# Pension Benefit Guaranty Corporation v. Ltv Corporation

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## Concurring Opinion

    White

## Dissenting Opinion

    Stevens
United States Supreme Court
496 U.S. 633
Pension Benefit Guaranty Corporation v. Ltv Corporation
No. 89-390 Argued: Feb. 27, 1990. --- Decided: June 18, 1990
Syllabus
Title IV of the Employee Retirement Income Security Act of 1974 (ERISA) includes a mandatory Government insurance program that protects private-sector workers participating in covered pension plans against the termination of their plans before sufficient funds have been accumulated to pay anticipated benefits. The program is administered by petitioner Pension Benefit Guaranty Corporation (PBGC), which is responsible for paying terminated plans' unfunded liabilities out of the proceeds of annual premiums collected from employers maintaining on-going plans. Respondent The LTV Corporation and many of its subsidiaries (collectively LTV) filed reorganization petitions under the Bankruptcy Code for the purpose, inter alia, of restructuring the pension obligations of one of the subsidiaries under three ERISA-covered, chronically underfunded pension plans (Plans), two of which could not be voluntarily terminated by LTV under ERISA's terms because they resulted from collective-bargaining negotiations with the United Steelworkers of America. In light of LTV's statement that it could no longer provide complete funding, the PBGC sought involuntary termination of the Plans to protect the insurance program from the risk of large losses. After the District Court terminated the Plans, LTV and the Steelworkers negotiated new pension arrangements, which the PBGC characterized as "follow-on" plans; i.e., arrangements designed to wrap around PBGC insurance benefits to provide substantially the same benefits as would have been received had no termination occurred. Pursuant to its anti-follow-on policy, which considers such plans to be "abusive" of the insurance program, and in light of its perception that LTV's financial circumstances had dramatically improved, the PBGC issued a notice of restoration of the terminated Plans under § 4047 of ERISA, which authorizes the PBGC to undo a termination "in any . . . case in which [it] determines such action to be appropriate and consistent with its duties under [Title IV]." When LTV refused to comply with the restoration decision, the PBGC filed an enforcement action, but the District Court vacated the decision upon finding, among other things, that the PBGC had exceeded its § 4047 authority. The Court of Appeals affirmed, holding that the restoration decision was, in various respects, "arbitrary and capricious" or contrary to law under the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A).
Held: The PBGC's restoration decision was not arbitrary and capricious or contrary to law under § 706(2)(A). Pp. 645-656.
(a) The PBGC's failure to consider and discuss the "policies and goals" underlying federal bankruptcy and labor law did not, as the Court of Appeals held, render the restoration decision arbitrary and capricious. That holding cannot be reconciled with the plain language of § 4047, which does not direct that the decision further the "public interest" generally, but, rather, specifically and unambiguously requires the PBGC to focus on ERISA. Moreover, if agency action could be disturbed whenever a reviewing court was able to pinpoint an arguably relevant statutory policy that was not explicitly considered, a very large number of agency decisions might be open to judicial invalidation in light of numerous federal statutes that could be said to embody countless goals. Also, because the PBGC can claim no expertise in the labor and bankruptcy areas, it may be ill equipped to undertake the difficult task of discerning and applying the "policies and goals" of those fields. Pp. 645-647. SC2Q! (b) The PBGC's anti-follow-on policy is not contrary to law. A clear congressional intent to avoid restoration decisions based on the existence of follow-on plans is not evinced by the text of § 4047, which embodies a broad grant of authority to the PBGC, or by the legislative history of ERISA or its 1987 amendments. Moreover, the policy is based on a "permissible" construction that is rational and consistent with § 4047 and is therefore entitled to deference. The policy is premised on the eminently reasonable belief that employees will object more strenuously to a company's original termination decision if a follow-on plan cannot be used to put them in the same position after termination as they were in before. The availability of such a plan thus would remove employee resistance as a significant check against termination, and may therefore tend to frustrate one of ERISA's objectives that the PBGC is supposed to accomplish-the continuation and maintenance of voluntary private plans. In addition, such plans have a tendency to increase the PBGC's deficit and employers' insurance premiums, thereby frustrating a related ERISA objective the maintenance of low premiums. Although the employer's financial improvement may be relevant to the restoration decision, it is not, as respondents contend, the only permissible consideration. It is rational for the PBGC to disfavor follow-on plans where, as here, there is no suggestion that immediate retermination will be rendered necessary by the employers' financial situation. Pp. 2676-2679.
(c) The restoration decision in this case was not rendered arbitrary and capricious by the use of inadequate procedures. Since the Court of Appeals did not point to any APA or ERISA provision giving LTV the procedural rights identified by the court-an apprisal of material on which the decision was to be based, an adequate opportunity to offer contrary evidence, proceedings in accordance with ascertainable standards, and a statement showing the PBGC's reasoning in applying those standards-the court's holding ran afoul of Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 524, 98 S.Ct. 1197, 1202, 55 L.Ed.2d 460. Moreover, since there was no suggestion that the administrative record was inadequate to enable the court to fulfill its § 706 duties, its holding finds no support in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 825, 28 L.Ed.2d 136. Nor is LTV aided by the dictum of Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 288, n. 4, 95 S.Ct. 438, 443, n. 4, 42 L.Ed.2d 447, that a "party is entitled . . . to know the issues on which decision will turn and to be apprised of the factual material on which the agency relies for decision so that he may rebut it." That statement was made in the context of a formal agency adjudication under the trial-type procedures of the APA, 5 U.S.C. §§ 554, 556-557, which require notice of the factual and legal matters asserted, an opportunity for the submission and consideration of facts and arguments, and an opportunity to submit proposed findings and conclusions or exceptions. The determination here, however, was lawfully made by informal adjudication under § 555, which does not require such elements. Pp. 653-656.
875 F.2d 1008 (CA 2 1989), reversed and remanded.
BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, MARSHALL, SCALIA, and KENNEDY, JJ., joined, and in which WHITE and O'CONNOR, JJ., joined except as to the statement of judgment and n. 11. WHITE, J., filed an opinion concurring in part and dissenting in part, in which O'CONNOR, J., joined, post, p. 656. STEVENS, J., filed a dissenting opinion, post, p. 657.
Carol Connor Flowe, for petitioner.
Lewis B. Kaden, New York City, for respondents.
Justice BLACKMUN delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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