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FUSCO v. ROME CABLE CORP.

November 13, 1996

LAURA A. FUSCO, in her capacity as the Appointed Financial Trustee Under § 4049 of the Employee Retirement Income Security Act of 1974 for the Termination of the Retirement Insurance Plan for Hourly Rated Employees of Rome Cable Corporation, Plaintiff,
v.
ROME CABLE CORPORATION, Defendant.



The opinion of the court was delivered by: MCCURN

 BACKGROUND

 The court assumes familiarity with the background and prior proceedings in this action, including Fusco v. Rome Cable Corp., 859 F. Supp. 624 (N.D.N.Y. 1994) ("Fusco I "), wherein this court held, among other things, "that Rome Cable . . . is declared and adjudged liable to the section 4049 *fn1" trust for the outstanding benefit commitments *fn2" owed to the participants and beneficiaries of the Retirement Insurance Plan for Hourly Rated Employees of Rome Cable." Id. at 636 (footnotes added). Still unresolved after Fusco I, however, is the issue of the precise amount of Rome Cable's liability to the section 4049 trust for the unguaranteed benefits. It is that issue which is presently before the court on this motion by the plaintiff, Laura A. Fusco, in her capacity as the Appointed Financial Trustee Under § 4049 of the Employee Retirement Income Security Act of 1974 ("ERISA") for the termination of the Retirement Insurance Plan for Hourly Rated Employees of Rome Cable Corporation ("the Trustee"), for partial summary judgment. Two other closely related issues also are presented by this motion: (1) whether Rome Cable is statutorily liable for interest on that amount; and (2) whether the Trustee is entitled to a statutory award of attorney's fees, costs and expenses pursuant to 29 U.S.C. § 1132(g)(1).

 DISCUSSION

 The facts are not in dispute. Rather, resolution of the Trustee's motion requires the court to engage in statutory interpretation, and as such this motion is ripe for summary judgment. See Heublein, Inc. v. U.S., 996 F.2d 1455, 1461 (2d Cir. 1993) (citation omitted) ("Questions of statutory construction and legislative history present legal issues that may be resolved by summary judgment."); see also Romano v. Terdik, 939 F. Supp. 144, 1996 WL 494294, at *3 (D.Conn. 1996) ("The determination of whether 18 U.S.C. § 2520(c)(2) mandates an award of damages is a question of statutory interpretation and a legal issue that can be determined by summary judgment.").

 I. Amount of Rome Cable's Liability on the Principal

 The parties agree that to determine the amount of Rome Cable's liability on the principal, the court must look to 29 U.S.C. § 1362. There is a disagreement, however, as to which version of that statute applies - the version in effect in September, 1987, when the plan was terminated, or the current version. Rome Cable urges application of the former version, which would limit its statutory liability to seventy-five percent of the unguaranteed benefits, *fn3" whereas the Trustee urges application of the current version, which declares that an employer such as Rome Cable is liable for the total amount of unguaranteed benefits. *fn4"

 If the court finds that former section 1362 governs Rome Cable's liability, then the Trustee concedes that the amount of such liability would be limited to seventy-five percent of the unguaranteed benefits. Reply Memorandum in Support of Plaintiff's Motion for Summary Judgment on the Amount of Liability of Rome Cable Corporation ("Pl. Reply") at 2. The Trustee takes the position, however, that Rome Cable's liability is no so limited because (1) under the law of the case doctrine, this court is bound to apply the current version of section 1362; and (2) it appears that the Pension Benefit Guaranty Corporation ("PBGC") employed the current version of section 1362 in arriving at total outstanding benefit commitments of $ 841,171.00, and Rome Cable never challenged that calculation before the PBGC. The court will address these arguments in turn.

 A. Law of the Case

 Relying upon Fusco I, supra, the Trustee contends that under the law of the case doctrine, in assessing Rome Cable's liability, the court should apply section 1362(c) as it presently reads. In discussing the Trustee's motion for partial summary judgment on the issue of liability, this court stated in Fusco I : "This particular motion is based upon the plaintiff's assertion that, as a matter of law, Rome Cable is liable to the section 4049 trust." Id. at 633. This court further stated, "In that regard, plaintiff points to 29 U.S.C. § 1362, which fully sets forth the parameters of a contributing sponsor's liability, such as Rome Cable." Id. At the conclusion of that statement, the court added a footnote, setting forth the current version of section 1362(c). Id. at 633 n. 14. Based upon that footnote, the Trustee maintains that it is the "law of the case" that the court should look to the current version of section 1362(c) to ascertain Rome Cable's liability.

 Rome Cable retorts that the Trustee is conveniently misconstruing the law of the case doctrine in that she is failing to take into account an essential component of that doctrine. More specifically, under that doctrine, "'a legal decision made at one stage of litigation, unchallenged in a subsequent appeal when the opportunity to do so existed, becomes the law of the case for future stages of the same litigation, and the parties are deemed to have waived the right to challenge that decision at a later time."" Mayer v. Cornell University, Inc., 909 F. Supp. 81, 83 (N.D.N.Y. 1995) (emphasis added) (quoting North River Ins. Co. v. Philadelphia Reinsurance Corp., 63 F.3d 160, 164 (2d Cir. 1995) (quoting in turn Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 258 U.S. App. D.C. 124, 810 F.2d 243, 250 (D.C.Cir. 1987)). Rome Cable contends that because the legal issue of which version of section 1362(c) was not before the court in Fusco I, the reference therein to the current version of that statute does not require the court to apply that version now, when, for the first time, the issue has arisen as to which version of that statute governs its liability. The court agrees. In Fusco I, this court did not expressly decide which version of section 1362 should govern the amount of Rome Cable's liability herein; nor in Fusco I did this court decide that issue by implication. It was not necessary for the court to determine the amount of Rome Cable's liability in order for it to determine that Rome Cable was statutorily liable to the section 4049 trust.

 There are two additional reasons Rome Cable overlooks, but which further persuade the court that the law of the case doctrine has no place in determining whether the former or the current version of section 1362(c) applies here. First of all, because this court's decision in Fusco I was not a final order, the law of the case doctrine is not implicated. See Matter of Grand Valley Sport & Marine, Inc., 143 Bankr. 840, 854 (Bkrtcy. W.D. Mich. 1992) (notice order which, by its terms, did not become a final order unless no objections to the same were filed within a specified time period, did not become final order which could be invoked as the basis for a law of the case doctrine where an objection was filed to that order); Vander Malle v. Ambach, 667 F. Supp. 1015, 1030 n.14 (S.D.N.Y. 1987) (internal quotations and citation omitted) (emphasis in original) ("The [law of the case] doctrine depends upon a prior final decision of an issue or claim by the court or by an appellate tribunal[.]").

 Second, even if in Fusco I this court had been squarely faced with the issue of which version of section 1362 governs, and even if this court had expressly held that the current version of that statute applies, nevertheless, the law of the case doctrine would not necessarily require the court to adhere to that prior ruling. "The 'law of the case is not a commandment etched in stone." Mayer, supra, 909 F. Supp. at 83 (quoting Childress v. Taylor, 798 F. Supp. 981, 993 (S.D.N.Y. 1992)) (other citation omitted). Thus, as this court recognized in Mayer, "when a court is asked to reconsider its own prior rulings, under the 'more flexible branch,' of the law of the case doctrine, it may do so 'when those previous decisions were substantially erroneous or when reconsideration is necessary to avoid injustice.'" Id. (quoting Scottish Air. Intern. v. British Caledonian Group, 152 F.R.D. 18, 25 (S.D.N.Y. 1993)) (other quotations and citations omitted). As will be seen, the court concludes that the former version of section 1362(c) is determinative of Rome Cable's liability in this action. Therefore, assuming arguendo that the court had previously held that the current version of that statute should apply, the court would not, under the law of the case doctrine, be required to apply that version now because to do so would be substantially erroneous. Consequently, despite the Trustee's assertion to the contrary, the court finds that even if the law of the case doctrine properly could be invoked here, that doctrine does not require a finding that section 1362 in its current form is controlling on the issue of the amount of Rome Cable's liability. Therefore, because the court is not bound by the law of the case doctrine, it will analyze the issue of which version of section 1362 governs the present action without regard to Fusco I.

 B. Exhaustion of Administrative Remedies

 The second aspect of this argument which is bothersome is that although not couched in precisely these terms, presumably the Trustee is asserting that Rome Cable failed to exhaust its administrative remedies before the PBGC with respect to the amount of its liability on the outstanding benefit commitments. *fn7" If, indeed, the Trustee is arguing exhaustion, the court finds it curious that she did not specifically invoke 29 C.F.R. § 2606.7, which expressly states, in relevant part, "[A] person aggrieved by an initial determination of the PBGC covered by this part, . . ., has not exhausted his or her administrative readies until he or she has filed a request for reconsideration. . ., and a decision granting or denying the relief requested has been issued." 29 C.F.R. § 2606.7 (1995). As already mentioned, the court also finds it troubling, as just mentioned, that the Trustee did not adequately brief this issue. In any event, ...


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