In the

United States Court of Appeals

For the Seventh Circuit

No. 98-1008

CENTRAL STATES, SOUTHEAST AND SOUTHWEST

AREAS PENSION FUND, and HOWARD MCDOUGAL, trustee,

Plaintiffs-Appellees,

v.

WINTZ PROPERTIES, INC., a Minnesota corporation,

Defendant-Appellant,

and

GEORGE L. WINTZ, individually and as president

of Wintz Properties, Incorporated,

Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 97 C 873--George W. Lindberg, Judge.

Argued June 2, 1998--Decided September 8, 1998

 Before FLAUM, MANION, and DIANE P. WOOD, Circuit

Judges.

 MANION, Circuit Judge. Wintz Properties, a

business belonging to a multiemployer pension fund

under ERISA, withdrew from the Central States,

Southeast and Southwest Areas Pension Fund, but

failed to pay the accompanying withdrawal liability

required by the statute. That prompted the Fund to

sue Wintz in federal court over the nonpayment; the

district court ordered Wintz to pay. Still Wintz

failed to make payment, choosing instead to pay

other creditors. The continued non-payment prompted

the district court to issue a contempt judgment of

close to $1 million against Wintz (the company) and

George Wintz (its president) personally, an order

that both have appealed. We ordered the parties to

brief the issue of this court’s jurisdiction over

what at first glance appears to be a nonfinal order

to make interim payments to the Fund. After

reviewing the parties’ arguments and the full

record, we have determined that we have

jurisdiction over Wintz’s appeal and affirm the

district court’s contempt order. 
I.

 Wintz Properties became a defendant in this case

after one of George Wintz’s other companies (Wintz

Freightways, Inc.) went out of business and stopped

contributing to Central States’ multiemployer

pension trust fund. The Fund determined that the

defunct company had effected a complete withdrawal

from the trust, a determination that imposes

"withdrawal liability" on the withdrawing company.

Because Wintz Freightways obviously couldn’t pay

the Fund, the Fund followed the money over to Wintz

Properties (and still other companies owned by

Wintz that the parties and the district court refer

to as the "Wintz Controlled Group")./1 

 The Fund’s determination that Wintz Freightways

withdrew from the Fund was significant under

ERISA/2 because while an employer may withdraw

from a fund, it pays a penalty if it does. The

penalty is called "withdrawal liability"; it means

the employer is liable to the plan for unfunded,

vested pension benefits as determined by the Fund’s

trustee. See 29 U.S.C. sec.sec. 1381-83. The

employer may contest the amount demanded by the

trustee, but only through mandatory arbitration

procedures. 29 U.S.C. sec. 1401. In the meantime,

while arbitration is pending, the employer has no

choice under the law but to keep to its schedule of

installment payments. See Chicago Truck Drivers,

Helpers & Warehouse Union Pension Fund v. Century

Motor Freight, Inc., 125 F.3d 526, 534 (7th Cir.

1997). If the arbitrator ultimately sides with the

employer that it owes no withdrawal liability, then

whatever has been paid is refunded.

 In this case the Fund’s trustee determined that

under ERISA (which sets out formulas for these

things), Wintz’s withdrawal liability amounted to

$2,958,136.71, payable to the Fund. Wintz did not

pay that amount, nor make any installment payments

toward the figure, prompting the Fund to file suit

in district court; shortly afterward, the Fund

filed a motion for a preliminary injunction

ordering Wintz to pay. Wintz’s initial theory

seemed to be that it did not owe withdrawal

liability because it had not withdrawn from the

Fund in the first place. But instead of simply

defending the Fund’s suit on that basis at

arbitration, Wintz filed counterclaims against the

Fund, charging it with making an unlawful

assessment under ERISA, violating a duty of good

faith and fair dealing under the statute, as well

as a duty to investigate whether a withdrawal

actually had occurred. (Some of these may not be

counterclaims so much as "defense[s] masquerading

as . . . positive claim[s] for relief." Automatic

Liquid Packaging, Inc. v. Dominik, 852 F.2d 1036,

1038 (7th Cir. 1988).)
 After holding hearings on the Fund’s motion for

a preliminary injunction, the court granted the

motion under the heading "Order to Compel

Payments." While on appeal Wintz argues that the

order was too ambiguous to be enforceable, it is

hard to imagine how it could be any more clear:

The Defendants . . . are jointly and severally

ordered to (a) pay all past due payments as set

forth in the schedule of payments attached to the

Pension Fund’s June 17, 1996 Notice and Demand for

payment of withdrawal liability on or before June

30, 1997, and (b) pay all future interim withdrawal

liability payments on a timely basis or post a bond

(as set forth in ERISA and the regulations

promulgated thereunder) to guarantee such payments.

 Still Wintz did not pay--not after the Fund’s

notice and demand for payment, not after receiving

service of the Fund’s suit, not after being ordered

to pay by the district court. Only now the reason

for Wintz’s nonpayment shifted. In more hearings

before the district court on the Fund’s motion to

show cause why Wintz should not be held in contempt

for failing to pay, Wintz argued that it did not

pay because financially the company was crippled.

That strategy might have worked except for two

circumstances: Wintz himself invoked the Fifth

Amendment rather than testifying about the

company’s condition and why it did not comply with

the court’s order (invoking the Fifth Amendment in

a civil context invites an inference that the

witness’ testimony would be adverse to his

interests, see Baxter v. Palmigiano, 425 U.S. 308,

318 (1976)), and discovery in the case revealed

that Wintz was still somewhat liquid. In fact, the

company was paying other creditors instead of the

Fund, and George Wintz himself seemed able to pay

some of his personal creditors (such as credit card

companies). 

 After discovering that Wintz was paying other

creditors but not the Fund, the court held Wintz

(the company) and George Wintz (personally) in

contempt for disobeying its previous order

compelling payment, and entered a contempt judgment

against both Wintz and its president (jointly and

severally) in the amount of $978,041.42. The bulk

of this sanction ($959,698.31) reflected the amount

Wintz had paid other creditors instead of the Fund

since the court issued its order compelling

payments. The remainder consisted of attorneys’

fees and costs incurred in preparing and

prosecuting the contempt petition. Wintz appeals

the entire contempt sanction; it claims the

sanction was an improper means of enforcing the

district court’s previous order compelling Wintz to

pay the Fund.
II.

 Wintz’s principal argument is that it should not

have been sanctioned and held in contempt for

failing to pay the interim withdrawal liability

installment payments that ERISA requires and that

the district court’s order commands. Wintz

challenges only the court’s enforcement of the

order to pay the withdrawal liability through a

contempt sanction; it does not challenge the order

itself (as we have noted, ERISA unequivocally

establishes a "pay now, arbitrate later" scheme).

Before we consider Wintz’s arguments attacking the

contempt sanction, we must determine whether we

have jurisdiction over it. "Whether a judgment of

civil contempt is appealable at the time entered,

rather than later, at the windup of the entire case

in the court of first instance, depends on the

appealability of the underlying order, the order

the judgment of civil contempt is intended to

coerce the contemnor to obey." In re Rimsat, Ltd.,

98 F.3d 956, 963 (7th Cir. 1996); see also

Cleveland Hair Clinic, Inc. v. Puig, 106 F.3d 165,

167 (7th Cir. 1997) ("An adjudication of civil

contempt used to enforce a judicial order is not

appealable if the underlying order is itself not

appealable."). We asked the parties to discuss our

jurisdiction in their briefs, and each side has

responded that we have jurisdiction over the

contempt finding, but for different reasons. Wintz

argues that we have jurisdiction because the

underlying order was appealable as a final decision

under 28 U.S.C. sec. 1291. The Fund tells us that

we have jurisdiction because the underlying order

is a preliminary injunction appealable under sec.

1292(a)(1). We consider each possibility because a

third exists which would divest us of jurisdiction

and require dismissal of Wintz’s appeal-- namely,

that the underlying district court order is neither

a "final decision" nor an injunction, but rather is

an order partly but not wholly adjudicating the

Fund’s complaint (much like an order awarding

partial summary judgment). 

 We first tackle Wintz’s theory that the contempt

finding is appealable because the order it

disobeyed (the order compelling payments) is a

final decision that disposed of the underlying

litigation initiated by the Fund. This is a rather

surprising position given Wintz’s concession that

at the time it filed this appeal its own

counterclaims against the Fund remained. Only

"final decisions" are appealable under sec. 1291,

and the presence of the counterclaims made the

court’s order compelling payment decidedly

nonfinal. See Alonzi v. Budget Construction Co., 55

F.3d 331, 333 (7th Cir. 1995). Nor were the

counterclaims dismissed by implication when the

court ordered Wintz to pay, because it is possible

for the Fund to violate the technical provisions of
ERISA even though it is correct that an employer

owes it money. The only way the court’s order could

have achieved finality under sec. 1291 was through

Rule 54(b), id., which allows courts to issue final

and appealable orders dismissing fewer than all

claims, but Wintz did not seek nor did the court

apply a designation of finality under this rule.

 While acknowledging that at the time of this

appeal its claims (since dismissed) were pending in

the district court, Wintz tells us that some of our

cases compel us to treat the order as final and

appealable despite its seeming incompleteness here.

For example, in Trustees of Chicago Truck Drivers

v. Central Transport, Inc., 935 F.2d 114 (7th Cir.

1991), we were faced with a similar case in which

an employer stopped making payments to a union

pension fund. After the Fund filed suit seeking

interim payments pending arbitration, the district

court ordered the company to pay but over the

Fund’s protests the court refused to hold the

company in contempt for the nonpayment. The Fund

appealed that decision, prompting us to consider

our jurisdiction over the court’s order compelling

payment. We ultimately concluded that we had

jurisdiction because the court’s order essentially

wrapped up the case before it: 

The Fund obtained a judgment compelling [the

company] to pay its accrued liability and to make

future payments as they become due. The order was

entered on the form appropriate to civil judgments.

Such an order is final and appealable under 28

U.S.C. sec. 1291. It is the end of the case. . . .

[T]he complaint asked for one thing, money, and the

entire litigation has been concluded. The

definition of a final decision is one wrapping up

the case and leaving "nothing for the court to do

but execute the judgment," which is exactly what

this decision does. Jurisdictional rules should be

clear, and we think it best to simplify the subject

by holding that the terminating order of any suit

seeking "interim payments" under sec. 1399(c)(2) is

a final decision, appealable under 28 U.S.C. sec.

1291.

Id. at 116-17 (internal citation omitted).

 If this case simply involved a fund’s pursuit for

interim payments and a district court’s order

compelling those payments, we would have no trouble

relying on Central Transport, as well as Trustees

of the Chicago Truck Drivers, Helpers & Warehouse

Workers Union Pension Fund v. Rentar Industries,

Inc., 951 F.2d 152 (7th Cir. 1991), a later case

applying the Central Transport holding. We would

agree with Wintz that an order compelling payment

to the Fund is a "terminating order" under sec.

1399(c)(2) because there is nothing left for the

court to do but execute the judgment. But at the
time of this appeal the district court had Wintz’s

counterclaims (three of them) to deal with, and

while it was likely at that point that the court’s

award in favor of the Fund spelled doom for those

claims, it was not necessarily so. (One of the

counterclaims alleged a breach of good faith and

fair dealing, and it is at least theoretically

possible for the Fund to have been entitled to the

monies it sought but to have gone about collecting

that money in an unlawful way under ERISA.) The

district court’s order also neglected to address

the Fund’s claim for liquidated damages and

interest; both the Supreme Court and this court

have held that a decision is not final where prejudgment interest has yet to be determined. See

Osterneck v. Ernst & Whinney, 489 U.S. 169 (1989);

Mercer v. Magnant, 40 F.3d 893, 896 (7th Cir.

1994). Nor (unlike in Central Transport) was the

district court’s order entered on a form

appropriate to civil judgments. In short, while it

is accurate to interpret Central Transport as

holding that orders compelling ERISA withdrawal

liability payments sought by the Fund can be final

and appealable under sec. 1291, they are not

automatically appealable such that we utterly

ignore the rules disrupting finality that we apply

in every other case. The district court’s order was

not a final decision under sec. 1291, meaning we

have jurisdiction over Wintz’s appeal only if the

Fund is correct that the order was an injunction

enforceable through contempt and appealable as an

interlocutory decision "without regard to finality"

under 28 U.S.C. sec. 1292(a)(1). Ford v. Neese, 119

F.3d 560, 562 (7th Cir. 1997).

 On its face the underlying order compelling

interim payments to the Fund looks like an

injunction. The order instructs Wintz to do

something--pay the Fund what the statute requires--

which after all is the point of an injunction;

"[i]n effect, the injunction wrote statutory

prohibitions into a decree enforceable by

contempt." Szabo v. U.S. Marine Corp., 819 F.2d

714, 718 (7th Cir. 1987). Wintz’s principal

argument on appeal is that the order could not have

been an injunction because it did not comply with

Rule 65(d) of the Federal Rules of Civil Procedure,

which requires that an injunction "shall describe

in reasonable detail, and not by reference to the

complaint or other document, the act or acts sought

to be restrained." Fed. R. Civ. P. 65(d). We think

the order was crystal clear and self-contained, but

at this point Wintz’s failure to appeal the grant

of the injunction makes elaboration unnecessary.

"Not having appealed from the grant of the

injunction," Wintz "cannot argue that it is too

vague to be enforced . . . or that it violates Rule

65(d) of the Federal Rules of Civil Procedure,"

Szabo, id., both of which occupy a considerable

portion of Wintz’s briefs on appeal. Put another
way, Rule 65 is not jurisdictional in the way Wintz

wants it to be-- "in the sense that its

requirements are nonwaivable, so that any

[technical] failure to comply with those

requirements would make the injunction a nullity

even if no party had ever objected." Chicago &

Northwestern Trans. Co. v. Railway Labor

Executives’ Assoc., 908 F.2d 144, 149 (7th Cir.

1990). Wintz’s further problem is that even if we

sided with the company and decided that the

injunction in this case was unenforceably vague or

violated Rule 65(d), it would not necessarily

follow that we have jurisdiction under Wintz’s

preferred "final decision" route. As we discussed

earlier, the likely result in that case would be

that we have no jurisdiction at all. See Bates v.

Johnson, 901 F.2d 1424, 1428 (7th Cir. 1990)

("Until the judge enters an injunction . . . there

is nothing before us on appeal.").

 We need not follow this detour any longer. The

parties treated the underlying order as an

injunction at the time it was entered, and that is

how we will treat it here. We acknowledge that

during one of the hearings the district court went

to some lengths not to call its order to compel

payments an injunction, instead labeling it an

order requiring "interim interim payments." From

the record, it appears the court was careful in how

it referred to its order so that it could avoid

wading through the balancing test courts must apply

before issuing injunctions. See, e.g., Gateway

Eastern Railway Co. v. Terminal Railroad Assoc. of

St. Louis, 35 F.3d 1134, 1137 (7th Cir. 1994); see

also Fed. R. Civ. P. 65. But "[n]omenclature does

not determine whether an order is a preliminary

injunction" and thus appealable under sec.

1292(a)(1). Doe v. Village of Crestwood, Il., 917

F.2d 1476, 1477 (7th Cir. 1990). If nomenclature

were important, in this case the name attached to

the order ("Order to Compel Payments") could not

have been more facially insistent, and therefore,

injunctive. Accordingly, we have jurisdiction over

the company’s appeal from the district court’s

contempt sanction and proceed to Wintz’s arguments

against it.

 In truth we are somewhat hesitant to call the

district court’s contempt judgment anything but a

second injunction to pay the Fund. It is true that

the judgment contains a dollar amount, but it looks

to be less than the accrued installment payments

(approximately $200,000 a month) owed but not paid

to the Fund. At oral argument the Fund’s attorney

informed us that the contempt sanction in this case

would be refunded to Wintz if the arbitrator rules

in the company’s favor (if Wintz loses in

arbitration, then the amount it pays under the

contempt order would be credited toward its

withdrawal liability). Contempt sanctions typically
are not credits toward liability or refunded, nor

for that matter are they paid to an opponent rather

than the court. But the parties and the district

court refer to the judgment as a contempt sanction,

probably because the judgment is entered against

George Wintz (personally, along with the Fund) even

though he was not a named party in the underlying

litigation. At least as to Mr. Wintz, we agree that

the judgment is indeed a sanction, so for that

reason and ease of reference we will treat it that

way. 

 Wintz’s primary argument against the contempt

judgment (which we review to determine if the court

abused its discretion, United States v. Torres, 142

F.3d 962, 969 (7th Cir. 1998)) appears to be that

the district court’s underlying injunctive order

was so ambiguous as to be unenforceable through

contempt. This sounds similar to Wintz’s argument

that the injunction was vague and violated Rule

65(d), both discussed above and dismissed at this

point as tardy. But perhaps Wintz is arguing that

the order compelling payments was so absurdly nondirective that it gave Wintz no notice of what was

expected, and thus no notice even that it should be

clarified or appealed, until of course the district

court sanctioned Wintz for disobeying it. We have

nearly opened up a can of worms, because if that

were the case the underlying order would be a

nullity (thus divesting an appellate court of

jurisdiction to review it in the first instance).

Chicago & Northwestern Trans. Co., 908 F.2d at 149;

see also Die Seamless Cylinder Int’l, Inc. v.

General Fire Extinguisher Corp., 14 F.3d 1163, 1166

(7th Cir. 1994) ("It may seem a considerable

paradox that if the judge’s error is so flagrant as

to make his order void, the appellate court loses

jurisdiction. But a void order has no bite, and

Article III precludes an appeal from a harmless

order."). There is no obligation to obey an

injunctive nullity, Bates, supra, so we concede it

would be strange to make a party obey a contempt

citation enforcing the nullity.

 We need not open the can of worms because the

district court’s order compelling payments was not

hopelessly defective or ambiguous in any of the

ways forwarded by Wintz. It is true that the

district court’s order makes reference to a

schedule of delinquent payments attached to the

Fund’s notice and demand mailed to Wintz, and in

that sense is not completely self-contained. At

most this amounts to a violation of Rule 65(d)

(since waived, see above); it does not transform an

otherwise valid injunction into a nullity. Setting

this point aside, Wintz makes it sound as if the

parties had been quibbling over the amount the

company owed. In fact, Wintz refused to pay

anything at all, a wholesale disregard of ERISA’s

"pay now, arbitrate later" scheme, Chicago Truck
Drivers Pension Fund, 125 F.3d at 534, and a

decision that forced the Fund to seek payment in

court. The court ordered Wintz to pay, and Wintz

even returned to court to clarify the order. Based

on our review of the parties’ exchanges before the

district court judge, we find it unreasonable for

Wintz to argue at this point that it had no idea

what the order demanded.

 Wintz also contends that the district court

improperly sanctioned the company for paying other

creditors. From Wintz’s perspective, at most the

district court’s underlying order compelling

payments was a judgment that had to get in line

behind other judgments outstanding against the

company. Wintz is correct that the district court

based the amount of the sanction on what Wintz had

paid to other creditors instead of the Fund. But

nothing in the order itself deprives Wintz of the

right to pay other creditors, even before the

company paid the Fund, so long as the Fund is paid.

This is not a case wherein Wintz violated an

injunction because it had no money whatsoever; it

obviously was paying several creditors except the

one entity entitled to Wintz’s money under the

terms of the court order. Nor is this a case

wherein the evidence before the district court

highlighted extenuating circumstances preventing

the Fund from doing what ERISA requires. When it

came time for Wintz to present those circumstances,

Wintz’s president, George Wintz, appeared before

the district court but refused to answer questions

under the Fifth Amendment of the United States

Constitution. That was his right, but the court was

entitled to draw a negative inference from his

refusal to speak, and in turn his refusal to pay.

 The remainder of Wintz’s arguments do not excuse

its failure to comply with the court’s injunction

and pay the Fund. Contrary to Wintz’s invitation,

we will not wade through the record to determine

whether paying the Fund would force the company

into bankruptcy. We have already observed that

Wintz has managed to pay other creditors instead of

the Fund, but in all events federal judges "have no

equitable power to excuse interim payments."

Central Transport, Inc., 935 F.2d at 119. In

enacting ERISA, Congress decided that interim

payments were mandatory--no excuses--because the

"stakes" are safer in the interim if they are held

by the Fund. Funds don’t go out of business the way

thinly capitalized employers do, id., meaning they

can readily refund the payments to a company like

Wintz if an arbitrator rules against them. All that

remains is Wintz’s argument that the district court

should not have held its president, George Wintz,

personally in contempt in addition to his company.

The order compelling payments was not simply

directed at Wintz Properties, but at the

corporations’ "officers" as well. George Wintz is
the sole officer and shareholder of Wintz

Properties, making the underlying injunction

applicable to him, and his company’s failure to

comply with it his problem, too. 

III.

 ERISA makes it clear that an employer withdrawing

from a multiemployer pension fund must pay

withdrawal liability to the Fund, and our cases

make it equally clear that interim payments must be

made pending arbitration. See Chicago Truck

Drivers, supra. Wintz refused to make those

payments, prompting the district court to issue an

injunction followed by a finding of contempt. We

affirm the contempt judgment. The Fund asks us to

award it attorneys’ fees and costs incurred in

defending against Wintz’s appeal, and in this case

we will do so. Section 1132(g)(2) of ERISA requires

a court to award reasonable attorneys’ fees and

costs to a fund that must obtain a judgment in

order to collect delinquent contributions to a

multiemployer fund, which is exactly what the Fund

had to do in the district court. See also Chicago

Truck Drivers, 125 F.3d at 535 (affirming an award

of attorneys’ fees and costs "because [the

employer] precipitated the plan’s suit in the

district court by unlawfully failing to make any

installment payments pending arbitration."). The

law should be clear enough by now to avoid the

necessity of a suit like the Fund’s, and an appeal

like Wintz’s, which is part of the reason the

Fund’s fees and costs are properly attributed to

Wintz. Finally, we take note that since filing this

appeal Wintz has added two more to our docket

relating to successive district court orders to pay

the Fund. Not (unfortunately) on their own motion

to consolidate, but instead on our own suggestion,

the parties wisely agreed to suspend briefing on

those cases until the opinion in this case was

decided. We are confident that Wintz will carefully

review those appeals (and subsequent ones like

them) to determine whether they remain viable in

light of our decision today.

AFFIRMED.

FOOTNOTES

/1 As gleaned from the record, it appears that one of

the companies principally owned by George Wintz,

Wintz Freightways, contributed to the union pension

fund before it merged with Central States Xpress,

Inc., an Indiana corporation. Following the merger,

Xpress failed to continue making payments to the

Fund, and soon afterward was placed into

involuntary bankruptcy by its creditors and went

out of business. The Fund determined that for the

purposes of ERISA, Wintz’s other companies (called
the Wintz Controlled Group) constituted a single

employer and were financially responsible for

Xpress’ withdrawal from the pension fund.

/2 As amended by the Multiemployer Pension Plan

Amendments Act of 1980, 29 U.S.C. sec. 1381 et seq.