UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

In re

Bankr. No. 13-53846

CITY OF DETROIT, MICHIGAN, Chapter 9

HON. STEVEN W. RHODES

Debtor.

__________________________________/

THOMAS J. CIPOLLONE, Case No. 14-cv-14910

Appellant, HON. BERNARD A. FRIEDMAN

vs.

CITY OF DETROIT, MICHIGAN, et al.,

Appellees.

__________________________________/

OPINION AND ORDER GRANTING APPELLEE’S MOTION TO DISMISS 

APPEAL AS EQUITABLY AND CONSTITUTIONALLY MOOT

PURSUANT TO FED. R. CIV. P. 12(b)(1)

This matter is presently before the Court on the “Corrected Motion of Appellee the

City of Detroit, Michigan for an order Pursuant to Fed. R. Civ. P. 12(b)(1) Dismissing Appeal as

Equitably and Constitutionally Moot” [docket entry 29]. Appellant, Thomas J. Cipollone, has filed

a brief in opposition and appellee, the City of Detroit, Michigan (“the City”), has filed a reply. 

Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide this motion without a hearing. 

I. Background

After experiencing decades of financial decline, the City filed the above-captioned

Chapter 9 case (“Chapter 9 Case”) on July 18, 2013, in the United States Bankruptcy Court for the

Eastern District of Michigan (“the Bankruptcy Court”). This Chapter 9 Case is the largest and most

complex municipal bankruptcy in U.S. history. See In re City of Detroit, 504 B.R. 191, 281 (Bankr.

E.D. Mich. 2013) (finding that, as of July 18, 2013, the City had over $18 billion in escalating debt,

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over 100,000 creditors, and hundreds of millions of dollars of negative cash flow). The importance

of this Chapter 9 Case cannot be overstated. The Bankruptcy Court found that there existed a

“service delivery insolvency” such that the City did not have “the resources to provide its residents

with the basic police, fire and emergency medical services that its residents need for their basic

health and safety.” Id. at 193. 

Over the course of 16 months, the City engaged in negotiations and mediation with

representatives of the vast majority of its creditors, which resulted in a series of intricate and

carefully woven settlements with nearly all of the City’s stakeholder constituencies. These carefully

woven settlements were encompassed in the City’s Eighth Amended Plan for the Adjustment of

Debts of the City of Detroit (“the Plan”), which the Bankruptcy Court confirmed on November 12,

2014, in its Order Confirming Eighth Amended Plan for the Adjustment of Debts of the City of

Detroit (“Confirmation Order”) after conducting a 24-day evidentiary hearing. Appellant appeals

the Bankruptcy Court’s Confirmation Order, arguing that various aspects of the treatment of pension

claims under the Plan violate the Bankruptcy Code.

The “Grand Bargain” and the Global Retiree Settlement

At the heart of the confirmed Plan is the “Grand Bargain”–a carefully interlaced

settlement agreement that made it possible for the City, which cannot fully fund its future pension

obligations, to avoid drastic cuts to pensions. The Grand Bargain includes agreements by and

between the City, the State of Michigan, certain philanthropic foundations, and the Detroit Institute

of Arts (“DIA”) to provide a total of $816 million in funding (“the Outside Funding”) to the City

to finance its pension obligations (as adjusted by the Plan). In securing the Grand Bargain, the City

entered into a comprehensive settlement (“the Global Retiree Settlement”) of pension, healthcare,

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and other labor-related issues with employee and retiree representatives, including the official

committee of retirees appointed in the Chapter 9 Case; critical unions and retiree associations; and

the City’s two retirement systems, the General Retirement System (“GRS”) and the Police and Fire

Retirement System (collectively, the “Retirement Systems”). 

The Retirement Systems are fiduciary trusts and legal entities separate from the City. 

On behalf of the City, they administer the retirement programs established by the City for City

employees, retirees, and their beneficiaries. The GRS Board of Trustees administers a defined

benefit pension plan (“GRS Defined Benefit Pension Plan”) and a defined contribution annuity

program (“the Annuity Savings Fund”). The City is the sole sponsor of each Retirement System’s

defined benefit pension plan and is therefore ultimately responsible for any deficiency in funding

those plans. The City, however, is not responsible for funding the GRS Annuity Savings Fund that

is at the heart of this appeal.

Treatment of GRS Pension Claims Under the Plan

The Plan classifies the pension claims of members of the GRS (“GRS Pension

Claims”) in Class 11 of the Plan’s claims.1

 Even with the $816 million in Outside Funding

negotiated through the Grand Bargain, the City did not have the resources to fully fund GRS Pension

Claims over time. The Plan therefore adjusts GRS Pension Claims by providing for payment over

time for approximately 60% of the $1.879 billion underfunded portion of the GRS Defined Benefit

Pension Plan (hereafter the “underfunded claims”), assuming that $816 million is received from

Outside Funding. Because the City cannot fully satisfy the underfunded claims, the Plan adjusts the

1

 Other pension claims are classified in Class 10. The Plan’s treatment of retiree healthcare

claims (which fall under “OPEB Claims”) are classified in Class 12.

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future benefits of GRS members by eliminating annual cost of living increases in benefits

(“COLAs”) and imposes an across-the-board 4.5% reduction in earned pensions of GRS members. 

These adjustments were conditioned in part upon acceptance of the Plan by the holders of GRS

Pension Claims, who were notified that if they rejected the Plan, the Outside Funding would not be

available and the City would be required to reduce each GRS retiree’s pension by 27% instead of

by 4.5%. Holders of Class 11 GRS Pension Claims voted 73% in favor of accepting the Plan. 

ASF Recoupment

In addition to the GRS Defined Benefit Pension Plan, since 1973 the GRS has

sponsored the Annuity Savings Fund (“ASF”), a supplemental retirement program that allows

current City employees to invest up to seven percent of their after-tax salaries in a defined

contribution retirement account. Although ASF funds are not used to fund pensions earned under

the GRS Defined Benefit Pension Plan, these funds are nonetheless held in the GRS trust and are

invested with the assets that the City contributed to fund the GRS Defined Benefit Pension Plan. 

The ASF accounts operate like a 401(k) account–employees earn interest on their contributions

based on the returns from ASF account investments, which the GRS Board of Trustees determines

and then credits to those ASF accounts annually. But these ASF accounts were unlike any other

401(k) account because they were treated essentially as guaranteed investment contracts. From the

mid-1980s until fiscal year 2012, the GRS Trustees would credit each ASF account holder with no

less than a 7.9% annual return, regardless of the actual annual return on GRS Trust Assets.

The practice of crediting ASF account holders with a guaranteed 7.9% annual return2

was financed by diverting nearly $387 million contributed by the City to the GRS Defined Benefit

2

 The City describes the illegality of this practice at length at pages 13-17 of its brief.

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Pension Plan to the ASF participants’ individual defined contribution accounts. Not surprisingly,

this diversion process contributed to the City’s inability to fully fund GRS Pension Claims. Thus,

in negotiating the underfunded GRS Pension Claims, the City made known to the Retiree

Representatives that the City possessed various causes of action against the GRS and the GRS

Trustees, under which it could, and had an obligation to, recoup those diverted payments. After

months of negotiations, the City and GRS agreed to settle those causes of action as part of the Global

Retiree Settlement. The parties agreed that it would be unfair to address the underfunded portion

of the GRS Defined Benefit Pension Plan by reducing pensions of all GRS participants regardless

of whether and how much they participated in the ASF program. Instead, to minimize global

reductions and to recover a reasonable amount of improperly diverted GRS Defined Benefit Pension

Plan funds, the parties agreed as part of the Global Retiree Settlement to recapture diverted funds

through an intricate ASF Recoupment program set forth in the Plan.

The ASF Recoupment program allows the City to recover approximately $190

million of the roughly $387 million in GRS Defined Benefit Pension Plan funds that were

improperly diverted from July 1, 2003, to June 30, 2013 (“ASF Recoupment Period”). Annual

recoupment is determined by the difference between the amounts earned on ASF accounts and the

amounts that would have been earned had the accounts been credited with actual returns, but capped

at 7.9% and with a floor against investment loss (0%). The ASF Recoupment program then recoups

from each recipient of excess interest, subject to two independent caps. In each case, the total

amount to be recovered is capped at 20% of the highest value of the recipient’s ASF account balance

during the ASF Recoupment Period. Further, the total pension benefit of ASF participants who

retired as of June 30, 2014, cannot be reduced by more than a total of 20% of their annual pension

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benefit, including the reduction from both ASF Recoupment and the 4.5% across-the-board

reduction of all GRS pensions. The parties agreed that the process to recover the ASF Recoupment

amounts would proceed as follows: (a) for current City employees who continued to maintain ASF

accounts, by debiting their ASF accounts in the amount of ASF Recoupment; and (b) for those who

already received a full distribution of their ASF accounts, by their monthly pension further reduced. 

The ASF Recoupment program therefore struck a balance between two opposite

objectives: (1) avoiding the imposition of even greater pension cuts for those who either did not

participate or participated minimally in the ASF program; and (2) minimizing, to the extent

reasonable given the City’s financial insolvency and inability to fully fund GRS Pension Claims,

the effect of recoupment on the pensions and income of those who had participated in the ASF

program. As noted by the Bankruptcy Court, ASF Recoupment is an “integral component of the

City’s [Global Retiree Settlement]” and is projected to recover about $190 million, without which,

the Bankruptcy Court further noted, the Plan would be required to impose a 13% across-the-board

reduction in GRS pensions, rather than the confirmed 4.5% reduction. Confirmation Order at 61,

95.

Impact of the Plan

Overall, the Plan (1) eliminates approximately $7 billion in City liabilities; (2) frees

approximately $1.7 billion in revenue over a nine-year period for reinvestment into the City’s

services, including directing funds to public safety services, blight remediation, and improvements

to information technology and public transportation; and (3) provides for $483 million in additional

revenue and $358 million in cost savings over the same time period.

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Since the Plan became effective on December 10, 2014, the City has taken several

steps to implement it. For example, the City (1) issued $287.5 million in bonds under the Exit

Facility; (2) issued $632 million and $88 million in New B and C Notes, respectively; (3)

irrevocably transferred all DIA assets to a perpetual charitable trust; (4) debited excess interest from

all but five current ASF account holders subject to the ASF Recoupment program; (5) transferred

interests of property pursuant to the Syncora Settlement and the FGIC/COP Settlement; and (6)

implemented a two-year City budget. These actions provide only a brief glimpse into the numerous

transactions that have occurred since the Plan’s effective date.

The Instant Appeal

Appellant appeals the Bankruptcy Court’s Confirmation Order, arguing that various

aspects of the treatment of pension claims under the Plan violate the Bankruptcy Code. Appellant

is a current City employee and participant in the ASF program. Pursuant to ASF Recoupment,

appellant had $59,356 debited from his ASF account in January 2015. Appellant’s Resp. at 5, 35. 

Appellant objects to the Plan’s imposition of ASF Recoupment and asks the Court to sever the ASF

Recoupment provision from the Plan and return $59,356 to his ASF account. Appellant’s Br. at 6.

II. Legal Standard

This Court has jurisdiction to hear appeals from “final judgments, orders, and

decrees” of the Bankruptcy Court. 28 U.S.C. § 158(a)(1). The City has moved to dismiss this

appeal as equitably and constitutionally moot pursuant to Fed. R. Civ. P. 12(b)(1). Appellant argues

that a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) is improper because the Federal Rules

of Civil Procedure do not apply in a bankruptcy appeal. The Court disagrees and finds that a motion

to dismiss an appeal of an order confirming a bankruptcy plan as equitably or constitutionally moot

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is properly brought pursuant to Fed. R. Civ. P. 12(b)(1). See Alexander v. Barnwell Cnty. Hosp.,

498 B.R. 550, 557 (D.S.C. 2013). 

III. Argument

A. The Doctrine of Equitable Mootness

The doctrine of equitable mootness applies “in appeals from bankruptcy

confirmations in order to protect parties relying upon the successful confirmation of a bankruptcy

plan from a drastic change after appeal.” In re United Producers, Inc., 526 F.3d 942, 947 (6th Cir.

2008). The doctrine promotes fairness and protects “parties’ settled expectations and the ability of

a debtor to emerge from bankruptcy.” Id. (citing In re Ormet Corp., No. 2:04-CV-1151, 2005 WL

2000704, at *4 (S.D. Ohio Aug. 19, 2005)). Equitable mootness operates on the premise that a

bankruptcy plan “once implemented, should be disturbed only for compelling reasons,” City of

Covington v. Covington Landing Ltd. P’ship, 71 F.3d 1221, 1225 (6th Cir. 1995) (internal quotation

marks and citation omitted), and is “grounded in the notion that, with the passage of time after a

judgment in equity and implementation of that judgment, effective relief on appeal becomes

impractical, imprudent, and therefore inequitable,” In re United Producers, Inc., 526 F.3d at 947

(quoting MAC Panel Co. v. Va. Panel Corp., 283 F.3d 622, 625 (4th Cir. 2002) (internal quotation

marks omitted)). The equitable mootness doctrine therefore prevents a creditor, or any party for that

matter, from overturning an order of the Bankruptcy Court–most often a confirmation order–if the

requested relief would unravel complex and interwoven restructuring agreements or would require

the undoing of transactions that are “extremely difficult to retract.” In re Ormet Corp., 355 B.R. 37,

41 (S.D. Ohio 2006).

Appellant correctly notes that the doctrine of equitable mootness has been applied

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to a Chapter 9 bankruptcy appeal in only two cases–neither of which originated from courts within

the Sixth Circuit. See In re City of Vallejo, CA, 551 F. App’x 339, 339 (9th Cir. 2013) (affirming

the Bankruptcy Appellate Panel’s order dismissing Chapter 9 appeals as equitably moot); Barnwell

Cnty. Hosp., 498 B.R. 550, 559 (D.S.C. 2013) (dismissing Chapter 9 appeal as equitably and

constitutionally moot). While it is true that “[e]quitable mootness is most commonly applied to

avoid disturbing [Chapter 11] plans of reorganization,” In re Fontainebleau Las Vegas Holdings,

LLC, 434 B.R. 716, 742 (S.D. Fla. 2010), this doctrine has been applied in other contexts, such as

in Chapter 7 appeals, see, e.g., In re McDonald, 471 B.R. 194, 196-97 (E.D. Mich. 2012) (applying

an equitable mootness analysis to a Chapter 7 appeal),3

 and in Chapter 11 liquidation proceedings,

see, e.g., In re BGI, Inc., 772 F.3d 102, 108-09 (2d Cir. 2014) (finding “no principled reason” why

the doctrine of equitable mootness should not also apply in Chapter 11 liquidation proceedings

where “substantial interests may counsel in favor of preventing tardy disruption of a duly developed,

confirmed, and substantially consummated plan”).4 

A survey of the case law discussing and applying the doctrine underscores the notion

that equitable mootness “is not limited to appeals of orders confirming [Chapter 11] reorganization

3

 See also In re Shawnee Hills, Inc., 125 F. App’x 466, 469-70 (4th Cir. 2005) (applying

equitable mootness doctrine to a Chapter 7 appeal); In re Health Co. Int’l, 136 F.3d 45, 48-49 (1st

Cir. 1998) (same); In re Fitzgerald, 428 B.R. 872, 881-82 (B.A.P. 9th Cir. 2010) (same); In re Carr,

321 B.R. 702, 706-07 (E.D. Va. 2005) (noting that the equitable mootness doctrine applies with

equal force to a Chapter 7 liquidation of a bankruptcy estate as it does to a Chapter 11

reorganization). 

4

 See also In re President Casinos, Inc., 409 F. App’x 31, 31-32 (8th Cir. 2010) (affirming

district court’s decision that Chapter 11 liquidation appeal was equitably moot); In re Centrix Fin.

LLC, 355 F. App’x 199, 201-02 (10th Cir. 2009) (remanding Chapter 11 liquidation appeal to district

court with instructions to apply equitable mootness analysis); In re Superior Offshore Int’l, Inc., 591

F.3d 350, 353-54 (5th Cir. 2009) (conducting an equitable mootness analysis in a Chapter 11

liquidation appeal).

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plans,”5

 has “been applied in a variety of [bankruptcy chapter] contexts,”6 and should be “accorded

broad reach.”7 As the case law illustrates, the doctrine is not concerned with the specific chapter

under which the debtor’s case was brought. Rather, what matters is whether hearing the bankruptcy

appeal could unravel the debtor’s plan and disturb the reliance interests created by it. Because the

underlying equitable considerations of promoting finality and good faith reliance on a judgment

applies with equal force to a Chapter 9 bankruptcy appeal, the Court sees no reason why the doctrine

should not be applied to avoid disturbing a Chapter 9 plan of adjustment. 

In urging the Court to hold otherwise, appellant relies heavily on the decision in

Bennett v. Jefferson Cnty., 518 B.R. 613 (N.D. Ala. 2014), where the court held that the doctrine of

equitable mootness is inapplicable to appeals of orders confirming Chapter 9 plans of adjustment. 

The Court will not adopt the holding or rationale in Jefferson County, as it finds the discussion

regarding the differences between the underlying policy objectives of Chapter 9 and Chapter 11

bankruptcies to be particularly problematic. 

In deciding to exempt Chapter 9 bankruptcies from the equitable mootness doctrine,

the Jefferson County court found that the underlying policy objectives of a Chapter 9 bankruptcy

do not align as closely with the purpose of the equitable mootness doctrine as that of a Chapter 11

bankruptcy. That court found that a Chapter 11 corporate reorganization is concerned with

efficiency and “preserving going concerns and maximizing property available to satisfy creditors,”

5

 In re PC Liquidation Corp., No. CV-06-1935(SJF), 2008 WL 199457, at *5 (E.D.N.Y. Jan.

17, 2008).

6

 In re Arcapita Bank B.S.C. (c), Nos. 13 Civ. 5755 (SAS) & 13 Civ. 5756(SAS), 2014 WL

46552, at *2 (S.D.N.Y. Jan. 6, 2014). 

7

 In re BGI, Inc., 772 F.3d at 109.

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id. at 635, whereas a Chapter 9 bankruptcy is concerned not with future profit, but with “continued

provision of public services.” Id. at 636. The court went on to conclude that “[t]hese major

differences in the purposes of Chapter 9 and Chapter 11 reorganizations alter analysis of whether

equitable considerations should factor into this court’s decision to hear the [Chapter 9] appeal”

because although the doctrine “requires a weighing of finality and good faith reliance against

competing interests that underlie the right of a party to seek review of a bankruptcy court order . .

. , [i]n the case of a Chapter 9 reorganization plan–finality and reliance may be required to yield to

the Constitution and interest of the public in the provision of governmental services.” Id. (internal

citations and quotation marks omitted).

The Court agrees with appellee that the interests of the City, its over 100,000

creditors, and its nearly 700,000 residents in relying on a final judgment cannot be marginalized and

dismissed in the broad brush manner adopted by the Jefferson County court. If the interests of

finality and reliance are paramount to a Chapter 11 private business entity with investors,

shareholders, and employees, then these interests surely apply with greater force to the City’s

Chapter 9 Plan, which affects thousands of creditors and residents. The Court will therefore apply

an equitable mootness analysis to the instant appeal.

B. Application

The Sixth Circuit applies the equitable mootness doctrine using a three-part test: 

“(1) whether a stay has been obtained; (2) whether the plan has been ‘substantially consummated’;

and (3) whether the relief requested would affect either the rights of parties not before the court or

the success of the plan.” In re United Producers, 536 F.3d at 947-48 (internal citation omitted). 

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1. Existence of a Stay

“When an appellant does not obtain a stay of the implementation of a confirmation

plan, the debtor will normally implement the plan and reliance interests will be created.” In re

United Producers, Inc., 526 F.3d at 948. The failure to obtain a stay will therefore “count against

the appellant in determining whether an appeal should be denied on equitable mootness grounds,” 

id. (citing In re Manges, 29 F.3d at 1040), but is “not necessarily fatal to the appellant’s ability to

proceed,” City of Covington, 71 F.3d at 1225-26. 

Appellant does nothing to explain his failure to obtain, let alone seek, a stay of the

Confirmation Order. “A stay not sought, and a stay sought and denied, lead equally to the

implementation of the plan of reorganization.” United Producers, Inc., 526 F.3d at 948. Although

appellant notes that he “notified the bankruptcy court . . . that [he] objected to that part of the plan

of adjustment called ASF recoupment,” this is of no consequence. Appellant’s Resp. at 31. 

Appellant’s failure to obtain a stay weighs in favor of granting the City’s motion to dismiss.

2. Substantial Consummation 

The Bankruptcy Code defines “substantial consummation” as:

(A) transfer of all or substantially all of the property proposed by the

plan to be transferred; (B) assumption by the debtor or by the

successor to the debtor under the plan of the business or of the

management of all or substantially all of the property dealt with by

the plan; and (c) commencement of distribution under the plan.

11 U.S.C. § 1101(2). Although the definition of “substantial consummation” is ordinarily used as

a statutory measure “to determine whether a bankruptcy court may modify or amend a [Chapter 11]

reorganization plan, In re United Producers, 526 F.3d at 948 (citing § 1127), “[t]he standard has

been adopted in the equitable mootness analysis to determine the extent to which the plan has

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progressed,” Id. (citing In re Manges, 29 F.3d at 1040-41). “If a plan has been substantially

consummated there is a greater likelihood that overturning the confirmation plan will have adverse

effects on the success of the plan and on third parties.” Id. This Chapter 11 standard therefore

serves as a “yardstick . . . as to when finality concerns and the reliance interests of third parties upon

the plan as effectuated have become paramount to a resolution of the dispute between the parties on

appeal.” In re Manges, 29 F.3d at 1040-41. 

Appellant argues that “[t]here has been practically no ‘consummation’ of the POA

with reference to the entire Class 11,” because there will be no “impact on pension payments for

retirees until . . . March[] 2015 [a date now in the past],” and that in any event, pension reductions

“will be a gradual process extending over decades, as pension payments are altered over the

lifetimes of Class 11 members.” Appellant’s Resp. at 35. However, by noting that “recoupment of

my ASF funds took place in January 2015,” appellant effectively concedes that the Plan has been

substantially consummated, especially as to ASF Recoupment. Id. 

As explained more thoroughly in its motion, the City notes numerous major transfers

and transactions that have been effectuated pursuant to the Plan, including (1) the State of

Michigan’s disbursement of $194.8 million to the City’s Retirement Systems; (2) the DIA’s and

other philanthropic organizations’ disbursement of $23 million to the Retirement Systems; (3) the

City’s issuance of $287.5 million in Financial Recovery Bonds, $632 million in New B Notes, and

$88 million in New C Notes; (4) the City’s irrevocable transfer of its right, title, and interest in DIA

assets to a perpetual charitable trust; (5) the Retirement Systems’ implementation of pension plan

modifications, including pension and COLA reductions and ASF Recoupment; and (6) the

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substantial completion8

 of ASF Recoupment of current account holders, which has resulted in $58.5

million in recaptured funds. See Appellee’s Mot. at 28-31. The City and other entities have also

resumed or initiated management of substantially all of the property dealt with by the Plan, as

demonstrated by (1) Kevyn D. Orr’s resignation as Emergency Manager, which restored day-to-day

management of the City to the Mayor and City Council; (2) Governor Richard D. Snyder’s decision

to remove the City from financial emergency status and end receivership; (3) the City’s

implementation of $1.7 billion in Reinvestment Initiatives, of which $8.4 million went to the Detroit

Police Department, $3.8 million to the Detroit Fire Department, $3.5 million for blight remediation,

and $1.9 million to the City’s Income Tax Division to upgrade information technology; (4) the

establishment of the Great Lakes Water Authority and two VEBAs to provide healthcare benefits

to City retirees; and (5) appointment of the Michigan Financial Review Commission to review the

City’s finances. See id. at 31-33. Finally, the City notes that it has substantially completed

numerous payments and distributions under the Plan, including (1) $55 million in cash to holders

of allowed Class 7 claims; (2) $17 million in New B Notes for distribution to holders of allowed

Limited Tax General Obligation Bond Claims; (3) $280 million in Restructured UTGO Bonds to

holders of allowed Class 8 Claims; (4) $88 million in New C Notes to the COP Trustee for the

benefit of settling claims with Class 9 claimants; and (5) $493 million in New B Notes to the VEBAs

to satisfy Class 12 claims. See id. 34-35. 

As these many transfers, transactions, and actions demonstrate, implementation of

the Plan has been set into motion and has been substantially consummated. Since the effective date,

8

 On January 2, 2015, ASF excess amounts were debited from 5,278 of 5,283 current ASF

account holders. Appellee’s Mot. at 30 n.17. The City notes in its motion that debits from the

remaining five accounts failed for technical reasons and will be re-attempted. Id.

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pensions have been reduced, COLAs have been eliminated, ASF Recoupment has recaptured nearly

all diverted funds from current ASF account holders, and ASF Recoupment for non-current ASF

account holders has taken effect by further adjusting GRS pensions. Thus, this factor weighs in

favor of granting the City’s motion to dismiss.

3. Rights of Third Parties and Success of the Plan

“Even when a plan has been substantially consummated, it is ‘not necessarily . . . 

impossible or inequitable for an appellate court to grant effective relief.’” In re United Producers,

Inc., 526 F.3d at 949 (quoting In re Manges, 29 F.3d at 1042-43). This is because the “most

important factor [a] court must consider is ‘whether the relief requested would affect either the rights

of parties not before the court or the success of the plan.’” Id. (quoting In re Am. HomePatient, Inc.,

420 F.3d 559, 564 (6th Cir. 2005)). This question “‘require[s] a case-by-case judgment regarding[]

the feasibility or futility of effective relief should a litigant prevail.’” Id. (quoting In re AOV Indus.,

Inc., 792 F.2d 1140, 1147-48 (D.C. Cir. 1986)). In assessing the feasibility of granting relief, the

court must “consider[] the nature of the relief requested and whether it amounts to a piecemeal

revision of the plan or a wholesale rewriting of it.” Id. (citing In re Manges, 29 F.3d at 1042) (“We

must evaluate [actions taken pursuant to the Plan], many of which appear irreversible, against the

backdrop of the relief sought–nothing less than a wholesale annihilation of the Plan.”). Essentially,

the Court must decide whether appellant presents a “plausible argument that the implementation of

[his] suggested changes to the confirmation plan would not require any of the actions undertaken

pursuant to the plan to be reversed.” In re United Producers, Inc., 526 F.3d at 950. 

Appellant objects to the Plan’s imposition of ASF Recoupment and asks the Court

to sever the ASF Recoupment provision from the Plan and return $59,356 to his ASF account. 

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Appellant asserts that the relief he seeks would not unravel the plan because (1) it would not affect

how much the City must pay to GRS to fund pensions, as “[a]ny increased payments to retirees

would come from funds already held by GRS”; (2) the City would not be exposed to pension

liability, as the relief appellant seeks is against GRS and not the City; and (3) the Grand Bargain

would remain intact because the State and DIA Funding Parties have already contributed their

portion of funds in full to the GRS. Appellant’s Resp. at 37. Further, appellant claims that the relief

he seeks (return of $59,356 to his ASF account) would not unravel the Plan because it is “de

minim[i]s” and he would be willing to accept “some sort of ‘monetized’ benefit that is equivalent

in value to [his] claim, such as real property owned by the City or the State of Michigan.” Id. at 8,

29.

The Court disagrees with appellant’s suggestion that excising the ASF Recoupment

aspect of the Global Retiree Settlement would not “produce a ‘perverse’ outcome–‘chaos in the

bankruptcy court’ from a plan in tatters and/or significant ‘injury to third parties.’” In re Semcrude,

L.P., 728 F.3d 314, 320 (3d Cir. 2013) (quoting In re Phila. Newspapers, LLC, 690 F.3d 161, 168

(3d Cir. 2012)). The relief appellant requests–eliminating ASF Recoupment–would require “nothing

less than a wholesale annihilation of the Plan.” In re Manges, 29 F.3d at 1043. Any argument to

the contrary simply cannot be credited. 

As the City notes in its motion, the Global Retiree Settlement sought to ensure that

payment of GRS Pension Claims would be made at a specified level and that to achieve this level,

the State and the DIA Funding Parties would need to contribute $816 million to the City. This

Grand Bargain was contingent on the confirmation of the Plan and the implementation of the Global

Retiree Settlement, which relies on ASF Recoupment. The ASF Recoupment program struck a

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balance between opposing objectives to (1) avoid the imposition of even greater pension cuts for

those who either did not participate or participated minimally in the ASF program; and (2) minimize,

to the extent reasonable given the City’s financial insolvency and inability to fully fund GRS

Pension Claims, the effect of recoupment on the pensions and income of those who had participated

in the ASF program. As the Bankruptcy Court noted, ASF Recoupment is an “integral component

of the City’s [Global Retiree Settlement],” without which the City would have been forced to reduce

all GRS pensions by 13% rather than by 4.5%. Confirmation Order at 61, 95.

By jeopardizing the $190 million in savings from ASF Recoupment, the City argues

that it may be forced to provide sufficient funding to “(a) make up the shortfall caused by the loss

of the approximately $200 million in ASF Recoupment proceeds and $816 million in Outside

Funding and (b) satisfy its prepetition pension or retiree healthcare obligations in full,” which would

leave the City with insufficient funds to pay for Reinvestment Initiatives and numerous other

settlements and distributions under the Plan. Appellee’s Mot. at 40. In a Plan described by Martha

E.M. Kopacz, the court-appointed independent feasibility expert, as having “little space remaining

on the continuum of reasonableness,” where “[i]t is not realistic or prudent to believe that the City

could take on any additional plan obligations and remain within the continuum . . . necessary to

establish feasibility,” it is simply unrealistic to credit appellant’s claim that eliminating ASF

Recoupment would not hinder the success of the Plan. Tr. of 11/7/2014 Hr’g at 54:13-14. Undoing

the Plan and making the City “give it another shot” without ASF Recoupment is not possible.9

Further, reversing the Plan would negatively affect countless third parties who have

9

 The same is true if the Court were to order return of appellant’s recouped ASF funds

in the amount of $59,356, whether as a cash payout or in the form of a property transfer. 

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justifiably relied on the Plan. Equitable mootness has particular force when “[r]eversal of the

Confirmation Order . . . would require the invalidation of thousands of good-faith transfers made

pursuant to the Plan,” In re Eagle-Picher Indus., Inc., 172 F.3d 48 (6th Cir. 1998), and “unraveling

the plan ‘would work incalculable inequity to many thousands of innocent third parties who have

extended credit, settled claims, relinquished collateral and transferred or acquired property in

legitimate reliance on the unstayed order of confirmation,’” In re United Producers, Inc., 526 F.3d

at 951 (quoting In re Public Serv. Co., 963 F.2d 469, 475 (1st Cir. 1992)). This reliance interest is

heightened when, as here, the plan “reflects a highly integrated settlement among various

constituencies.” HNRC Dissolution, Co., No. Civ.A.04-158 HRW, 2005 WL 1972592, at *9 (E.D.

Ky. Aug. 16, 2005). 

The record from the Bankruptcy Court reveals that appellant’s requested relief would 

negatively affect the success of the Plan and harm innocent third parties. Although appellant makes

light of these consequences, the record before the Court, as described above, establishes that various

parties have come to rely upon the Plan such that unraveling it would throw the City into financial

chaos. Thus, the third factor of the equitable mootness analysis weighs in favor of granting the

City’s motion to dismiss.

IV. Conclusion

All three factors of the equitable mootness analysis weigh in favor of dismissing

appellant’s appeal as moot: appellant did not obtain a stay; the confirmed Plan has been

substantially consummated; and reversal of the Plan would adversely impact third parties and the

success of the Plan. Having concluded that this appeal is equitably moot, the Court finds it

unnecessary to address the City’s secondary argument that the appeal is also constitutionally moot. 

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Accordingly,

IT IS ORDERED that the “Corrected Motion of Appellee the City of Detroit,

Michigan for an order Pursuant to Fed. R. Civ. P. 12(b)(1) Dismissing Appeal as Equitably and

Constitutionally Moot” [docket entry 29] is granted. This appeal is dismissed as equitably moot.

S/ Bernard A. Friedman____

BERNARD A. FRIEDMAN

SENIOR UNITED STATES DISTRICT JUDGE

Dated: September 29, 2015

Detroit, Michigan

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