13-4026-bk

In re: Old Carco LLC

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 20th 4 day of August, two thousand fourteen.

5

6 PRESENT: JOHN M. WALKER, JR.,

7 DENNIS JACOBS,

8 RICHARD C. WESLEY,

9 Circuit Judges.

10

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12 IN RE: OLD CARCO LLC,

13

14 Debtor.

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16 GARY HENSON, 

17

18 Appellant,

19

20 -v.- No. 13-4026-bk

21

22 OLD CARCO LIQUIDATION TRUST, AS THE 

23 SUCCESSOR TO OLD CARCO LLC, FKA

24 CHRYSLER LLC,

25

26 Appellee.

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28

1
1 FOR APPELLANT: MAYER MORGANROTH, Morganroth &

2 Morganroth, PLLC, Birmingham, MI.

3

4 FOR APPELLEE: JEFFREY B. ELLMAN, Jones Day, Atlanta, GA

5 (Brian J. Murray, Jones Day, Chicago, IL,

6 on the brief).

7

8 Appeal from a judgment of the United States District

9 Court for the Southern District of New York (Schofield, J.).

10

11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

12 AND DECREED that the appeal be DISMISSED and the judgment of

13 the district court be VACATED AND REMANDED with directions

14 to dismiss the action. 

15

16 Gary Henson appeals from a judgment of the district

17 court, which affirmed an order of the bankruptcy court

18 (Bernstein, J.). The bankruptcy court denied Henson relief

19 on two independently decisive grounds: (1) that the

20 Supplemental Executive Retirement Plan (“SERP”), which

21 provides benefits to certain former Chrysler LLC employees,

22 was not an “executory” contract and could not therefore be

23 assumed by Chrysler and affiliate debtors (collectively,

24 “Debtors”) under 11 U.S.C. § 365; and (2) that even if the

25 SERP were “executory,” Chrysler could not (as it had

26 attempted) assume it only in part. Henson appealed only the

27 first conclusion to the district court, which affirmed. We

28 assume the parties’ familiarity with the underlying facts,

29 the procedural history, and the issues on appeal. 

30

31 “The irreducible constitutional minimum of standing

32 contains three requirements,” one of which is

33 “redressability--a likelihood that the requested relief will

34 redress the alleged injury.” Steel Co. v. Citizens for a

35 Better Env’t, 523 U.S. 83, 102-03 (1998) (internal quotation

36 marks omitted). “[A] plaintiff [must] personally . . .

37 benefit in a tangible way from the court’s intervention.” 

38 Id. at 103 n.5 (internal quotation marks omitted). We have

39 no jurisdiction over “[s]uits that promise no concrete

40 benefit to the plaintiff.” Id. “Relief that does not

41 remedy the injury suffered cannot bootstrap a plaintiff into

42 federal court; that is the very essence of the

43 redressability requirement.” Id. at 107. 

44

45 Henson attacks the bankruptcy court’s conclusion that

46 the SERP was not executory. However, the Debtors only

47 designated part of the SERP for assumption, and the

2
1 bankruptcy court ruled that such partial assumption amounted

2 to rejection of the contract altogether. Henson did not

3 appeal this ruling. It follows that, even if Henson were to

4 prevail in his appeal and we were to hold that the SERP is

5 an executory contract, Henson (having not contested the

6 second ruling of the bankruptcy court) would be left with

7 the same unsecured bankruptcy claim he has now. 

8

9 Thus Henson fails to sustain his “burden of showing

10 that he has standing,” Summers v. Earth Island Inst., 555

11 U.S. 488, 493 (2009), and we lack jurisdiction over his

12 appeal. Under these circumstances, we dismiss the appeal,

13 vacate the district court’s judgment, and remand for the

14 district court to dismiss the appeal from the bankruptcy

15 court’s order. See In re Chateaugay Corp., 988 F.2d 322,

16 327 (2d Cir. 1993); cf. Hillside Metro Assocs., LLC v.

17 JPMorgan Chase Bank, Nat’l Assoc., 747 F.3d 44, 46 (2d Cir.

18 2014).

19

20 We have considered all of Henson’s remaining arguments

21 and conclude that they are without merit. The appeal is

22 hereby DISMISSED and the judgment of the district court

23 VACATED AND REMANDED with directions to dismiss the action. 

24

25 FOR THE COURT:

26 CATHERINE O’HAGAN WOLFE, CLERK

3