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04/25/86 Appellees v. Cooper Industries

April 25, 1986




Before: WALD, MIKVA and EDWARDS, Circuit Judges.


Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge: Cooper Industries ("Cooper") appeals from a District Court order requiring it to pay the overdue first installment of "withdrawal liability" payments pursuant to the Multiemployer Pension Plan Amendments Act of 1980 , 29 U.S.C. §§ 1381-1405, 1451 (1982). Cooper contends that the District Court erred in ordering the withdrawal liability payments to be made without preliminarily assessing whether such payments were required by law. We do not reach the merits of Cooper's appeal because we conclude that the order being challenged is not appealable at this time. I. BACKGROUND

The I.A.M. Pension Fund ("Fund") is a multiemployer pension plan within the meaning of the MPPAA. Cooper Industries had, pursuant to various collective bargaining agreements, contributed to the Fund from 1967 until May 25, 1984. After Cooper ceased making payments, the Fund calculated Cooper's "withdrawal liability" pursuant to 29 U.S.C. § 1399 (1982), and notified the company that it owed the Fund $624,343 in withdrawal payments, to be paid in three installments. The first payment of $262,188 was due by September 25, 1984.

When Cooper failed to make the initial payment, the Fund filed suit demanding judgment against Cooper in the amount of the first installment, plus interest from the September 25 payment date. In its answer, Cooper claimed that the requested payment was unlawful under 29 U.S.C. § 1384 because it sought to impose liability for operations sold to another company. The company also counterclaimed for an injunction against the enforcement of the Fund's withdrawal liability demand. Both parties subsequently moved for summary judgment.

On June 25, 1985, the District Court entered an order in response to the cross-motions for summary judgment requiring Cooper to pay the overdue first installment of withdrawal liability to the Fund, with interest, pending resolution of its counterclaim. *fn1 The District Court concluded that "withdrawal liability installments must be made despite the presence of legal challenges as to the correctness of those determinations by a defendant employer." District Court Op. at 3. The June 25 order stated that a later order would address Cooper's claim that the payments were incorrectly assessed. Three days later, on June 28, the District Court entered an order rejecting the Fund's contention that Cooper was required to arbitrate the withdrawal liability issue and requesting additional briefing on Cooper's motion for summary judgment. Cooper appeals only from the June 25 order. II. APPEALABILITY

Cooper appeals the June 25 order pursuant to 28 U.S.C. § 1292(a)(1) (1982), which grants appellate courts jurisdiction over appeals from interlocutory orders "granting, continuing, modifying, refusing or dissolving injunctions." Our first task, then, is to assess whether the District Court's order is properly characterized as an order granting an injunction. *fn2

The District Court order did not purport to grant an express request for injunctive relief. The court had before it cross-motions for summary judgment, neither of which specifically requested an injunction. When a district court order does not result from a specific request for an injunction, however, an appellate court may still hear an appeal from that order if it has the "practical effect" of granting or denying an injunction. Construction Laborers Pension Trust v. Cen-Vi-RO Concrete Pipe & Products Co., 776 F.2d 1416, 1421-22 (9th Cir. 1985). Here we have no problem concluding that the June 25 order had the practical effect of granting an injunction. The definition of an injunction under § 1292(a)(1) is broad: it is any order "directed to a party, enforceable by contempt, and designed to accord or protect, 'some or all of the substantive relief sought by a complaint' in more than preliminary fashion." United States v. Western Electric Co., 250 U.S. App. D.C. 23, 777 F.2d 23, 28 n.12 (D.C. Cir. 1985) (citation omitted). The June 25 order requiring Cooper to make the first installment payment to the Fund clearly meets this definition.

In order to be appealable under § 1292(a)(1), however, an order which has the practical effect of granting an injunction must also meet the requirements of Carson v. American Brands, Inc., 450 U.S. 79, 67 L. Ed. 2d 59, 101 S. Ct. 993 (1981). *fn3 Under Carson, such an order is appealable only if it "might have a 'serious, perhaps irreparable, consequence,' and [if] the order can be 'effectually challenged' only by immediate appeal." Id. at 84; see Western Electric, 777 F.2d at 29. In this case, Cooper has not come close to showing that the order might cause irreparable harm and therefore the order is not immediately appealable.

Because Cooper failed to identify Carson as a controlling precedent, *fn4 the company made no allegations at all of irreparable harm in its briefs. Pressed at oral argument, counsel for Cooper claimed that unless the June 25 order is reviewed now, it would merge into the final judgment and thus become non-reviewable as a separate order on final appeal. In general, however, when an interlocutory order is not appealable and so merges into the final judgment, it is open to review on appeal from that judgment. Aaro, Inc. v. Daewoo International (America) Corp., 755 F.2d 1398, 1400 (11th Cir. 1985). Even if Cooper is correct and the order would become moot or otherwise non-reviewable at the time of appeal from the final judgment, Cooper must still show irreparable harm. Carson requires both a showing that the order can be effectually challenged only on immediate appeal and a showing of irreparable harm. General Electric, 777 F.2d at 29-31.

Counsel for Cooper argued that the company suffered irreparable harm because the District Court had abdicated its judicial duty to evaluate the merits of its counterclaim before ordering interim payments on the withdrawal liability. While a deserving litigant is always harmed if judicial relief is delayed, such harm does not automatically rise to the irreparable level. Formidable as it is, the cost and delay associated with modern-day litigation simply does not establish irreparable harm. Western Electric, 777 F.2d at 30. As the Supreme Court has succinctly put it, irreparable harm must be "greater than the harm suffered by any litigant forced to wait until the termination of the [proceedings] before challenging interlocutory orders it considers erroneous." Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379 n.13, 66 L. Ed. 2d 571, 101 S. Ct. 669 (1981). *fn5

Neither is Cooper irreparably harmed because it must make the withdrawal liability payments directly to the Fund, rather than to the court or an escrow account. Adequate safeguards exist to insure that Cooper will promptly recover any overpayment in a lump sum with interest. See 29 C.F.R. § 2644.2(d) (1985). Cooper is not at risk of losing its money or even the time value of that money since it will receive interest on the amount refunded.

Finally, our conclusion that Cooper has failed to show irreparable harm stemming from the June 25 order is not altered by the company's citation to Pantry Pride, Inc. v. Retail Clerks Tri-State Pension Fund, 747 F.2d 169 (3d Cir. 1984). The court in Pantry Pride held that a district court's denial of a pension fund's request for an order requiring an employer to make interim withdrawal liability payments was reviewable under § 1292(a)(1). Id. at 171.The court found there that the fund would be irreparably harmed by the denial of withdrawal liability payments because the statutory scheme enacted by Congress in the MPPAA was specifically designed "to insure that the flow of employer withdrawal liability payments was not delayed by an employer disputing liability." Id. at 171. *fn6 Congress showed no comparable solicitude for the cash flow problems of employers. Indeed, Cooper's counsel conceded at oral argument that, under the MPPAA's statutory scheme, any assessment of irreparable harm flowing from an injunctive order regarding interim withdrawal liability payments would almost certainly favor the pension fund. Thus an order refusing to require interim withdrawal liability payments is appealable because irreparable harm will result; no such harm flows from an order requiring such payments. *fn7 III. HOLDING

While the District Court's June 25 order had the practical effect of an injunction for purposes of § 1292(a) (1), it was not an appealable interlocutory order because Cooper failed to demonstrate any irreparable harm it might suffer if forced to defer its challenge until a final judgment has been entered. This court lacks ...

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