1 

14-3349-bk 

FELRA v. The Great Atl. & Pac. Tea Co. 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED 

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE 

NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY 

OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 

2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 

2nd 3 day of July, two thousand fifteen. 

4 

5 PRESENT: GUIDO CALABRESI, 

6 DEBRA ANN LIVINGSTON, 

7 Circuit Judges, 

WILLIAM K. SESSIONS III,1 8 

9 District Judge. 

10 ____________________________________________________ 

11 

12 FOOD EMPLOYERS LABOR RELATIONS ASSOCIATION AND UNITED

13 FOOD AND COMMERCIAL WORKERS PENSION FUND, 

14 

15 Appellant, 

16 

17 v. No. 14-3349-bk 

18 

19 THE GREAT ATLANTIC & PACIFIC TEA COMPANY, 

20 

21 Appellee,

22 

23 ____________________________________________________ 

24 

25 

26 

27 

28 

 

1

 The Honorable William K. Sessions III, of the Unites States District Court for the District of 

Vermont, sitting by designation. 
2 

1 FOR APPELLANT: JEFFREY S. SWYERS, Barry S. Slevin, Christopher M. Leins, 

2 Slevin & Hart, P.C., Washington, DC. 

3 

4 FOR APPELLEE: MICHAEL B. SLADE, John S. Moran, Paul M. Basta, 

5 Kirkland & Ellis LLP, Chicago, IL. 

6 

7 Appeal from the United States District Court for the Southern District of New York 

8 (Román, J.). UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

9 ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED. 

10 * * * 

11 Appellant Food Employers Labor Relations Association and United Food and 

12 Commercial Workers Pension Fund (“FELRA”) sought administrative expense treatment under 

13 11 U.S.C. § 503(b)(1)(A) for a portion of its claim against the bankruptcy estate of Appellee 

14 Great Atlantic & Pacific Tea Company (“A&P”) arising out of A&P’s withdrawal from 

15 participation in the FELRA pension plan. An employer that withdraws from a multiemployer 

16 employee benefit plan incurs “withdrawal liability” to the plan under 29 U.S.C. § 1381(a), meant 

17 to cover that employer’s share of the plan members’ vested but unfunded benefits. See Trustees 

18 of the Amalgamated Ins. Fund v. McFarlin’s, Inc., 789 F.2d 98, 99 (2d Cir. 1986). The Bankruptcy 

19 Court (Drain, J.) denied FELRA’s motion for allowance of an administrative expense claim, and 

20 the district court affirmed. “On an appeal from the district court’s affirmance of a bankruptcy 

21 court’s order, we review the decision of the bankruptcy court independently, assessing its 

22 conclusions of law de novo and its factual findings for clear error.” In re Dana Corp., 574 F.3d 

23 129, 144-45 (2d Cir. 2009). As this appeal involves only questions of law, our review is de novo. 

24 See In re Bethlehem Steel Corp., 479 F.3d 167, 172 (2d Cir. 2007) (“The bankruptcy court’s 

25 determination in this case that the payment at issue does not constitute an administrative expense 

26 is a conclusion of law.”). We assume the parties’ familiarity with the underlying facts, the 

27 procedural history, and the issues presented for review. 
3 

1 Section 503(b) of the Bankruptcy Code provides that, “[a]fter notice and a hearing, there 

2 shall be allowed administrative expenses, . . . including . . . the actual, necessary costs and 

3 expenses of preserving the estate including . . . wages, salaries, and commissions for services 

4 rendered after the commencement of the case.” Under this Court’s case law, “an expense is 

5 administrative only if it arises out of a transaction between the creditor and the . . . debtor in 

6 possession, and only to the extent that the consideration supporting the claimant’s right to 

7 payment was both supplied to and beneficial to the debtor-in-possession in the operation of the 

8 business.” McFarlin’s, 789 F.2d at 101 (citations and internal quotation marks omitted). A 

9 creditor seeking administrative expense treatment has the burden of proving its entitlement to 

10 that status. In re Bethlehem Steel, 479 F.3d at 172. 

11 FELRA recognizes that, under our decision in McFarlin’s, it is not entitled to 

12 administrative expense priority for its entire withdrawal liability claim. See 789 F.2d at 103-04. 

13 Instead, FELRA seeks administrative expense treatment for an amount that it claims is the portion 

14 properly attributable to A&P’s post-petition operations, and thus to the post-petition labor of 

15 FELRA’s members. Assuming without deciding that such a claim exists, we nevertheless affirm 

16 the bankruptcy court’s denial of FELRA’s motion for allowance of an administrative expense 

17 claim on the ground that FELRA has failed to meet its burden of proving that its claim is entitled to 

18 administrative expense treatment. 

19 FELRA’s proposed calculation method involves performing the operations necessary to 

20 arrive at A&P’s total withdrawal liability under ERISA’s presumptive method, see 29 U.S.C. 

21 § 1391(b), but stopping once FELRA’s share of the unfunded vested benefits allocated to the year 

22 2011 has been calculated, and basing its claim on that number. Due to the peculiarities of ERISA’s 

23 calculation methodology, that number bears little if any relation to the actual amount of unfunded 

24 benefits that vested in 2011, because ERISA’s presumptive method uses the most recent plan year 
4 

1 as a dumping ground for any unfunded vested benefits that exist as a financial reality, but which 

2 have been discounted out of past years’ amounts. In other words, the amount of unfunded vested 

3 benefits allocated to the year 2011 by the ERISA presumptive method is a fiction, bearing no 

4 relationship to the amount by which the Plan’s unfunded benefits or A&P’s withdrawal liability 

5 actually increased or decreased during the 2011 plan year. 

6 A debt “can only be an administrative expense if the debtor received the consideration for 

7 the obligation after the commencement of bankruptcy proceedings.” In re Bethlehem Steel, 479 

8 F.3d at 172-73. Because FELRA’s proposed post-petition claim amount bears no causal 

9 relationship to the post-petition consideration provided by the covered employees—either in terms 

10 of hours worked or in terms of the employees’ willingness to work at all—FELRA cannot meet its 

11 burden of showing that A&P received the consideration for FELRA’s claim “after the 

12 commencement of bankruptcy proceedings.” Id. at 173. Moreover, as the bankruptcy court pointed 

13 out, “the calculation is loaded in favor of a higher number for the year of withdrawal,” even though 

14 FELRA cannot show that the consideration provided by the covered workers was concomitantly 

15 “loaded in favor of” the year 2011. Sp. App’x at 14. FELRA’s protests that this is the only method 

16 that accords with ERISA are disingenuous—FELRA’s own expert admitted that ERISA had 

17 nothing to say about how a withdrawal liability claim should be partitioned for bankruptcy 

18 purposes—and incorrect, as the ERISA presumptive method is meant to arrive at a total 

19 withdrawal liability number, and the various subtotals that go into that final total serve no 

20 independent purpose in the statute. See generally 29 U.S.C. § 1391. Thus, the bankruptcy court did 

21 not err in holding that FELRA’s proposed administrative expense claim, as calculated, failed to 

22 qualify for administrative expense status. 
5 

1 We have considered all of the remaining arguments raised by Appellant and find them to 

2 be without merit. For the reasons stated above, we AFFIRM the District Court’s August 11, 

3 2014 judgment affirming the July 2, 2013 order of the Bankruptcy Court. 

4 

5 FOR THE COURT: 

6 Catherine O’Hagan Wolfe, Clerk