PRECEDENTIAL


      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 18-2465



   CAESARS ENTERTAINMENT CORPORATION

                          v.

INTERNATIONAL UNION OF OPERATING ENGINEERS
          LOCAL 68 PENSION FUND,
                            Appellant



    On Appeal from the United States District Court
             for the District of New Jersey
               (D.C. No. 2-17-cv-02450)
      District Judge: Honorable Kevin McNulty


               Argued on April 2, 2019
  Before: CHAGARES, HARDIMAN, and SILER,* Circuit
                     Judges.

                    (Filed: August 1, 2019)

Michael T. Scaraggi [Argued]
Oransky Scaraggi Borg & Abbamonte
175 Fairfield Avenue
Suite 1-A
West Caldwell, New Jersey 07006
              Attorney for Appellant

James E. Tysse [Argued]
Eric D. Field
Lawrence D. Levien
Pratik A. Shah
Raymond P. Tolentino
Akin Gump Strauss Hauer & Feld
2001 K Street N.W.
Washington, DC 20006

Brian T. Carney
Stephanie L. Lindemuth
Akin Gump Strauss Hauer & Feld
One Bryant Park
Bank of America Tower
New York, NY 10036
             Attorneys for Appellee


       *
        Honorable Eugene E. Siler, Jr., Senior Circuit Judge,
United States Court of Appeals for the Sixth Circuit, sitting by
designation.




                               2
                 OPINION OF THE COURT


HARDIMAN, Circuit Judge.

        To safeguard private pensions, Congress enacted the
Employee Retirement Income Security Act of 1974 (ERISA),
88 Stat. 829, as amended, 29 U.S.C. § 1001 et seq. Six years
later, Congress tried to shore up multiemployer pension plans
by passing the Multiemployer Pension Plan Amendments Act
of 1980 (MPPAA), Pub. L. No. 96-364, 94 Stat. 1208. The
MPPAA imposes liability on employers who withdraw from
covered plans by ceasing contributions in whole or in part. This
appeal involves one type of partial withdrawal, “bargaining
out,” which occurs when an employer “permanently ceases to
have an obligation to contribute under one or more but fewer
than all collective bargaining agreements under which the em-
ployer has been obligated to contribute . . . but continues to
perform work . . . of the type for which contributions were pre-
viously required.” 29 U.S.C. § 1385(b)(2)(A)(i) (ERISA
§ 4205(b)(2)(A)(i)).

                               I

       The relevant facts are undisputed. Appellee Caesars En-
tertainment Corporation (CEC) once operated four casinos in
Atlantic City: Caesars, Bally’s, Harrah’s, and Showboat. These
comprised a “controlled group” under ERISA, with CEC being
the “single employer” of the group. 29 U.S.C. § 1301(b)(1)
(ERISA § 4001(b)(1)); accord 29 C.F.R. § 4001.2. CEC bar-
gained with the International Union of Operating Engineers,
Local 68 (the Union), for engineering work at all four casinos.




                               3
Under their collective bargaining agreements with the Union,
each casino had to contribute to the Union’s multiemployer
pension fund (the Fund). The Fund had 259 contributing em-
ployers making some $14 million in annual payments. See Lo-
cal 68 Engineers Union Pension Plan, Form 5500: FY 2013
Annual Return/Report of Employee Benefit Plan 2, 23 (2015).

       In 2014, the Showboat casino closed, and CEC stopped
contributing to the Fund for engineering work there. The other
three casinos under CEC’s control remain open, and CEC con-
tinues to pay the Fund for their Union work. Showboat’s clo-
sure reduced CEC’s total contributions to the Fund by 17%—
well below the MPPAA’s 70% threshold that would have auto-
matically triggered liability for a partial withdrawal. See 29
U.S.C. §§ 1381, 1385(a)(1).

      Although CEC was not automatically liable, the Fund
claimed CEC was liable under the bargaining out provision of
the MPPAA, which applies when an employer:

      [1] permanently ceases to have an obligation to
      contribute under one or more but fewer than all
      collective bargaining agreements under which
      the employer has been obligated to contribute
      under the plan but [2] continues to perform work
      in the jurisdiction of the collective bargaining
      agreement of the type for which contributions
      were previously required or transfers such work
      to another location or to an entity or entities
      owned or controlled by the employer.




                              4


(emphasis added); see 

CEC disagreed. So the parties went to arbitration, and CEC
lost. The arbitrator held CEC had triggered both clauses [1] and
[2] of the bargaining out provision. As relevant to this appeal,
the arbitrator reasoned clause [2] applied because “[t]he type
of work for which contributions were required at the closed
Showboat is the same type of work currently being done at the
remaining casinos.” 

.

       The District Court reversed the arbitrator’s decision.
Caesars Entm’t Corp. v. IUOE Local 68 Pension Fund, 

, at *1 (D.N.J. June 15, 2018). The Court assumed
without deciding that, under clause [1], the jurisdiction of the
Showboat CBA included all engineering work in Atlantic City.
But it held that, under clause [2], liability exists only when an
employer replaces (a) work that contributes to the pension fund
with (b) “work—of the same sort—that does not.” 

Such replacement hadn’t occurred here because CEC’s “con-
stituent members [aside from the shuttered Showboat] continue
to contribute to the Fund for all engineering work they perform
throughout Atlantic City.” 

To reach this conclusion,
the Court relied on “authoritative guidance” from the Pension
Benefit Guaranty Corporation (PBGC). 

The Fund’s
appeal followed.

                               II

        The District Court had jurisdiction under 29 U.S.C.
§§ 1401(b) and 1451(c). We have jurisdiction under 28 U.S.C.
§ 1291. We review the summary judgment that reversed the ar-
bitral award de novo, and we apply the same standard required
of the District Court. E.g., Montanez v. Thompson, 

, 248 (3d Cir. 2010), as amended (May 25, 2010). We thus




                               5
review legal conclusions de novo but presume that the arbitra-
tor’s factual findings are correct unless they are clearly errone-
ous. SUPERVALU, Inc. v. Bd. of Trs. of Sw. Pa. & W. Md. Area
Teamsters & Emp’rs Pension Fund, 

, 340 (3d Cir.
2007). Only legal conclusions are at issue here.

                               III

       We agree with the District Court that the dispositive
question is whether under § 1385(b)(2)(A)(i) “work . . . of the
type for which contributions were previously required” in-
cludes work of the type for which contributions are still re-
quired. The statutory text and PBGC guidance confirm that the
answer is no.

                                A

        “Under the MPPAA, an employer who withdraws from
a multiemployer pension plan becomes obligated to pay a pro-
portionate share of the plan’s unfunded vested benefits.”
Crown Cork & Seal Co. v. Cent. States Se. & Sw. Areas Pension
Fund, 

, 861 (3d Cir. 1992). The MPPAA imposes
this liability to counter the threat withdrawals pose to plan sol-
vency. See Pension Ben. Guar. Corp. v. R.A. Gray & Co., 

, 722–23 & nn.2–3 (1984).

        The bargaining out provision at issue in this appeal typ-
ically applies when there is a change in union representation or
the employer negotiates out of an obligation to contribute to a
plan. See, e.g., ABA Section of Labor & Emp’t Law, Employee
Benefits Law 17.III.B (4th ed. 2017 & Supp. 2018). Neither of
those things happened here, but the Fund claims CEC contin-
ues to perform “work . . . of the type for which contributions




                                6
were previously required,” 29 U.S.C. § 1385(b)(2)(A)(i), be-
cause engineering work continues at Caesars, Bally’s, and Har-
rah’s. On the Fund’s view, it is irrelevant that CEC still must
contribute to the Plan for the work performed by Union mem-
bers at those three casinos.

        We disagree. “[W]ork . . . of the type for which contri-
butions were previously required” means “work . . . of the type
for which contributions are no longer required.” Two features
of the text stand out. First, “previously” connotes something
that is no longer the case. In arriving at this conclusion, we give
“previously” its ordinary meaning at the time Congress enacted
the relevant provision. E.g., New Prime Inc. v. Oliveira, 139 S.
Ct. 532, 539 (2019). Around the time of the MPPAA’s enact-
ment, dictionary definitions of “previous” and its adverbial
form included “coming or occurring before something else;
prior: the previous owner.” The Random House Dictionary of
the English Language 1535 (2d unabr. ed. 1987); see also The
Oxford English Dictionary 1340 (2d ed. 1989) (defining “pre-
viously” as “at a previous or preceding time; before, before-
hand, antecedently”); Black’s Law Dictionary 1070 (5th ed.
1979) (defining “previous” as “antecedent; prior; before”).
Similarly, the largest structured corpus of historical English
shows that the word’s most common synonyms in the 1970s–
80s were “before” (the synonym used roughly 86% of the
time), “earlier” (12%), and “formerly” (1%). See Corpus of
Historical American English, BYU, https://www.english-cor-
pora.org/coha/ (last visited May 3, 2019); see also Muscarello
v. United States, 

, 129 (1998) (using “crude[]”
corpus linguistics to interpret what it means to “carry” a gun);
Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary
Meaning, 127 Yale L.J. 788 (2018) (explaining and applying




                                7
modern corpus linguistics).1 The corpus also shows that the
words that most often co-occurred with “previously” (a.k.a.
collocates) were “had” (35%) and “been” (15%)—perfect
tense verbs that connote completed action. See, e.g., Carr v.
United States, 

, 448 (2010). So to say something
is “previously required” is to suggest it is no longer required.

       Second, the canon against surplusage confirms that
“previously” means “no longer required.” See, e.g., Advocate
Health Care Network v. Stapleton, 

, 1659
(2017) (applying the canon elsewhere in ERISA). If Congress
had meant to adopt the Fund’s interpretation, it could have
omitted “previously” to no effect. The provision would have
targeted work “for which contributions were [ ] required.” Be-
cause that’s not what Congress wrote, we give “previously”
some meaning. And that meaning tracks what we’ve learned
from dictionaries and corpus linguistics.

       For these reasons, the best reading of “work . . . of the
type for which contributions were previously required” ex-
cludes work of the type for which contributions are still re-
quired. To hold otherwise would put us in conflict with our sis-
ter courts’ interpretation of identical language in another


       1
          Corpus linguistics describes language empirically with
reference to books, scripts, magazines, newspapers, and more.
A database of this naturally occurring language is called a cor-
pus. We can use corpora to perform analyses unavailable in
standard sources like dictionaries. These analyses include
measuring, in a given speech community over a given time, the
statistical frequency of a word and the linguistic contexts in
which it appears. See Lee & 

–13, 828–
32.




                               8
MPPAA provision, 29 U.S.C. § 1383(b)(2)(B)(i) (ERISA
§ 4203(b)(2)(B)(i)). Section 1383(b)(2)(B)(i) imposes com-
plete withdrawal liability on employers in the construction in-
dustry when they continue to perform “work . . . of the type for
which contributions were previously required.” Two of our sis-
ter courts have held that the same provision imposes liability
only when employers “cease making payments to the plan” for
a type of work (e.g., construction) “while continuing to do [that
work] in the area.” Resilient Floor Covering Pension Tr. Fund
Bd. of Trs. v. Michael’s Floor Covering, Inc., 

,
1090 (9th Cir. 2015); see Stevens Eng’rs & Constructors, Inc.
v. Local 17 Iron Workers Pension Fund, 

, 671–72
(6th Cir. 2017). And two more courts of appeals have signaled
their support for this holding. See Ind. Elec. Workers Pension
Benefit Fund v. ManWeb Servs., Inc., 

, 781 (7th
Cir. 2018) (applying the Ninth Circuit’s analysis to MPPAA
successor liability); Ceco Concrete Const., LLC v. Centennial
State Carpenters Pension Tr., 

, 1254 (10th Cir.
2016) (citing the Ninth Circuit’s analysis in interpreting the
construction provision). We see no reason to interpret identical
language in the bargaining out provision any differently.

                               B

       We find additional support for our view in longstanding
guidance from the Pension Benefit Guaranty Corporation, an
agency that administers ERISA. See Pension Ben. Guar. Corp.
v. LTV Corp., 

, 637 (1990). Courts “have tradi-
tionally deferred to the PBGC when interpreting ERISA,” be-
cause to ignore the agency “‘would be to embark upon a voy-
age without a compass.’” Beck v. PACE Int’l Union, 

, 104 (2007) (alteration omitted) (quoting Mead Corp. v. Til-
ley, 

, 726 (1989)).




                               9
        In this case, the District Court found persuasive PBGC
Opinion Letter 83-20, which says that no withdrawal liability
results from “merely ceasing or terminating an operation.”
PBGC Op. Letter 83-20, 

, at *2 (Sept. 2, 1983).
According to the PBGC, liability under the bargaining out pro-
vision arises “only [in] situations where work of the same type
is continued by the employer but for which contributions to a
plan which were required are no longer required.” 

added). So an employer isn’t liable when it “closes one [fa-
cility] and shifts the work of that [facility] to other [facilities]
which are covered by other [CBAs] under which contributions
are made to the plan.” 

what happened here.
And we, like the District Court, find that the PBGC’s view
tracks the text of the MPPAA.

       The Fund cites two other PBGC Opinion Letters (86-21
and 86-17), but both support CEC. Letter 86-21 involved an
employer replacing plan-contributing work (packing produce
in a shed) with non-contributing work (packing in a field). See
PBGC Op. Letter 86-21, 

, at *2 (Sept. 29,
1986). So the PBGC concluded that the employer had partially
withdrawn, assuming shed-packing and field-packing were the
same “type” of work. See 

that employer, CEC
didn’t shift to non-contributing work. It simply closed the
Showboat operation.

        Letter 86-17 addressed a company closing a CBA-cov-
ered facility. See PBGC Op. Letter 86-17, 

, at
*1 (Aug. 1, 1986). Like CEC, that company continued to con-
tribute to the same pension plan through another facility. See

CEC, that company outsourced the closed facil-
ity’s work to third-parties “unrelated to the [company] in any
way.” 

that outsourcing arguably replaced con-
tributing work with non-contributing work, the PBGC held the




                                10
company wasn’t liable for bargaining out. The PBGC again
stressed, as it did in Letter 83-20, that “in no case do these rules
[of the bargaining out provision] impose liability on an em-
ployer for merely ceasing or terminating an operation; rather,
they address only situations where work of the same type is
continued by the employer but for which contributions to a
plan which were required are no longer required.” 

(quoting 126 Cong. Rec. H7900 (daily ed. Aug. 26, 1980)
(statement of Rep. Frank Thompson, Jr.)). In sum, when the
PBGC addressed practically the same situation we face here, it
refused to find withdrawal liability against the employer.

                                IV

       The Fund’s final response to the textual and administra-
tive headwinds we have described is an appeal to purposivism.
According to the Fund, the “fundamental purpose” of the
MPPAA is to ensure the solvency of employee pensions. Fund
Br. 30. So CEC simply must be liable because Showboat’s clo-
sure decreased the Fund’s contribution base. And failing to im-
pose liability would allegedly allow a “race for the exits” in
which the three other CEC casinos could stop contributing
without consequence. 

we disagree. The MPPAA’s purpose is nei-
ther one-dimensional nor easy to promote through employer
liability. It’s certainly true that the MPPAA aims to foster both
“maintenance and growth” of multiemployer plans. 29 U.S.C.
§ 1001a(c)(2) (MPPAA, § 3(c)(2), 94 Stat. at 1209); accord Bd.
of Trs. of Teamsters Local 863 Pension Fund v. Foodtown, Inc.,

, 168 (3d Cir. 2002). But as counsel for the Fund
acknowledged at oral argument, if we adopted the Fund’s in-
terpretation, employers would even be liable for conduct that
does not reduce their pension contributions. See Oral Argument




                                11
Audio 3:20–4:45. The risk of such capricious liability would
discourage “the maintenance and growth of multiemployer
pension plans” in the first place. 29 U.S.C. § 1001a(c)(2). In-
centives matter, and employers have many alternatives to mul-
tiemployer plans. See generally SEC, Employer-Sponsored
Plans, Investor.gov (last visited Apr. 30, 2019), https://www.in-
vestor.gov/introduction-investing/retirement-plans/employer-
sponsored-plans [https://perma.cc/5PLE-KM3E]. So employ-
ers would be less likely to opt into the MPPAA’s regulatory
regime if it imposed liability on innocuous business activities.

          The Fund’s position thus shows why “it frustrates rather
than effectuates legislative intent simplistically to assume that
whatever furthers the statute’s primary objective must be the
law.” Rodriguez v. United States, 

, 526 (1987) (per
curiam). Rather than appealing to broad statutory objectives,
pension funds should look to Congress’s statutory safeguards
against plan insolvency. Among these are the 70% rule for au-
tomatic partial withdrawals, 29 U.S.C. § 1385(a)(1), and a
catch-all clause that imposes liability on “any transaction” that
has “a principal purpose . . . to evade or avoid liability,” 

(ERISA § 4212(c)). For an employer to avoid auto-
matic liability, any decrease in contributions must be made
gradually over an eight-year period. See 

Cent.
States, Se. & Sw. Areas Pension Fund v. Safeway, Inc., 

, 611 (7th Cir. 2000). And to avoid catch-all liability, an
employer must act in good faith. SUPERVALU, 

–42. “Even if Congress could or should have done more,
still it ‘wrote the statute it wrote—meaning, a statute going so
far and no further.’” Cyan, Inc. v. Beaver Cty. Emps. Ret. Fund,

, 1073 (2018) (quoting Michigan v. Bay Mills
Indian Cmty., 

, 794 (2014)).




                               12
                       *      *      *

       For the reasons stated, we hold that “work . . . of the
type for which contributions were previously required” does
not include work of the type for which contributions are still
required. And because CEC continues to contribute to its pen-
sion plan for engineering work at its remaining three casinos,
it is not liable under § 1385(b)(2)(A)(i). We will affirm the
judgment of the District Court.




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