13-4026-bk In re: Old Carco LLC



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER**  **J ANUARY**  **1, 2007,**  **IS PERMITTED AND IS GOVERNED BY F**  **EDERAL R** **ULE OF A** **PPELLATE P**  **ROCEDURE 32.1**  **AND THIS COURT ’**  **S L** **OCAL R** **ULE 32.1.1.**  **W HEN CITING A SUMMARY ORDER IN A**  **DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX OR AN ELECTRONIC DATABASE**  **( WITH THE NOTATION**  **“ SUMMARY ORDER**  **”). A**  **PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL**  **. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 20 th** **day of August, two thousand fourteen.** 4 5 **PRESENT: JOHN M. WALKER, JR.,** 6 **DENNIS JACOBS,** 7 **RICHARD C. WESLEY,** 8 **Circuit Judges**

**.** 9 10 - - - - - - - - - - - - - - - - - - - -X 11 **IN RE: OLD CARCO LLC,** 12 13 **Debtor**

**.** 14 - - - - - - - - - - - - - - - - - - - -X 15 **GARY HENSON,** 16 17 **Appellant ,**  18 19 **-v.- No. 13-4026-bk** 20 21 **OLD CARCO LIQUIDATION TRUST, AS THE** 22 **SUCCESSOR TO OLD CARCO LLC, FKA** 23 **CHRYSLER LLC,** 24 25 **Appellee**

**.** 26 - - - - - - - - - - - - - - - - - - - -X 27 28

1**FOR APPELLANT:** MAYER MORGANROTH, Morganroth & 1 Morganroth, PLLC, Birmingham, MI. 2 3 **FOR APPELLEE:** JEFFREY B. ELLMAN, Jones Day, Atlanta, GA 4 (Brian J. Murray, Jones Day, Chicago, IL, 5 on the brief ). 6 7 Appeal from a judgment of the United States District 8 Court for the Southern District of New York (Schofield, J. ). 9 10 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,** 11 **AND DECREED**that the appeal be **DISMISSED** and the judgment of 12 the district court be **VACATED AND REMANDED**with directions 13 to dismiss the action. 14 15 Gary Henson appeals from a judgment of the district 16 court , which affirmed an order of the bankruptcy court 17 (Bernstein, J. ). The bankruptcy court denied Henson relief 18 on two independently decisive grounds: (1) that the 19 Supplemental Executive Retirement Plan (“SERP”), which 20 provides benefits to certain former Chrysler LLC employees, 21 was not an “executory” contract and could not therefore be 22 assumed by Chrysler and affiliate debtors (collectively, 23 “Debtors”) under 11 U.S.C. § 365; and (2) that even if the 24 SERP were “executory,” Chrysler could not (as it had 25 attempted) assume it only in part. Henson appealed only the 26 first conclusion to the district court, which affirmed. We 27 assume the parties’ familiarity with the underlying facts, 28 the procedural history, and the issues on appeal. 29 30 “The irreducible constitutional minimum of standing 31 contains three requirements,” one of which is 32 “redressability--a likelihood that the requested relief will 33 redress the alleged injury.” Steel Co. v. Citizens for a 34 Better Env’t , 523 U.S. 83, 102-03 (1998) (internal quotation 35 marks omitted). “[A] plaintiff [must] personally . . . 36 benefit in a tangible way from the court’s intervention.” 37 Id. at 103 n.5 (internal quotation marks omitted). We have 38 no jurisdiction over “[s]uits that promise no concrete 39 benefit to the plaintiff.” Id. “Relief that does not 40 remedy the injury suffered cannot bootstrap a plaintiff into 41 federal court; that is the very essence of the 42 redressability requirement.” Id. at 107. 43 44 Henson attacks the bankruptcy court’s conclusion that 45 the SERP was not executory. However, the Debtors only 46 designated part of the SERP for assumption, and the 47

2bankruptcy court ruled that such partial assumption amounted 1 to rejection of the contract altogether. Henson did not 2 appeal this ruling. It follows that, even if Henson were to 3 prevail in his appeal and we were to hold that the SERP is 4 an executory contract, Henson (having not contested the 5 second ruling of the bankruptcy court) would be left with 6 the same unsecured bankruptcy claim he has now. 7 8 Thus Henson fails to sustain his “burden of showing 9 that he has standing,” Summers v. Earth Island Inst. , 555 10 U.S. 488, 493 (2009), and we lack jurisdiction over his 11 appeal. Under these circumstances, we dismiss the appeal, 12 vacate the district court’s judgment, and remand for the 13 district court to dismiss the appeal from the bankruptcy 14 court’s order. SeeIn re Chateaugay Corp. , 988 F.2d 322, 15 327 (2d Cir. 1993); cf. Hillside Metro Assocs., LLC v. 16 JPMorgan Chase Bank, Nat’l Assoc. , 747 F.3d 44, 46 (2d Cir. 17 2014). 18 19 We have considered all of Henson’s remaining arguments 20 and conclude that they are without merit. The appeal is 21 hereby DISMISSED and the judgment of the district court 22 VACATED AND REMANDED with directions to dismiss the action. 23 24 FOR THE COURT: 25 CATHERINE O’HAGAN WOLFE, CLERK 26

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