next on the counter is number sixteen to thirty two caesars entertainment corporation versus pension plan of the national retirement fund determinations made under sections thirteen eighty one to thirteen ninety nine this suit by contrast raises a single claim concerning at most a condition precedent to a withdrawal liability determination that is whether the fund had legal authority to expel the employers despite the fact that they had never missed a contribution payment or expressed any intent of doing so that narrow and rare a claim is not subject to arbitration because it is limited to the threshold issue of the filings authority to expel and not as a district court mistakenly believed whether any such expulsion assuming it were valid actually caused a complete a draw it is not difficult to discern where the district court went wrong and i would point this court to special appendix page ten this from the magistrate judge's opinion which was adopted in full by the district court and the key sentences here quote here the primary question is whether a complete withdrawal has occurred and quote if that really were the primary question in this case then we would agree it would be subject to arbitration but the end to see that legal dispute yes one of them there has to be a determination made under thirteen eighty one to thirteen ninety nine that's what the statute says but i have trouble understanding how you can make that argument in view of the fact that thirteen eighty three doesn't require a specific determination of a specific amount of liability so you you can have a dispute with respect to thirteen eighty three and that in fact was one of the provisions in your declaratory judgment action under thirteen eighty three without was specific determination of the amount for your honour's it just to be clear on our timing argument we're not saying that it has to be that the actual determination of the amount has to happen it can be any determination under thirteen eighty one to thirteen eighty nine and you are correct one of those determinations is the actual withdrawal of determination let me try to be clear on this you are making two arguments one of them is the underlying argument that this issue is not our be trouble because it is an issue about whether varies an agreement the second one is even if that is were clear a determination of with graw has to be may not have determination of amount of determination of withdrawal simply because a statute says determination made invent the language of the statue no determination of any sort is made you're not arguing about whether you determination of amount as me that is exactly correct your honor that's exactly right that is our alternative argument that even if this threshold determination of expulsion were were determined to be arbiter of all here you don't even have a determination made as to whether for get him out even as to the withdrawal itself given the timing of this complaint which was filed not only before any withdraw determination but before the expulsion decision itself a reasonable portion of your brief when precisely to the argument that there has to be a specific amount of withdraw because among other reasons the way in which the statute is structured the time to file for arbitration never begins to run until there has been a specific is is another but none of those with even if you don't have the withdraw none of those can be triggered into you actually get that notice of withdrawal liability and i think here is where the confusion is that notice of withdrawal liability is not sent in till they have calculated the amount so here's how the exhaustion regime works under rissa and this is why it doesn't make sense to force this in to see the expulsion claim into arbitration not only does there have to be a determination which could be a determination any determination under thirteen eighty one to thirteen ninety nine but the exhaustion regime is triggered by the actual sending of the notice of withdrawal liability and that  until the amount is calculated and so that's that's where the amount comes in but that's really not the focal point of the argument that the statute itself requires any determination under thirteen eighty one and thirteen ninety nine we don't have any such determination here because the complaint was filed before any expulsion could actually if you could focus on the timing here i was struck by the race to the courthouse flavor of your arguments in that my understanding is you found your complaint seeking subject to the mandatory r but you know you know your honor we have we have an independent argument that regardless of the timing here not only if we had filed suit not only after the expulsion but even after they had made the withdrawal determination which income until a month after that even if all of those things that happened and then we filed suit there's still the question of whether and if we limited the complaint simply to the embassy in a legal issue of do they have authority to expel separate and apart from question in agreement that is exactly right your honor and the timing only makes it more stark because it shows that it really is an antecedent question because all of this happened before the expulsion let alone the later determination a withdrawal i think the key do you agree do you greedo that the authority to expel also might derive from the collective bargaining agreement and not just the statute yes your honor it could arise from the trust agreement and if you read our complaint as a that the grab a minute the complaint is there is no authority to expel whether you look at arista whether you look at fiduciary obligation whether you look at the trust agreement the collective bargaining agreement there is nothing in so it's just a legal question do they have any authority to expel and i think the key point here is that is a distinct question from whether there's actually been a complete withdrawal under section thirteen eighty three would an arbitrator experienced in the recent matters have any expertise to bring to bear on understanding how a recess operates what the c p a provided you know under there may be there may be some expertise in that situation but i think where the arbitrator's wall would come in is if this court were to decide that the actually is authority enough to see that legal authority to expel and then the question would arise ok does that expulsion assuming it were valid actually result in a complete withdrawal and that's when you're in sort of the  of the arbitrator so to speak but first there is that have to see that question of whether you have the authority to expel him just to be concrete you could have a scenario where it's not hard to imagine a scenario where you have an expulsion but no subsequent finding of withdrawal liability and in those scenarios if the if the district court is right and the other side is right that you have to wait for a withdrawal liability determination to arbitrate there would be no recourse there'd be no method for an employer to get review it let me just be concrete about it you can imagine a fully funded plan right such that if the employer were expelled by the fine there would be no withdrawal liability because withdrawal liability only applies to underfunded plans but the employee that employer still hurt because they essentially can't accrue pension under the plan because they've been expelled if the district court is right and the other side is right they would have no recourse because their only recourse is an arbitration arbitration can't happen until you actually have a withdraw determination but none would happen in this circumstance and there are other circumstances mad youth richard acceptable the district court decided to exercise discretion to send the dispute to arbitration what what's our standard review to to review that determination your honor i think i think that would be an abuse of discretion review but that's not the do i do think it would be a basis to reverse your honor because in fact this is the type of issue that a court should decide but before you get there the question is whether it falls within the narrow terms of the statute is this a dispute concerning a withdrawal liability determination where one as to the timing point no determination is made expulsion or withdraw liability but two to the larger point forgetting about timing is this the type of issue that actually is a determination made under thirteen eighty three and that your honor the answer is no for all the reasons that i said you could have expulsion determinations and no problem understanding how you could bring a declaratory judgment action  or a determination under thirteen eighty three and then turn around and say well this is not a determination of the thirteen eighty three for purposes of requiring more patrician right your honor so we don't mean to be bringing that clar tory judgement action under thirteen eighty three i think that the key point of the complaint is there is no statutory authority or authority under any source trust agreement or statute and then in our complaint paragraph by paragraph we go through all the potential sources of authority whether it's the trust agreement various a recent provisions including thirteen eighty three thirteen ninety two and eleven zero four which is not numerator provision fiduciary breach obligations and our point in doing that was to say none of these provide statutory authority not to say that or just clarify the judgment action arises under thirty three it's actually quite to the contrary the following paragraph which actually asked the the relief that we're seeking is a declaratory judgment to say that there is no right to reject payments from an employer that's all we're seeking not a declaratory judgment that there is no complete withdrawal under thirteen eighty three but we mentioned thirteen eighty three basis then for explains the timing of this your honor your asking about the race to the court does this wasn't sort of a race of the court as they were ongoing negotiations between these parties they had made the threat as it's alleged in the complaint that if you don't accept these circumstances we're going to expel you during those negotiations in order to help the negotiations we filed the declaratory judgment action we had no idea when they would actually then expel turned out them you know but well not formally but they knew about it there w ongoing they were given e mail the complaint and they certainly knew about it all along so it wasn't like this was a secret complaint or anything like that it just wasn't served under the rules and i think part of the reason just to give you practical color there were ongoing national retirement fund i do want to focus first on the timing issue there were a lot of discussions who are an attempt which i think is more accurate a lot of discussions between the national retirement fund with respect to the examiner and the bankruptcy court actually found to be accurate that there were billions of dollars being removed from certain caesar's entities to other caesar's energies and there  was a complaint filed and yes this was the absolute race to the courthouse it was a shot across the bow of the national retirement fund it was an attempt to undermine the carefully prescribed statutory procedure for dealing with withdrawal liability it is a red herring to say that there was some attempt here to protect participants in fact there was a is there a fundamental problem with the situation in which there seems to be a very heavy penalty on people who wi draw for reasons which make sense but you don't want people to pull out and leave the thing in deficit and say you have a right to cause of that person to withdraw by forcing them out now that seems to be a very different issue than the issue of what happens if somebody who withdraws that issue of what happens when somebody with group is clearly arbiter of will under the statute this other question of whether somebody can cause a view of a one to withdraw and create this is a tough issue but to say that that is an issue for arbitration because of the other one is is making some kind of a leap maybe it is but they're very different questions are not new no i don't believe they were and  you start with the obviously the starting place which is the statute and that's the fourteenth twenty one a one hundred fourteen or when in the court speak or any dispute between an my problem is that if you look to what is going on and whether v issue is harmful same then i think they're very different if you look to for statute as you are doing and we don't believe the statute does provide for your honor because the the fact of the matter is if you commit a race to the courthouse what you will have coming up is the ability of employers to completely undermine these sections which were carefully put in place by congress to ensure that an arbitrator who is schooled in labor relations and a parade of horribles and i'd like to low wherever in a situation like this where it is a fund that is trying to force what we' but in a situation where somebody with draws but you would have this possibility of no determination be made and the person going to court what would they be looking for a declaratory judgment in in a situation where they had with drawn given that as who among his judge cuttle said earlier there are other provisions of the statute desiring to put off the the statutory scheme here turns around and says we have issues with respect to authority so was the meeting properly called that  assessment was determined by the fund was there a core who was of the vote counted properly and that sounds like a funny question but again in most of these plans there is what's considered to be block voting as opposed to other voting and that is the union trustees vote as one bloc encounters one vote one vote and the employer trustees count as a vote as another block and that's counted as one block and there are many trust to be immense that say certain issues a block warning and certain issues a majority voting so i could very easily see and i do think it is a real a real real possibility i actually don't think it's a real possibility i think it's a probability that we will see and you will see his argument that arbitration doesn't apply less some decision is made because if it is some that there is they may were draw and they would have the ability to go to court before any any actual determination is made because the the way the process works  generally and i'm not talking about the expulsion process but the way the process works generally is that employers and the fund have a discussion about what has occurred for the fun to determine whether in fact there has been role and whether it's appropriate to assess which role during that discussion it would be very easy or honor for an employer to turn around and undermine the entire process boy saying by running to the court now i'd like to address why doesn't that just the general legal question about whether the statute allows trustees to force withdrawal both as a matter statute as well as the c p at the same do you agree that in answering this question that if that were the grounds for a decision that would not open up the parade of horribles but that would deal with a specific narrow issue the the there will be interpretation of the authority of the plan and what the barriers court said the second circuit decision is it doesn't matter if it's a factual question if it's a contract question which would be because we're looking at the the trust agreement then it's an issue of the presidential decision of this court is that it goes through the arbitration s decisions that i mentioned no unresolved questions of fact or issues of contract interpretation the court review is judiciously economical well here's the problem here the court review in this situation is not going to be judiciously economical what's going to happen here and you can see it by their complaint you look at their complaint and there they are complaining about the interest rate that was used which they claim inflated the arbitration they're complaining that the the that here is going to come back to this court for review of that arbitrator's decisions and my view strongly held is that that this court should let the statutory scheme work have it go to arbitration and you'll see it again respect to the statutory scheme under fourteen zero one help me to understand when you can actually go to arbitration because the way in which it's worded it appears to have arbitration proceed only after there is been a determination of withdrawal liability so there has to be a determination of a specific amount of withdrawal liability before the parties have the power to go to arbitration is that right i have never seen a case where someone has challenge  the determination that there has been a withdrawal without first seeing there were draw liability but i do believe because it's a determination under the statute that in fact some employer could challenge that determination because it's a it's a again i call forty two or three but it is it is a determination under that section which is subject to arbitration some someone could challenge it but the written but that's not going to happen and the reason it's not going to happen i didn't really get an answer to judge curdles question if it says under fourteen no one that you can go to arbitration until a determination of something is made then how can you say that these people didn't meet it contained condition didn't exhaust when they couldn't have exhausted the the fact is they were they prematurely ran to the court house and that the case is that the issue is not ripe for this court it's that look if they it's not a question that's different from being arbitrated the question about being or betrayed is it talks about concerning a terminations and the authority to make that decision in extracurricular is trying to say an issue concerning  determination you think that a legislative history of these amendments suggests congress wish to commit the whole matter of with drawled liability and the terms of withdrawal to the arbitron for absolutely and in fact when you look at the various provisions in the statute and i won't go through them because we're very very no proof but when you look at the provisions in the statute it's not only about the determination of the monetary now  for any reference in village a slate of history to forcing somebody out i'm not aware of one but i will say this there are six courts five in some of the cases your honor that the issue didn't involve withdrawal liability and therefore that it would draw liability sections in the statute didn't apply in in one case and this is the born trigger case where there where the court found that it could in fact the district court found that it could in fact the employer could in fact come to a court the point trager case the court actually later found that expulsion  was able to decide this now virtually every event but the differences are all the difference because those differences occurred in situations in which the courts didn't take away or nor the statutory provisions that said these decisions concerning a determination in certainly the authority to make a determination concerns a determination must be arbitrated those are cases where the determination was not made under sections thirteen eighty one and thirteen ninety nine that's correct and those are cases but some of the cases so for example there is another companion case to this case in which certain trustees of the fund who were outvoted by the statutory framework you say the employer has to arbitrate the dispute the employer can't come to court but the time for arbitra still under the statute only runs when there has been an exact determination of the withdrawal liability is that fair that no i believe that they have never seen it i believe that a employer could in fact go to arbitration or put in the process and that process is that the employer appeals to the board and then there's a decision that's not the way the statute work but it is is written right either party may initiate the orbiter ation within a sixty day period after the earlier the date of notification or one hundred twenty days after the date of the employers request all of those are thinks of notification he can't but the notification can be your expels is what i'm saying you say you've never seen determination has not been made whether to somebody even the arbitrators or of a court would say sorry this is there so you're saying you think it could be done but you have no thank you your honor i'd like to make three points on rebuttal and let me start with the last one to call your question the statute tory regime is clear the reason why my colleague on this side it hasn't seen a case the statute doesn't allow it the statute  clear under fourteen zero one a and thirteen ninety nine b two b and this is set forth in our brief at pages six and seven and seventeen through twenty and there is no dispute about this in the breeze the trigger for the arbitration under the statute is the notification from the employer that notification has to have various components one of those components is the amount of withdraw liability determination and so the statue really doesn't read that way either because it's either party other related disputes right i know of no other way to get arbitration under rissa other than through this regime this is the exclusive regime for arbitration provided by the statute there is no other discretionary arb regime with the notion that determination made concerning a terminations made if you require bid and terminations be made then clearly fit within your your honor well here's why we don't think there is be a parade of horribles the vast majority of cases on arbitration this is one of the very rare case where you have a fun trying to expel an employee that's actually making payments this is sort of the blue moon case or half a dozen all of but one of which have actually allowed a court to decide the expulsion issue but the vast majority of these expulsion cases are about the amount about the timing about the employer's conduct if that but if your argument his determination made and you can't go into arbitration until a determination is made why couldn't somebody if we this case the harm necessary for declaratory judgment is viewed here because expulsion is via harm that's exactly right it's very easy to draw a line if you're actually trying to challenge the amount or the timing of the withdrawal liability determination it wouldn't make sense for you to come and seek a declaratory judgment before they've actually calculated the amount or the timing of the withdrawal liability germination and if if an employer trying to make sense of a object of it is to get  but but if an employer try that and we know of no case that that's ever been tried but if an employer tried to do that a court could easily dismiss it a district court would dismiss it because it's not yet ripe but this case was not dismissed on rightness ground and because and here's why it's not just a placeholder complaint which is how the other side characterizes it or russia the court house because even though other things have happened there's actually been an expulsion bid a complete withdrawal been a calculation amount all of those things those can not be challenge in the suit if we tried to go back in amend our complaint to try to challenge those other things the actual whether there was actually a complete withdrawal the amount in all of those things then this case would be because the statute limits the arbitration provision to matters concerning the thirteen eighty one the thirteen ninety nine determination when you have this antecedent dispute about whether they can expel or not that is not part of then it got in the briefs i encourage this court to look at the central hardware case out of the eight circuit and there you have it is indistinguishable your honor it's about expulsion authority the court goes through the analysis of whether there was expulsion or not and reviews the agreements that were issue in that case and and it does find ultimately there was authority but the point is that question was decided by a court now the other side says oh that's distinguishable because that wasn't a determination made under thirteen eighty three but that's a legal conclusion the court obviously did not think that if it were a determination of thirteen eighty three it would have been sent to arbitration there was a factual issue in those cases where in one of those cases not know all of them in one of those cases the parties decided ok once the court resolves this expulsion issue depending on how they decided the employer said if we lose on expulsion then we'll go back and make the missing payment so that will wipe out any withdraw liability determination but that doesn't mean that the statute should be interpreted differently based upon the facts of the case look at that case thank you very much thank you both well argued again thank you we'll reserve decision