Appeals from orders of the United States District Court for the Southern District of New York (Weinfeld, J.), requiring that disputed pension benefit payments be made into escrow pendente lite. We hold that the orders are not appealable. Appeals dismissed.
Before: KAUFMAN, KEARSE and PRATT, Circuit Judge.
We are called upon to decide what is a "preliminary injunction."
Without prejudging in any way the factual issues that are yet to be determined below, we state the facts relevant to our decision as they appear from the pleadings and record to date.
Korea Shipping Corporation ("KSC") is an entity of the government of the Republic of South Korea engaged in the commercial carriage of goods by sea. The New York Shipping Association is an organization of shipowners and stevedores which, by agreeing with a union representing longshoremen, the International Longshoremen's Association, has set up a multiemployer pension benefit plan in accordance with 29 U.S.C. § 1002 for the purpose of providing protection to the union's members. The pension benefit plan is known as the New York Shipping Association - International Longshoremen's Association Pension Trust Fund ("PTF").
Following a cessation of a portion of its operations in New York harbor, KSC sued for a declaration that it was not responsible to PTF for "withdrawal liability" pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended by the Multiemployer Pension Plan Amendments Act of 1980 ("MPPAA"), 29 U.S.C. §§ 1001-1461.
After denying a motion by PTF for summary judgment and ordering limited discovery, the district court ordered KSC to continue making the disputed pension payments to PTF pendente lite ("the payment order"). Judge Weinfeld ruled that the MPPAA required that the payments be continued pending a resolution of the merits. He reasoned that "the clear Congressional intent" expressed in 29 U.S.C. § 1399(c)(2) required this outcome.*fn1 The district court later modified its order at the request of KSC to provide that the payments be made into escrow and held subject to further order of the court ("the escrow order").
At present, the district court is considering renewed cross-motions for summary judgment that were filed upon the completion of the discovery proceedings.
KSC has appealed from the payment order, and PTF has one the same with respect to the escrow order.
We are met at the outset by PTF's contention that we lack jurisdiction over KSC's appeal because the payment order is interlocutory and non-appealable. KSC responds that the order is a preliminary injunction and ...