In Re UAL Corporation (Pilots' Pension Plan Termination)

In the
United States Court of Appeals
For the Seventh Circuit
____________

Nos. 06-1867, 06-2662, 06-2714 & 06-2843
IN THE MATTER OF:
UAL CORPORATION (PILOTS’ PENSION
PLAN TERMINATION)

APPEALS OF:
UNITED AIRLINES, INC.; PENSION BENEFIT GUARANTY
CORPORATION; AIR LINE PILOTS ASSOCIATION,
INTERNATIONAL; AND UNITED RETIRED PILOTS
BENEFIT PROTECTION ASSOCIATION, et al.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 05 C 6220 (John W. Darrah, Judge) and
06 C 1222 (Joan Humphrey Lefkow, Judge).
____________
ARGUED SEPTEMBER 26, 2006—DECIDED OCTOBER 25, 2006
____________

Before BAUER, POSNER, and EASTERBROOK, Circuit
Judges.
EASTERBROOK, Circuit Judge. Earlier this year we held
that United Airlines and its unionized pilots had reached a
valid bargain in which the pilots’ union, in order to improve
United’s chance of successful reorganization in bankruptcy,
agreed not to oppose its termination of its defined-benefit
pension plan. In re UAL Corp. (URPBPA), 443 F.3d 565 (7th
Cir. 2006) (URPBPA I). In exchange for their acquiescence,
2 Nos. 06-1867, 06-2662, 06-2714 & 06-2843

the active pilots stood to receive $550 million in convertible
notes in the reorganized firm, plus a new defined-contribu-
tion pension plan.
This agreement contemplated that United would main-
tain the defined-benefit plan through the end of June 2005,
though without making additional monthly contributions to
the plan’s trust fund. During those months, pilots’ accrued
benefits would rise because of additional work credits, and
an annual cost-of-living increase would kick in. When the
defined-benefit plan ended, all pilots (active and retired)
would continue to receive reduced monthly benefits. “Termi-
nation” of a plan does not end anyone’s right to receive
vested benefits; it just prevents an increase in those
benefits, which will be paid from the trust and, to the
extent that fund is insufficient, by the Pension Benefit
Guaranty Corporation. (What the PBGC can pay is limited
by 29 U.S.C. §1322(b)(3), so vested benefits of well-paid
retirees such as airline pilots are not fully insured.) Be-
cause the funds in trust for the pilots’ plan at United were
insufficient to pay the promised benefits, termination
required the PBGC to step in with a hefty federal subsidy.
The PBGC was unwilling to underwrite the extra benefits
that would become vested during the first six months of
2005, benefits that the district court valued at approxi-
mately $84 million. It filed an adversary action in the
bankruptcy proposing to terminate the plan at the end of
2004. Meanwhile United proposed to end the payment of
supplemental retirement benefits, from its corporate funds,
that exceeded what could be offered through a tax-qualified
pension plan—which is to say, a plan the benefits of which
are taxed to employees as they are paid after retirement,
rather than when the work is performed and wages earned.
(The parties refer to these payments as “non-qualified
benefits,” but that’s a misnomer. Pension plans, and
contributions to them, may or may not be “qualified” in the
sense of deferring income tax from the time wages are
Nos. 06-1867, 06-2662, 06-2714 & 06-2843 3

earned until the pensions are disbursed; particular benefit
payments always are taxable income when distributed. We
therefore refer to the benefits as “supplemental,” meaning
supplemental to the tax-qualified pension plan, rather than
as “non-qualified.”) The Union (the Air Line Pilots Associa-
tion, International, or ALPA) acknowledged that these
benefits would end as soon as the defined-benefit pension
plan terminated—for a plan’s termination limits pension
benefits to their vested and insured level—but the parties’
agreement of January 2005 (the “Letter Agreement” for
short) stipulated that this meant continuation until a court
formally terminated the agreement. ALPA insists that this
means the date of judicial decision, not the date of the
plan’s termination.
After a considerable delay caused by assignment of the
PBGC’s action to Chief Bankruptcy Judge Wedoff, followed
by District Judge Darrah’s decision (after a trial had been
held in the bankruptcy court) that only a district judge
could act on that non-core subject, the matter came to rest
with District Judge Lefkow. She thought that $84 million
would be an “unreasonable increase” in the PBGC’s liabil-
ity; under 29 U.S.C. §1342(a)(4), that conclusion justified
termination of the pension plan at the end of 2004. 436 F.
Supp. 2d 909 (N.D. Ill. 2006). But Judge Lefkow did not
release this decision until June 2006. Judge Wedoff, whose
authority over the supplemental pension benefits was
secure under 28 U.S.C. §157(b)(1) because United’s request
for relief was a core proceeding, concluded in February 2005
that it must continue paying while he, then Judge Darrah,
and finally Judge Lefkow, mulled over the PBGC’s request
to set a termination date in 2004. In October 2005 United
renewed its request to cease paying—for by then the
pension plan would have ended even had the PBGC not
sought an earlier termination date. Judge Wedoff again
denied this request but allowed United to put the supple-
mental retirement benefits for October and later months in
4 Nos. 06-1867, 06-2662, 06-2714 & 06-2843

a segregated account while the PBGC’s suit continued.
United appealed to Judge Darrah. See 28 U.S.C. §158(a).
He dismissed the appeal as “unripe” because final decision
in the PBGC’s adversary proceeding lay ahead.
We have consolidated four appeals from these decisions.
The PBGC, the ALPA, and a group of retired pilots (the
United Retired Pilots Benefit Protection Association, or
URPBPA) have appealed from Judge Lefkow’s order. United
has appealed from Judge Darrah’s refusal to decide whether
it must pay supplemental benefits for October 2005. Judge
Wedoff entered a separate order requiring United to pay
supplemental retirement benefits through February 1,
2006, when its plan of reorganization took effect; the plan,
Judge Wedoff held, superseded the Letter Agreement and
allowed United to stop paying at last, even though Judge
Lefkow still had not decided whether the pension plan’s
termination date would be in December 2004 or June 2005.
United appealed that decision to Judge Darrah, who
affirmed on the ground that, by not taking an interlocutory
appeal under 28 U.S.C. §158(a)(3) from Judge Wedoff’s
order in February 2005, United had forfeited any entitle-
ment to further review of its obligations with respect to
supplemental benefits. United has filed a notice of appeal
(No. 06-3489) from that decision, and both ALPA and
URPBPA have filed cross-appeals (Nos. 06-3548 & 06-3559)
to argue that even the confirmation of the plan did not end
United’s obligation to pay supplemental benefits. We have
stayed briefing in those three appeals until the other
appeals have been resolved, as our handling of the October
2005 supplemental benefits may well resolve the contro-
versy about payment for ensuing months too.
Of the four appeals, the PBGC’s has the distinction of not
seeking any relief—for the PBGC prevailed in the district
court. It proposed a termination date of December 30, 2004;
the court ruled in its favor. The PBGC’s nose is out of joint
because the court held a trial and made its own judgment
Nos. 06-1867, 06-2662, 06-2714 & 06-2843 5

about how much extra it would have cost to keep the plan
in force until the end of June 2005, and whether that
amount (which the court fixed at $84.2 million, about $17
million less than the PBGC’s calculation) would be an
“unreasonable increase” in federal liability. The PBGC does
not want to go through such a procedure again and asks us
to hold that, instead of conducting an independent inquiry,
the court should have limited review to the administrative
record and deferred to the PBGC’s evaluation. Appellate
courts do not, however, review language in district judges’
opinions—we review judgments, see Jordan v. Duff &
Phelps, Inc., 815 F.2d 429, 439 (7th Cir. 1987), and this
judgment gave the PBGC everything it wanted. A litigant
that prevails at trial may not appeal to contend that it
should have won faster or cheaper on summary judgment;
nor may the winner at trial protest what it deems (in
retrospect) to have been needless discovery or rounds of
briefing en route. What the PBGC wants from us—a
remand directing the district judge to write a different
opinion but enter the same judgment—is not within the
judicial power under Article III. Fiddling with explanatory
language, when the judgment is fixed, would be advisory.
This is not to say that a prevailing litigant must abandon
its views on intermediate legal questions. A winner may
defend its judgment on any ground preserved in the district
court, without need for a cross appeal. See, e.g., Massachu-
setts Mutual Life Insurance Co. v. Ludwig, 426 U.S. 479
(1976). The PBGC takes this as a fallback position, even if
Article III precludes a remand with instructions to rewrite
the opinion while reentering the same judgment. So our
first question is whether review should have been deferen-
tial, for if the answer is yes then we may affirm (on ALPA’s
and the retired pilots’ appeals) without further ado.
Deference is appropriate when agencies wield delegated
interpretive or adjudicatory power—the former usually
demonstrated by rulemaking and the latter by admini-
6 Nos. 06-1867, 06-2662, 06-2714 & 06-2843

strative adjudication (which also may yield rules in
common-law fashion). See United States v. Mead Corp., 533
U.S. 218, 229-30 (2001). The PBGC did not use either
rulemaking or adjudication to decide that United’s plan
should be wrapped up at the end of 2004. Its decision
was made unilaterally and was not self-executing. The only
authority that the PBGC has under §1342 is to ask a court
for relief. That implies an independent judicial role. See
Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990). When
making its decision a court must respect any regulations
issued after notice-and-comment rulemaking, but the PBGC
has not promulgated any rules pertinent to this subject. Nor
has it issued the sort of interpretive guidelines that deserve
the court’s respectful consideration even though they lack
the power to control. See, e.g., Christensen v. Harris County,
529 U.S. 576, 587 (2000). All the PBGC had done is com-
mence litigation, and its position is no more entitled to
control than is the view of the Antitrust Division when the
Department of Justice files suit under the Sherman Act.
See, e.g., Bowen v. Georgetown University Hospital, 488
U.S. 204, 212-13 (1988). As the plaintiff, a federal agency
bears the same burden of persuasion as any other litigant.
Nothing in 29 U.S.C. §1342(c), which describes the
judicial function after the PBGC files an action seeking
termination, suggests that the court must defer to the
agency’s view. Nonetheless, the PBGC insists that we
should look past the statutory language and follow PBGC v.
LTV Corp., 496 U.S. 633, 647-51 (1990), which held that the
agency receives Chevron-style deference (see Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984)) to the extent that it has issued opinions
interpreting another of its statutes, 29 U.S.C. §1347.
Section 1347 allows the PBGC to revive a terminated
pension plan. This is a unilateral act; restoration does
not require judicial approval, though like other agency
action it may be reviewed in court under the Administrative
Procedure Act, 5 U.S.C. §706, which requires the court to
Nos. 06-1867, 06-2662, 06-2714 & 06-2843 7

respect agency action that is not arbitrary, capricious, or in
violation of law. In a series of opinion letters, the PBGC
concluded that the restoration power should be used when
employers create follow-on plans. A “follow-on plan” is one
that wraps around the federal insurance program and gives
current and retired employees substantially the same
benefits they would have enjoyed had the original plan not
been terminated. LTV’s pension plan was underfunded by
about $2.3 billion, and when the plan was terminated in
LTV’s bankruptcy the federal insurance fund had to make
up about $2.1 billion of that shortfall. LTV and its unions
then negotiated a new pension plan that, when added to the
federal insurance benefits, gave workers and retirees the
same retirement income they would have enjoyed had the
plan not been terminated. Investors and workers thus
did not share the pain; all loss from the employer’s impru-
dently high pension promises fell on the taxpayers. The
PBGC, following its long-held views, concluded that the
termination-and-follow-on procedure amounted to a raid
on the Treasury and restored the plan under §1347—a
step that ended the federal insurance benefits and required
LTV to make up the $2.3 billion funding shortfall on its
own. The Supreme Court held that by doing this the PBGC
did not contradict §1347 or abuse its discretion.
Although the agency wants us to conclude that LTV
entitles all of its acts to Chevron deference, that is not what
the Court held. Section 1347 enables the PBGC to make
self-executing orders, which is what leads to deferential
review under the APA. Section 1342, by contrast, requires
the PBGC to initiate litigation. Review under the APA
differs substantially from the sort of position that an agency
must assume when, like any other litigant, it must demon-
strate a preponderance of the evidence in order to prevail.
See Director, OWCP v. Greenwich Collieries, 512 U.S. 267
(1994). After Mead and Christensen, the sort of opinion
letters to which the Court deferred in LTV would receive,
not Chevron deference, but respectful consideration under
8 Nos. 06-1867, 06-2662, 06-2714 & 06-2843

Skidmore v. Swift & Co., 323 U.S. 134 (1944). As it hap-
pens, the difference between Chevron and Mead-Skidmore
deference does not matter today, because the PBGC has not
issued any opinion letters that bear on the disposition of
this litigation. It demands deference not to its policies but
to a fact-specific conclusion that the Letter Agreement
between United and the ALPA exposed the insurance fund
to an “unjustified increase” in liability. Section 1342(c) gives
the resolution of that question to the judiciary; the PBGC
participates as a litigant, not as the decision-maker.
The question that Judge Lefkow had to resolve was not
whether United’s plan will terminate—the requirements for
a distress termination have been met no matter what the
PBGC thinks, and the Letter Agreement removes the
obstacle otherwise present when a collective-bargaining
agreement is involved, see 29 U.S.C. §1341(a)(3), (c)(2)
(B)(ii)—but what the effective day of that termination would
be. The retired pilots’ appeal fails to reckon with the limits
of this litigation. What the retirees want is nothing less
than indefinite continuation of the plan. If American
Airlines can afford a pension plan, the retired pilots insist,
then so can United Airlines. That’s water under the bridge,
however. URPBPA I holds that United and the ALPA were
entitled to agree on the plan’s termination. A companion
decision, released today, reiterates that conclusion in
rejecting the retired pilots’ objections to the plan of reorga-
nization, which ends any possibility of resurrecting this
pension plan. See In re UAL Corp., No. 06-2780 (7th Cir.
Oct. 25, 2006). No more need be said about the retired
pilots’ appeal.
While United and its unions were negotiating, United and
the PBGC had their own round of discussions. An employer
that terminates an underfunded plan becomes liable to the
PBGC for the amount of the shortfall. 29 U.S.C. §1362.
United was in economic distress and could not satisfy that
obligation in liquid assets; the PBGC agreed to accept about
Nos. 06-1867, 06-2662, 06-2714 & 06-2843 9

$1.5 billion of stock in the post-reorganization United. As
part of this bargain, the PBGC agreed that United could
continue three of its pension plans (those covering flight
attendants, mechanics, and general office personnel)
through June 30, 2005. The PBGC reserved its right to seek
earlier termination of the pilots’ plan under §1342(a)(4);
United, which had given the ALPA a most-favored-nations
agreement (promising that it would not end the pilots’ plan
before the plans covering other workers) kept its bargain
and refused to accede to the PBGC’s demand, which led to
the adversary action. Now the ALPA contends that, by
accepting equity securities in lieu of cash on account of the
employer’s shortfall liability, the PBGC has forfeited its
right to seek early termination. But how so, when the
settlement agreement expressly reserved the right to
seek this relief? It is not as if United topped up the pension
trust to cover the additional benefits that would become
vested during the first six months of 2005. It stopped
contributing to the pilots’ plan in 2002, when the bank-
ruptcy began, and the offer of stock in (partial) satisfaction
of the shortfall would not have mitigated the loss to the
federal insurance fund from adding six more months of
vested benefits in 2005.
So is $84 million, the (net) cost to the PBGC of continuing
the pilots’ plan through the first six months of 2005, an
“unreasonable increase” in federal liability? Reasonableness
is an issue of fact and is reviewed deferentially on appeal;
that reasonableness is “the ultimate issue” does not change
that standard. See Pullman-Standard v. Swint, 456 U.S.
273 (1982). The dispute is case-specific, which almost
always implies deferential appellate review. See, e.g.,
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 401-02
(1990); Mars Steel Corp. v. Continental Bank N.A., 880 F.2d
928, 933 (7th Cir. 1989) (en banc).
The pilots’ union maintains that $84 million is not an
unreasonable increase because it is small in relation to the
10 Nos. 06-1867, 06-2662, 06-2714 & 06-2843

total obligations of the plan (several billion dollars), the
assets in the PBGC’s insurance fund, the cost of an air-
craft carrier, or the national government’s annual budget.
That is not, however, the right perspective. Any number can
be made to look trifling by comparing it with some much
larger number, but the exercise is so easy that the compari-
son is unhelpful. Eighty-four million dollars is substantial
by any normal calculation. The district court concluded that
the right question is whether the federal Treasury receives
value for money; if not, the marginal outlay is “unreason-
able.” This $84 million would not buy the insurance fund
anything of value. Nor was it necessary to provide the pilots
with a minimally satisfactory retirement: they are well
compensated even after the termination, since many will
receive benefits at the statutory maximum.
The incremental $84 million was a bargaining chip
between United and the Union: to obtain ALPA’s assent to
the termination, United offered the pilots an extra six
months of benefits to be underwritten by a third party, the
PBGC. No wonder it objected. The deal between United and
the unions exemplifies the moral hazard to which insurance
gives rise. Insured parties alter their behavior to take
advantage of the third-party payor; insurers must respond
by making such maneuvers more difficult. That’s why the
PBGC proposed early termination. The district court did not
abuse its discretion in concluding that any extra outlay
attributable to the moral hazard created by insurance
would be an “unreasonable increase” in the federal commit-
ment, given the substantial amount that the PBGC already
was committed to pay toward the pilots’ benefits.
Once the PBGC files suit, the district court sets the
termination date. 29 U.S.C. §1348(a)(4). The pilots’ union
maintains that December 30, 2004, is too early even if June
30, 2005, is too late, but the district judge was not required
to split the difference between the ALPA and the PBGC.
That United had promised the Union not to agree to a date
Nos. 06-1867, 06-2662, 06-2714 & 06-2843 11

before June 30 does not affect either the PBGC or the court,
for they are strangers to the bargain.
As for the supplemental payments: these end with the
defined-benefit plan, which means that nothing is due for
October 2005 or later. (United has not proposed to recapture
payments disbursed for January through September 2005.)
When Judge Darrah dismissed United’s appeal as “unripe,”
Judge Lefkow had not yet made her decision, so Judge
Darrah could not be sure where in the range December
2004 through June 2005 the pilots’ plan would end, but any
of the possible dates came before October 2005, so it is
unclear why Judge Darrah thought the appeal premature.
If the supplemental benefits end at the plan’s termination,
then reversal was in order; if, as ALPA insists, the benefits
continue until a court makes the final decision, then
affirmance was in order (for the termination-date dispute
remained unresolved as of October 2005); it is impossible to
understand why Judge Darrah thought that there was
nothing to do but dismiss the appeal.
Indeed, it is impossible to see how an appeal ever could be
dismissed as “unripe,” and Judge Darrah did not cite any
statute or case law in support of his decision. Ripeness is a
quality of disputes, not of appeals. If the dispute about
whether United must pay the supplemental benefits
for October 2005 was not ripe for resolution, then the
district court should have vacated Judge Wedoff’s decision
as premature. For appellate tribunals (including district
judges deciding appeals in bankruptcy), the relevant
doctrine is finality, not ripeness. See United States v. Jose,
519 U.S. 54 (1996). If the order is final, then an appeal
is proper whether or not the dispute is ripe for resolution.
A timely appeal filed after premature action by the lower
court can lead to one of two actions: the appellate body
vacates the premature decision, or the appellate body keeps
the dispute under advisement until it becomes ripe and a
decision properly may be rendered. See Buckley v. Valeo,
12 Nos. 06-1867, 06-2662, 06-2714 & 06-2843

424 U.S. 1, 114-17 (1976) (dispute resolved on the merits on
appeal, even though the controversy was not ripe at the
time the district court acted). If the dispute is ripe, then it
must be resolved on the merits—as Judge Darrah later was
to do for the months November 2005 through January 2006,
even though Judge Lefkow still had not fixed the plan’s
termination date. Dismissal of the appeal, leaving the
aggrieved party without recourse (it can’t file a second
notice of appeal later, for the time to appeal will have
expired), is the one impermissible outcome, expressly
forbidden by Jose.
It is unnecessary to remand, since we can resolve this
legal dispute as easily as the district court could (and
without the need for a second round of appeals). There are
three possible resolutions. First, United’s obligation to
pay supplemental benefits may end with the plan, and if
that is so then it need not pay supplemental benefits for
October. Second, United’s obligation may continue as long
as the dispute about the termination date is still in litiga-
tion, and if that is so then United must pay supplemental
pension benefits for October 2005. Third, United may have
forfeited its legal rights by failing to appeal in February
2005, and again this means that it must pay the October
benefits. It is this third conclusion that Judge Darrah
reached when he resolved the appeal with respect to
benefits for November through January, see 2006 U.S. Dist.
LEXIS 66305 (N.D. Ill. Aug. 30, 2006), and that ALPA urges
us to adopt with respect to the October 2005 benefits.
Lawyers often argue that failure to take an available
interlocutory appeal forfeits any opportunity to present
the argument later, but this proposition has not fared
well. See, e.g., United States v. Clark, 445 U.S. 23, 25 n.2
(1980) (citing lots of earlier decisions holding that failure to
take an interlocutory appeal does not waive or forfeit any
legal position); Kurowski v. Krajewski, 848 F.2d 767 (7th
Cir. 1988). Thirty years ago we called “frivolous” an argu-
Nos. 06-1867, 06-2662, 06-2714 & 06-2843 13

ment that failure to take an interlocutory appeal forfeits the
litigant’s position. Tincher v. Piasecki, 520 F.2d 851, 854 n.3
(7th Cir. 1975). It has not gained support in the intervening
years, so it is surprising to see it adopted by a district
judge—whose terse opinion does not cite any authority.
Litigants bypass opportunities for interlocutory review all
the time. For example, a decision to issue (or deny a motion
for) a preliminary injunction is an appealable order, but a
litigant who decides to accept defeat at that stage and
proceed straight to resolution of the permanent injunction
does not thereby give up all chance of prevailing on the
merits. Retired Chicago Police Association v. Chicago, 7
F.3d 584, 608 (7th Cir. 1993). Likewise public officials who
could appeal before trial to present claims of official immu-
nity need not do so, and they may raise an immunity
defense on appeal from the final decision. That’s the holding
of Kurowski. As we remarked there (848 F.2d at 773):
The privilege to take an interlocutory appeal exists
for the appellant’s protection. Such appeals come at
great cost to the judicial system because they may
prolong litigation and require appellate courts to
cope with each case more than once. Most interlocu-
tory appeals end in affirmance (thus entail wasted
motion), because district judges dispose correctly of
the vast majority of motions. If the aggrieved party
is content to swallow his losses and proceed with
the case . . . no interest of either the judicial system
or the adverse party is served by treating the whole
subject as forfeit. That would simply induce [liti-
gants] to file more interlocutory appeals.
Just so with interlocutory appeals in bankruptcy. If
United was willing to pay the supplemental retirement
benefits for February 2005, and let the subject slide until
October, that was its own loss (and the retirees’ gain); a
legal rule declaring the legal position lost forever would
14 Nos. 06-1867, 06-2662, 06-2714 & 06-2843

lead prudent lawyers to file appeals early and often,
pouring molasses on the judicial process.
Thus the only remaining question is whether the Letter
Agreement between United and ALPA compels United to
pay supplemental retirement benefits until the judiciary
sets the termination date. The Letter Agreement provides
that the pilots’ plan will terminate at the close of June
2005, and that until the court acts—for termination of an
underfunded plan at the employer’s behest requires judicial
approval under 29 U.S.C. §1341(c)(2)(B)(ii)—the plan “shall
remain in full force and effect”. (Although the Letter
Agreement does not refer to the supplemental benefits,
everyone assumes that their treatment matches that of
regular pension benefits.) The Agreement’s “full force and
effect” clause applies until all appeals from the bankruptcy
judge’s decision about the distress termination have been
exhausted, or the plan of reorganization has come into force.
This is the language that, as the ALPA sees things, requires
the continuation of supplemental benefits until February 1,
2006, when the plan of reorganization took effect.
The problem with this line of argument is that, by the
time the bankruptcy judge approved the Letter Agreement,
the PBGC had taken matters out of United’s hands by
asking the court to terminate the pension plan earlier.
There never was to be a proceeding under §1341(c)(2) (B)(ii).
Nor was termination to wait until some judicial decision or
appeal; what the PBGC wanted—and what the district
court gave it, properly we have just held—is retroactive
termination. That pulled the rug out from under the Letter
Agreement’s fundamental assumption about timing. United
and the ALPA spoke only for themselves; they could not
speak for the court, the PBGC, or United’s other unsecured
creditors. If, as the parties have agreed, the supplemental
benefits end with the pension plan, the only possible date
for that cessation is December 30, 2004.
Nos. 06-1867, 06-2662, 06-2714 & 06-2843 15

Section 1342(a)(4) allows a court (at the PBGC’s request)
to override private agreements. See also In re UAL Corp.,
428 F.3d 677 (7th Cir. 2005) (holding that action of the
PBGC overrode the pension clauses in a collective bar-
gaining agreement between United and the flight atten-
dants’ union). United and its unions lacked authority to set
a termination date once the PBGC intervened, and a
side agreement that all benefits persist until a privately
selected termination date is untenable when the court
sets its own date. Maintaining the supplemental benefits—
which are defined as the difference between the contractu-
ally agreed pension payments and what an ERISA plan can
provide—after the Plan’s termination date would make the
supplements a kind of follow-on plan, designed to maintain
the retirees’ position (through the plan of reorganization)
while transferring as much of the obligation as possible to
the public fisc. For the reasons given in LTV, that is
incompatible with the PBGC’s insurance function.
Indeed, the “full force and effect” clause of the side
agreement is untenable (as applied to the supplemental
benefits) quite apart from §1342(a)(4). The supplemental
benefits were deferred compensation for labor the re-
tired pilots furnished before United entered bankruptcy.
The retirees were unsecured creditors with respect to
these benefits. The defined-benefit pension plan itself
was supported by a trust fund, but because paying these
extra benefits through the trust would have cost both
United and the pilots the value of tax deferral, these
supplemental payments were kept separate from the
trust. As a debtor in bankruptcy, United had no power
to pay one group of unsecured creditors in full while
sending most others away with less than 10¢ on the
dollar, and the bankruptcy court lacked authority to
approve any such preference over protest. See In re Kmart
Corp., 359 F.3d 866 (7th Cir. 2004). No one has argued that
the court’s authority to classify debts would sup-
16 Nos. 06-1867, 06-2662, 06-2714 & 06-2843

port a difference of this magnitude. Nor can the supplemen-
tal benefits be paid in full as current wages covered by the
priority in 11 U.S.C. §507(a)(3)(A) (preference for wages, not
to exceed $4,925 per employee, earned during the 90 days
before bankruptcy commences). They are neither current
nor wages.
Payment of these sums therefore has been problematic
from the outset of the bankruptcy. Given the parties’
agreement that these benefits do not (as a matter of pre-
bankruptcy contract) outlast the pension plan, it does
not make sense to mandate their continuation after the
plan’s termination date, at 100¢ on the dollar, while other
unsecured creditors get much less. United therefore is
not required to make the payments for October 2005
or later months. What the retirees are entitled to is not full
payment but an unsecured claim equal to the value of these
benefits. (We discuss the handling of that unsecured claim
in the companion opinion, No. 06-2780, slip op. 6.)
This does not mean that “United” becomes wealthier
at the retirees’ expense. “United” is just a collective name
for all stakeholders. Old unsecured debts were converted to
equity in the reorganized United, so money in the firm’s
bank account is value to the former unsecured creditors,
who obtain a (very slightly) larger return on their loans. (As
we have mentioned, both active and retired pilots are
among these unsecured creditors.)
The PBGC’s appeal (No. 06-2843) is dismissed for want of
jurisdiction because it requests an advisory opinion. On the
appeals of ALPA and the URPBPA (Nos. 06-2662 and 06-
2714) the judgment terminating the pilots’ pension plan as
of December 30, 2004, is affirmed. On United’s appeal (No.
06-1867) with respect to the October benefits order, the
judgment is reversed and the case is remanded with
instructions to enter a judgment allowing United to reclaim
the contents of the segregated fund.
Nos. 06-1867, 06-2662, 06-2714 & 06-2843 17

A true Copy:
Teste:

________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

USCA-02-C-0072—10-25-06