In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 18-3306 

KENNETH J. BAUWENS, et al., 

Plaintiffs-Appellants, 

v.

REVCON TECHNOLOGY GROUP, INC., et al., 

Defendants-Appellees. 

____________________ 

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division. 

No. 1:18-cv-00707 — Ronald A. Guzmán, Judge. 

____________________ 

ARGUED APRIL 17, 2019 — DECIDED AUGUST 13, 2019 

____________________ 

Before MANION, SYKES, and BRENNAN, Circuit Judges. 

BRENNAN, Circuit Judge. Two companies set up a pension 

plan for their employees, then withdrew from it. This triggered federal requirements that the companies contribute to 

the plan. This withdrawal liability became the subject of a 

dance between the companies and the pension plan’s trustees: 

defaults and lawsuits, followed by partial payments and dismissals of the lawsuits. 
2 No. 18-3306 

The most recent lawsuit was dismissed as time-barred. On 

appeal the trustees ask us to create a federal common law 

mechanism which would allow them to decelerate the withdrawal liability they previously accelerated. This would, in 

turn, preserve the timeliness of their claim. We say “create” 

because the statute makes no mention of such a deceleration 

mechanism. We decline to do so, and agree the plan trustees’ 

claim is time-barred. 

I.

Plaintiffs serve as trustees of a pension plan for unionized 

electrical workers governed by the Employment Retirement 

Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (ERISA). 

Several decades ago, the unions set up the pension plan with 

defendants Revcon Technology Group and S & P Electric, two 

electrical contractors that share common ownership.1 Revcon 

withdrew from the plan completely in 2003; S & P followed a 

year later. The Multiemployer Pension Plan Amendments Act 

of 1980 (MPPAA), 29 U.S.C. § 1381 et seq., requires employers 

who withdraw from underfunded pension plans to pay a 

withdrawal liability, either in installments or a lump sum. In 

2006, the plan’s trustees notified the companies they owed 

$394,788 in withdrawal liability and demanded payment in 

eighty quarterly payments of $3,818, starting in October 2006.

In 2008, after Revcon missed several payments, the trustees informed defendants of their defaults and demanded immediate payment. When Revcon still failed to pay after 60 

 

1 Because Revcon and S & P are considered a single employer under 

ERISA, and are jointly and severally liable for all withdrawal claims, we 

refer to the two companies collectively as “Revcon” unless otherwise indicated. 
No. 18-3306 3

days, the trustees accelerated the outstanding liability under 

29 U.S.C. § 1399(c)(5) and filed suit in the Northern District of 

Illinois for the entire amount plus interest, totaling $521,553. 

Before appearing in the case, Revcon offered to cure its defaults and resume making quarterly payments in exchange 

for the trustees’ dismissal of the lawsuit. The trustees agreed 

and voluntarily dismissed the suit under FED. R. CIV. P. 41(a). 

Revcon cured its defaults, made three more payments, 

then defaulted again in April 2009. The trustees again sued 

seeking the defaulted payments and the entire outstanding 

balance, now $492,988. Revcon again promised to cure its defaults and resume making payments, and the trustees again 

voluntarily dismissed the suit under FED. R. CIV. P. 41(a). 

The parties repeated this cycle of default, lawsuit, promise 

to cure, and voluntary dismissal three more times in 2011, 

2013, and 2015. All the complaints were identical, except that 

the total withdrawal liability due changed as interest accrued 

and Revcon made certain payments. And each complaint referred to the debt acceleration in 2008, making no claim the 

acceleration was ever revoked. Finally, in 2018, after yet another default by Revcon, the trustees filed this case. The 2018 

complaint differs from its five predecessors in that, instead of 

claiming the entire outstanding withdrawal liability, it claims 

only the delinquent payments (plus interest) that Revcon had 

missed since the last voluntary dismissal in 2015, $33,239.98. 

Rather than repeat this cycle for a sixth time, Revcon 

moved to dismiss the case. Revcon argued claim preclusion 

applied because the five previous complaints demanded the 

entire withdrawal liability, which necessarily includes the defaulted payments currently at issue. The “two dismissal rule” 

of FED. R. CIV. P. 41(a)(1)(B) therefore barred the trustees from 
4 No. 18-3306 

raising any claims arising from the withdrawal liability.2 By 

the same reasoning, Revcon argued, because the trustees first 

sought to collect the entire debt in 2008, the six-year statute of 

limitations expired in 2014. 

The trustees countered that they revoked the 2008 acceleration of the withdrawal liability when they voluntarily dismissed the 2008 Complaint. The trustees argued each of the 

subsequent dismissals had the same decelerating effect. The 

trustees claimed the two dismissal rule did not apply because 

all parties consented to the previous dismissals by stipulation 

in spirit (though, admittedly, they were dismissals by notice 

in form). 

The district court agreed with Revcon that this case was 

untimely filed. It noted that the trustees’ 2009, 2011, 2013, and 

2015 complaints all stated the withdrawal liability was accelerated in 2008, which belied the trustees’ argument that acceleration had been revoked. Holding the trustees to their earlier 

pleadings, the district court dismissed the case. 

II. 

The arguments on appeal are the same as in the district 

court. We review de novo an order dismissing a case based 

on the statute of limitations. Orgone Capital III, LLC v. 

Daubenspeck, 912 F.3d 1039, 1043 (7th Cir. 2019). 

 

2 Rule 41(a)(1)(B) states in relevant part: “But if the plaintiff previously 

dismissed any federal- or state-court action based on or including the 

same claim, a notice of dismissal operates as an adjudication on the merits.” 
No. 18-3306 5

Both of the trustees’ arguments hinge on whether they 

possessed the ability to revoke the acceleration of, or “decelerate,”3 Revcon’s withdrawal liability. We first address 

whether pension plans and employers can decelerate accelerated withdrawal liability under the MPPAA. We then resolve 

the trustees’ statute of limitations and res judicata arguments. 

The MPPAA expressly permits pension plans to accelerate 

the entire outstanding withdrawal liability if an employer 

defaults on an installment payment. Plan trustees send the 

employer a written notification of default and wait 60 days, 

during which the employer may cure the default. 29 U.S.C. 

§ 1399(c)(5). If the default is not cured, the plan may call the 

entire amount due. Id. 

But what if the parties agree they want to return to the installment payment plan? Can they decelerate the previously 

accelerated debt? The MPPAA is silent on this question. 

Revcon argues this silence means accelerated withdrawal liabilities cannot be decelerated under the MPPAA. The trustees 

construe the MPPAA’s silence as a “gap” this court should fill 

by creating a deceleration mechanism. 

We usually balk at any request to invent statutory mechanisms wholesale with no textual anchor, even where doing so 

would seem to make the statute fairer. See Anderson v. Wilson, 

289 U.S. 20, 27 (1933) (Cardozo, J.) (“We do not pause to consider whether a statute differently conceived and framed 

would yield results more consonant with fairness and reason. 

We take the statute as we find it.”). 

 

3 Throughout this litigation, the parties refer to the undoing of the 

acceleration as “revoking acceleration,” but in federal court the phenomenon is commonly referred to as “deceleration,” so we use that term. 
6 No. 18-3306 

But as the trustees note, this is an ERISA case. (The 

MPPAA amended ERISA). The Supreme Court has instructed 

federal courts “to develop a ‘federal common law of rights 

and obligations under ERISA-regulated plans.’” Firestone Tire 

& Rubber Co. v. Bruch, 489 U.S. 101, 110 (1989) (quoting Pilot 

Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56 (1987)). Even so, this 

does not mean federal courts may rewrite ERISA wholesale. 

“[B]ecause ERISA is a highly technical statute[,] our part is to 

apply it as precisely as we can, rather than to make adjustments according to a sense of equities in a particular case.” 

Johnson v. Georgia-Pacific Corp., 19 F.3d 1184, 1190 (7th Cir. 

1994). 

Courts vary in their willingness to create ERISA common 

law doctrines. Some circuits create them regularly and have 

articulated tests for when a common law right or remedy 

should be created. See, e.g., Salyers v. Metro. Life Ins. Co., 871 

F.3d 934, 939–40 (9th Cir. 2017) (adopting principles of agency 

law); Bloemker v. Laborers’ Local 265 Pension Fund, 605 F.3d 436, 

440–42 (6th Cir. 2016) (recognizing a federal common law 

claim for equitable estoppel); Singer v. Black & Decker Corp., 

964 F.2d 1449, 1452–53 (4th Cir. 1992) (approving of the adoption of state common-law causes of action under ERISA, even 

when they were preempted by ERISA). 

Our circuit has consistently refused to create federal common law remedies or implied causes of action under ERISA. 

See, e.g., Kolbe & Kolbe Health & Welfare Benefit Plan v. Med. Coll. 

of Wis., Inc., 657 F.3d 496, 503–04 (7th Cir. 2011) (implying in 

dicta that there is no federal common law remedy for unjust 

enrichment under ERISA); Buckley Dement, Inc. v. Travelers 

Plan Adm’r of Ill., Inc., 39 F.3d 784, 790 (7th Cir. 1994) (refusing 

to create a claim against a nonfiduciary); UIU Severance Pay 
No. 18-3306 7

Tr. Fund v. Local Union 18-U, 998 F.2d 509, 512 (7th Cir. 1993) 

(“We have been ... extremely reluctant to find that ERISA creates certain causes of action by implication ... .”); Pappas v. 

Buck Consultants, Inc., 923 F.2d 531, 541 (7th Cir. 1991) (refusing to create federal common law when plaintiff’s argument 

“concerned the distinct question of whether ERISA creates a 

remedy against parties ... for violations of these ‘rights and 

obligations’”). 

Our research uncovers only a few examples where this 

circuit has created ERISA federal common law. One concerned equitable estoppel. See Trustmark Life Ins. Co. v. Univ. 

of Chicago Hosp., 207 F.3d 876, 882–84 (7th Cir. 2000). Our rationale was simple: “estoppel principles generally apply to all 

legal actions.” Black v. TIC Inv. Corp., 900 F.2d 112, 115 (7th 

Cir. 1990) (emphasis added). Even so, we apply equitable estoppel principles narrowly. Buckley Dement, 39 F.3d at 790. A 

second example, the right of a spouse to waive rights to 

ERISA insurance benefits in a divorce settlement, was eventually abrogated by the Supreme Court. See Fox Valley & 

Vicinity Const. Workers Pension Fund v. Brown, 897 F.2d 275 (7th 

Cir. 1990) (en banc), abrogated by Kennedy v. Plan Adm’r for 

DuPont Sav. and Inv. Plan, 555 U.S. 285 (2009). See also Metropolitan Life Ins. Co. v. Johnson, 297 F.3d 558, 566-67 (7th Cir. 

2002) (creating common law rule of substantial compliance 

for change-of-beneficiary forms for ERISA-governed life insurance plans). 

Against that backdrop, we return to deceleration. The 

Supreme Court instructs that withdrawal liability under the 

MPPAA is subject to “general principles governing installment obligations.” Bay Area Laundry & Dry Cleaning Pension 

Tr. Fund v. Ferbar Corp. of Cal., Inc., 522 U.S. 192, 195 (1997). 
8 No. 18-3306 

The trustees insist that deceleration is one such general principle: that much like equitable estoppel, deceleration is always available when debt is accelerated. As such, they argue, 

we should adopt a federal common law mechanism to decelerate withdrawal liability under the MPPAA. 

It is true that the most common forms of accelerated 

debt—foreclosed mortgages and bankruptcy debt—can be 

decelerated under certain circumstances. Yet the trustees omit 

a key detail: such debts can be decelerated only when a contract or statute expressly authorizes deceleration. Mortgages 

typically include such a clause, permitting the parties to decelerate home debt following foreclosure if certain contractual 

requirements are met. See, e.g., Bartram v. U.S. Bank Nat. Ass’n, 

211 So.3d 1009, 1013–14 (Fla. 2016) (discussing the mortgagor’s right to decelerate under the “Right to Reinstate After 

Acceleration” in his mortgage note). Likewise, the Bankruptcy Code makes a point to expressly authorize deceleration in particular scenarios. See 11 U.S.C. § 1322(b); see also

Anderson v. Hancock, 820 F.3d 670, 673–76 (4th Cir. 2016) (determining whether a loan accelerated in bankruptcy could be 

decelerated based on the text of § 1322(b)). Absent some contractual or statutory foundation, there is no free-floating “general principle of contract law” that allows any accelerated 

debt to be decelerated. The trustees’ characterization of deceleration as a “general principle[] governing installment obligations” is without foundation.

Even were we inclined to create an MPPAA deceleration 

mechanism, we could not define its contours. With no textual 

anchor, nothing would guide courts in deciding when a 

deceleration had occurred. The trustees point us to a 
No. 18-3306 9

hodgepodge of foreclosure cases, claiming we can discern requirements for a deceleration test from among them. Those 

authorities are little help: nearly every state’s law applies different requirements and different presumptions for deceleration. 

There is a reason for this confusion: deceleration of foreclosed mortgages is a matter of contract interpretation, colored by principles of property law. Each mortgage note can 

have different requirements for deceleration, and every state 

has its own mortgage laws. None of them are relevant to the 

MPPAA. Cf. Fox Valley, 897 F.2d at 284 (Ripple, J., dissenting) 

(“The ultimate objective [of ERISA] is not to fulfill policy objectives of state law but to fulfill the congressional command 

embodied in the language and structure of the federal statute.”). 

Finally, if Congress had wanted to include a right to decelerate in the MPPAA, it could have done so. The concept of 

deceleration is not novel to Congress. Just two years before 

Congress passed the MPPAA, it enacted the original Bankruptcy Code, which included a provision detailing the right 

to decelerate debt. See An Act to establish a uniform Law on 

the Subject of Bankruptcies, Pub. L. No. 95-598, § 1322(b), 92 

Stat. 2549, 2648 (1978). If Congress wants to amend the 

MPPAA to add a deceleration mechanism, it is free to do so. 

But here Congress did not, Congress has not, and we will not 

step in where Congress has chosen not to act. 

There is no “general principle” that any accelerated debt 

can be decelerated. Nor is there a statute authorizing deceleration of accelerated withdrawal liability under the MPPAA. 

So the trustees cannot decelerate Revcon’s withdrawal liability. 
10 No. 18-3306 

III. 

Without deceleration, the trustees’ claim is time-barred. 

The MPPAA mandates that claims for unpaid withdrawal liability “may not be brought after the later of (1) 6 years after 

the date on which the cause of action arose, or (2) 3 years after 

the earliest date on which the plaintiff acquired or should 

have acquired actual knowledge of the existence of such cause 

of action ... .” 29 U.S.C. § 1451(f). If the withdrawn employer 

is on an installment plan, no cause of action arises until the 

employer defaults on an installment. Bay Area Laundry, 522 

U.S. at 202. As the plan has no right to sue to collect installment payments before they are due, a new cause of action 

arises each time the employer defaults on another installment, 

and with each default a new statute of limitations clock begins 

to toll. Id. at 206–10. 

If the plan accelerates the withdrawal liability, however, 

the statute of limitations for the entire liability begins to run 

on the date of acceleration, as at that time the plan has the 

right to sue for the entire accelerated amount. Id. at 209 n.5; 

Central States, Se. and Sw. Areas Pension Fund v. Basic Am. 

Indus., Inc., 252 F.3d 911, 918 (7th Cir. 2001) (“The Supreme 

Court made clear in Bay Area that the statutory requirement 

does not prevent the fund from accelerating all future payments upon default, ... thus making all the installments due 

at once.”) (citation omitted). 

The trustees do not dispute that they accelerated the withdrawal liability in 2008. Their only argument below and on 

appeal is that they decelerated the debt, so the statute of limitations clock did not begin to run until later defaults. We 

have already rejected that argument. The trustees’ complaint 

results in the statute of limitations beginning to run in 2008, 
No. 18-3306 11

when the withdrawal liability was accelerated. Both parties 

agree that the six-year statute of limitations applies. Thus, the 

trustees’ claim for the accelerated debt expired in 2014. Because Revcon’s statute of limitations defense was established 

on the face of the trustees’ complaint, the district court 

properly dismissed the complaint. See Orgone Capital, 912 F.3d 

at 1043–44. 

Other avenues of redress may be open for the trustees. 

Each time they filed a claim against Revcon, Revcon agreed in 

writing to pay them in exchange for dismissing the suit. These 

negotiations appear to have given rise to a series of successive 

settlement agreements. But such issues are not before us, as 

the trustees did not plead breach of contract. Such a claim 

may still be available in state court. Their ERISA claim, however, is time-barred. 

IV. 

The trustees’ ERISA claim expired five years ago. Any further claims for relief must be sought under a different theory 

in a court of proper jurisdiction. For these reasons we AFFIRM

the district court’s judgment.