The Court denied plaintiffs' application for a temporary restraining order on March 2, 1987, after defendants stated that no final action would be taken on the security decision prior to a hearing. The Court established an expedited briefing schedule and heard oral argument on March 11, 1987 on plaintiffs' application for a preliminary injunction and on defendants' responsive motion to dismiss. For the following reasons, the Court shall deny plaintiffs' application and grant defendants' motion to dismiss.
Defendants have moved to dismiss this action for lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1), and for failure to state a claim for relief, pursuant to Fed. R. Civ. P. 12(b)(6). In reviewing a motion to dismiss, the Court must take all factual allegations of the complaint as true, and in the context of a 12(b)(6) motion, must draw all inferences in plaintiffs' favor. E.g., Doe v. U.S. Department of Justice, 243 U.S. App. D.C. 354, 753 F.2d 1092, 1102 (D.C. Cir. 1985). A motion to dismiss under Rule 12(b)(1), on the other hand, calls the jurisdiction of the Court into question, and the plaintiff has the burden to establish jurisdiction. See, e.g., KVOS, Inc. v. Associated Press, 299 U.S. 269, 81 L. Ed. 183, 57 S. Ct. 197 (1936). The factual allegations of the complaint thus will bear closer scrutiny than under a Rule 12(b)(6) motion, and the Court may consider materials outside the pleadings, such as official documents or matters of general public record. E.g., Hohri v. United States, 251 U.S. App. D.C. 145, 782 F.2d 227, 241 (D.C. Cir. 1986); Walker v. Jones, 236 U.S. App. D.C. 92, 733 F.2d 923, 935 (D.C. Cir.), cert. denied, 469 U.S. 1036, 83 L. Ed. 2d 402, 105 S. Ct. 512 (1984) (MacKinnon, J., dissenting). With these principles in mind, the Court shall review the alleged deficiencies of plaintiffs' action.
A. Lack of Jurisdiction
Defendants contend that plaintiffs' alleged injury is insufficient to give them standing to challenge the agencies' review of Eastern's waiver application. To establish the core Article III component of standing plaintiffs must "allege a personal injury fairly traceable to the defendant[s], allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315, 3325, 82 L. Ed. 2d 556 (1984).
Plaintiffs allege economic injury, in that the non-payment of the minimum funding contribution would deprive participants and beneficiaries of benefits, should the Plan be terminated. In addition, plaintiffs allege that the IRS has precluded them from exercising their procedural right to "comment" under § 1083. Mere loss of opportunity to comment on a proposed agency ruling has been held to not rise "to the sort of 'distinct and palpable injury' sufficient to invoke the authority of a federal court." Wells v. Schweiker, 536 F. Supp. 1314, 1321 (E.D. La. 1982), citing Warth v. Seldin, 422 U.S. 490, 501, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). Accordingly, even if plaintiffs have a right to "comment," their asserted procedural injury is not judicially cognizable and cannot satisfy Article III's standing requirement.
The economic injury that plaintiffs would suffer, on the other hand, is judicially cognizable. To establish Article III standing, plaintiffs must also demonstrate that the challenged action is a "substantial factor" in causing the injury and that there is a "substantial likelihood" that the remedy sought will redress the alleged injury. Community for Creative Non-Violence v. Pierce, 814 F.2d 663, slip op. at 12-13 (D.C. Cir. 1987). Where the alleged injury and ultimate relief depend upon the actions of third parties not before the court, it is considerably more difficult for a plaintiff to establish this necessary nexus. Id. slip op. at 12; Haitian Refugee Center v. Gracey, 809 F.2d 794, slip op. at 13-14 (D.C. Cir. 1987). Upon closer scrutiny plaintiffs' claims fall short of this basic requirement, as the relief they seek does not redress the specific economic injury alleged. Whether the waiver is granted or denied, and whatever the level of security, the loss to plaintiffs is alleged to result only if and when the Plan is terminated. Plaintiffs seek in this action merely to present detailed "comments" for the IRS and PBGC to review in connection with Eastern's funding waiver application. Forcing the agency to review information and establish procedures would have only an attenuated effect upon the level of funding and actual benefits to be paid from the plan. Its impact upon possible termination -- the proximate cause of the alleged injury -- is even more speculative. Indeed, plaintiffs apparently have recognized this, and have brought a parallel legal action directly against Eastern to recover the funds due under ERISA. Further legal relief may be available from Eastern under the collective bargaining agreement, which will be unaffected by any waiver granted pursuant to ERISA. E.g., International Union v. Keystone Consolidated Industries, Inc., 793 F.2d 810, 814 (7th Cir. 1986). Thus, although there is no question that Eastern's failure to make its minimum funding contribution would produce actual economic injury, this injury is not fairly traceable to defendants, and is not redressable by the limited equitable relief sought from the Treasury, IRS, and PBGC in this forum. The Court accordingly lacks jurisdiction over the plaintiffs' claims, and shall grant defendants' motion under Rule 12(b)(1).
B. Failure to State a Claim
Even if plaintiffs have standing to maintain this action, they have not stated a claim for relief. Plaintiffs' complaint asserts that defendants have violated ERISA §§ 1083 and 1085a by precluding them from submitting "comments" on Eastern's waiver application for consideration. The statute does not give plaintiffs the right to "comment," however. Plaintiffs seek to bootstrap the notice and "submission of information" provisions into a "notice and comment" right, which connotes very specific administrative procedures, including a pre-submission review of the basis for the proposed agency ruling. ERISA's language is clear, and the statute simply does not provide for the right of "comment" that plaintiffs assert. Relevant legislative history also fails to support plaintiffs' reading of the statute. Thus, plaintiffs have no statutory right to review Eastern's funding waiver application before they submit any information, and no right to submit formal "comments."
In the Court's opinion, it would help rather than hinder the waiver process if the IRS were to have applicants provide at least a synopsis of their application information to parties given notice. Adequate confidentiality agreements could be used to prevent release of the sensitive information the applications contain. The IRS is presently drafting regulations to govern the new waiver application process, which may well provide for such access to application information. The IRS' failure to have thus far promulgated this -- or any -- detailed procedure for submission of information does not establish a denial of plaintiffs' right to submit information. Plaintiffs elected to withhold their information in the hopes that the IRS would first implement the review procedures plaintiffs had proposed. This was their option, but they cannot now turn to the courts for redress. The procedures plaintiffs seek must be provided by Congress or by the IRS, and cannot be engrafted onto the statute by the Court.
Plaintiffs' right under ERISA therefore was to submit written information expressing their views on Eastern's waiver application. They admit that they had relevant information which they chose not to submit. The surrounding allegations do not state a claim of statutory violation by any of the defendants. Accordingly, defendants' motion to dismiss under Rule 12(b)(6) should be granted.
An order consistent with the above conclusions accompanies this opinion.
ORDER OF DISMISSAL
Upon consideration of plaintiffs' application for a preliminary injunction, defendants' opposition and motion to dismiss, plaintiffs' opposition thereto, and argument of counsel, and for the reasons stated in the accompanying opinion, it is this 24th day of March, 1987
ORDERED that plaintiffs' application for a preliminary injunction is denied, defendants' motion to dismiss is granted, and this action is hereby dismissed.
Thomas F. Hogan United States District Judge