Louis F. Peick v. Pension Benefit Guaranty Corporation

ESCHBACH, Circuit Judge,

dissenting.

To establish standing, each of the Employer Associations carried the burden of demonstrating that at least one of its members is “suffering immediate or threatened injury of the sort that would make out a justiciable case had the member ... brought suit.” Warth v. Seldin, 422 U.S. 490, 511 , 95 S.Ct. 2197, 2211 , 45 L.Ed.2d 343 (1975). The 705 Fund carried the burden of establishing its own personal injury. Because I believe that the record fails to reveal any injury sufficient to satisfy the case or controversy requirement of Article III, I would vacate the order granting summary judgment and instruct the district court to dismiss the case for want of subject matter jurisdiction.

The majority holds that employers contemplating whether to cease contributing to the 705 Fund may challenge the constitutionality of the MPPAA. Such an employer would naturally want a decision from a *1278 federal court as to the constitutionality of the MPPAA’s withdrawal liability provisions. The majority’s opinion, therefore, will assist employers in making their plans. In my view, however, what the Employer Associations seek, on behalf of employers still contributing to the 705 Fund, “is pretty close to an advisory opinion in the literal sense.” People of the State of Illinois v. Archer Daniels Midland Co., 704 F.2d 935, 941 (7th Cir.1983).

The majority opinion stands for the proposition that an entity contemplating an action that may create a liability is entitled to seek a legal opinion from a federal court as to whether the liability can legally accrue. In light of the majority’s decision, a business organization is seemingly entitled to have a federal court determine the antitrust implications of a future joint venture. Moreover, a firm considering a revision in its employment criteria apparently may seek a federal judge’s opinion as to whether the proposed criteria comply with the federal civil rights laws. We all live and work in a world laden with legal uncertainties and there may be value in courts rendering advice. Whatever the advantages, however, I would prefer to abide by the Constitution’s proscription against the federal courts issuing advisory opinions.

The record does reveal that four members of the Employer Associations have ceased contributing to the 705 Fund. These employers thus do not need a constitutional ruling to assist them in making a decision whether to withdraw from the multiem-ployer fund. Without taking further actions, they may be amenable to proceedings to enforce the withdrawal liability provisions of the MPPAA. Contrary to the majority’s holding, however, the possibility or “threat” of proceedings to collect a withdrawal liability does not constitute an injury sufficient to confer standing.

For this declaratory judgment action to “present a justiciable controversy the threat of enforcement must have immediate coercive consequences of some sort upon” the four employers no longer contributing to the 705 Fund. Nuclear Engineering Co. v. Scott, 660 F.2d 241, 252 (7th Cir.1981), cert. denied, 455 U.S. 993 , 102 S.Ct. 1622 , 71 L.Ed.2d 855 (1982). The record must demonstrate that the possibility of owing a withdrawal liability is inhibiting or injuring the employers’ businesses today, not at some hypothetical future date. See People of the State of Illinois v. Archer Daniels Midland Co., 704 F.2d 935, 942-43 (7th Cir.1983). From my reading of the record, I can discover no basis for concluding that the four employers are suffering a present-day injury merely from the existence of the MPPAA and its withdrawal liability provisions.

We know from the record that an employer must disclose on its financial statement its potential withdrawal liability if that figure is “significant” or “material.” We further know that a disclosed contingent liability might affect a financial institution’s decision to extend credit. That is the extent of the showing that the four employers are suffering a present-day injury as a result of the MPPAA. In light of what we do not know, I find this showing woefully inadequate.

There are good reasons, in fact, to believe that the four employers are not facing a significant contingent liability injuring their businesses. At no point have the employers waived their statutory defenses to any attempt to collect withdrawal liabilities. See, e.g, 29 U.S.C. §§ 1383 (a), 1461(e)(2)(A) (obligation to contribute ceased prior to MPPAA’s effective date); id. § 1398 (contributions ceased because of change in corporate structure or labor dispute); id. § 1384 (sale-of-assets exemption). Indeed, because the MPPAA states that an employer shall be notified of the amount of liability “as soon as practicable” after it withdraws, id. § 1399(b)(1), there is doubt whether the four employers, which have not been so notified, may be held liable under the statute. Furthermore, as the district court noted, owing to the “de minimis” exemption in the MPPAA, “seventy percent of the firms contributing to the Local 705 Fund could withdraw without incurring any liability whatsoever.” 539 F.Supp. at 1050. *1279 Finally, the significance of a contingent withdrawal liability is further reduced by the fact that the 705 Fund is not interested in collecting any withdrawal liability.

In addition to the Employer Associations’ inadequate showing that the employers no longer contributing to the 705 Fund face a significant contingent liability, the record is silent about the current status of these firms. We do not even know if the four employers are currently operating entities. If they are not, it seems unlikely that they are seeking credit and finding the search impaired by the MPPAA. If one of the four actually is seeking credit and finding funds unavailable or more costly because of the MPPAA, an affidavit describing the situation could have been submitted. None was filed and thus the Employer Associations failed to establish an injury that is “real, not imaginary; concrete, not abstract; apparent, not illusory; and demonstrable, not speculative.” Myron v. Chicome, 678 F.2d 727 , 730 (7th Cir.1982); see City of Los Angeles v. Lyons, - U.S. -, 103 S.Ct. 1660, 1665 , 75 L.Ed.2d 675 (1983); J.N.S., Inc. v. Indiana, 712 F.2d 303, 305 (7th Cir.1983).

The 705 Fund (and its Trustees) similarly failed to establish that the fund is suffering an immediate, concrete injury. 1 Affidavits submitted by a trustee and the fund’s actuary state that, in their opinions, the MPPAA will discourage newly organized employers from commencing contributions to the 705 Fund and will encourage established employers to reduce the number of workers for which they make contributions. The affiants opine that, at some future time, the 705 Fund’s viability might be jeopardized.

I do not view these affidavits as a sufficient showing of an immediate, nonspecula-tive injury. The affidavits do not assert that the 705 Fund’s financial status has been injured to date. On the contrary, the actuary’s own affidavit reveals that because of the MPPAA the 705 Fund may collect millions of dollars from withdrawing employers. It is incredible to believe, particularly in light of the majority’s extensive discussion of the rationality of the MPPAA, that the 705 Fund is suffering an immediate fiscal injury. Incredulity aside, it is clear that the 705 Fund has not established a concrete, immediate, and nonspeculative injury. At some point the harm that the affiants predict might occur, and then the 705 Fund would have standing to bring a declaratory judgment action. See J.N.S., Inc. v. Indiana, 712 F.2d 303, 305 (7th Cir.1983). Until such a time, the 705 Fund’s “injury” consists of what the majority terms a “concern” about the MPPAA’s constitutionality; a concern, however, is not the type of injury that supports an action in federal court. See Vander Jagt v. O’Neill, 699 F.2d 1166, 1177-78 (D.C.Cir.), cert. denied, - U.S. -, 104 S.Ct. 91 , 78 L.Ed.2d 98 (1983); D’Amico v. Schweiker, 698 F.2d 903 (7th Cir.1983); Myron v. Chicome, 678 F.2d 727 , 730 (7th Cir.1982).

. There is no indication that the day-to-day investment and managerial operations of the fund are adversely affected by the existence of the MPPAA.