c), the PBGC’s regulation provides that “[a]
default as a result of failure to make any payments shall not
occur” until 61 days after the arbitrator rules. Id. (emphasis
supplied). This regulation, then, interprets the statutory
command of section 1399 (c)(5)(A) as requiring a method
of proceeding different from the “pay now, dispute
later” approach of the remainder of the statute. The
PBGC reaches this conclusion by focusing on the distinc-
tive wording of subsection (A), the statute’s definition of
a missed-payment default. More precisely, it focuses on
the words “when due.” It then points out that section
1401(b)(1) provides that “[i]f no arbitration proceeding
has been initiated pursuant to subsection (a) of this
section, the amounts demanded by the plan sponsor . . .
shall be due and owing on the schedule set forth by the
plan sponsor.” 29 U.S.C. § 1401(b) (emphasis supplied).
In its view, “due” is a technical term employed by the
Act. Payments become “due” when they become final,
either because arbitration has not been initiated or has
concluded. Payments not “due” are interim payments.
16 No. 09-2608

Rather, interim payments shall be made as specified by
section 1401(d), but cannot serve as the basis for a missed-
payment default. By definition, a missed-payment
default cannot occur until payments become “due.”
Notably, the PBGC also stresses that no such language
appears in subsection (B) of section 1399(c)(5). That sub-
section, at issue in this case, contains no reference to
whether a payment is “due.” It refers only to “any
other event defined in rules adopted by the plan which
indicates a substantial likelihood that an employer will
be unable to pay its withdrawal liability.” 29 U.S.C.
§ 1399(c)(5)(B). It contains no other restrictions on a
plan’s ability to declare this type of default. Indeed, in
its preface to the regulation, the PBGC explicitly notes
that subsection (B)’s text requires a different analysis
than the text of subsection (A). That preface reads in
pertinent part:
In terms of a plan’s authority to declare a default
during arbitration, the regulation distinguishes
between an employer’s failure to make a pay-
ment and a plan determination that there is a
substantial likelihood of the employer’s inability to
pay its total withdrawal liability. Such a substantial
likelihood would exist, for example, when an
employer declares bankruptcy, makes an assign-
ment for the benefit of creditors, or begins liquidat-
ing all of its assets; mere failure to make a pay-
ment would not necessarily indicate this substan-
tial likelihood of inability to pay the full liability.
In the former situations, unlike in the case of a
No. 09-2608 17

missed payment, a plan’s ability to collect with-
drawal liability may very well depend on its
power to declare a default and accelerate the full
liability. Therefore, PBGC believes it is important
for the protection of plans that they be able to
exercise this power at any time, even during plan
review or arbitration.
49 Fed. Reg. 22644 (May 31, 1984) (second emphasis
supplied).
The PBGC is the agency charged with the administra-
tion of the withdrawal liability provisions of the
MPPAA. Its views on difficult interpretative problems
regarding the statute are worthy of substantial deference.
Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837,
843 (1984). Here, because the interpretation set forth in
the preface is so inextricably related to the regulation
itself, we believe that it is worthy of deference as an
interpretation of the regulation. It is neither “plainly
erroneous or inconsistent with the regulation.” Auer v.
Robbins, 519 U.S. 452, 461 (1997) (internal quotation
marks omitted). The fact that much of the PBGC’s elab-
oration of its analysis is presented in an amicus brief
does not make its position bereft of all deference. Its
view is not a simple “ ‘post hoc rationalizatio[n]’ ” advanced
by an agency seeking to defend past agency action
against attack. Id. at 462 (quoting Bowen v. Georgetown
Univ. Hosp., 488 U.S. 204, 212 (1988); brackets in original).
Rather, it represents “the agency’s fair and considered
judgment on the matter in question.” Id. It is a reasoned
elaboration of the agency’s earlier explanation of its
own regulation.
18 No. 09-2608

We believe, moreover, that the PBGC’s interpretation
of the statute is a reasonable reading of the statutory text.
It is compatible with the overall Congressional intent of
the statutory scheme. With respect to subsection (B), the
PBGC’s view is essentially that, when an event occurs
indicating a substantial likelihood that the employer
will be unable to pay its withdrawal liability, “the risk of
nonpayment is especially acute.” Amicus Br. 10. The
“employer’s election to arbitrate will not mitigate” that
risk. Id. at 12. “[T]he purpose of section 1399(c)(5)(B) is to
allow multiemployer plans to protect themselves and
their participants against events indicating a substantial
likelihood of an employer’s inability to pay its with-
drawal liability . . . .” Id. If there is a substantial likelihood
that an employer will be unable to meet its obligations,
then there is a need for urgent action that is not present
if the employer simply misses a payment. In the former
situation, if the fund is unable to collect quickly, it likely
never will collect. The fund, and the employees whose
pensions it serves, therefore would be unprotected.
Because the PBGC’s reading of the default provision is a
reasonable interpretation of an ambiguous statutory
text and compatible with the manifest intent of the
statute when read as a whole, we must accord it defer-
ence. Chevron U.S.A., 467 U.S. at 843.8

8
In Chicago Truck Drivers, Helpers & Warehouse Workers Union
(Indep.) Pension Fund v. Century Motor Freight, 125 F.3d 526
(7th Cir. 1997), we had to determine whether a request for
arbitration prevented acceleration in the case of a missed-
(continued...)
No. 09-2608 19

8
(...continued)
payment default. We focused on the language in the main body
of 29 U.S.C. § 1399(c)(5), which provides the consequences of
a default, as it related to § 1401. We gave no weight to the
fact that 29 U.S.C. § 1399(c)(5) has two branches, each describing
a different type of default. We did so, no doubt, because
the overarching question before us was not the definition of
default, but rather the consequences of default. The main body
of 29 U.S.C. § 1399(c)(5) deals with those consequences and,
read alone, signals no distinction between the two kinds of
default. Our focus on the main body prevented us, however,
from taking into account that the section, when read as a
whole, deals with two very different types of default, missed-
payment default and insecurity default. We therefore did not
consider whether any distinction between the two kinds of
default was justified. In Century Motor Freight, this lack of
focus on the two kinds of default was not detrimental to the
outcome because the default at issue was a missed-payment
default and the statute, as interpreted by the regulation, re-
stricts acceleration in such cases. Here, however, where we
are dealing with an insecurity default, the regulation provides
for no such restriction.
In Century Motor Freight, we noted that we were dealing with
this complex statute and its accompanying regulation with-
out the assistance of the PBGC. 125 F.3d at 534 (“As we
have noted, the PBGC was not asked to participate in this
suit, and we would have found its input beneficial.”). Here,
faced with the application of the same statutory and regulatory
provisions to an insecurity default as opposed to a missed-
payment default, we have invited the participation of the
PBGC and have had occasion to study in more depth the
(continued...)
20 No. 09-2608

Conclusion
O’Neill’s default is governed by the provisions of 29
U.S.C. § 1399(c)(5)(B). Under that section, as interpreted
reasonably by the PBGC, the entire amount of the with-
drawal payment is immediately payable upon default
and that obligation is not deferred because of the
pendency of arbitration. Therefore, although we express
a rationale different from that articulated by the
district court, its judgment must be affirmed.
A FFIRMED

8
(...continued)
relationship between the statutory scheme taken as a whole
and the accompanying regulation.
Our interpretation of the second branch of 49 U.S.C.
§ 1399(c)(5) has been presented to the court under Circuit Rule
40(e). No judge in active service has requested a vote to hear
this case en banc.

8-31-10