International Union v. Keystone Consolidated Industries, Inc.

COFFEY, Circuit Judge,

dissenting.

The majority holds that under the pension agreement, Keystone did not waive its right to obtain a waiver of the ERISA minimum funding requirement from the IRS and that the arbitrator’s failure to give effect to the IRS’ waiver of the minimum funding requirement violates public policy. In reaching its conclusion, the majority refuses to distinguish between the annual funding requirement contained in the pension agreement and the ERISA minimum funding requirement, set out in 29 U.S.C. § 1082. The validity of the majority’s public policy determination depends upon not only the accuracy and fairness of the IRS’ determination to grant the waiver of the ERISA minimum funding requirement but also upon the constitutionality of the procedure followed by the IRS in granting the waiver of the ERISA minimum funding requirement. The majority, relying upon an untenable waiver theory, refuses to address the Union’s argument that the IRS’ procedure for handling requests for waivers of the ERISA minimum funding requirement, which does away with giving the beneficiary notice or a right to be heard, and thus is an unconstitutional deprivation of due process and an unconstitutional delegation of Article III power to an administrative agency. I dissent from the majority’s refusal to address these constitutional issues because a review of the record reveals that the Union’s due process *1406and Article III arguments were not waived. If we properly reach the constitutional arguments presented by the Union, it is clear that the majority’s failure to distinguish between the company’s minimum funding obligation under the collective bargaining agreement and under ERISA thrusts the IRS into the unconstitutional role of determining the contract rights of private parties. Moreover, I cannot join the majority’s holding that the IRS is the sole and final arbiter of public policy when determining whether to grant a waiver of the ERISA minimum funding requirement because making the IRS the sole and final judge of public policy denies the plan beneficiaries’ due process rights to notice and an opportunity to be heard.

I.

At the outset, I note that there were two sources of Keystone’s annual funding obligation. Section 302 of ERISA (29 U.S.C. § 1082) provides:

“(1) Every employee pension benefit plan subject to this part shall satisfy the minimum funding standard (or the alternative minimum funding standard under section 1085 of this title) for any plan year to which this part applies. A plan to which this part applies shall have satisfied the minimum funding standard for such plan for a plan year if as of the end of such plan year the plan does not have a cumulative funding deficiency.”

ERISA’s funding standards are enforced under provisions of the Internal Revenue Code. 26 U.S.C. § 4971(a). If, as of the end of a plan year, there is an accumulated funding deficiency that has not been corrected within the taxable period, the employer will owe a 5% excise tax on the amount of the accumulated deficiency for each year in which the deficiency has not been corrected. Id. (“funding tax”). If a 5% excise tax is imposed upon an accumulated funding deficiency and the accumulated funding deficiency is not corrected within the taxable period, an additional tax equal to 100% of the accumulated funding deficiency that has not been corrected is imposed upon the employer, who is required to pay the initial tax. Id. at § 4971(b). Neither the initial 5% excise tax nor the additional 100% tax is deductible for federal income tax purposes. Id. at § 275(a)(6). When collective bargaining agreements are involved, the Internal Revenue Code provides:

“the liability under section 4971 [imposing the funding tax] of each employer who is a party to the collective bargaining agreement shall be determined in a reasonable manner not inconsistent with regulations prescribed by the Secretary—
(A) first on the basis of their respective delinquencies in meeting required employer contributions under the plan, and
(B) then on the basis of their respective liability for contributions under the plan.”

Id. at 413(b)(6). An employer may avoid the funding tax by applying to the IRS for a waiver of the ERISA minimum funding obligation. 26 U.S.C. § 412(d)(1). 29 U.S.C. § 1083(a). To obtain a waiver of the ERISA minimum funding obligation, the employer must demonstrate

“(1) The employer is operating at an economic loss,
(2) There is substantial unemployment or underemployment in the trade or business and in the industry concerned,
(3) The sales and profits of the industry concerned are depressed or declining and,
(4) It is reasonable to expect that the plan will be continued only if the waiver is granted.”

29 U.S.C. § 1083(b). If the IRS grants the waiver, the company in subsequent years must contribute, “the amount necessary to amortize each waived funding deficiency (within the meaning of section 1083(c) of this title) for each prior plan year in equal annual installments (until fully amortized) over a period of 15 plan years.” Id. at 1082(b)(2)(C). '

In addition to the ERISA minimum funding obligation, an employer’s annual contri*1407bution obligation may be contained in a collective bargaining agreement. 29 U.S.C. § 186(c)(5-8). Article YI § 2 of the Pension Agreement between Keystone and the Union recites in pertinent part: “The Company agrees to make contributions to the trust fund on an annual basis during the terms of the Agreement.” When an annual funding obligation is contained in a collective bargaining agreement, ERISA provides:

“Every employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or such agreement.”

29 U.S.C. § 1145. The Supreme Court has interpreted the statutory phrase “to the extent not inconsistent with law” as meaning that courts will not enforce collectively bargained payment obligations that would “lead to” situations condemned by law, or that would allow a party to “reap the fruits” of illegal collective-bargaining provisions, such as violations of the Labor Management Relations Act, the antitrust laws, or the National Labor Relations Act. Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 86-88, 102 S.Ct. 851, 861-62, 70 L.Ed.2d 833 (1982). Neither the majority nor Keystone argues that the annual contribution obligation in the collective bargaining agreement violates the Labor Management Relations Act, the antitrust laws, or the National Labor Relations Act. With the exception of collectively bargained payment obligations that would lead to situations condemned by law or that would allow a party to reap the fruits of illegal collective bargaining provisions, an employer’s failure to make a contribution agreed upon in a collective bargaining agreement violates ERISA. Winterrowd v. David Freeman and Co., 724 F.2d 823 (9th Cir. 1984).

In December of 1980, without notifying the pension beneficiaries (hereinafter the “Union”), Keystone sought and obtained from the IRS a waiver of the ERISA minimum funding requirement. In its June 1981 summary annual report to the pension plan beneficiaries, Keystone revealed that the IRS had granted the waiver of the ERISA minimum funding requirement and that the employer had contributed nothing to the pension plan for the plan year from July 1, 1979 to June 30, 1980. The Union filed a grievance and after the grievance was submitted to an arbitrator, argued that Keystone’s failure to make an annual contribution violated the Pension Agreement. The arbitrator agreed, holding: “The pension agreement was violated by the Company which is ordered to pay $2,147,932.00 to the pension fund with interest at 8% per annum from July 1, 1980, until paid.”

The Union filed suit under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, to enforce' the arbitrator’s award, contending that the award required immediate payment of the full amount. In its answer, Keystone construed the award as requiring payment in accordance with the IRS’ grant of waiver of the ERISA minimum funding requirement — i.e., 15 years of equal installments plus interest. The parties filed cross-motions for summary judgment; the union contended that the amount was due immediately; Keystone argued that there was no cause of action because it was “willing to pay $2,147,-932.00 to the pension fund with interest at 8% per annum from July 1, 1980 until paid____” The Union addressed this “case or controversy argument” in its “Memorandum of Law in Opposition to Defendant’s Motion to Dismiss and/or for Summary Judgment.” Keystone raised its public policy argument in its “Memorandum in Opposition to Plaintiffs’ Motion for Summary Judgment.” The Union’s reply brief to Keystone’s Memorandum in Opposition to the summary judgment motion failed to raise its constitutional law issues (whether it was denied due process by not receiving notice and an opportunity to be heard before the IRS and whether the IRS impermissibly exercised Article III power in determining the contract rights of private parties).

*1408The district court rejected Keystone’s public policy argument, commenting that:

“Sections 302 and 303 of ERISA merely provide that where an employer cannot meet the minimum funding requirements set by ERISA without substantial business hardship, the Secretary of the Treasury may waive the funding requirements for that year, and the employer must repay the amount waived in equal payments over 15 years. This waiver, however, merely permits an employer experiencing financial difficulties to avoid payments to the pension fund and remain in compliance with the ERISA statutes. It sets the minimum standard for payments. It does not bar employers from undertaking greater contractual obligations, nor does any language in the statute relieve the employer from obligations which it has voluntarily undertaken by entering into a collective bargaining agreement.”

Addressing the question of whether the Secretary’s grant of a waiver of the ERISA minimum funding requirement is a finding that requiring payment of the ERISA funding amount would be adverse to the beneficiaries’ interest, the district judge noted:

“The problem with that argument is that it makes the Secretary’s finding on whether funding the plan would harm the employees determinative of whether the arbitrator’s award is contrary to public policy. No written findings by the Secretary have been brought to this court showing the basis upon which the Secretary presumably concluded that funding the plan would be adverse to the interests of plan participants.”

Because the district court judge found the arbitrator’s decision unclear on the question of when the payment was to be made, he denied both parties’ motions for summary judgment without prejudice and remanded the case to the arbitrator for clarification. The union was given leave to reinstate the case within 90 days if the arbitrator failed to rule or Keystone failed to comply with the arbitrator’s order.

After the arbitrator issued a supplemental award ordering immediate payment, the Union moved the district court to reinstate its enforcement action and both parties renewed their motions for summary judgment. The Union raised its due process and Article III arguments in its Memorandum in Support of its Motion for Summary Judgment and in Opposition to Defendant’s Motion for Summary Judgment. The district court granted the Union’s motion for summary judgment and denied Keystone’s “[f]or the reasons set forth in [the] court’s order of June 16, 1983 [remanding the case to the arbitrator].”

A. Waiver of the Constitutional Issues

The majority holds in footnote 1 that the Union waived its argument that the IRS’ grant of waiver of the ERISA minimum funding requirement was unconstitutional. According to the majority, the constitutionality arguments were waived because the Union failed to raise its constitutionality arguments in its reply brief in the first summary judgment motion. I believe this holding to be in error for several reasons.

First, a review of Fed.R.Civ.P. 56 reveals that it fails to mention supporting briefs or reply briefs; thus, in requiring parties to raise legal arguments in their reply briefs, the majority imposes a requirement that does not appear in the literal language of Rule 56. Secondly, the majority apparently assumes that the moving party will always have the opportunity to file a reply brief. To the contrary, the moving party may not have the opportunity to file a reply brief because opposing affidavits may, at the discretion of the court, be filed and received at the summary judgment hearing. 10A Wright, Miller and Kane, Federal Practice and Procedure, § 2719 at 14. Thus, the moving party may be unaware of the full scope of the reply until the actual hearing of the motion. Finally, the majority overlooks both the fact that the district court denied the first motion for summary judgment without prejudice and the effect of a denial without prejudice on the parties' opportunity to raise additional issues. “A *1409denial of a summary judgment motion is not a decision on the merits; it simply is a decision that there is a material factual issue to be tried.” 10 Wright, Miller and Kane, Federal Practice and Procedure, § 1712 at 587. “The denial of summary judgment does not preclude either party from raising at trial any of the issues dealt with on the motion.” Id. Because the district court denied the motion for summary judgment without prejudice, it does not follow that the Union was precluded from raising the issue of whether the IRS’ grant of waiver of the ERISA minimum funding requirements was constitutional. Thus, the majority’s holding that the Union’s constitutional arguments were waived is in error because the holding imposes a new procedural requirement (raising issues in a reply brief in a summary judgment motion) that is without support in the literal language of Rule 56 and overlooks the effect of the denial of a motion for summary judgment on the parties’ opportunity to raise additional issues. Contrary to the majority’s view, it was proper for the Union to raise its constitutional arguments in the second motion for summary judgment proceeding since the denial of the summary judgment motion without prejudice did not preclude the Union from raising the issue of the constitutionality of the IRS’ procedure for waiving the ERISA minimum funding requirement.

B. The Constitutional Questions

An examination of the majority’s reasons, which are supported neither by case law nor statutory authority, reveals that its holding rests not only on the fairness and accuracy of the IRS determination of whether to waive the ERISA minimum funding requirement but also on the constitutionality of the role it imposes on the IRS. The majority begins its analysis by correctly noting that “the well-defined and dominant public policy embodied in ERISA [is] to protect plan participants from the unnecessary termination of their pension plans.” The majority reasons that because the IRS found that Keystone faced a “substantial business hardship,” the arbitrator’s “refus[al] to permit Keystone to rely on the payment schedule outlined in ERISA’s waiver provision ... jeopardized the continued existence of Keystone’s pension plan, to the serious detriment of the plan participants.” The majority concludes that because the arbitrator jeopardized the continued existence of the pension plan in refusing to allow Keystone to rely on the payment schedule outlined in the ERISA waiver provision, he violated public policy. There are several flaws in the majority’s analysis. Initially, it is apparent that the majority’s holding rests on the assumption that the IRS’ determination was necessarily fair and accurate; on the other hand, if the IRS’ determination to waive the ERISA minimum funding requirements was, in fact, inaccurate, the arbitrator did not violate public policy by requiring Keystone to make the annual contributions set forth in the Pension Agreement. Moreover, the majority’s holding equates the contractual annual funding obligation under the pension agreement with the ERISA minimum funding requirement; in effect, if the IRS waives the ERISA minimum funding requirement, under the majority’s holding, the contractual annual funding obligation under the pension agreement also is waived because an attempt to enforce the contractual obligation would be violative of public policy. Thus, under the majority’s approach, the IRS’ determination of the statutory requirements also determines the parties’ rights under the contract (the pension agreement).

Before addressing the Union’s constitutional arguments, I note that the statutory scheme for granting waivers of the ERISA minimum funding requirement does not appear to contemplate the waiver of separate contractual obligations to make annual contributions. The statute provides that the Secretary of the Treasury “may waive the requirements of section 1082(a) of this title” (emphasis added); the statute fails to specify that the Secretary may waive contractual funding requirements contained in pension agreements between private parties. Moreover, the application for *1410the waiver is made by the employer and the statute fails to provide for giving notice or an opportunity to be heard to the beneficiaries. The statute requires the Secretary to consider whether:

“(1) The employer is operating at an economic loss,.
(2) There is substantial unemployment or underemployment, in the trade or business and in the industry concerned,
(3) The sales and profits of the industry concerned are depressed or declining and,
(4) It is reasonable to expect that the plan will be continued only if the waiver is granted.”

29 U.S.C. § 1083(b). However, the statute does not provide beneficiaries an opportunity to present evidence on these issues and the Secretary is not required to provide a written record in support of his decision. Indeed, the district court found: “No written findings by the Secretary have been brought to this court showing the basis upon which the Secretary presumably concluded that funding the plan would be adverse to the interest of plan participants.” On the basis of this statutory scheme, I cannot conclude that Congress intended that the IRS’ determination of the employer’s obligations under ERISA be determinative of the contractual rights of private parties since the statute is structured to waive only the statutorily created right to minimum pension funding.

The Union raises two constitutional objections to the contention that the IRS’ decision to waive the ERISA minimum funding requirements nullifies their contractual right to an annual contribution under the pension agreement. First, the Union contends that waiver of their contractual right to an annual contribution from Keystone without notice or an opportunity to be heard violates the Due Process Clause. Because the statute does not require the IRS to conduct a formal trial-type hearing in determining whether to grant a waiver of the ERISA minimum funding requirement, the decision whether to grant the waiver is more properly classified as an “informal” agency action. Although the applicable statutes and regulations may permit an agency to act informally, the agency’s informal decision-making procedure may not violate the constitutional rights of those who will be adversely affected because an administrative decision that deprives a person of “life, liberty, or property, without due process of law” violates the Fifth Amendment. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). In. addressing a due process challenge to an informal agency decision based on the deprivation of a property interest, the court must determine:

“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”

Mathews, 424 U.S. at 335, 96 S.Ct. at 903.

Applying the Mathews analysis, it is clear that under the majority’s holding, the IRS’ decision to grant a waiver of the ERISA minimum funding requirement also relieves the employer of his contractual obligation to make an annual contribution under the pension agreement because in the face of the IRS decision to grant the ERISA waiver, an attempt to enforce the contract would be violative of public policy. Since the IRS’ decision deprives the beneficiaries of their contractual right to an annual contribution, the decision, in effect, impairs a constitutionally protected property interest. Because, under the majority’s analysis, the IRS decision to waive the ER-ISA minimum funding requirement also waives the contractual minimum funding requirement, the IRS procedure for granting an ERISA minimum funding requirement must be examined to determine the risk of an erroneous deprivation of the contractual right to minimum funding; the probable value of additional or substitute *1411safeguards; and, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute safeguards would entail. Mathews, 424 U.S. at 335, 96 S.Ct. at 903. In essence, the statute requires the Secretary of the Treasury to make two evidentiary determinations before granting a waiver of the ERISA minimum funding requirement: (1) the employer is facing a substantial business hardship and (2) that granting a waiver of the ERISA minimum funding requirement would be in the interest of the plan participants. See, 29 U.S.C. § 1083(b). If the IRS grants the waiver, the company must, in subsequent years, contribute, “the amount necessary to amortize each waived funding deficiency (within the meaning of section 1083(c) of this title) for each prior plan year in equal annual installments (until fully amortized) over a period of 15 plan years.” Id. at 1082(b)(2)(C). In the instant case, the IRS’ grant of a waiver of the ERISA minimum funding requirement stated:

“The information submitted with the request and at an informal conference shows that the Company has suffered a substantial loss for the Company’s fiscal year ended June 30, 1980, for a variety of reasons, most of which relate to serious downturns in the industries to which it sells its products, including the automotive industry, housing and agriculture. Further, the Company continues to experience a serious problem maintaining a sufficient amount of working capital to prevent technical default under its prime loan obligations.
The Company has nevertheless managed to continue its modernization program so that it can be positioned to take best advantage of turnarounds in the industry it serves. The Company has also pared costs and has reduced future benefit accruals under one of the largest pension plans it maintains. For these reasons, we believe the Company can recover from its present hardship and have therefore granted these waivers.”

An analysis of these reasons reveals that although some of the facts on which the IRS relied may not be subject to serious dispute (i.e., — “the downturns in the industries to which it sells its products”), other factual findings could be the subject of vigorous debate (i.e., — whether the company “has ... managed to continue its modernization program so that it can be positioned to take best advantage of turnarounds in the industry it serves” and whether “the Company can recover from its present hardship.”). Moreover, under the majority’s analysis, the government’s interest in making a fair and accurate determination of whether to grant a temporary waiver of the ERISA minimum funding requirement has been expanded to include an interest in making a fair and accurate determination of whether to grant a temporary waiver of the contract’s minimum funding requirement. I cannot join the majority’s holding that the beneficiaries’ contract rights can be nullified by an IRS ERISA minimum funding waiver determination without granting the beneficiaries, who have a contractual right to an annual contribution from the company, the right to notice and an opportunity to be heard on the questions of whether the employer actually faces a substantial business hardship and whether a waiver of the minimum funding requirement in the Pension Agreement would be in the best interest of the pension beneficiaries.

As a second constitutional objection, the Union directs our attention to the following passage in Northern Pipeline Construction Co. v. Marathon Pipeline Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982):

“A matter of public rights must at a minimum arise ‘between the government and others’____ In contrast, the liability of one individual to another under the law as defined ... is a matter of private rights. Our precedents clearly establish that only controversies in the former category may be removed from Art. Ill courts and delegated to legislative courts or administrative agencies for their determination____ Private-rights disputes, *1412on the other hand, lie at the core of the historically recognized judicial power.”

458 U.S. at 69-70, 102 S.Ct. at 2870-71 (emphasis in original). The plurality in the Marathon decision held that the principle of separation of powers embodied in Article III permits legislative courts (non-Article III courts) in three situations: (1) territorial courts; (2) courts-marshals; (3) legislative courts and agencies established to enforce “public rights.” The plurality defined “public rights” as “matters arising ‘between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments.’ ” Marathon, 458 U.S. at 67-68, 102 S.Ct. at 2869. The Supreme Court stated that no case arising between two individuals could be characterized as one of public rights. Id. at 68-72, 102 S.Ct. at 2869-72. Although the Marathon decision addressed the constitutionality of bankruptcy courts, courts have applied it to administrative agencies, see, e.g., Kalaris v. Donovan, 697 F.2d 376 (D.C.Cir.1983), and commentators agree that the decision may be applied to administrative agencies if an agency adjudication attempts to resolve private rights. See, e.g., Forward — The Supreme Court, 1981 Term, 96 Harv.L.Rev. 257-68 (1982); Redish, Legislative Courts, Administrative Agencies, and the Northern Pipeline Case Decision, 1983 Duke L.J. 197 (1983). An “ ‘adjudication’ means agency process for the formulation of an order.” 5 U.S.C. § 551(7). An “ ‘order’ means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule-making but including licensing.” Id. at (6). Because the IRS’ grant of a temporary waiver of the ERISA minimum funding requirement is “a final disposition of an agency matter other than rule making,” it is an adjudication; the IRS acts in a judicial function when determining whether to grant a waiver of the ERISA minimum funding requirement. Under the majority’s holding the IRS’ decision to grant a temporary waiver of the ERISA minimum funding requirement nullifies the beneficiaries’ contract right to an annual contribution because an attempt to enforce the contract right would be violative of public policy; in effect, under the majority’s holding the IRS determines contract rights between private parties, i.e., whether an attempt to enforce the contract right to an annual contribution would violate public policy. Thus, under the majority’s analysis, the IRS impermissibly wields Article III power because it determines the contract rights in a dispute between private parties.

The majority’s failure to acknowledge these constitutional problems may, in part, be caused by its failure to examine separately the two sources of Keystone’s obligation to make an annual contribution to the pension plan, ERISA and the pension agreement. Because the majority holds in footnote 3 that Keystone did not waive its right to seek an ERISA waiver from the IRS, it appears to hold that the contract incorporates ERISA and that the minimum funding requirement in the contract is the same as the ERISA minimum funding requirement. Although I do not quarrel with the holding that a pension contract incorporates ERISA regulations that Congress intended to be immune from contractual waiver,11 am unable to conclude from that fact that the annual funding obligation in the contract will always be the same as the ERISA minimum funding requirement. First, an examination of the funding section of the pension agreement in this litiga*1413tion reveals that the company contribution was to be made in accordance with a funding schedule set out in the contract; the contract, which was modified and reaffirmed following the passage of ERISA, fails to mention ERISA in the funding section. Secondly, as the district court correctly noted, employers are free to contract to contribute more than the ERISA minimum funding requirement. Thus, the employer’s obligations are separate and independent. But, by assuming that the contract requirement of an annual contribution is the same as the ERISA minimum funding requirement, the majority places the IRS in the position of determining the contract rights of private parties when it decides whether to grant a waiver of the ERISA minimum funding requirement. As a result, under the majority’s approach (equating the contractual minimum funding requirement with the ERISA minimum funding requirement), the IRS wields Article III power in determining the contract rights between private parties.

Indeed, the majority’s failure to acknowledge the separate contractual minimum funding obligation causes them to fail to appreciate the due process implications of their decision. The majority reasoned that because the IRS found that Keystone faced a “substantial business hardship,” the arbitrator’s “refus[al] to permit Keystone to rely on the payment schedule outlined in ERISA’s waiver provision ... jeopardized the continued existence of Keystone’s pension plan, to the serious detriment of the plan participants.” The majority concludes that because the arbitrator jeopardized the continued existence of the pension plan in refusing to allow Keystone to rely on the payment schedule outlined in the ERISA waiver provision, he violated public policy. In effect, the majority expands the Supreme Court’s definition of “to the extent not inconsistent with law,” in 29 U.S.C. § 1145 to include a public policy defense based upon the IRS’ decision to grant a waiver of the ERISA minimum funding requirement. However, if the IRS’ determination that the ERISA minimum funding requirement should be waived for a definite period of time not to exceed fifteen years provides the employer with an unreviewable public policy defense against its contractual obligation, the beneficiaries’ contract rights have been impaired without their having notice or an opportunity to be heard by the IRS. Thus, the role of sole and final arbiter of public policy that the majority thrusts on the IRS exposes the IRS’ ERISA minimum funding waiver determinations to due process attack under Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

To avoid casting doubt on the constitutionality of the IRS ERISA minimum funding requirement waiver procedure, I regard the employer’s two sources of obligations to make a contribution (ERISA and the pension agreement) as separate and distinct. While the IRS has the final authority to temporarily waive the ERISA obligation, its determination to waive this statutory obligation has no effect on the employer’s contractual obligation to make an annual contribution. Thus, I find that the relationship between the IRS’ procedure for waiving the ERISA minimum funding requirement and the collective bargaining agreement is analogous to the relationship between the Equal Employment Opportunity Commission and collective bargaining agreements:

“Absent a judicial determination, the commission [EEOC], not to mention the Company, cannot alter the collective bargaining agreement without the Union’s consent. Permitting such a result would undermine the federal labor policy that parties to a collective bargaining agreement must have reasonable assurance that their contract will be honored.”

W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 103 S.Ct. 2177, 2186, 76 L.Ed.2d 298 (1983); see also, 126 Cong.Rec., at 20180 (remarks of Sen. Williams) (“It is essential to the financial health of multiemployer plans that they and their actuaries be able to rely on an employer’s contribution promises. [P]lan participants for whom the employer promises to make pension contributions to the plan in exchange *1414for their labor are entitled to rely on their employer’s promises.”). In my view, the Supreme Court’s well reasoned decision in Grace requires us to hold that neither the company nor the IRS could alter the collective bargaining agreement without the beneficiaries’ consent.

Because the majority places the IRS ER-ISA minimum funding requirement waiver procedure in constitutional jeopardy, I dissent.

. In addition to my point that the minimum funding requirement contained in the contract does not invariably equal the ERISA minimum funding requirement because the parties are free to contract for a greater minimum funding than ERISA requires, I cannot join the reasoning contained in footnote 3 of the majority opinion. The majority apparently holds that Keystone did not waive its right to seek a waiver of dle ERISA minimum funding requirement because the contract term, which was drafted before ERISA was enacted, failed to, "explicitly waive Keystone’s right to obtain a variance from the annual contribution requirement----” I fail to understand how parties can explicitly waive rights granted by a statute that has not been enacted at the time the contract was drafted, much less agreed to.