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- Subject: 89-390, CONCUR/DISSENT, PBGC v. LTV CORP.
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- SUPREME COURT OF THE UNITED STATES
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-
- No. 89-390
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- PENSION BENEFIT GUARANTY CORPORATION,
- PETITIONER v. LTV CORPORATION et al.
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- on writ of certiorari to the united states court of appeals for the second
- circuit
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- [June 18, 1990]
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- Justice White, with whom Justice O'Connor joins, concurring in part and
- dissenting in part.
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- I join the Court's opinion except for the statement of the judgment and
- footnote 11. In particular, I agree that the anti-follow-on policy at
- issue here is not contrary to the statute and that PBGC would not have been
- prohibited from applying that policy as a basis for restoration in this
- case. Unlike the Court, however, I cannot read the Notice of Restoration
- as relying on the anti-follow-on policy and respondents' alleged improved
- financial position as alternative, independent grounds for restoration.
- The Notice, as I read it, clearly rested on both grounds in conjunction.
- Furthermore, it would make good sense to rely on improved financial
- position, for without it there would be a risk of an early re- termination
- of the plan. At the very least, there is serious doubt about the matter,
- and if the Court of Appeals was correct that PBGC's assessment of
- respondents' financial position was inadequate, and I think it was, the
- case should be remanded to the agency to consider whether the anti-follow-
- on plan by itself provides sufficient grounds for a restoration order.
- I realize that PBGC represented at oral argument that it had relied on
- its anti-follow-on policy and on respondents' improved financial condition
- as separate and independent grounds for the restoration, Tr. of Oral Arg.
- 25-26, but counsel's post hoc rationalizations are no substitute for
- adequate action by the agency itself. See Motor Vehicle Mfrs. Assn. of
- United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.
- S. 29, 50 (1983). Nor may PBGC's restoration order be upheld even though
- the agency might reach the same result on remand, relying only on the
- anti-follow-on policy. "[The agency's] action must be measured by what
- [it] did, not by what it might have done. . . . The [agency's] action
- cannot be upheld merely because findings might have been made and
- considerations disclosed which would justify its order as an appropriate
- safeguard for the interests protected by the Act." SEC v. Chenery Corp.,
- 318 U. S. 80, 93-94 (1943).
- I would therefore reverse the Court of Appeals in part, affirm in part,
- and remand with directions to return the case to PBGC.
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