Whether a multiemployer pension plan that has terminated by mass withdrawal remains eligible for Special Financial Assistance under the American Rescue Plan Act of 2021 despite no longer having a zone status

No question identified. : 1. In the American Rescue Plan Act of 2021, Pub. L. No. 117-2, 135 Stat. 4, Congress established the Special Financial Assistance (SFA) program, “a temporary program * * * to help struggling multiemployer pension plans.” App., infra, 2a; see § 9704(b), 135 Stat. at 190 (codified at 29 U.S.C. 1432). The Act directs the PBGC, which administers an insurance program for multiemployer plans under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. 1001 et seq., to provide SFA to eligible plans, which need not repay the assistance. 29 U.S.C. 1432(a). As relevant here, a plan is eligible for SFA if it “is in critical and declining status (within the meaning of section 1085(b) (6) of [Title 29]) in any plan year beginning in 2020 through 2022.” 29 U.S.C. 1432(b) (1) (A). “{[C]ritical and declining status” is one of several “zone statuses” defined in 29 U.S.C. 1085; a plan’s zone status dictates whether it is subject to certain reporting and other requirements under ERISA. See generally 29 U.S.C. 1085. But if a plan is terminated as a result of “the withdrawal of every employer from the plan,” 29 U.S.C. 1341la(a) (2), Section 1085 ceases to apply after “the last day of the plan year in which the plan terminates,” 29 U.S.C. 1081(c). 2. The Bakery Drivers Local 550 and Industry Pension Fund is a multiemployer pension plan that terminated by mass withdrawal in 2016. App., infra, 4a. “In September 2022, hoping to ensure the Fund’s eligibility under the newly enacted SFA program, a former employer -Bimbo Bakeries USA -agreed to rejoin the Fund and resume contributions on behalf of its then-current employees.” Id. at 5a. The Fund then applied for SFA, but the PBGC denied its application because it “has had no zone status since plan year 2016, when the Plan terminated by mass withdrawal.” Ibid. (citation omitted). The Fund sued the PBGC in the United States District Court for the Eastern District of New York to challenge the denial of its SFA application. App., infra, 6a. The district court granted summary judgment to the PBGC, concluding that “a multiemployer plan that had been terminated by mass withdrawal could neither claim SFA funding under [29 U.S.C.] 1432(b) (1) (A) nor restore itself.” Ibid. The Second Circuit reversed. App., infra, la-13a. The court of appeals held that a multiemployer plan is eligible for SFA under 29 U.S.C. 1432(b) (1) (A) if it satisfied the criteria for “critical and declining status” under 29 U.S.C. 1085(b) (6) during the 20202022 period even if it had previously terminated. App., infra, 13a. Because Section 1432(b)(1) (A) refers only to Section 1085 (b) (6), the court reasoned, “[a]ny limitation that § 1081(c)” -which provides that a terminated plan ceases to have a zone status under Section 1085 -“might place on § 1085(b) (6)'’s operation would not affect” the plan’s eligibility for SFA. Id. at lla. Having held that Section 1432(b) (1) (A) “does not exclude terminated plans per se,” the court had no need to “decide whether ERISA permits a terminated multiemployer plan to be restored.” Id. at 13a n.5. The court remanded the case to the district court for entry of summary judgment for the Fund, vacatur of the denial of the Fund’s SFA application, and remand to the PBGC for reconsideration. Id. at 13a. 3. The Solicitor General has not yet determined whether to file a petition for a writ of certiorari in this case. The additional time sought in this application is needed to continue consultation with the PBGC and other executive-branch agencies, and to assess the legal and practical impact of the Second Circuit's ruling. Additional time is also needed, if a petition is authorized, to permit its preparation and printing. Respectfully submitted. D. JOHN SAUER Solicitor General Counsel of Record SEPTEMBER 2025 Court of appeals opinion