                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                IN THE UNITED STATES COURT OF APPEALS                 January 5, 2007
                         FOR THE FIFTH CIRCUIT
                                                                  Charles R. Fulbruge III
                          ))))))))))))))))))))))))))                      Clerk

                                  No. 06-40321

                          ))))))))))))))))))))))))))

TECHNICAL METALLURGICAL SERVICES, INC.,

                   Plaintiff-Counter Defendant-Appellant,


     versus

PLUMBERS AND PIPEFITTERS NATIONAL PENSION FUND,

                   Defendant-Counter Claimant-Appellee.


              Appeal from the United States District Court
                    for the Eastern District of Texas
                             No. 5:04-CV-230



Before SMITH, BENAVIDES, and PRADO, Circuit Judges.

PER CURIAM:*

     This lawsuit arises under the Employee Retirement                    Income

Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., as amended

by the Multiemployer Pension Plan Amendments Act of 1980 (“MPPAA”),

29   U.S.C.    §   1381    et     seq.    Plaintiff-Appellant         Technical

Metallurgical Services, Inc. (“TMSI”), contends that Defendant-

Appellee   Plumbers    and      Pipefitters   National   Fund   (“the     Fund”)



     *
       Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT RULE
47.5.4.
improperly assessed withdrawal liability in the amount of $125,336

against it.1    The only issue before the court is the date of TMSI’s

complete withdrawal from the Fund. If TMSI completely withdrew from

the Fund on June 30, 2002, then it owes no withdrawal liability.

However, if TMSI completely withdrew on July 1, 2002, as the Fund

contends, then it owes the Fund $125,336.           We AFFIRM the order of

the district court because we hold that TMSI completely withdrew

from the Fund on July 1, 2002.

                   I. FACTUAL AND PROCEDURAL HISTORY

     TMSI is a mechanical contractor incorporated in Arkansas and

registered to do business in Texas.         The Fund is a multi-employer

fund as defined by ERISA.     See 29 U.S.C. § 1002(3) and (37).

     On or about July 1, 2000, TMSI entered into a collective

bargaining     agreement   (“CBA”)   with   Local    237   of   the   United

Association of Plumbers and Pipefitters (“Local 237”).          In relevant



     1
     Under the MPPAA, withdrawal liability is an employer’s:
          proportionate share of the plan’s unfunded
          vested benefits, that is, the difference
          between the present value of vested benefits
          (benefits that are currently being paid to
          retirees and that will be paid in the future
          to   covered   employees   who  have   already
          completed some specified period of service, 29
          U.S.C. § 1053) and the current value of the
          plan’s assets.
Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension
Trust for S. Cal., 508 U.S. 602, 609 (1993) (citations omitted)
(interpreting 29 U.S.C. §§ 1381, 1391). For the plan year at issue
in this case, the Fund had unfunded vested benefits in the amount
of $542,797,204.


                                     2
part, the CBA stated that it would be “in full force and effect

between [Local 237] and the Contractors from July 1, 2000, through

June 30, 2002 and it shall continue in full force and effect from

year        to   year   thereafter      between       the   Union      and   the

Contractors . . . .”          (Emphasis added).         Additionally, the CBA

stipulated that “[t]he expiration date of the present Collective

Bargaining Agreement between the undersigned parties is June 30,

2002.”

       In the spring of 2002, Local 237 and TMSI began negotiations

for an extension of the CBA, but the parties failed to reach an

agreement.        Friday, June 28, 2002, was the last day that TMSI

employed workers under the CBA.              On or about August 14, 2003, the

Fund sent a letter to TMSI advising that TMSI was subject to

withdrawal liability. On or about September 2, 2003, TMSI responded

and disputed that it owed any withdrawal liability.

       As    required   by   29   U.S.C.      §   1401(a)(1),   TMSI   initiated

arbitration       challenging     the   Fund’s     assessment   of     withdrawal

liability.       The arbitrator decided that TMSI withdrew from the Fund

on July 1, 2002, and thereby owed withdrawal liability.

       TMSI then challenged the arbitrator’s decision in district

court.      See 29 U.S.C. § 1401(b)(2) (allowing any party to challenge

an arbitrator’s decision in federal district court).                 The parties

filed cross-motions for summary judgment, which were referred to a

magistrate judge for report and recommendation.             The district court


                                         3
adopted the magistrate’s report and recommendation finding that TMSI

owed withdrawal liability because it completely withdrew from the

Fund on July 1, 2002.       TMSI appeals this decision.

                           II. STANDARD OF REVIEW

     This court reviews the district court’s summary judgment order

de novo, using the same standards applied by the district court.

Dallas County Hosp. Dist. v. Assocs. Health & Welfare Plan, 293 F.3d

282, 285 (5th Cir. 2002) (reciting the familiar summary judgment

standards).

     The determination of the date of complete withdrawal is a mixed

question of law and fact.       Concrete Pipe, 508 U.S. at 630.     Here,

the parties stipulated to the facts before the arbitrator, so there

remains only a question of law.        All circuits that have considered

the issue have decided that an arbitrator’s conclusions of law under

the MPPAA are reviewed de novo.       See e.g., Trs. of the Cent. Pension

Fund of the Int’l Union of Operating Eng’rs v. Wolf Crane Serv.,

Inc., 374 F.3d 1035, 1038 (11th Cir. 2004).

                              III. DISCUSSION

     The MPPAA defines when an employer experiences a “complete

withdrawal” that gives rise to withdrawal liability.           Under the

MPPAA,   29   U.S.C.   §   1383(a),   “a   complete   withdrawal   from   a

multiemployer plan occurs when an employer –- (1) permanently ceases




                                      4
to have an obligation to contribute to the plan . . . .”2                         The

statute defines “obligation to contribute” as an “obligation to

contribute arising . . . under one or more collective bargaining (or

related) agreements.”        29 U.S.C. § 1392(a).           Finally, the MPPAA

defines the date of complete withdrawal, in pertinent part, as “the

date of the cessation of the obligation to contribute.”                           Id.

§   1983(e).     The   parties     dispute    when    TMSI’s      obligations     to

contribute to the Fund ceased under the CBA.

      TMSI argues that it completely withdrew from the Fund on June

30, 2002, because the CBA states that “[t]he expiration date” of the

CBA “is June 30, 2002.” (Emphasis added).                  TMSI urges that its

interpretation    of   the   CBA   gives     effect   to    all    of    the   CBA’s

provisions.      Accordingly,      TMSI    contends    that    its      reading   of

“expiration date” does not render the “through June 30, 2002"

language meaningless because legal documents are effective “through”

their expiration date.

      The Fund focuses on language in the CBA which states that the

Agreement “shall be in full force and effect . . . from July 1, 2000

through June 30, 2002.”       (Emphasis added). TMSI, according to the

Fund, still had an obligation to contribute to the Fund on June 30,

2002, until that day ended.          Therefore, TMSI did not completely

withdraw from the Fund until July 1, 2002, the first day on which

      2
       There are additional requirements for a complete withdrawal
for an employer in the building and construction industry--TMSI is
such an employer--but those requirements are not at issue in this
case. See 29 U.S.C. § 1383(b) (listing additional requirements).

                                       5
TMSI did not have an obligation to contribute to the Fund. The Fund

contends that the expiration date is not dispositive of complete

withdrawal.   The Fund maintains that TMSI’s reading of “expiration

date” would impermissibly negate the CBA’s “through June 30, 2002”

language.

     Application of the MPPAA to the facts of this case requires

this court to conclude that TMSI completely withdrew from the Fund

on July 1, 2002.    The CBA states that TMSI had an obligation to

contribute “through June 30, 2002.”   TMSI could not have ceased to

have an obligation to contribute on June 30, 2002, because the plain

meaning of “through” is that TMSI had an obligation to contribute

up to and including that day.   Reading the “through” language this

way would not render the “expiration date” language meaningless.

For example, if John Doe’s driver’s license expires on December 31,

2008, John Doe would still be able to drive legally on that day.

Similarly, though the CBA expired on June 30, 2002, TMSI still had

an obligation to contribute on that day. See Parmac, Inc. v. I.A.M.

Nat’l Pension Fund Benefit Plan A, 872 F.2d 1069 (D.C. Cir. 1989)

(similarly interpreting the MPPAA).   Thus, TMSI completely withdrew

from the Fund on July 1, 2002, because that was the first day that

it ceased to have an obligation to contribute to the Fund.3


     3
       In the last sentence of its brief, the Fund requested an
award of costs and attorney’s fees under 29 U.S.C. §§ 1401(b)(2),
1451(e). Though the Fund argues that it raised the attorney’s fee
issue below in its Prayer for Relief, nevertheless, the Fund has
forfeited this argument because it has been inadequately briefed on
appeal. See L & A Contracting Co. v. S. Concrete Servs., Inc., 17

                                 6
                         IV. CONCLUSION

     For the reasons stated above, we AFFIRM the order of the

district court.

     AFFIRMED.




F.3d 106, 113 (5th Cir. 1994).

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