FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BOARD OF TRUSTEES OF THE

WESTERN STATES OFFICE AND

PROFESSIONAL EMPLOYEES PENSION

FUND,

Plaintiff-Appellant,

v.

WELFARE & PENSION

ADMINISTRATION SERVICE, INC.,

Defendant-Appellee.

No. 20-35545

D.C. No.

3:19-cv-00811-

SB

OPINION

Appeal from the United States District Court

for the District of Oregon

Stacie F. Beckerman, Magistrate Judge, Presiding

Argued and Submitted October 5, 2021

Portland, Oregon

Filed January 31, 2022

Before: William A. Fletcher, Sandra S. Ikuta, and

Daniel A. Bress, Circuit Judges.

Opinion by Judge Ikuta
2 WESTERN STATES OFFICE FUND V. WPAS

SUMMARY*

ERISA

The panel affirmed the district court’s summary judgment

in favor of the defendant in an ERISA action brought by a

multiemployer pension plan, seeking a recalculation of

defendant’s annual withdrawal liability payments following

its withdrawal from the plan.

When an employer withdraws from a multiemployer

pension plan, it is required to pay for its share of unfunded

benefits. That share, called withdrawal liability, may be paid

in annual installments, calculated in part based on the

“highest contribution rate” the employer was required to pay

into the plan during a specified time period. In addition,

when a multiemployer plan is underfunded and in critical

status, the employer must pay a surcharge of five or ten

percent of the total amount of contributions the employer was

required to make to the plan each year.

The panel held that, for purposes of determining an

employer’s annual withdrawal payment, a surcharge paid by

the employer when a plan is in critical status is not included

in the calculation of the “highest contribution rate.”

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
WESTERN STATES OFFICE FUND V. WPAS 3

COUNSEL

Robert B. Miller, Kilmer Voorhees & Laurick PC, Portland,

Oregon, for Plaintiff-Appellant.

Jeremy E. Roller, Arete Law Group PLLC, Seattle,

Washington, for Defendant-Appellee.

OPINION

IKUTA, Circuit Judge:

Under Employee Retirement Income SecurityAct of 1974

(ERISA), 29 U.S.C. § 1001–1461, when an employer

withdraws from a multiemployer pension plan, the employer

is required to pay for its share of unfunded benefits. 

29 U.S.C. § 1381. That share of unfunded benefits is called

“withdrawal liability,” see id., and can be paid in annual

installments, see id. § 1399(c)(1)(A)(i). The calculation of

the employer’s annual withdrawal payments is based in part

on the “highest contribution rate” the employer was required

to pay into the plan during a specified time period. Id.

§ 1399(c)(1)(C)(i)(II). Such a contribution rate is usually

stated as dollars per compensable employee hour. A different

section of ERISA provides that when a multiemployer plan

is underfunded and in critical status, the employer is required

to pay a surcharge of five or ten percent of the total amount

of contributions the employer was required to make to the

plan each year. Id. § 1085(e)(7)(A).

This appeal raises the question whether a surcharge paid

by an employer when a plan is in critical status is included in

the calculation of the “highest contribution rate” for purposes
4 WESTERN STATES OFFICE FUND V. WPAS

of determining the employer’s annual withdrawal payment. 

We hold it is not, and affirm the judgment of the district

court.

I

This case involves an issue of statutory interpretation. An

explanation of the relevant statutory framework is necessary

to understand the parties’ arguments.

In 1974, Congress enacted ERISA to “mak[e] sure that if

a worker has been promised a defined pension benefit upon

retirement—and if he has fulfilled whatever conditions are

required to obtain a vested benefit—he actually will receive

it.” Nachman Corp. v. Pension Ben. Guar. Corp., 446 U.S.

359, 375 (1980). To this end, “ERISA required employers to

make contributions that would produce pension plan assets

sufficient to meet future vested pension liabilities; it

mandated termination insurance to protect workers against a

plan's bankruptcy; and, if a plan became insolvent, it held any

employer who had withdrawn from the plan during the

previous five years liable for a fair share of the plan's

underfunding.” Milwaukee Brewery Workers' Pension Plan

v. Joseph Schlitz Brewing Co., 513 U.S. 414, 416 (1995).

In a multiemployer pension plan (i.e., a plan created

through an agreement among multiple employers and one or

more unions), “[t]he contributions made by employers

participating in such a multiemployer plan are pooled in a

general fund available to pay any benefit obligation of the

plan.” Concrete Pipe & Prods. of Cal., Inc. v. Constr.

Laborers Pension Tr. for S. Cal., 508 U.S. 602, 605 (1993). 

Multiemployer pension plans “provide the participating

employers with such labor market benefits as the opportunity
WESTERN STATES OFFICE FUND V. WPAS 5

to offer a pension program (a significant part of the covered

employees’ compensation package) with cost and risk-sharing

mechanisms advantageous to the employer.” Id. at 606.

Multiemployer pension plans also give rise to distinctive

risks. As ERISA was originally enacted, “the possibility of

liability upon termination of a plan created an incentive for

employers to withdraw from weak multiemployer plans.” Id.

at 608 (citing Connolly v. Pension Benefit Guar. Corp.,

475 U.S. 211, 215 (1986)). When an employer withdrew

from a plan before fully funding the benefits owed to its

employees, the remaining employers were required to absorb

the cost. See Connolly, 475 U.S. at 216 (citation omitted). 

“[T]his scheme encouraged an employer to withdraw from a

financially shaky plan and risk paying its share if the plan

later became insolvent, rather than to remain and (if others

withdrew) risk having to bear alone the entire cost of keeping

the shaky plan afloat.” Milwaukee Brewery, 513 U.S. at

416–17. After one employer withdrew, the remaining

employers had an increased incentive to withdraw as well,

further imperiling the plan in a “vicious downward spiral.” 

Connolly, 475 U.S. at 216 (citation omitted). In light of this

risk, “a plan’s financial troubles could trigger a stampede for

the exit doors, thereby ensuring the plan’s demise.” 

Milwaukee Brewery, 513 U.S. at 417.

In 1980, Congress addressed this problem by amending

ERISA to hold employers withdrawing from a multiemployer

pension plan liable for their share of unfunded benefits. See

Multiemployer Pension Plan Amendments Act (“MPPAA”),

29 U.S.C. §§ 1381–1461. Under the MPPAA, when an

employer withdraws from amultiemployer pension plan, “the

employer is liable to the plan in the amount determined under

[the amendments] to be the withdrawal liability.” 29 U.S.C.
6 WESTERN STATES OFFICE FUND V. WPAS

§ 1381(a). In imposing this liability for the employer’s share

of unfunded benefits, Congress sought “to discourage

withdrawals ex ante and cushion their impact ex post.” Bay

Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar

Corp. of Cal., Inc., 522 U.S. 192, 201 (1997).

An employer’s withdrawal liability is “the allocable

amount of unfunded vested benefits” subject to various

adjustments as determined by a complex formula. 29 U.S.C.

§ 1381(b). An employer can satisfy its withdrawal liability

by either paying a single lump sum or making a series of

annual payments over a specified amortization period. See id.

§ 1399(c)(1)(A)(i).

If the employer chooses to pay on an annual basis, the

amount of each annual payment is determined by a different

formula. The annual withdrawal payment amount is the

product of: (1) the “average annual number of contribution

base units for the period of 3 consecutive plan years [during

the 10 plan years preceding the employer’s withdrawal] in

which the number of contribution base units for which the

employer had an obligation to contribute under the plan is the

highest”; and (2) the “highest contribution rate at which the

employer had an obligation to contribute under the plan

during the 10 plan years” preceding the employer’s

withdrawal. Id. § 1399(c)(1)(C)(i).1 A “contribution base

1

 29 U.S.C. § 1399(c)(1)(C)(i) states:

Except as provided in subparagraph (E), the amount of

each annual payment shall be the product of—

(I) the average annual number of contribution base

units for the period of 3 consecutive plan years,

during the period of 10 consecutive plan years
WESTERN STATES OFFICE FUND V. WPAS 7

unit” is defined as “a unit with respect to which an employer

has an obligation to contribute under a multiemployer plan.” 

Id. § 1301(a)(11). “For example, an employer’s contribution

under a collective bargaining agreement may be based on a

participant’s hours of covered work.”2 When the

amortization period exceeds twenty years, the employer

satisfies its withdrawal liability by making the first twenty

annual payments. See 29 U.S.C. § 1399(c)(1)(B).

After addressing the problem of employer withdrawal by

enacting the MPPAA, Congress subsequently enacted the

Pension Protection Act of 2006 (“PPA”), 29 U.S.C. § 1085,

to tackle the problem of helping “severely underfunded

multiemployer pension plans recover,” Lehman v. Nelson,

862 F.3d 1203, 1207 (9th Cir. 2017). This amendment to

ERISA “requires plan actuaries for multiemployer plans to

annually certify ‘whether or not the plan is or will be in

ending before the plan year in which the

withdrawal occurs, in which the number of

contribution base units for which the employer had

an obligation to contribute under the plan is the

highest, and

(II) the highest contribution rate at which the

employer had an obligation to contribute under the

plan during the 10 plan years ending with the plan

year in which the withdrawal occurs.

For purposes of the preceding sentence, a partial

withdrawal described in section 1385(a)(1) of this title

shall be deemed to occur on the last day of the first year

of the 3-year testing period described in section

1385(b)(1)(B)(i) of this title.

2 Glossary, Pension Benefit Guaranty Corporation (last updated

Sept. 21, 2021), https://www.pbgc.gov/glossary.
8 WESTERN STATES OFFICE FUND V. WPAS

critical status for such plan year or for any of the succeeding

5 plan years’ within ninety days of the start of the plan year.” 

Id. (quoting 29 U.S.C. § 1085(b)(3)(A)(i)). A multiemployer

pension plan is in “critical status” if it is less than 65 percent

funded and meets certain other criteria. 29 U.S.C.

§ 1085(b)(2)(A). When a plan is in critical status, each

employer who is “otherwise obligated to make contributions

for the initial critical year” must pay a surcharge into the

plan, calculated as a percentage of the employer’s

contributions required under a Collective Bargaining

Agreement (“CBA”) or other agreement. Id. § 1085(e)(7)(A). 

During the first year of critical status, the surcharge is five

percent of the amount of contributions the employer is

otherwise obligated to make. Id. For each succeeding critical

year, the surcharge is ten percent of those contributions. Id.

The surcharges “shall be due and payable on the same

schedule as the contributions on which the surcharges are

based.” Id. § 1085(e)(7)(B). The surcharge terminates when

a new CBA is adopted in accordance with a rehabilitation

plan. Id. § 1085(e)(7)(C).

In 2014, Congress made another effort to help critically

underfunded plans. In the Multiemployer Pension Reform

Act of 2014 (MPRA), Pub. L. No. 113-235, 128 Stat. 2130,

2773–882 (2014), Congress again amended ERISA to allow

a multiemployer pension plan to reduce pension benefits if

the plan was projected to run out of money before all

promised benefits are paid. These amendments to the

MPPAA “apply to . . . surcharges the obligation for which

accrue on or after December 31, 2014.” MPRA § 109(c),

128 Stat. at 2792. Because the surcharge in this case accrued

prior to this date, the parties agree that the MPRA does not

apply to this dispute.
WESTERN STATES OFFICE FUND V. WPAS 9

II

In 2007, Welfare & Pension Administration Service, Inc.

(WPAS) entered into a CBA with Office and Professional

Employees International Union Local No. 8, AFL-CIO (the

Union) from January 1, 2007 to December 31, 2016. The

CBA required WPAS to contribute to a multiemployer

pension plan administered by the Board of Trustees of the

Western States Office and Professional Employees Pension

Fund (the Fund). In Article 12 of the CBA, WPAS agreed to

be bound by the terms of the multiemployer pension plan and

to “contribute on behalf of each regular full-time and each

regular part-time employee covered by this Agreement, not

to exceed thirty-seven and one half (37 1/2) hours in any one

week.” The article then sets out the following contribution

rates:

Section 12.1(a) Effective April 1, 2007, the

Employer pension contribution rate will

increase to $2.50 per compensable hour . . .

Section 12.1(d) Effective April 1, 2010, the

Employer pension contribution rate will

increase to $2.95 per compensable hour . . .

For the purpose of this Article, a compensable

hour shall be defined as any time for which an

employee has received compensation,

including vacation, holidays, sick leave, jury

duty, etc.

In 2009, the multiemployer pension plan administered by

the Fund was determined to be in critical status, as defined in

29 U.S.C. § 1085(b)(2). This determination triggered the
10 WESTERN STATES OFFICE FUND V. WPAS

automatic employer surcharge, meaning that each employer

had an obligation to pay a surcharge of five or ten percent of

the contributions the employer was required to make under

the CBA. 29 U.S.C. § 1085(e)(7)(A). WPAS paid a 5

percent surcharge in 2009, and then a 10 percent surcharge

each year thereafter, in addition to the contributions required

by the CBA.

In 2016, WPAS withdrew from the multiemployer

pension plan. Under § 1381, this made WPAS liable to the

plan for the amount of withdrawal liability calculated under

§ 1391. Using the statutory formula, the Fund calculated

WPAS’s total withdrawal liability as $24,436,947.

As permitted under § 1399, WPAS elected to satisfy its

withdrawal liability through annual withdrawal payments

rather than in a lump sum. WPAS’s decision required the

Fund to calculate the amount of the annual withdrawal

payments using the formula in § 1399(c)(1)(C)(i), which

required the calculation of two numbers.3 The Fund first had

to calculate WPAS’s highest “average annual number of

contribution base units for the period of 3 consecutive plan

years.” Id. § 1399(c)(1)(C)(i)(I). Under WPAS’s CBA, the

“contribution base units” were the compensable hours of

employees, because WPAS’s contribution rate in the CBA

was based on a specified dollar amount per compensable

hour. The Fund determined that the relevant number of

contribution base units was 296,213 annual compensable

employee hours.

Second, the Fund had to calculate the “highest

contribution rate at which the employer had an obligation to

3

See supra at 6 n.1.
WESTERN STATES OFFICE FUND V. WPAS 11

contribute under the plan during the 10 plan years” preceding

WPAS’s withdrawal. Id. § 1339(c)(1)(C)(i)(II). Although

the highest contribution rate stated in Section 12.1 of the

CBA was $2.95 per compensable hour (beginning April 1,

2010), the Fund determined that the relevant contribution rate

was $3.245 per compensable hour. The Fund arrived at this

number by taking ten percent of $2.95 ($.295) and adding it

to $2.95. The Fund justified this approach on the ground that

in 2010, WPAS was required under § 1085(e)(7) to pay a ten

percent surcharge of its total contributions to the plan,

because the plan was in critical status, see 29 U.S.C.

§ 1085(e)(7)(A). According to the Fund, paying a surcharge

of ten percent of contributions is equivalent to paying a ten

percent higher contribution rate. Therefore, the Fund

reasoned, the contribution rate of $2.95 per compensable hour

was actually $2.95 plus ten percent, or $3.245 per

compensable hour. The Fund contends that under this

formulation, $3.245 per compensable hour is the “highest

contribution rate” that WPAS paid under the plan for

purposes of calculating the annual withdrawal payment.

Multiplying $3.245 by 296,213 compensable hours, the Fund

concluded that WPAS’s annual withdrawal payment was

$961,211.

WPAS does not dispute that the number of contribution

base units is 296,213 compensable hours. However, WPAS

contends that its “highest contribution rate” was $2.95 per

compensable hour, as stated in the CBA, and that the Fund

erred in characterizing the surcharge imposed on WPAS

under § 1085(e)(7) (because the plan was in critical status) as

part of the contribution rate. If the Fund had calculated

WPAS’s annual withdrawal payment using $2.95 per

compensable hour, WPAS argues, its annual withdrawal

payment would be $873,828.
12 WESTERN STATES OFFICE FUND V. WPAS

WPAS challenged the Fund’s assessment by initiating an

arbitration proceeding on July 10, 2018. The arbitrator found

in favor of WPAS and issued a partial final award ordering

the Fund to recalculate WPAS’s annual withdrawal payment

using a highest contribution rate of $2.95.

On May 24, 2019, the Fund filed a complaint to vacate

the arbitrator’s award in district court. The district court

granted WPAS’s motion for summary judgment, affirming

the arbitrator’s finding that WPAS’s “highest contribution

rate” was $2.95.4

 The Fund timely appealed.

III

We must decide whether the term “highest contribution

rate,” as used in the formula for calculating an employer’s

annual withdrawal payments, see 29 U.S.C.

§ 1399(c)(1)(C)(i)(II), includes the percent of the surcharge

imposed on an employer when a multiemployer plan is in

critical status, see id. § 1085.

4 While courts’ review of arbitration awards is typically governed by

the Federal Arbitration Act, that act is not applicable here. ERISA

mandates arbitration for disputes regarding the calculation of an

employer’s annual withdrawal payment, see 29 U.S.C. § 1401(a)(1), and

authorizes federal courts to review the arbitrator’s decision and “enforce,

vacate, or modify the arbitrator’s award,” id. § 1401(b)(2). This language

includes “the authority to decide de novo all issues of law . . .” Bd. of Trs.

of W. Conf. of Teamsters Pension Tr. Fund v. Thompson Bldg. Materials,

Inc., 749 F.2d 1396, 1406 (9th Cir. 1984). Because the underlying

arbitration here was mandated by ERISA, its standards—and not those of

the FAA—govern our review.
WESTERN STATES OFFICE FUND V. WPAS 13

A

We start with the text of the statute, which provides a

formula for determining an employer’s annual withdrawal

payment that includes “the highest contribution rate at which

the employer had an obligation to contribute under the plan

during the 10 plan years ending with the plan year in which

the withdrawal occurs.” Id. § 1399(c)(1)(C)(i)(II). Because

the term “contribution rate” is not defined in the statute, we

interpret these words according to “their ordinary,

contemporary, common meaning.” Transwestern Pipeline

Co., LLC v. 17.19 Acres of Prop. Located in Maricopa Cnty.,

627 F.3d 1268, 1270 (9th Cir. 2010) (internal quotation marks

omitted). The relevant dictionary definition of “rate” around

the time § 1399 was enacted was “the amount, degree, etc. of

anything in relation to units of something else.” Webster’s

New World Dictionary, Third College Edition (1986). A

specified dollar amount per compensable hour is a “rate”

because it meets this definition. We consider these words

“with a view to their place in the overall statutory scheme,”

Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 953 (9th

Cir. 2009) (internal quotation marks omitted). In this case,

the statute indicates that the definition of “contribution rate”

is the rate imposed on the employer “under the plan.” 

29 U.S.C. § 1399(c)(1)(C)(i)(II). ERISA defines “plan” in

relevant part as “an employee pension benefit plan.” Id.

§ 1002(3). Article 12 of the CBA requires WPAS to

contribute pursuant to the multiemployer plan, and describes

the employer’s “contribution rate” as dollar amount per

compensable employee hour. Therefore, the most

straightforward reading of § 1399(c)(1) is that the “highest

contribution rate” is the highest dollar amount per

compensable hour specified in the pension plan.
14 WESTERN STATES OFFICE FUND V. WPAS

By contrast, the section for calculating the employer’s

surcharge, § 1085(e)(7)(A), refers to a “surcharge” that is a

specified percentage of the contributions required by a plan. 

See 29 U.S.C. § 1085(e)(7) (“Each employer otherwise

obligated to make contributions for the initial critical year

shall be obligated to pay to the plan for such year a surcharge

equal to 5 percent of the contributions otherwise required

under the applicable collective bargaining agreement (or

other agreement pursuant to which the employer

contributes).”). The surcharge does not increase “the amount,

degree, etc. of anything in relation to units of something

else,” and therefore does not constitute a rate or part of a rate. 

Instead, the surcharge required by § 1085 is imposed after the

total amount of contributions has been determined (i.e., after

the dollar amount in the contribution rate has been multiplied

by the total number of compensable hours). Rather than

increasing the rate (the dollar amount per each hour) by ten

percent, the surcharge requires a payment of ten percent of

the total amount of contributions. See id.

Therefore, the surcharge automatically imposed on an

employer when a plan is in critical status, see id., does not

increase the applicable contribution rate, which in this case is

the dollar amount per compensable hours. In short, we join

the well-reasoned opinion by the Third Circuit in concluding

that the surcharge is not the “highest contribution rate”

because it is not a “contribution rate” at all. Bd. of Trs. of IBT

Loc. 863 Pension Fund v. C & S Wholesale Grocers, Inc.,

802 F.3d 534, 544–45 (3d Cir. 2015). Nothing in ERISA

suggests that the imposition of a surcharge when a plan is in

critical status increases the employer’s contribution rate by

ten percent. Accordingly, the “highest contribution rate” in

this context means the highest dollar amount per compensable
WESTERN STATES OFFICE FUND V. WPAS 15

hour that the employer is obligated to contribute under the

plan,5 here $2.95.

B

The Fund advances several arguments to counter this

interpretation. The Fund argues that the surcharge imposed

when a plan is in critical status, 29 U.S.C. § 1085(e)(7), must

be included in WPAS’s “highest contribution rate” for annual

withdrawal liability, see id. § 1399(c)(1)(C)(i)(II), because

the surcharge increases the contribution WPAS was required

to make to the multiemployer plan. This interpretation is

contradicted by the language of the statute, which makes clear

that the surcharge is not a contribution, let alone an increase

to a contribution rate.

First, the section imposing a surcharge on employers

when a plan is in critical status, id. § 1085(e)(7), distinguishes

between the surcharge imposed on the employer by statute,

and the contribution required by the plan. For instance,

§ 1085(e)(7)(B) provides that surcharges are “due and

5 The statute providing the calculation for the annual withdrawal

penalty refers to “the highest contribution rate at which the employer had

an obligation to contribute under the plan.” 29 U.S.C.

§ 1399(c)(1)(C)(i)(II) (emphasis added). The phrase “obligation to

contribute” is defined to mean “an obligation to contribute

arising—(1) under one or more collective bargaining (or related)

agreements, or (2) as a result of a duty under applicable labor-management

relations law.” Id. § 1392(a). Although the parties make various

arguments regarding the meaning of the phrase “obligation to contribute,”

we do not need to address these arguments here. Given our holding that

the surcharge imposed under § 1085 when a plan is in critical status is not

a “contribution rate” at all, the source of the employer’s obligation to

contribute to a multiemployer pension plan (whether the CBA or labormanagement relations law) is not relevant.
16 WESTERN STATES OFFICE FUND V. WPAS

payable on the same schedule as the contributions on which

the surcharges are based.” Id. (emphasis added). If the

employer fails to pay the surcharge, it “shall be treated as a

delinquent contribution.” Id. (emphasis added). This

language makes clear that the surcharge is based on the

contribution, but is not itself deemed to be part of the

contribution.

Second, even if the surcharge is considered part of the

employer’s contribution as a practical matter, the surcharge

does not cause an increase in a “contribution rate.” The Fund

fails to point to any statutory language supporting its

recharacterization of the surcharge as increasing the number

of dollars owed (in the dollars-per-compensable-hour

contribution rate set forth in the CBA) by ten percent. 

Indeed, ERISA undercuts the Fund’s interpretation, because

it expressly distinguishes between an employer’s

“contribution” to a multiemployer plan and the employer’s

“contribution rates.” For example, in addressing the rules for

additional funding when a plan is in critical status, the statute

states that “[a]ny failure to make a contribution under a

schedule of contribution rates provided under this subsection

shall be treated as a delinquent contribution.” Id.

§ 1085(e)(3)(C)(iv) (emphasis added). “[W]ere contributions

the same as contribution rates, that provision would be

redundant.” C & S Wholesale Grocers, Inc., 802 F.3d at 545. 

Because the surcharge is neither a contribution nor a

contribution rate under the statute, it does not affect § 1399’s

formula for calculating annual withdrawal payments.

The Fund also argues that our interpretation is

inconsistent with Congress’s intent in enacting withdrawal

liability provisions. The Fund relies on Milwaukee Brewery

Workers’ Pension Plan v. Joseph Schlitz Brewing Co.,
WESTERN STATES OFFICE FUND V. WPAS 17

513 U.S. 414, which described the effect of the 1980

amendments adding the withdrawal liability provisions to

ERISA. Id. at 417. According to Milwaukee Brewery,

because “maintaining level funding for the plan is an

important goal of” ERISA, the amendment “fixes the amount

of each annual payment at a level that (roughly speaking)

equals the withdrawing employer’s typical contribution in

earlier years.” Id. at 418. The Fund argues that because our

interpretation today results in an annual withdrawal payment

that is ten percent lower than what the employer would make

if it did not withdraw (because it does not include the

surcharge for the plan being in critical status), our

interpretation undermines Congress’s intent in enacting the

MPPAA.

The Fund’s reliance on Milwaukee Brewery is misplaced,

because it was decided eleven years before Congress enacted

the amendment providing for a surcharge, and therefore did

not consider the relationship between the annual withdrawal

payments and the surcharge on employers when plans were

in critical status. Milwaukee Brewery sheds no light on how

the annual withdrawal payments and the surcharge for plans

in critical status may interact. Indeed, the current version of

ERISA contemplates that an employer’s payments to

multiemployer pension plans in critical status may decrease

after the employer withdraws from the plan. See 29 U.S.C.

§ 1399(c)(1)(B) (extinguishing an employer’s withdrawal

liability after it makes 20 annual payments, even where these

payments do not equal the total withdrawal liability).

The Fund also argues that ERISA requires us to infer that

annual withdrawal payments include the surcharge for plans

in critical status. The Fund notes that when Congress enacted

the surcharge provisions in the 2006 PPA, it clarified that the
18 WESTERN STATES OFFICE FUND V. WPAS

imposition of the surcharge on the employer would not affect

the calculation of an employer’s total withdrawal liability,

which had been imposed in the MPPAA in 1980. See

29 U.S.C. § 1085(e)(9)(B) (2006) (providing that “[a]ny

surcharges . . . shall be disregarded in determining an

employer’s withdrawal liability under section 1391 of this

title,” subject to certain exceptions).6

 But the 2006 PPA did

not use similar language to clarify that the surcharge would

not affect the calculation of an employer’s annual withdrawal

payments. Therefore, the Fund argues, we must infer that the

annual withdrawal payment includes the surcharge. We

reject this argument. In interpreting § 1399(c)(1)(C)(i), and

its formula for calculating the annual withdrawal payment,

we give effect to the statutory language, which was enacted

in the 1980 MPPAA; we do not change our interpretation

based on negative inferences that may be drawn from a

subsequent amendment to ERISA in 2006. “Congress may

amend a statute simply to clarify existing law, to correct a

misinterpretation, or to overrule wrongly decided cases.” 

Hawkins v. United States, 30 F.3d 1077, 1082 (9th Cir. 1994). 

We must not attempt to deduce the “intent behind one act of

Congress from the implication of a second act passed years

later.” Schrader v. Idaho Dep’t of Health & Welfare,

768 F.2d 1107, 1114 (9th Cir. 1985).

For the same reason, we reject the Fund’s similar

argument based on Congress’s amendment of ERISA in the

2014 MPRA. The MPRA added the language the Fund notes

is missing from the PPA: it expressly excluded the surcharge

6 As effective December 16, 2014, this subsection reads: “Any

surcharges . . . shall be disregarded in determining the allocation of

unfunded vested benefits to an employer under Section 1391 of this title

. . .” See 29 U.S.C. § 1085(g)(2) (2014).
WESTERN STATES OFFICE FUND V. WPAS 19

from an employer’s “highest contribution rate.” 29 U.S.C.

§ 1085(g)(2).7 According to the Fund, this change raises the

inference that, prior to 2014, the surcharge was a part of an

employer’s contribution rate. Again, we conclude that this

inference is unwarranted. See Hawkins, 30 F.3d at 1082;

Schrader, 768 F.2d at 1114. Given that nothing in ERISA

supports an interpretation that the surcharge is a component

of a contribution rate, a more plausible inference is that

Congress amended the statute to correct—once and for

all—the type of misinterpretations urged by the Fund.8

AFFIRMED.

7

 29 U.S.C. § 1085(g)(2) (effective December 2014) states:

(2) Surcharges

Any surcharges under subsection (e)(7) shall be

disregarded in determining the allocation of unfunded

vested benefits to an employer under section 1391 of

this title and in determining the highest contribution

rate under section 1399(c) of this title, except for

purposes of determining the unfunded vested benefits

attributable to an employer under section 1391(c)(4) of

this title or a comparable method approved under

section 1391(c)(5) of this title.

8 The Fund also cites legislative history concerning the MPRA to

supports its interpretation of ERISA as it existed prior to that amendment. 

Even if it were appropriate to examine legislative history in this case,

“[p]ost-enactment legislative history (a contradiction in terms) is not a

legitimate tool ofstatutory interpretation.” Bruesewitz v. Wyeth LLC, 562

U.S. 223, 242 (2011). Therefore, we do not address these arguments.