Retired Pilots Ass'n of U.S. Airways v. US Airways Group, Inc.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: US AIRWAYS GROUP, 
INCORPORATED,
Debtor.
THE RETIRED PILOTS ASSOCIATION OF
US AIRWAYS, INCORPORATED  No. 03-1825
(SOARING EAGLES),
Plaintiff-Appellant,
v.
US AIRWAYS GROUP, INCORPORATED,
Debtor-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-03-413-A; BK-02-83984-SSM)
Argued: February 26, 2004
Decided: May 27, 2004
Before WILKINSON and KING, Circuit Judges,
and William D. QUARLES, Jr., United States District Judge for the
District of Maryland, sitting by designation.
Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge King and Judge Quarles joined.
2 IN RE US AIRWAYS GROUP
COUNSEL
ARGUED: Jeffrey Gans, THELAN, REID & PRIEST, L.L.P., Wash-
ington, D.C., for Appellant. Edward Joseph Meehan, SKADDEN,
ARPS, SLATE, MEAGHER & FLOM, L.L.P., Washington, D.C., for
Appellee. ON BRIEF: Sherwin S. Kaplan, THELAN, REID &
PRIEST, L.L.P., Washington, D.C., for Appellant. John Wm. Butler,
Jr., John K. Lyons, SKADDEN, ARPS, SLATE, MEAGHER &
FLOM, L.L.P., Chicago, Illinois; Alesia Ranney-Marinelli, SKAD-
DEN, ARPS, SLATE, MEAGHER & FLOM, L.L.P., New York,
New York; E. Duncan Getchell, Jr., MCGUIREWOODS, L.L.P.,
Richmond, Virginia; Lawrence E. Rifken, Douglas M. Foley,
MCGUIREWOODS, L.L.P., McLean, Virginia; Janet L. Dhillon,
Alexander W. Powell, Jr., SKADDEN, ARPS, SLATE, MEAGHER
& FLOM, L.L.P., Washington, D.C., for Appellee.
OPINION
WILKINSON, Circuit Judge:
During the course of its bankruptcy reorganization, appellee US
Airways Group, Inc. moved the bankruptcy court for permission to
terminate a pension plan it maintained for its pilots. Appellant Retired
Pilots Association of US Airways, Inc. opposed the motion. The
bankruptcy court found that US Airways had demonstrated that it
could not succeed in its reorganization efforts without terminating the
pension plan. The bankruptcy court therefore issued an order allowing
US Airways to effect a distress termination of the pension plan and
to replace it with a new pension plan that would cover only active and
other non-retired pilots.
Appellant did not seek a stay of this order, and it did not object to
the subsequent implementation of US Airways’ reorganization plan.
As a result, by the time appellant’s challenge to the bankruptcy
court’s termination order reached the district court, the termination
order had been fully consummated and the company’s reorganization
plan had been confirmed and substantially implemented. The district
court therefore dismissed the appeal as equitably moot. Because
IN RE US AIRWAYS GROUP 3
reversal of the bankruptcy court’s termination order at this late stage
would undermine the reorganization plan and the interests of third
parties relying upon the plan, we affirm.
I.
US Airways filed a voluntary petition for Chapter 11 reorganiza-
tion on August 11, 2002. US Airways needed a fast-track reorganiza-
tion so that, among other reasons, it would not lose the services of its
credit card processing company. It therefore chose March 31, 2003 as
its target date to emerge from bankruptcy. In order to continue its
operations while in bankruptcy, US Airways secured a $500 million
debtor-in-possession loan from The Retirement Systems of Alabama
Holdings, LLC ("RSA"). To support its post-emergence operations,
the company obtained commitments from RSA, the Air Transporta-
tion Stabilization Board ("ATSB"), and Bank of America for $1 bil-
lion in exit financing and $240 million of equity investment. In order
to receive these loans, however, US Airways had to meet certain
financial projections.
The particular issue that threatened US Airways’ ability to access
the loans was an escalating pension plan funding problem. Between
June 2002 and November 2002, US Airways’ projected contribution
requirements for all of its defined benefit pension plans had increased
from $2.5 billion to $3.6 billion because of lower interest rates and
poor performance by the stock market. At the same time, the compa-
ny’s projected income had declined considerably, in part because of
declines in passenger revenues in the entire airline industry after the
terrorist attacks of September 11th.
To remedy this problem, US Airways revised its business plan.
Among the changes it made, the company projected reduced contribu-
tions of $850 million to the Retirement Income Plan for Pilots of US
Airways, Inc. That pension plan, which is at the center of this appeal,
was an underfunded plan guaranteed by the Pension Benefit Guaranty
Corporation ("PBGC"). The ATSB approved the revised business
plan, but it expressly conditioned its approval on US Airways resolv-
ing the pension funding problem.
US Airways therefore explored a variety of ways to meet the pro-
jected contributions of $850 million to the pension plan. In conjunc-
4 IN RE US AIRWAYS GROUP
tion with the Air Line Pilots Association ("ALPA"), US Airways
considered reducing costs, freezing the benefits under the pension
plan, or freezing the benefits under all of US Airways’ pension plans.
None of these options, however, proved sufficient to meet the $850
million contribution level. Moreover, US Airways’ attempts to obtain
administrative and legislative assistance failed. First, the IRS rejected
a joint proposal by US Airways and ALPA to receive a special fund-
ing waiver that would alleviate the pension funding requirements.
Second, the PBGC rejected a joint proposal for restoration funding,
which would have permitted US Airways to pay its plan liabilities
over a longer period of time. Finally, Congress rejected legislation
proposed on behalf of US Airways and ALPA to reduce the annual
funding required for the pension plan to an affordable level.
Having failed in these efforts to meet the $850 million contribution
level, US Airways filed a notice of intent to terminate the pension
plan on January 30, 2003. See 29 U.S.C. § 1341(c)(1)(A). Under the
Employee Retirement Income Security Act (ERISA), US Airways
could effect such a "distress termination" only upon the bankruptcy
court’s finding that, "unless the [pension] plan is terminated, [US Air-
ways] will be unable to pay all its debts pursuant to a plan of reorga-
nization and will be unable to continue in business outside the chapter
11 reorganization process." Id. § 1341(c)(2)(B)(ii)(IV). Appellant, in
addition to ALPA and other pilot groups, opposed US Airways’
motion. ALPA also filed a grievance, alleging that a distress termina-
tion would violate the terms of US Airways’ collective bargaining
agreement with its active pilots.
On March 2, 2003, the bankruptcy court entered an order finding
that US Airways had demonstrated the financial requirements neces-
sary for a distress termination. The court therefore permitted US Air-
ways to terminate the pension plan, subject to a determination that
doing so would not violate the collective bargaining agreement. US
Airways then resolved the collective bargaining agreement issue on
March 21, 2003, when it reached an agreement with ALPA to termi-
nate the pension plan effective on March 31 and to replace it with a
new pension plan for its active and other non-retired pilots. Retired
pilots, not covered by the new pension plan, would be entitled only
to the reduced benefits guaranteed by the PBGC under the old pen-
sion plan. Appellant filed a notice of appeal of the bankruptcy court’s
IN RE US AIRWAYS GROUP 5
termination order on March 6, 2003, but it did not move for a stay of
that order, and neither did it challenge or request a stay of US Air-
ways’ proposed reorganization plan.
Then, on March 18, 2003, the bankruptcy court issued a confirma-
tion order approving US Airways’ reorganization plan. US Airways
subsequently obtained approval from ALPA, the PBGC, and the
bankruptcy court to terminate the pension plan and to put the new
pension plan for active and non-retired pilots in its place. On March
28, the PBGC executed the termination of the pension plan and
assumed the plan’s liabilities. US Airways successfully emerged from
Chapter 11 bankruptcy on March 31 and received the $1.24 billion in
exit financing and equity investment as a result of meeting its finan-
cial projections. Since that time, US Airways has continued its busi-
ness operations and has entered into hundreds of transactions with
third parties.
Appellant, however, continued with its appeal of the bankruptcy
court’s termination order, though it had not objected to US Airways’
plan of reorganization or to the confirmation order. Appellant argued
that US Airways could have met its financial projections and could
have reorganized itself without immediately terminating the pension
plan. Rather than addressing the merits of appellant’s challenge, the
district court dismissed the appeal as equitably moot. It found that
granting the relief sought by appellant — reversing the distress termi-
nation order and requiring US Airways to restore the pension plan —
would endanger the reorganization plan and would harm third parties
that had relied upon the reorganization plan. Appellant now contests
that decision.
II.
The doctrine of equitable mootness represents a pragmatic recogni-
tion by courts that reviewing a judgment may, after time has passed
and the judgment has been implemented, prove "impractical, impru-
dent, and therefore inequitable." MAC Panel Co. v. Va. Panel Corp.,
283 F.3d 622, 625 (4th Cir. 2002); see also Cent. States, SE and SW
Areas Pension Fund v. Cent. Transp., Inc., 841 F.2d 92, 93, 95-96
(4th Cir. 1988). Within the context of a bankruptcy proceeding, a
court may dismiss an appeal as equitably moot "when it becomes
6 IN RE US AIRWAYS GROUP
impractical and imprudent to upset the plan of reorganization at this
late date." MAC Panel, 283 F.3d at 625 (internal quotation and cita-
tion omitted). We have identified certain factors that aid the determi-
nation of whether the requested relief can, as a practical matter, be
granted:
(1) whether the appellant sought and obtained a stay; (2)
whether the reorganization plan or other equitable relief
ordered has been substantially consummated; (3) the extent
to which the relief requested on appeal would affect the suc-
cess of the reorganization plan or other equitable relief
granted; and (4) the extent to which the relief requested on
appeal would affect the interests of third parties.
Id. As the district court found, these factors weigh in favor of dismiss-
ing this appeal as equitably moot.*
First, it is significant that appellant never sought to obtain a stay
of any kind. Appellant never attempted to stay the bankruptcy court’s
distress termination order, nor did it attempt to expedite its appeal of
that order. Appellant also did not attempt either to stay the confirma-
tion order or to prevent implementation of the reorganization plan.
Instead, appellant sat idly by as US Airways executed the termination
order and implemented its reorganization plan by completing hun-
dreds of transactions with third parties. To this day, appellant has
offered no explanation for its failure to defer implementation of the
termination order or the reorganization plan by seeking a stay. This
factor therefore weighs strongly in favor of a finding of equitable
mootness.
Moreover, it is undisputed that the termination order and the con-
firmation order have been fully consummated. The bankruptcy court’s
termination order was fully consummated on March 21 when US Air-
ways resolved the collective bargaining agreement dispute with
ALPA. And once the pension plan was terminated, the confirmation
*The parties disagree as to whether we should review the district
court’s finding of equitable mootness de novo, or for an abuse of discre-
tion. We need not resolve that question here, however, because under
either standard we would affirm the district court.
IN RE US AIRWAYS GROUP 7
order was fully consummated because US Airways had satisfied the
last condition to meeting its financial projections and became able to
access the $1.24 billion in exit financing and equity investment. This
second factor thus also weighs heavily in favor of adjudging the
appeal equitably moot.
Finally, we cannot see how the requested relief — reversal of the
termination order — could be granted without undoing US Airways’
reorganization plan and without adversely impacting the interests of
third parties who have relied upon the consummated confirmation
order. Most obviously, reinstating the large unfunded pension liability
on US Airways at this stage would undermine the conditions that the
company’s lenders placed upon their loans. In order to gain confirma-
tion of its reorganization plan and to obtain pre- and post-emergence
financing from the ATSB, RSA, and Bank of America, US Airways
had to meet certain financial projections. The bankruptcy court deter-
mined that US Airways would have been unable to meet these projec-
tions without terminating the pension plan. As a result, the company
would have been unable to emerge from bankruptcy and continue its
business operations. By granting appellant’s requested relief and
thereby re-imposing the pension funding problem at this late stage,
we would directly undermine the interests of those lenders that
expressly conditioned their loans on resolution of this issue.
In addition to the lenders’ reliance interests, there are a number of
other third parties that have engaged in transactions with US Airways
since the company’s emergence from bankruptcy. For example, US
Airways has contracted with Bank of America to process the compa-
ny’s credit card transactions; cancelled all of its prior common stock
and distributed new restricted stock; and entered into restructuring
agreements and collective bargaining agreements with its unions.
Moreover, pursuant to the reorganization plan, US Airways has paid
millions of dollars worth of administrative claims; it has cured pre-
petition defaults on thousands of executory contracts and unexpired
leases and has continued to perform under those contracts and leases
as modified during reorganization; and it has begun the process of
resolving other secured claims. In short, US Airways has substantially
implemented its reorganization plan. The third parties that engaged in
these transactions with US Airways undoubtedly relied upon the con-
firmation and success of the reorganization plan, and thus did not
8 IN RE US AIRWAYS GROUP
account for the risks involved if we were to reinstate the massive pen-
sion liability on US Airways.
Simply put, if we granted appellant’s requested relief at this junc-
ture we would jeopardize all of the progress US Airways has made,
both while in Chapter 11 and since emerging from bankruptcy. And
apart from the damage inflicted on this massive reorganization plan,
we would shake the reliance that businesses, investors, and the public
place on the finality of bankruptcy confirmation orders. See In re
Cont’l Airlines, 91 F.3d 553, 565 (3d Cir. 1996). In short, we would
render substantially more difficult the successful completion of large
reorganization efforts such as the present one. See id.
Appellant stresses, however, that the bankruptcy court and US Air-
ways’ creditors required only some resolution of the pension funding
issue, and they did not require specifically that the pension plan be
terminated. Thus, appellant argues, termination of the pension plan
was not absolutely necessary to formulating a workable reorganiza-
tion plan. And if the bankruptcy court can now formulate a workable
reorganization plan in which the pension plan is reinstated, then,
appellant contends, such relief would not harm the reorganization
plan or third parties relying upon it.
This argument misses the mark. First, we note that US Airways
explored a variety of solutions to the pension funding issue, but ulti-
mately it concluded (and the bankruptcy court agreed) that a distress
termination was the only viable option. But even assuming that appel-
lant is correct and that an alternative solution could be devised, such
an alteration at this stage would still affect the current structure of the
reorganization plan. By reversing the termination order, we would
essentially "un-satisfy" a necessary condition to US Airways’ confir-
mation order and its entitlement to $1.24 billion in equity investment
and exit loans. To resolve the problems this would create, other parts
of the plan would have to be reconfigured: approval by US Airways’
lenders and the bankruptcy court would have to be obtained, distribu-
tions under the plan would have to be reworked, and a variety of com-
pleted transactions and banking arrangements would have to be
undone. As the district court observed, revisiting the issue at this
point would be wholly impractical.
IN RE US AIRWAYS GROUP 9
III.
We therefore conclude that appellants’ challenge to the bankruptcy
court’s distress termination order is equitably moot. We are not indif-
ferent to the fact that any alteration in pension payments and obliga-
tions is not a matter to be taken lightly in the bankruptcy process.
While Congress has provided under ERISA a process for the distress
termination of pension funding obligations, we are well aware that
such a step is envisioned only as a matter of business necessity and
survival. The bankruptcy court was careful in this case to ensure that
the statutory conditions for a distress termination were met. What is
done cannot now be undone. It is simply too late in the day to unwind
the intricate series of transactions that has occurred in the reorganiza-
tion process in order to grant the requested relief and revive the pen-
sion plan. The judgment of the district court is hereby
AFFIRMED.