Momentum Building in Congress to Restore Our Pension Plan

     Updated Wednesday, 21 July 2021
July 20, 202128 Members of the U.S. House Representatives — 11 Democrats and 17 Republicans in whose congressional districts live a considerable number of Delphi salaried retirees — send a letter to the Secretaries of Commerce, Labor and Treasury — the trio from President Biden’s cabinet comprise the PBGC board of directors.  The letter is almost identical to the letter from eight U.S. senators sent on June 10.  The letter presses the Executive Branch of government to act on President Trump’s directive of last October.  It says in part, "We understand this review was due on January 20, 2021 – before you assumed your current roles … we ask you to provide us with an update on the status of the report.  Specifically, we ask you to inform us when work on this report commenced, when you expect this report to be completed, and when Congress can expect to receive a copy for review."
June 17, 2021U.S. Treasury Secretary Janet Yellen (one of the three members of the PBGC board) responds to a question from U.S. Rep. Dan Kildee (D-MI), who asks her about working “for an equitable resolution for the Delphi salaried retirees, to get their earned pensions … I would ask that you work with us to try to address this.”  The Secretary replies as follows:  “I know that there was a very serious impact there, and the Delphi retirees haven’t been really helped by other benefits that have been passed (by Congress), for example for multi-employer plans ... so we would look forward to working with you in discussing what can be done.”  The exchange took place at a June 17 hearing of the House Ways and Means Committee. [video extract]
June 11, 2021 — In the latest example of growing bipartisan support for restoring our pension plan, Ohio's Governor Mike DeWine (R) writes to President Biden. Governor DeWine's letter points out that Delphi salaried retirees "are just looking for fairness ... at the time the salaried workers plan was terminated by the PBGC, it was fairly well funded -- in fact it was funded better than the average of the top 100 largest plans in America at that time. In the over 11 years since ther termination of the plan, the assets have been invested in the PBGC trust fund where they have appreciated greatly." DeWine goes on to write that "during your campaign for President, you acknowledged that what happened to the Delphi salaried retirees was not right and pledged to work on the issue of restoring their pensions."
June 10, 2021Eight of the ten U.S. senators from Ohio, New York, Michigan, Indiana and Wisconsin write to the Secretaries of Commerce, Labor and Treasury who comprise the PBGC board of directors and are members of President Biden’s Cabinet. The six Democrat and two Republican senators ask the Secretaries to inform the President "of any appropriate actions that may be taken to address the lost pension benefits, including potential legislation, and to bring additional transparency to the original decision to terminate the plan" — the Delphi salaried retirees pension plan. President Trump's October 22, 2020, Memorandum sought the same information, and the presidential directive remains in effect but has been seemingly ignored, so DSRA appealed to senators from states with the highest Delphi salaried retiree populations to inquire into the status. The senators' letter says in part that these retired “employees deserve the benefits they have earned … we stand ready to work with you to ensure the Delphi retirees … can be secure in the benefits they have earned.”
June 1, 2021Gov. Gretchen Whitmer of Michigan writes to President Biden, saying "Nearly 6,000 Michiganders ... have been fighting for more than a decade to receive their full pensions. As you pledged during your campaign, these salaried employees are simply looking for fairness and deserve to have their benefits reinstated ... to this end, I respectfully urge your Administration to work with [Rep. Dan Kildee of Michigan] and explore every option available to you to resolve this unfairness and restore the benefits earned by these hardworking retirees." [Gov. Gretchen Whitmer's letter]

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Summary of DSRA’s Litigation Against the PBGC

     Updated Friday, 26 March 2021
DSRA continues to believe that the PBGC's termination of the Delphi salaried retirees' pension plans was improper. The U.S. District Court in Detroit and Sixth Circuit Court of Appeals in Cincinnati ruled in favor of the PBGC – however, DSRA strongly maintains that federal law was violated. We are now consulting with our attorneys on next steps. More details

Overview of DSRA’s Litigation Against the PBGC

     Updated Sunday, 28 February 2021
      In September 2009, the DSRA sued the PBGC in Federal District Court in Detroit to challenge the PBGC’s then-recent termination of the Delphi Salaried Pension Plan.  The PBGC terminated the plan by simple agreement with Delphi, rather than through a court adjudication as required by the Employee Retirement Income Security Act (ERISA).
      In its lawsuit, the DSRA asserted that the termination: (1) violated ERISA and constitutional due process because it was accomplished without a court adjudication; and (2) is substantively insupportable because the PBGC had not satisfied the criteria for terminations that ERISA establishes, and instead ordered the Plan terminated to comply with the preference of then-President Obama's ad hoc Auto Task Force created under the U.S. Treasury Department.  For relief, the DSRA requested that the retirees be put in the position we would have been in had the termination not occurred, so that, at a minimum, the PBGC would now run the Plan and pay benefits as if the Plan had never been terminated.
      The DSRA tried for nearly a decade to just get facts from the government during the discovery phase of the lawsuit.  The process was fraught with delays caused by the PBGC and U.S. Treasury that very nearly resulted in both being sanctioned.  In March of 2019, the federal court in Detroit granted summary judgment to the PBGC, dismissing the DSRA’s claims.  The DSRA then appealed to the U.S. Sixth Circuit Court of Appeals.  On September 1, 2020, a three-judge panel upheld the District Court ruling.
      As DSRA continues to believe the PBGC’s actions were unlawful, we filed with the Court of Appeals on October 15 a petition for rehearing on several legal issues.  On November 11, the PBGC filed its Response, in opposition.  Then, the three Appellate judges who ruled against us reaffirmed their earlier ruling on December 28, but the court then invited DSRA to submit a Supplemental Memorandum of Law by January 12, 2021. The court then directed the PBGC to provide a response, which it filed on January 28.  On February 25, the Court denied our petition for a rehearing en banc.  The DSRA Board is now consulting with our attorneys on next steps.

U.S. Treasury Ordered to Provide Documents

U.S. District Court, District of Columbia
  On October 15, 2018, Judge Emmet G. Sullivan Ordered U.S. Treasury to produce by October 24, 2018, at 12:00 PM, all but one of the remaining documents related to the Delphi salaried retirees' case for restoration of their pensions.  Each document to be provided with a justification sheet explaining why the document does not contain evidence that may be reasonably relevant to the claims in this case. 
U.S. Treasury has repeatedly taken action in court to avoid compliance with the Judge's previous Order and avoid production of these documents.