IN RE: KAISER ALUMINUM CORPORATION, Debtor
No. 05-2695
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
July 26, 2006
2006 Decisions Paper 645
Honorable Joseph J. Farnan, Jr.
Precedential. Appeal from the United States District Court for the District of Delaware (D.C. Civil No. 04-cv-00145). Argued April 3, 2006. Before: RENDELL, SMITH and ALDISERT, Circuit Judges.
Opinions of the United States Court of Appeals for the Third Circuit
7-26-2006
In Re: Kaiser Alum
Precedential or Non-Precedential: Precedential
Docket No. 05-2695
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Recommended Citation
“In Re: Kaiser Alum ” (2006). 2006 Decisions. Paper 645. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/645
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 05-2695
IN RE: KAISER ALUMINUM CORPORATION, Debtor
Pension Benefit Guaranty Corporation, Appellant
Appeal from the United States District Court for the District of Delaware (D.C. Civil No. 04-cv-00145) District Judge: Honorable Joseph J. Farnan, Jr.
Argued April 3, 2006
Before: RENDELL, SMITH and ALDISERT, Circuit Judges
(Filed: July 26, 2006)
Charles L. Finke [ARGUED]
Pension Benefit Guaranty Corporation
1200 K Street, N.W.
Washington, DC 20005
Counsel for Appellant
Daniel J. DeFranceschi
Richards, Layton & Finger
One Rodney Square
P.O. Box 551
Wilmington, DE 19899
Gregory M. Gordon [ARGUED]
Daniel P. Winikka
Jones Day
2727 North Harwood Street
Dallas, TX 75201
Counsel for Appellees
OPINION OF THE COURT
RENDELL, Circuit Judge.
The Employee Retirement Income Security Act of 1974 (“ERISA“) permits an employer seeking reorganization in Chapter 11 bankruptcy to terminate a pension plan if the employer satisfies certain notice requirements and demonstrates to a bankruptcy court that it will be unable to pay its debts and continue in business outside of Chapter 11 unless the pension
Kaiser Aluminum Corporation and twenty-five of its affiliates (“Kaiser“) are debtors in a Chapter 11 bankruptcy. As part of their reorganization, they requested that the Bankruptcy Court approve the termination of six pension plans under the reorganization test. The Bankruptcy Court applied the test to all six plans in the aggregate and concluded that their termination was required for Kaiser to emerge from Chapter 11. The Pension Benefit Guaranty Corporation (“PBGC“), which is responsible under ERISA to provide benefits to participants in terminated plans, appealed the Bankruptcy Court‘s decisiоn, arguing that it should have applied the reorganization test on a plan-by-plan basis to each of Kaiser‘s pension plans. Under this approach, the PBGC contends that some of Kaiser‘s plans would not fulfill the reorganization test, and therefore could not be terminated. The District Court upheld the Bankruptcy Court‘s decision and the PBGC appealed to our Court.
We conclude that the Bankruptcy Court correctly applied the reorganization test in the aggregate to all of the plans Kaiser sought to terminate. Congress has not provided any guidance as to how to apply the reorganization test given the fact pattern before us, and the plan-by-plan approach appears unworkable.
We are also persuaded that applying the reorganization test on a plan-by-plan basis would result in unfair and inequitable consequences in that it would require bankruptcy courts to give preference to some similarly situated constituents over others. The bankruptcy courts are courts of equity that are guided by equitable principles. Absent a clear congressional mandate to the contrary, we will not impose upon them an approach to the reorganization test that would conflict with their tradition of preventing unfairness in bankruptcy proceedings. Congress must speak more clearly than it has in ERISA if it wishes the bankruptcy courts to take a plan-by-plan approach to the reorganization test.
Finally, we consider, and reject, the PBGC‘s arguments based on legislative history, deference to its administrative interpretation, and public policy. We will therefore affirm the decision of the District Court upholding the Bankruptcy Court.
A.
Kaiser is involved in all aspects of the aluminum industry, including mining raw materials, refining them, and manufacturing aluminum products. As of January 1, 2003, Kaiser employed approximatеly 3,000 workers domestically. In addition, it was responsible for the retiree benefits (primarily medical) of more than 15,300 retirees and dependent spouses and the pension benefits of over 11,000 retirees and beneficiaries. In late 2001 and early 2002, weak industry conditions, imminent debt maturities, burdensome asbestos litigation, and growing legacy obligations for future retiree medical and pension costs took its toll on Kaiser. Unable to restructure their obligations outside of bankruptcy, Kaiser and its related corporate entities filed for relief under Chapter 11 of the Bankruptcy Code between February 2002 and January 2003.
Congress established the PBGC in 1974 as part of ERISA. Its purpose is to encourage the continuation and maintenance of private-sector defined benefit pension plans, provide timely and uninterrupted payment of pension benefits, and keep pension insurance premiums at a minimum.
The PBGC is not funded by general tax revenues. Rather, it collects insurance premiums from employers that sponsor insured pension plans, earns money from investments, and receives funds from pension plans it takes over. Id. at 1. The PBGC pays monthly retirement benefits, up to a guaranteed maximum, to about 683,000 retirees in 3,595 pension plans that have terminated.1 Including those who have not yet retired and participants in multiemployer plans receiving financial assistance, the PBGC is directly responsible for the current and future benefits of 1.3 million active and retired workers whose plans have failed. Id. at 2. The benefits guaranteed by the PBGC are often substantially lower than the fully vested pensions due to plan participants. See Mertens v. Hewitt Assocs., 508 U.S. 248, 250 (1993). Since 1987, a plan‘s sponsor is liable to the PBGC for the total amount of unfunded benefit liabilities to all participants and beneficiaries under the plan.
B.
| PENSION PLAN | UNION(S) COVERED |
|---|---|
| Kaiser Aluminum Pension Plan (“KAP Plan“) | United Steelworkers of America (“USWA“) |
| Kaiser Aluminum Tulsa Pension Plan (“Tulsa Plan“) | USWA |
| Kaiser Aluminum Bellwood Pension Plan (“Bellwood Plan“) | USWA; International Association of Machinists & Aerospace Workers (“IAM“) |
| Kaiser Aluminum Sherman Pension Plan (“Sherman Plan“) | IAM |
| Kaiser Aluminum Inactive Pension Plan (“Inactive Plan“)3 | USWA; IAM; United Automobile, Aerospace, and Agricultural Implement Workers of America (“UAW“) |
| Kaiser Aluminum Los Angeles Extrusion Pension Plan (“LA Extrusion Plan“) | International Brotherhood of Teamsters (“Teamsters“) |
| Kaiser Center Garage Pension Plan (“Garage Plan“) | Teamsters Automotive Employees, Local 78 |
These plans covered nearly 13,500 active hourly workers, participants on leave or layoff, individuals who were terminated from employment, retirees, and beneficiaries. On January 11, 2004, Kaiser filed a motion seeking the Bankruptcy Court‘s approval to terminate all seven plans in a voluntary “distress termination” under Title IV of ERISA,
Prior to the February 2, 2004 hearing at which the Bankruptcy Court was to consider these motions, Kaiser reached аgreements with USWA, IAM, and the official committee of salaried retirees (“1114 Committee“) providing for consensual termination of the KAP Plan, Tulsa Plan, Bellwood Plan, Sherman Plan, and Inactive Plan, and for the institution of replacements for these plans. At the hearing, Kaiser asked the Bankruptcy Court to approve these agreements. The company had not yet reached agreements with UAW or the Teamsters to terminate the Inactive Plan and the LA Extrusion Plan, respectively.
At the hearing, Kaiser also withdrew its motion for approval to terminate the Garage Plan on the grounds that it was not underfunded. Thus, the Bankruptcy Court actually considered only whether to terminate six of Kaiser‘s seven active plans.
The PBGC opposed Kaiser‘s motion to terminate the six pension plans. In its briefs and at the February 2, 2004 hearing, the PBGC argued that the Bankruptcy Court should make separate determinations of whether each pension plan that Kaiser sought to terminate satisfied the reorganization test. Thus, rather than considering whether Kaiser could afford to fund all six plans in the aggregate, the PBGC urged the Bankruptcy Court to determine whether the contributions required for each individual plan, considered independently and without regard to the obligations under the other plans, jeopardized Kaiser‘s ability to reorganize successfully. The
The PBGC acknowledged at the hearing that two plans — the KAP Plan and the Inactive Plan — satisfied the reorganization test for distress termination even if considered under a plan-by-plan analysis. These plans were much larger than the others and would clearly impose an unsustainable burden on Kaiser. The PBGC contested only Kaiser‘s request to terminate the Tulsa Plan, Bellwood Plan, Sherman Plan, and LA Extrusion Plan. The combined minimum funding contributions for these four plans were projected to be roughly $12.8 million between 2004 and 2009, less than six percent of the estimated $230 million required to fund all of Kaiser‘s pension plans during that time frame. When these smaller plans were considered on a plan-by-plan basis, rather than in the aggregate with the KAP and Inactive Plans, the PBGC argued that Kaiser could continue funding some or all of them and still emerge successfully frоm Chapter 11 reorganization.
The Bankruptcy Court concluded that the PBGC‘s plan-by-plan approach would violate the Bankruptcy Code‘s requirement that debtors bargain fairly and equitably with unions. See
Under this standard, the Bankruptcy Court found that the reorganization test was satisfied with respect to all six plans that Kaiser sought to terminate. In a February 5, 2004 order, the Bankruptcy Court approved termination of the KAP Plan, the Sherman Plan, the Tulsa Plan, and the Bellwood Plan, effective upon the Court‘s filing of a contemporaneous order approving Kaiser‘s agreements with USWA, IAM, and the 1114 Committee for consensual termination of these plans. Though the Inactive Plan and the LA Extrusion Plan also satisfied the reorganization test, the Bankruptcy Court refused to approve their termination at that time because the CBAs that Kaiser had with UAW and the Teamsters presented a contractual bar to their termination. Kaiser has since reached agreements with both UAW and the Teamsters to remove the contractual bar in each of these CBAs, and the Bankruptcy Court has now formally approved the termination of the Inactive Plan and the LA Extrusion Plan.
The PBGC appealed the Bankruptcy Court‘s decision to the District Court, which upheld the Bankruptcy Court‘s aggregate analysis of the plans under the reorganization test. The District Court concluded that ERISA did not mandate a plan-by-plan analysis as urged by the PBGC. Furthermore, the Court believed that ERISA‘s reorganization test must be read in light of
II.
The Bankruptcy Court had jurisdiction under
We exercise plenary review of an order issued by a district court sitting as an appellate court in review of a bankruptcy court. In re Cellnet Data Sys., Inc., 327 F.3d 242, 244 (3d Cir. 2003). We will set aside the Bankruptcy Court‘s findings of fact if they are clearly erroneous and review its conclusions of law de novo. Id.
III.
The question before us is whether the Bankruptcy Court should have made separate determinations as to whether each of the six plans Kaiser sought to terminate satisfied the reorganization test, or whether it properly applied the reorganization test to all six plans in the aggregate. “As in any case of statutory construction, our analysis begins with the language of the statute.” Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999) (internal quotation omitted).
Title IV of ERISA establishes the exclusive means of terminating single-employer pension plans.
A single-employer plan may terminate in a distress termination only if the plan administrator provides affected parties with at least sixty days of advance written notice of its intent to terminate,
Four requirements must be satisfied for a distress termination under the reorganization test. First, the plan sponsor must have filed a petition seeking reorganization in
A plan sponsor may not voluntarily terminate a plan “if the termination would violate the terms and conditions of an existing collective bargaining agreement.”
make a proposal to the authorized representative of the employees covered by such agreement . . . which provides for those necessary modifications in the employees benefits and protections that are
necessary to permit the reorganization of the debtor and assures that all creditors, the debtor and all affected parties are treated fairly and equitably.
B.
ERISA does not explicitly state how the reorganization test applies when an employer seeks to terminate several pension plans at once. The reorganization test is satisfied when a bankruptcy court determines that a plan sponsor will be unable to continue business outside of Chapter 11 “unless the plan is terminated.”
Absent any express statutory instruction about how the reorganization test applies in the multiplan context, we must examine ERISA‘s text for indicia of congressional intent on the issue. See Lamie v. United States Trustee, 540 U.S. 526, 534 (2004) (“The starting point for discerning congressional intent is the existing statutory text . . . .“). The parties have not cited, and we have not found, any case in which a court has performed such an analysis. In every case that we have identified in which a debtor sought to terminate multiple pension plans under the reorganization test, bankruptcy courts have applied an aggregate analysis, apparently without protest from the PBGC. See In re Aloha Airgroup, Inc., No. 04-3063, 2005 WL 3487724, at *1 (Bankr. D. Haw. Dec. 13, 2005), vacated as moot, No. 05-00777, 2006 WL 695054, at * 3 (D. Haw. Mar. 14, 2006); In re Philip Servs. Corp., 310 B.R. 802, 808 (Bankr. S.D. Tex. 2004); In re Wire Rope Corp. of Am., 287 B.R. 771, 777-78 (Bankr. W.D. Mo. 2002). However, these courts provided no rationale as to why they employed the aggregate approach and did not discuss whether they considered an alternate approach. Thus, these cases provide us with very little guidance or authority as to how to interpret ERISA‘s text.
The PBGC argues that Congress‘s use of the singular terms “single-employer plan” and “plan” mandates a plan-by-plan approach to terminations under
To support its textual interpretation, the PBGC notes that Congress chose to use the singular terms “single-employer plan” or “plan” throughout Title IV in a manner that it contends created a plan-specific statutory scheme to govern the single-employer plan termination insurance program. See, e.g.,
We disagree with the PBGC‘s textual analysis. Its “linguistic argument makes too much out of too little.” United States v. Fior D‘Italia, Inc., 536 U.S. 238, 244 (2002). The use of the singular form of “plan” in
Furthermore, we do not think that Congress intended that its use of the singular “plan” would require a plan-by-plan
A brief hypothetical illustrates the problems inherent in applying the reorganization test on a plan-by-plan basis under the current statutory scheme. Assume that a debtor has three pension plans, each of which will cost $20 million annually. The evidence shows that the debtor can devote no more than $40 million annually to its pension liabilities and continue in business outside of Chapter 11. Under the PBGC‘s plan-by-plan approach, a bankruptcy court would approve the termination of just one plan because the debtor could afford to fund two of the three. But which plan should be terminated? Based simply on their cost, any of the plans could conceivably be eliminated; which one depends wholly on the mechanics of how the bankruptcy court applies the reorganization test. For example, the order in which the bankruptcy court examines the
These are fundamental problems with applying the reorganization test on a plan-by-plan basis, yet Congress did nothing to address, let alone resolve, them. Nor are these problems merely theoretical. In the instant case, the Bankruptcy Court noted that, if the KAP and Inactive Plans were terminated first, Kaiser could afford to fund as many as three of the four smaller plans (i.e. the Tulsa, Sherman, LA Extrusion, and
Similarly, if the Bankruptcy Court assumed while applying the reorganization test to one plan that all the other plans remained active, it would conсlude that the reorganization test was satisfied as to any of the plans considered independently. The cost of the KAP and Inactive Plans would make any other plan prohibitively expensive. On the other hand, if one assumed that the KAP and Inactive Plans would be eliminated, several of the smaller plans could be funded outside of Chapter 11. We see no principled textual basis in
Nor would we make the plan-by-plan approach workable by “filling in the gaps” left by Congress ourselves. See Griggs v. E.I. DuPont de Nemours & Co., 385 F.3d 440, 453 n.7 (4th Cir. 2004). In the context of such an “enormously complex and detailed statute,” Mertens, 508 U.S. at 262, whose text we should be cautious about supplementing, Hughes Aircraft, 525 U.S. at 447, it is not appropriate for us to invent for the bankruptcy courts the fundamental baseline assumptions required to apply the reorganization test workably on a plan-by-plan basis. To do so would require us to weigh sensitive policy issues that have potentially important consequences for employers, American workers, and the PBGC without any
The PBGC contends that “[i]t is difficult to imagine how Congress could have spoken to the ‘precise question’ of whether the distress termination requirements . . . apply to a sponsor on a plan-by-plan basis more clearly than it did.” (PBGC Br. at 18.) To the contrary, we have no trouble envisioning how it could have done so. It could have used the phrase “plan-by-plan” in articulating the reorganization test, explicitly instructed courts to apply the test to each plan independently, or given even a modicum of guidance about how such an approach should be applied and what assumptions should be used in the multiplan context. Absent any such textual indicators of congressional intent, we will not read them into the statute ourselves. Instead, we adopt a construction of
C.
We find additional support for our textual analysis in the fact that a plan-specific approach to the reorganization test would disrupt the bankruptcy courts in their traditional role as agents of equity. The PBGC would have the Bankruptcy Court terminate some of Kaiser‘s plans while leaving the others in place, seemingly without a principled basis on which it could make the determination of which workers to prefer over others. We will not impose this result, which we believe would treat Kaiser‘s workers unfairly and inequitably, without a clear congressional mandate.
The Supreme Court has long recognized that bankruptcy courts are courts of equity that apply equitable principles in the administration of bankruptcy proceedings. See Local Loan Co. v. Hunt, 292 U.S. 234, 240 (1934) (“[C]ourts of bankruptcy are essentially courts of equity, and their proceedings inherently proceedings in equity.“). Though the enactment of the Bankruptcy Code in 1978 “increased the degree of regulation Congress imposed upon bankruptcy proceedings,” it did not alter their “fundamental nature” as courts оf equity. Official Comm. of Unsecured Creditors of Cybergenics Corp. ex rel. Cybergenics Corp. v. Chinery, 330 F.3d 548, 567 (3d Cir. 2003) (en banc); see also Young v. United States, 535 U.S. 43, 50 (2002) (“[B]ankruptcy courts . . . are courts of equity and ‘apply the principles and rules of equity jurisprudence.‘” (quoting Pepper v. Litton, 308 U.S. 295, 304 (1939))).
Section 1113 of the Bankruptcy Code illustrates the role that the bankruptcy courts take in ensuring fairness during the
We will not require the equitable principles under which bankruptcy courts operate to be discarded when courts are deciding whether to approve a pension plan termination under the reorganization test. See In re US Airways Group, Inc., 296 B.R. 734, 746 (Bankr. E.D. Va. 2003) (holding that the requirement under
Had the Bankruptcy Court applied the reorganization test on a plan-by-plan basis it would have had to pick and choose between the six plans that Kaiser sought to terminate, deciding that certain plans would remain active. Some of Kaiser‘s workers would receive their full рension benefits, while others would receive no more than the amount guaranteed under
When pressed at oral argument, the PBGC offered no basis on which the Bankruptcy Court could make the difficult decision of which of Kaiser‘s four small plans should be terminatеd under a plan-by-plan approach. It stated only that a debtor can make this choice in whatever manner it wishes. But this does little more than restate the problem before us. Here, Kaiser has voluntarily chosen to terminate all six pension plans. Thus, the “solution” the PBGC suggests does not apply in this case.
It did apply in the case of US Airways Group. There, US Airways sought to terminate only one of its four pension plans. The affected workers were the company‘s pilots, who had “already given up more in pay and benefits than any other employee group.” US Airways Group, 296 B.R. at 744. Not surprisingly, the pilots felt “a particularly keen sense of having
Unlike the case before us, the court in US Airways Group was asked to apply the reorganization test to just one pension plan. Under those circumstances, any unfairness inherent in the terminаtion was the result of the debtor‘s business decision about which plan to terminate, not the bankruptcy court‘s roll of the dice as to which plan should or should not be terminated.9
The PBGC contends that the result of applying an aggregate approach is just as unfair as terminating some plans and leaving others in place. Under the aggregated analysis, more plans would be terminated, and more workers impacted, than what is required for Kaiser to emerge from Chapter 11.
We are not unsympathetic to this view. There is undoubtedly a tension between treating similarly situated workers alike and doing the least that is necessary for the company to emerge from bankruptcy. However, we are persuaded that, on the whole, an aggregate approach is more in line with the objectives of the Bankruptcy Code.
As a practical matter, voluntary terminations under the
The consequence is that employers that could conceivably restructure their pension liabilities and successfully reorganize will have a harder time doing so under a plan-by-plan approach. This would, in turn, lead to a higher number of liquidations and, by extension, a higher number of overall plan terminations. The result would be to leave all interested parties – the PBGC, workers, retirees, and creditors – worse off as compared to the same number of reorganizations. An approach that results in unnecessary liquidations is neither fair nor consistent the Bankruptcy Code‘s preference for reorganization. See Nordhoff Invs., Inc. v. Zenith Elecs. Corp., 258 F.3d 180, 190 (3d Cir. 2001) (noting the “strong public policy in favor of maximizing debtor‘s estates and facilitating successful reorganization“); In re Baker & Drake, Inc., 35 F.3d 1348, 1354
IV.
The PBGC has leveled several other arguments against our reading of
A.
The PBGC points to a legislative trend to tighten the restrictions on pension plan terminations as support for a plan-by-plan approach to the reorganization test. In 1986, Congress established the four distress tests in the Single-Employer Pension Plan Amendments Act (“SEPPAA“). Prior to the enactment of SEPPAA, “a plan could be terminated voluntarily at any time, regardless of the relationship between its assets and liabilities.” E. Thomas Veal & Edward R. Mackiewicz, Pension Plan Terminations 68 (2d ed. 1998). If the plan could not provide the guaranteed benefits to pensioners, the PBGC would pay the benefits and assess liability against the plan‘s sponsor. Id. at 68-69. Congress found that this system “encourage[d] employers to terminate plans, evade their obligations to pay benefits, and shift unfunded pension liabilities” to the PBGC.
In 1987, Congress passed the Pension Protection Act of 1987 (“PPA“) to restrict pension plan terminations further. PPA made employers liable, for the first time, to the PBGC for the full amount of unfunded benefit liabilities to all participants and beneficiaries under the plan. See
The PBGC contends that SEPPAA and PPA, taken together, reflect a clear congressional purpose to limit the circumstances under which pension plans may be voluntarily terminated to instances where sponsors are suffering “severe hardship.” H.R. Rep. No. 99-300, at 278 (1985), reprinted in 1986 U.S.C.C.A.N. 929; H.R. Rep. No. 99-241, part 2, at 59-60 (1985), reprinted in 1986 U.S.C.C.A.N. 717-18. In addition, Congress intended to reduce the financial burdens on the PBGC and increase the chance that a plan‘s participants will receive their full expected benefits. In the context of the reorganization test, the PBGC argues that these objectives can only be achieved if bankruptcy courts employ a plan-by-plan approach, which prevents terminations that are economically unnecessary.
Our reading of the legislative history does not convince
B.
The PBGC claims that we should defer to its interpretation of the reorganization test under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). We disagree.
Congress has delegated to the PBGC the power to adopt rules and regulations that are necessary to carry out the purposes of Title IV of
Furthermore, even if we were to hold that the PBGC had the authority to interpret
The PBGC contends that it has promulgated a series of rules that require that the voluntary termination of pensions
C.
Policy issues have provided the subtext for several of the PBGC‘s arguments in favor of a plan-by-plan approach and, at times, the PBGC has brought these issues to the surface explicitly. There is no question that this case implicates significant policy concerns that potentially affect millions of American workers and hundreds of businesses. Furthermore, the PBGC is an important government entity whose interests are not lightly ignored. We therefore address its policy arguments briefly and comment on their role in our analysis.
The policy concerns in this case have formed two parallel tracks. First, the PBGC has contended repeatedly that an aggregate approach to the reorganization test harms American workers who participate in
The second concern is that our holding will negatively impact the PBGC itself. We take judicial notice of the fact that the PBGC‘s financial health has deteriorated sharply in recent years. At the end of the 2005 fiscal year, the PBGC‘s liabilities exceeded its assets by $23.1 billion, a swing in its net position of nearly $33 billion since 2000. PBGC Performance Report at 4; Congressional Budget Office, A Guide to Understanding the Pension Benefit Guaranty Corporation 1 (2005), available at http://www.cbo.gov/ftpdocs/66xx/doc6657/09-23-GuideToPBGC.pdf. The PBGC noted in its brief that “[t]he issue presented in this case recurs in other large bankruptcy cases in which the agency is a guarantor of pension benefits.” Interpreting
We do not downplay the significance of either argument. They provide sound policy rationales for the result for which the PBGC advocates and highlight the important interests at stake in this case. Moreover, there is no question that the aggregate approach may, in some cases, lead to results that are less than ideal for workers and for the PBGC. Nevertheless, “[w]e do not sit here as a policy-making or legislative body.” DiGiacomo, 420 F.3d at 228. There are no clear answers to the difficult policy issues involved in this case and, in any event, their resolution is better left to Congress than the courts. We have taken Congress‘s failure to provide a shred of guidance on how
V.
For the reasons stated above, we conclude that when an employer in Chapter 11 bankruptcy seeks to terminate multiple pension plans voluntarily under the reorganization test, Congress intended the bankruptcy courts to apply the test to all of the plans in the aggregate. Consequently, we will affirm the order of the District Court upholding the Bankruptcy Court‘s conclusion that Kaiser had satisfied the reorganization test with respect to all six plans that it sought to terminate.
Notes
- the plan has not met the minimum funding standard required under section 412 of Title 26 [of the United States Code], or has been notified by the Secretary of the Treasury that a notice of deficiency under section 6212 of Title 26 has been mailed with respect to the tax imposed under section 4971(a) of Title 26,
- the plan will be unable to pay benefits when due,
the reportable event described in [29 U.S.C. § 1343(c)(7)] has occurred, or - the possible long-run loss of the corporation with respect to the plan may reasonably be expected to increase unreasonably if the plan is not terminated.