UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DENNIS BLACK, ET AL.,

Plaintiffs,

v.

PENSION BENEFIT GUARANTY

CORPORATION, ET AL.,

Defendants.

Case No. 09-13616

SENIOR UNITED STATES DISTRICT

JUDGE

ARTHUR J. TARNOW

UNITED STATES MAGISTRATE JUDGE

MONA K. MAJZOUB

ORDER GRANTING DEFENDANTS UNITED STATES DEPARTMENT OF THE

TREASURY, PRESIDENTIAL TASK FORCE ON THE AUTO INDUSTRY, TIMOTHY F.

GEITHNER, STEVEN L. RATTNER, AND RON A. BLOOM’S RENEWED MOTION TO

DISMISS [164]

Plaintiffs filed their initial Complaint [1] in this matter on September 14, 2009. They then

filed their First Amended Complaint [10] on November 5, 2009. Subsequently, they filed their

Second Amended Complaint [145] on August 26, 2010. 

Now before the Court is Defendants’ Renewed Motion to Dismiss [164]. A hearing was

held on the Motion on August 17, 2011.

Defendants seek to dismiss the claims brought against them in Count 5 of Plaintiffs’

Second Amended Complaint (no other count raises claims against them). The Second Amended

Complaint requests that this Court order the named “Treasury Defendants,” which include the

United States Department of the Treasury, the Presidential Task Force on the Auto Industry,

Timothy F. Geithner, Steven L. Rattner, and Ron A. Bloom, “to extend the top-up benefits to all

Salaried Plan participants.” Counsel for the government represented to the Court at the August

17, 2011 hearing that the amount in supplemental benefits Plaintiffs want this Court to order

totals $600,000,000. However, the Second Amended Complaint does not specify the amount

Plaintiffs want this Court to order the Treasury Defendants to pay. 

The Second Amended Complaint further requests that this Court “[a]ward[] compensatory

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and punitive damages against Defendants Geithner, Bloom, and Rattner, in their individual

capacities.” Again, counsel for the government represented to the Court at the August 17, 2011

hearing that the amount Plaintiffs want this Court to order in damages is $600,000,000. However,

the Second Amended Complaint does not specify the amount of damages sought.

Upon review of the parties’ filings, along with consideration of the arguments raised

during the hearing, the Court concludes, for the reasons that follow, that Defendants’ Motion is

granted. Plaintiffs’ claims against the named Treasury Defendants are dismissed. 

Nevertheless, Plaintiffs’ claims brought against the PBGC in Counts 1, 2, 3, and 4 of the

Second Amended Complaint remain. Plaintiffs may continue to pursue their claims against the

PBGC. Counsel for Plaintiffs asserted that it was his position at the August 17 hearing that even

if the Treasury Defendants’ motion were granted, Plaintiffs, if they prevail against the PBGC,

could still be “fully compensated.” The Court also anticipates that Plaintiffs will continue to

utilize the political process to pursue the relief they seek. 

I. Introduction

The Second Amended Complaint Plaintiffs filed is properly before this Court. 

Nonetheless, the subject of the complaint may be a matter that is best resolved through the

political process. Indeed, Plaintiffs have successfully availed themselves of that process. 

Although they have not yet received the relief they seek, counsel for Plaintiffs noted at the August

17, 2011 hearing that there is an ongoing GAO investigation and ongoing special investigator

general investigation into the issues raised in the Second Amended Complaint. 

However, Plaintiffs, not this Court, get to choose what avenues they will utilize to pursue

their claims for relief in order to rectify the alleged wrongdoing they assert Defendants

committed. At this time, Plaintiffs seek to litigate this matter, along with their other efforts

outside of the judicial system. 

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 The Supreme Court’s rulings in Iqbal and Twombly have generated a great amount of

academic commentary. One commentator, lamenting the departure of those decisions from the

“notice-pleading” approach set forth in Conley v. Gibson, 355 U.S. 41 (1957), states that “[t]he

Court’s establishment of plausibility pleading, with its emphasis on the need for factual

allegations, has a direct impact on the accessibility of the federal courts to the citizenry in all

categories of cases. To a degree not yet determined, it will chill a potential plaintiff’s or

lawyer’s willingness to institute an action. And even if one is started, it will result in some

possibly meritorious cases being terminated under Rule 12(b)(6), thereby reducing citizens’

ability to employ the nation’s courts in a meaningful fashion.” See Arthur Miller, From Conley

to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 DUKE L.J. 1,

71 (2010). 

The Court shares in these concerns. However, the Court is bound by the Supreme

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As Defendants’ Renewed Motion is ripe for decision, the Court will consider its merits.

II. Standard of Review

The Supreme Court, in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft

v. Iqbal, 129 S. Ct. 1937 (2009) set forth the rules that guide this Court’s examination of

Defendants’ Renewed Motion to Dismiss brought pursuant to Fed. R. Civ. P. 12(b)(6). In Iqbal,

the Court observed:

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a short

and plain statement of the claim showing that the pleader is entitled to relief. As

the Court held in Twombly, the pleading standard Rule 8 announces does not

require detailed factual allegations, but it demands more than an unadorned, thedefendant-unlawfully harmed-me accusation. A pleading that offers labels and

conclusions or a formulaic recitation of the elements of a cause of action will not

do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of ‘further

factual enhancement.’ 

To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face. A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged. The plausibility standard is not akin to a probability requirement, but it

asks for more than a sheer possibility that a defendant has acted unlawfully. 

Where a complaint pleads facts that are merely consistent with a defendant’s

liability, it stops short of the line between possibility and plausibility of entitlement

to relief.

129 S. Ct. at 1949 (citations and internal quotation marks omitted).1

 Moreover, “the tenet that a

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Court’s holdings and must adhere to the standard of review as set forth in Iqbal and Twombly

until such time as those cases are overruled. 

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court must accept as true all of the allegations contained in a complaint is inapplicable to legal

conclusions. Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id. Additionally, “where the well-pleaded facts do not

permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–

but it has not show[n]– that the pleader is entitled to relief.” Id. at 1950 (citation and internal

quotation marks omitted). 

The Sixth Circuit has held:

Assessment of the facial sufficiency of the complaint must ordinarily be

undertaken without resort to matters outside the pleadings. If a court does

consider materials outside the pleadings, the motion to dismiss must be treated as a

motion for summary judgment under Rule 56 and all parties must be given a

reasonable opportunity to present all material pertinent to the motion. 

Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 680 (6th Cir. 2011). Although Defendants

attach numerous exhibits to their motion, they make clear that the “motion relies exclusively on

the allegations of the second amended complaint” and that the motion is being brought pursuant

to Fed. R. Civ. P. 12(b)(1) and (6), not Fed. R. Civ. P. 56. Renewed Motion at 4. Plaintiffs do

not request that the Court treat Defendants’ motion as one for summary judgment, despite

attaching their own extrinsic evidence to their response brief. 

This Court will not treat Defendants’ motion as one for summary judgment. Nevertheless,

in ruling on a motion to dismiss, the Court “may consider exhibits attached [to the complaint],

public records, items appearing in the record of the case and exhibits attached to defendant’s

motion to dismiss so long as they are referred to in the complaint and are central to the claims

contained therein, without converting the motion to one for summary judgment.” Rondigo, 641

F.3d at 680-681 (emphasis added) (citation and internal quotation marks omitted); see also Vance

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 The Court notes that the Sixth Circuit’s decision in Rondigo and Seventh Circuit’s

decision in Vance were both issued subsequent to the Supreme Court’s ruling in Iqbal. 

3

 Subsequent to the hearing, counsel for Plaintiffs filed “Notice of Supplemental

Authority” [190], submitting authority as to the issue of “whether Plaintiffs could further

substantiate the factual allegations in their complaint with additional facts and materials

presented either as part of the Treasury Defendants’ motion or Plaintiffs’ opposition to the

motion, in order to demonstrate the ‘plausibility’ of the complaint’s allegations under... Iqbal....”

Notice of Supplemental Authority at 1. 

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v. Rumsfeld, 2011 U.S. App. LEXIS 16338 at *27 (7th Cir. 2011) (“A party whose pleading is

being attacked on appeal under Rule 12(b)(6) may elaborate [in his brief] on his allegations so

long as the elaborations are consistent with the pleading”).2 At the hearing held on August 17,

2011, counsel for Plaintiffs asserted that “this is again not a summary judgment proceeding. It’s

just a motion to dismiss. And so you consider the complaint, their motion, and you are permitted

to consider our opposition to the motion.”3

 

The Court, pursuant to the above authority, will, as Plaintiffs request, consider not only

the Second Amended Complaint but Defendants’ motion and reply and Plaintiff’s response in

evaluating Defendant’s motion. However, the motion will still be treated as one brought pursuant

to Fed. R. Civ. P. 12(b)(6). 

Defendants’ motion is brought not only pursuant to Fed. R. Civ. P. 12(b)(6), but also

under Fed. R. Civ. P. 12(b)(1). Motions brought under this section challenge the Court’s subjectmatter jurisdiction. Defendants’ challenge to Plaintiffs’ standing is brought pursuant to this

section. 12(b)(1) motions “generally come in two varieties[,]” with the motion here being a

“facial attack”; such an “attack on the subject matter jurisdiction alleged by the complaint merely

questions the sufficiency of the pleading. In reviewing such a facial attack, a trial court takes the

allegations in the complaint as true, which is a similar safeguard employed under 12(b)(6)

motions to dismiss.” Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990).

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 In addition to constitutional limitations on standing, “prudential standing” requirements

also exist. See Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, 470 F.3d 286,

291 (6th Cir. 2006). Defendants do not challenge Plaintiffs’ ability to meet these requirements. 

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III. Discussion 

A. Standing

The parties do not disagree that three elements must be demonstrated to establish

constitutional standing: 

First, the plaintiff must have suffered an injury in fact – an invasion of a legally

protected interest which is (a) concrete and particularized,... and (b) actual or

imminent, not conjectural or hypothetical.... Second, there must be a causal

connection between the injury and the conduct complained of.... Third, it must be

likely, as opposed to merely speculative, that the injury will be redressed by a

favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992) (citations and internal quotation

marks omitted).4

 “The basis for constitutional standing is derived from Article III’s ‘Case or

Controversy’ requirement, which limits federal court authority to legal issues which are

traditionally thought to be capable of resolution through the judicial process.” Club Italia, 470

F.3d at 291 (citation and internal quotations marks omitted). “If Plaintiffs cannot establish

constitutional standing, their claims must be dismissed for lack of subject matter jurisdiction....

Because the standing issue goes to this Court’s subject matter jurisdiction, it can be raised sua

sponte.” Loren v. Blue Cross & Blue Shield of Mich., 505 F.3d 598, 607 (6th Cir. 2007) (internal

citations omitted). 

Defendants do not contest that Plaintiffs have suffered an injury in fact. Instead, they

indicate they are challenging the other requirements of standing, stating, “Plaintiffs lack standing

to contest the validity of the contested commitments because the injury they allege does not meet

the requirements of causation or redressability.” See Defendants’ Motion at 13. Defendants’

standing argument relies heavily on the Tenth Circuit’s decision in Day v. Bond, 500 F.3d 1127

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 In Day, plaintiffs brought their equal protection claim under the Fourteenth

Amendment. Here, Plaintiffs bring their equal protection claim under the Fifth Amendment. 

However, the Sixth Circuit has noted that it “evaluate[s] equal protection claims against the

federal government under the Fifth Amendment just as [it] would evaluate equal protection

claims against state and local governments under the Fourteenth Amendment.” See Center for

Bio-Ethical Reform, Inc. v. Napolitano, 2011 U.S. App. LEXIS 16002 at *21 (6th Cir. 2011). 

7

(10th Cir. 2007). Plaintiffs attempt to differentiate this matter from the facts of Day and assert

that they have satisfied all standing requirements. 

The Court finds that Plaintiffs lack standing to bring their claim for an equal protection

violation. In Day, the plaintiffs (a group of non-legal residents of Kansas and their parents)

brought an equal protection claim under the Fourteenth Amendment, asserting that a Kansas law

violated their rights in that it allowed “certain illegal aliens to qualify for in-state tuition rates” but

not them. Id. at 1130. The Court of Appeals affirmed the district court’s dismissal of their claim,

concluding that they lacked standing since none of the plaintiffs would be eligible to pay an instate tuition rate “even if the allegedly discriminatory test... favoring illegal aliens were stricken,

because none attended Kansas high schools for at least three years and either graduated from a

Kansas high school or received a Kansas GED certificate [these were conditions that had to be

met to receive the rate].” Id. at 1135. As this was “a nondiscriminatory prerequisite for benefits”

that disqualified plaintiffs from receiving the tuition rate regarding of their citizenship, plaintiffs’

injuries “were therefore not caused by the statute’s allegedly discriminatory operation, nor would

these injuries be redressed by a decision striking down the discriminatory classification embedded

in its provisions.” Id. at 1135. Accordingly, their claims were subject to dismissal based on lack

of standing. 

Here, Plaintiffs fail to sufficiently plead that they have standing to bring their equal

protection claim.5

 Plaintiffs plead no facts that would allow this Court to conclude that even if

the allegedly discriminatory test for determining benefits were stricken, Plaintiffs would be

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entitled to the top-ups they seek. The Second Amended Complaint states that “Plaintiffs have

been denied the benefit of a top-up solely on the basis of their choice not to associate with a

union, in violation of the First and Fifth Amendments to the United States Constitution.” Second

Amended Complaint at ¶37. Plaintiffs also plead that the decision to provide “top-ups has

benefited only certain union-affiliated retirees” and that “the decision was made for political

reasons– on the basis of affiliation with a particular union or unions– and not on the basis of any

relevant extenuating circumstances.” Id. at ¶59. However, nowhere in the language of the

Second Amended Complaint do Plaintiffs plead any facts stating what the requirements of

receiving the top-ups were and how Plaintiffs would have been eligible to receive them if the

allegedly discriminatory test were removed. 

Furthermore, even looking beyond the four corners of the Second Amended Complaint

and considering the motion and response, the Court finds that Plaintiffs have failed to plead what

the requirements of receiving the top-ups are and that they thus would have been eligible for the

top-ups if the allegedly discriminatory test were stricken. Plaintiffs do assert in their brief that

“[t]here is no underlying impediment, statutory or otherwise, which would have rendered

Plaintiffs ineligible to receive pension aid from Old or New GM” and that “there are no nondiscriminatory requirements that would have denied Plaintiffs supplemental pension benefits like

those received by the favored retirees....” Plaintiffs’ Response at 22. However, these are

conclusory statements that do not inform the Court of any facts that would allow it to infer that

Plaintiffs meet all requirements for the top-ups. Iqbal makes clear that such pleading is

insufficient. 

Regardless of whether the decision may have been based on a “discriminatory test,” the

Court is unable to infer from the facts plead that even if that test were stricken, Plaintiffs have met

all eligibility requirements to receive the top-ups they seek. Therefore, similar to the plaintiffs in

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 As indicated in Footnote 5, courts evaluate equal protection claims in the same manner

under both the Fifth and Fourteenth Amendment. 

9

Day, plaintiffs lack standing based on lack of causation and redressability. Their equal protection

claim against the named Treasury Defendants is subject to dismissal on this ground. 

B. Equal Protection

Plaintiffs argue in their brief that they have adequately plead an equal protection claim,

stating:

In short, reading all of the allegations in Plaintiffs’ favor, the Salaried Retirees’

Second Amended Complaint satisfies the minimal threshold of plausibility. Their

assertion that the Treasury Defendants unconstitutionally distinguished between

similarly situated individuals based on their affiliation with politically favored

unions, and the speech of those unions, both is legally tenable under the First 

and Fifth Amendments and factually sufficient. 

Plaintiffs’ Response at 47. 

Assuming arguendo that– 1) Plaintiffs have plead sufficiently regarding their standing to

bring their equal protection claim 2) Plaintiffs have sufficiently plead regarding the existence of

state action 3) Plaintiffs have sufficiently plead regarding the Court’s authority to order relief in

this action– Plaintiffs’ equal protection claim brought against the named Treasury Defendants is

still subject to dismissal. 

“To state an equal protection claim, a plaintiff must adequately plead that the government

treated the plaintiff ‘disparately as compared to similarly situated persons and that such disparate

treatment either burdens a fundamental right, targets a suspect class, or has no rational basis.’” 

Center, 2011 U.S. App. LEXIS 16002 at *37 (quoting Club Italia, 470 F.3d at 298).6

 Moreover,

“the ‘threshold element of an equal protection claim is disparate treatment; once disparate

treatment is shown, the equal protection analysis to be applied is determined by the classification

used by government decision-makers.’” Center, 2011 U.S. App. LEXIS 16002 at *37-38 (quoting

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 Plaintiffs assert that the decision to award top-ups was made based on the classification

of a retiree’s association with a union. In “Lyng v. UAW [485 U.S. 360 (1988)], the Supreme

Court addressed the question of whether union members constituted a protected class for

purposes of equal protection analysis and found that they did not. Like-wise, non-union

members do not constitute a protected class, nor do union or non-union contractors.” Hoke Co.,

Inc. v. TVA, 854 F.2d 820, 828 (6th Cir. 1988) (internal citations omitted). 

10

Scarborough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006)).7 

Finally, in addressing the “similarly situated” element of a disparate treatment claim, the

Sixth Circuit has concluded that a party must establish “that it and other individuals who were

treated differently were similarly situated in all material respects.” Taylor Acquisitions, L.L.C. v.

City of Taylor, 313 Fed. Appx. 826, 836 (6th Cir. 2009) (unpublished) (emphasis added); see also

TriHealth, Inc. v. Bd. of Comm’rs, 430 F.3d 783, 790 (6th Cir. 2005) (“Materiality is an integral

element of the rational basis inquiry. Disparate treatment of similarly situated persons who are

dissimilar only in immaterial respects is not rational. Conversely, disparate treatment of persons

is reasonably justified if they are dissimilar in some material respect”). 

Here, Plaintiffs’ equal protection claim is subject to dismissal because Plaintiffs fail to

adequately plead that the government treated the plaintiffs disparately as compared to “similarly

situated” persons. Plaintiffs plead that it was announced that top-ups would be provided to

“‘certain limited groups’ of Delphi retirees, specifically the hourly workers represented by the

United Auto Workers union.” Second Amended Complaint at ¶36. Plaintiffs go on to assert that

the decision to provide top-ups “was made for political reasons– on the basis of affiliation with a

particular union or unions– and not on the basis of any relevant extenuating circumstances.” 

Second Amended Complaint at ¶59. Plaintiffs further plead that “[t]he decision to discriminate

against similarly situated retirees based directly on associational status violates the Equal

Protection component of the Fifth Amendment to the U.S. Constitution....” Id. at ¶60. Plaintiffs

also seek damages against the individual Defendants for “denying [them] the same benefits

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provided to the similarly situated union affiliated retirees....” Id. at ¶63. 

However, nowhere in the Second Amended Complaint are facts plead stating how

Plaintiffs are “similarly situated” to those retirees who did receive the top-ups. Furthermore,

Plaintiffs do not even plead that they are “similarly situated in all material respects.” Plaintiffs

only offer “naked assertion[s] devoid of further factual enhancement.” Iqbal, 129 S. Ct. at 1949

(citation and internal quotation marks omitted). The Court is therefore unable to draw the

inference that Defendants are liable for an equal protection violation since Plaintiffs have not

plead facts that would allow this Court to determine that Plaintiffs are similarly situated to the

other retirees. 

Even if the Court goes beyond Plaintiffs’ Second Amended Complaint and considers its

response [168], Plaintiffs still fail to properly plead under Iqbal. The response notes that “[t]he

similarly situated retirees” are part of three unions and that Defendants “unconstitutionally

distinguished between similarly situated individuals based on their affiliation with politically

favored unions....” See Response at 2, 47. These statements are conclusory and do not establish

“plausibility.” Plaintiffs fail to offer facts demonstrating how the retirees who did receive top-ups

are similarly situated in all material respects with Plaintiffs. 

Accordingly, the Second Amended Complaint fails to “contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 129 S. Ct. at 1949;

see also Center, 2011 U.S. App. LEXIS 16002 at *38 (court, in affirming dismissal of equal

protection claim pursuant to Fed. R. Civ. P. 12(b)(6), concludes that “the Amended Complaint

fails to make a plausible allegation that similarly situated organizations and individuals... have not

been subject to the same alleged treatment by Defendants.... The allegations contained in the

Amended Complaint as to disparate treatment amount to conclusory and unadorned assertions

that, consequently, are not well-pleaded, and not entitled to a presumption of truth at this stage of

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the litigation”) (citation omitted); Rondigo, 641 F.3d at 683-684 (court, in reversing district

court’s denial of defendants’ motion to dismiss plaintiff’s equal protection claim, concludes that

“[t]he district court’s contrary ruling is based in part on a failure to apply the Supreme Court’s

teaching in Twombly and Iqbal. The district court expressly recognized the applicability of

Twombly, recognized that legal conclusions not be accepted as true, and recognized that the

complaint must set forth ‘some factual basis’ for the claims asserted. Yet, the court accepted

plaintiff’s alleged legal conclusions that [another individual] was similarly situated and that they

were treated differently because of gender-based discrimination without requiring supporting

factual allegations”). The equal protection claim against the named Treasury Defendants is

therefore subject to dismissal. 

C. First Amendment

Again assuming arguendo that– 1) Plaintiffs have plead sufficiently regarding their

standing to bring their equal protection claim 2) Plaintiffs have sufficiently plead regarding the

existence of state action 3) Plaintiffs have sufficiently plead regarding the Court’s authority to

order relief in this action– Plaintiffs’ First Amendment claim is subject to dismissal because

Plaintiffs fail to adequately plead that the Defendants’ decision to provide top-ups to only certain

retirees was made on the basis of associational choices. 

As a general matter, the Supreme:

Court has made clear that even though a person has no ‘right’ to a valuable

government benefit and even though the government may deny him [or her] the

benefit for any number of reasons, there are some reasons upon which the

government may not rely. It may not deny a benefit to a person on a basis that

infringes his [or her] constitutionally protected interests– especially, his [or her]

interest in freedom of speech.

Perry v. Sindermann, 408 U.S. 593, 597 (1972). 

The Second Amended Complaint states that “New GM announced that it would ‘top-up’

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the pension benefits for ‘certain limited groups’ of Delphi retirees....” Second Amended

Complaint at ¶36. It goes on to say that New GM also: 

agreed to ‘top-up’ the pension benefits and provide health benefits to additional

union-affiliated Delphi retirees, but not to the salaried retirees of Delphi. On

information and belief, this discriminatory decision was... carried out in connection

with governmental policies that were politically motivated.... As a results of these

actions, Plaintiffs have been denied the benefit of a top-up solely on the basis of

their choice not to associate with a union, in violation of the First and Fifth

Amendments to the United States Constitution. 

Id. at ¶37. Additionally, the Second Amended Complaint maintains that the top-up decision “was

made for political reasons— on the basis of affiliation with a particular union or unions– and not

on the basis of any relevant extenuating circumstances.” Id. at ¶59. The Complaint also states

that “[t]he decision to discriminate against similarly situated retirees based directly on

associational status violates the Equal Protection component of the Fifth Amendment... and the

First Amendment’s associational and speech guarantees” and that the decision [to provide top-ups

to certain retirees] “has directly and substantially interfered with Plaintiff’s associational

rights....” Id. at ¶60. 

These portions of the Second Amended Complaint offer “naked assertion[s] devoid of

further factual enhancement.” Iqbal, 129 S. Ct. at 1949. The Second Amended Complaint makes

conclusory assertions regarding violations of the First Amendment, but nowhere are facts plead

that would allow this Court to infer that Defendants have infringed upon Plaintiffs’ First

Amendment rights by making a decision to award top-ups on the basis of associational choices. 

Although “‘detailed factual allegations’” are not required, Fed. R. Civ. P. 8 “demands more than

an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. at 1949. Without factual

support plead, this Court is unable to conclude that the Second Amended Complaint satisfies

Iqbal’s “plausibility” standard.

Even if the Court goes beyond Plaintiffs’ Second Amended Complaint and considers its

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response to Defendants’ motion, Plaintiffs still fail to properly plead under Iqbal.

In their response to Defendants’ motion, Plaintiffs summarize their First Amendment

claim, stating that: 

it is not Plaintiffs[’] contention that the Treasury Defendants[’] actions were

constitutionally infirm because they took ‘politics’ into account in making these

decisions. Rather, it is the fact that the decisions were based on the associational

choices made by Delphi retirees, and the political speech associated with those

choices, that renders the to-up decisions unconstitutional. 

Response at 41. Plaintiffs then go on to raise various factual allegations that they assert support

this claim. Defendants contend that none of these allegations provides evidence of a First

Amendment violation in the instant matter. 

 The Court agrees with Defendants. The factual allegations raised in the response do not

allow the Court to infer that the specific decision to provide the top-ups to certain retirees was

made on the basis of associational choices and the political speech associated with those choices. 

In accordance with Iqbal, this Court concludes that Plaintiffs’ First Amendment claims

against the named Treasury Defendants are subject to dismissal. 

D. Bivens

Even assuming arguendo that the Second Amended Complaint could withstand

Defendants’ challenges to standing, state action, and the relief sought, and further assuming that

Plaintiffs did properly plead both First and Fifth Amendment violations, Plaintiffs’ claims against

the individual Defendants are still subject to dismissal, as Plaintiffs have not sufficiently plead a

claim against them under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971). 

Supreme Court precedent binds this Court in its evaluation of whether a Bivens action may

be permitted. Following its decision in Carlson v. Green, 446 U.S. 14 (1980), the Supreme

Court, as noted in Correctional Services Corp. v. Malesko, 534 U.S. 61, 67 (2001), has

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 Plaintiffs are correct that the Bankruptcy Court did issue an order indicating that the

filing of the Second Amended Complaint did not violate any order of that Court. Plaintiffs’

Response, Exhibit G. However, nothing in the Bankruptcy Court’s order requires this Court to

hold that Plaintiffs’ Bivens claims are not subject to dismissal. 

15

“consistently refused to extend Bivens liability to any new context or any new category of

defendants.” The Supreme Court further commented in Malesko:

In 30 years of Bivens jurisprudence we have extended its holding only twice, to

provide an otherwise nonexistent cause of action against individual officers alleged

to have acted unconstitutionally, or to provide a cause of action for a plaintiff who

lacked any alternative remedy for harms caused by an individual officer’s

unconstitutional conduct. Where such circumstances are not present, we have

consistently rejected invitations to extend Bivens, often for reasons that foreclose

its extension here.

Malesko, 534 U.S. at 70. Although the Supreme Court permitted a Bivens action for a claim

brought under the Due Process Clause of the Fifth Amendment in Davis v. Passman, 442 U.S.

228 (1979), the Court subsequently in Schweiker v. Chilicky, 487 U.S. 412 (1988) “declined to

infer a damages action individual government employees alleged to have violated due process in

their handling of Social Security applications.” Malesko, 534 U.S. at 68. In Bush v. Lucas, 462

U.S. 367 (1983), the Supreme Court “declined to create a Bivens remedy against individual

Government officials for a First Amendment violation arising in the context of federal

employment.” Malesko, 534 U.S. at 68. 

In the Second Amended Complaint, Plaintiffs state that they seek damages against the

individual named Defendants based on a “violation of their right to equal protection under the

Fifth Amendment....” Second Amended Complaint at ¶63. However, Plaintiffs plead no facts

within the Second Amended Complaint that support this Court finding that the holding of Bivens

permits Plaintiffs to pursue such an action against the individual Defendants. Plaintiffs’ response

brief spends one paragraph asserting that a Bivens suit is appropriate here but nothing Plaintiffs

present convince the Court of that in light of the above Supreme Court precedent.8

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Accordingly, Plaintiffs’ Bivens claims are subject to dismissal. 

E. Other arguments not addressed

The Court declines to address any additional arguments Defendants raise in their motion. 

Defendants’ motion is being granted based on the above conclusions.

F. Summary

Although this Court cannot conclude for certain, perhaps the Second Amended Complaint

would not be subject to dismissal had it been filed prior to the Supreme Court’s 2007 ruling in

Twombly and 2009 ruling in Iqbal. However, the standard set forth in Twombly and Iqbal bind

this Court until such time as the Supreme Court overrules those cases. That standard requires the

Court to conclude that the Second Amended Complaint must be dismissed as to the named

Treasury Defendants. 

For the reasons stated above, 

IT IS HEREBY ORDERED that Defendants’ Renewed Motion to Dismiss [164] is

GRANTED. Plaintiffs’ claims against the named Treasury Defendants are dismissed. 

Plaintiffs’ claims against the PBGC in Counts 1, 2, 3, and 4 of the Second Amended

Complaint have not been dismissed. As stated above, Plaintiffs may continue to pursue these

counts against the PBGC. The Court also anticipates that Plaintiffs will continue to utilize the

political process to pursue the relief they seek. 

SO ORDERED.

Dated: September 1, 2012 s/Arthur J. Tarnow 

Arthur J. Tarnow

Senior United States District Judge

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I certify that a copy of the foregoing document was sent to parties of record on September 1, 2011

by U.S./electronic mail.

s/Michael Williams

Relief Case Manager

For the Honorable Arthur J. Tarow

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