Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of California
Opinion
Concurring Opinion
Trott, J.
concurring.
I concur in Judge Norris’s opinion because I believe Thibodo compels this result. I believe, however, that Joyce v. Clyde Sandoz Masonry, 871 F.2d 1119 (D.C.Cir.) does a better job of answering the questions raised by these issues, but we do not have authority to ignore our own decisions.
Lead Opinion
This case arises from an action filed on February 9, 1993, by the Bay Area Laundry and Dry Cleaning Pension Trust Fund against Ferbar Corp. and Stephen J. Barnes (“Ferbar”) to collect withdrawal liability under 29 U.S.C. §§ 1381-1461 , the Multi-Em-ployer Pension Plan Amendments Act of the Employee Retirement Income Security Act. The district court granted summary judgment for Ferbar on the ground that the Fund’s suit for withdrawal liability was barred by the applicable statute of limitations set forth in 29 U.S.C. § 1451 (f). This statute provides in relevant part:
29 U.S.C. § 1451 (f). The district court applied the three-year statute of limitations set forth in § 1451(f)(2), but in the alternative held that the action would nevertheless be barred under the six-year statute of limitations set forth in § 1451(f)(1), reasoning that the cause of action arose on the date that Ferbar missed its first withdrawal liability installment payment. On appeal the parties contest, first, whether the three-year or the six-year period applies, and second, the date on which the limitations period began to run.