No admin law decisions at the D.C. Circuit this week. The big news, needless to say, was the decision in USA v. Trump, No. 23-3228, in which the court (Judges Henderson, Childs, and Pan) held that “any executive immunity that may have protected [Trump] while he served as President no longer protects him against this prosecution.” The speculation once focused on when the D.C. Circuit would issue a decision has now turned to what the Supreme Court will do.
The immunity decision was recapped pretty much everywhere, so I won’t spill more digital ink on it here (though I will note that it includes several pages discussing the collateral order doctrine in criminal cases, which could be of interest beyond the newsworthy particulars of the case itself).
Instead, I’ll briefly recap the other D.C. Circuit decision last week, which was, shall we say, somewhat less well covered. That case, Trustees of the IAM Nat’l Penson Fund v. M & K Employee Solutions, LLC, addressed how to calculate withdrawal liability for employers withdrawing from a multiemployer pension plan. Under the Multiemployer Pension Plan Amendments Act, an employer withdrawing from a multiemployer plan must pay its share of the plan’s unfunded pension benefits. That withdrawal liability is calculated by the plan’s actuary, as of the “measurement date,” based on reasonable assumptions. The basic question was: when does the statute require the actuarial assumptions to be determined—on or before the measurement date or can they be made after? The court held that “an actuary may set actuarial assumptions … after the measurement date,” so long as the assumptions are “based on information that was available ‘as of’ the measurement date.” (This matters because changes to assumptions, e.g., about future interest rates, can substantially alter the amount of withdrawal liability.) This decision didn’t generate news coverage, but it did generate a circuit split with the Second Circuit—so perhaps it will generate a certiorari petition, too.