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June 13, 1991

LADY BALTIMORE FOODS, INC., a Kansas corporation, Defendant

Paul E. Plunkett, United States District Judge.

The opinion of the court was delivered by: PLUNKETT


 The plaintiff pension trust and its present trustees ("the Fund") ask us to declare the "Lady Baltimore Amendment" to the Employee Retirement Income Security Act of 1974 ("ERISA"), Pub. L. 99-514, Title XVIII, § 1852 (i) codified at 29 U.S.C. § 1461(h)(1) ("Amendment") unconstitutional and to vacate the arbitrator's restoration of attorneys' fees, costs and liquidated damages to Lady Baltimore. The Fund alleges jurisdiction under ERISA, § 4301(c), 29 U.S.C. § 1451(c), and 28 U.S.C. § 1331. Lady Baltimore likewise seeks summary judgment on the constitutionality of the Amendment and the enforcement of the arbitrator's decision to restore attorneys' fees, costs, and liquidated damages. Lady Baltimore also seeks fees incurred in this action, the prior district court action, and arbitration pursuant to 29 U.S.C. §§ 1132(g)(1) and 1451(c).

 The question of the Amendment's constitutionality is not newly before this court. In Robbins v. Lady Baltimore Foods, Inc., 678 F. Supp. 1323 (N.D. Ill. 1987), the court determined that the Amendment violated both procedural and substantive due process. In Robbins v. Lady Baltimore Foods, Inc., 868 F.2d 258 (7th Cir. 1989), however, the Seventh Circuit vacated the district court's finding of unconstitutionality as unnecessary to the determination of the actual issue before that court, which was whether interim withdrawal liability payments should be made, and as premature inasmuch as the language of the Amendment did not clearly apply to Lady Baltimore.

 For the following reasons, we deny the Fund's motion for summary judgment and grant Lady Baltimore's motion for summary judgment on the constitutionality of the Amendment. We vacate the arbitrator's restoration of liquidated damages, attorneys' fees, and costs to Lady Baltimore; however, we order the restoration of liquidated damages plus interest to Lady Baltimore. The parties will bear their own attorneys' fees.


 As amended by the Multiemployer Pension Plan Amendments Act of 1980 ("MPPAA"), ERISA requires that an employer withdrawing from a multiemployer pension plan shall pay "withdrawal liability" to the pension fund. 29 U.S.C. §§ 1381-1405. Lady Baltimore had been a contributing employer to the Funds according to a collective bargaining agreement with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. On January 12, 1979, prior to the enactment of MPPAA, Lady Baltimore entered a new collective bargaining agreement, to remain in effect until May 15, 1982, which included the following provision:

Section 7. Effective January 12, 1982 all contributions to the Central States Southeast and Southwest Areas Pension Fund shall cease, Sections 1, 2, 3, 4, 5, and 6 of this Article shall be null and void and of no further force and effect and all obligations of the Company to said fund or under any trust agreement shall be terminated. From that date forward regular employees shall be eligible to enter into the Company's pension plan pursuant to the terms and provisions of that plan.

 In April 1982, Lady Baltimore made its last contribution to the fund. On December 20, 1983, the Fund sent Lady Baltimore a notice and demand for payment of withdrawal liability in the amount of $ 216,488.80. On November 16, 1984, Lady Baltimore requested arbitration pursuant to 29 U.S.C. § 1401(a). *fn2"

 On November 1, 1985, the Fund filed suit in this court to force Lady Baltimore to make interim payments of the withdrawal liability pending the final decision of the arbitrator. *fn3" On August 26, 1986, the court ordered Lady Baltimore to begin making withdrawal liability payments as they came due in the future.

 On October 22, 1986, the Tax Reform Act of 1986 became law; the Act included the following provision, which had been sponsored by Senator Dole:

In the case of an employer who entered into a collective bargaining agreement --
(A) which was effective on January 12, 1979, and which remained in effect through May 15, 1982, and
(B) under which contributions to a multi employer plan were to cease on January 12, 1982, any withdrawal liability incurred by the employer pursuant to part 1 of subtitle E of this subchapter as a result of the complete or partial withdrawal of the employer from the multiemployer plan before January 12 [16], 1982, shall be void.

 The Fund filed for summary judgment to compel interim payments pending arbitration and on October 27, 1986, Lady Baltimore filed a cross-motion for summary judgment in the district court in part on the basis of this Amendment. The district court granted summary judgment to the Fund, denied Lady Baltimore's motion for summary judgment, and ordered that Lady Baltimore pay past due payments plus interest. Lady Baltimore, 678 F. Supp. 1323, having found the Amendment in its original form to be unconstitutional. In a separate order issued on March 17, 1988, the district court granted the Fund $ 34,065.97 in liquidated damages pursuant to 29 U.S.C. § 1132(g)(2)(C) as well as $ 8,197.50 in counsel fees and $ 135.00 in costs under 29 § 1132 (g)(2)(D). R. 829-40. The Seventh Circuit affirmed that portion of the district court decision requiring that interim payments be made, vacated the holding that the Amendment was unconstitutional, and remanded the matter for arbitration. Lady Baltimore, 868 F.2d at 265.

 Lady Baltimore later prevailed in arbitration before arbitrator Anthony M. Vernava on the strength of the newly-amended Amendment (the Fund conceded that Lady Baltimore fell squarely under the Amendment's protection). On May 22, 1990, the arbitrator (assuming the constitutionality of the Amendment) found that Lady Baltimore's withdrawal liability was void, ordered the return of $ 324,965.07 in withdrawal benefits already paid together with interest. The arbitrator also determined that because Lady Baltimore was not obligated to pay withdrawal liability, it was likewise entitled to a refund of the liquidated damages, attorneys' fees, and costs. R. 507. *fn5"

 Now the Fund advances a number of arguments in support of its renewed request that we find the Amendment unconstitutional. In addition, the Fund argues both that the arbitrator did not have the authority to direct the Fund to return the liquidated damages, attorneys' fees, and costs awarded by the district court and that there is in any case no provision in the statute to refund such awards. Lady Baltimore likewise seeks summary judgment.


 For defendants to prevail on a summary judgment motion, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, [must] show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (c). At this stage, we do not weigh evidence or determine the truth of asserted matters. We simply determine whether there is a genuine issue for trial, i.e. "whether a proper jury question was presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). If the nonmoving party bears "the burden of proof at trial on a dispositive issue, [however] . . . the nonmoving party [is required] to go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), quoting Fed. R. Civ. P. 56 (e). As we find no disputes of material fact, we move to the legal arguments.

 I. The Constitutionality of the Lady Baltimore Amendment

 While the Seventh Circuit vacated the district court's ruling that the Amendment was unconstitutional because the district court had reached the issue unnecessarily, the Amendment has now been applied squarely to Lady Baltimore's withdrawal liability obligation, and the Fund does not dispute that, under the narrow provisions of the Amendment, Lady Baltimore is relieved of its withdrawal liability obligation. The Fund now renews its attack on the Amendment, arguing that it violates substantive due process, equal protection, procedural due process, the Takings Clause, and the requirement of separation of powers. Finally, the Fund seeks to invalidate the Amendment as constituting a forbidden Bill of Attainder.

 A. Substantive Due Process

 The Funds argue that it is impermissible for Congress to take property from one private entity and give it to another private entity, when no public good is served. Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55, 79, 81 L. Ed. 510, 57 S. Ct. 364 (1937). The leading case to guide us in these matters is Usery v. Turner-Elkhorn ...

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