Association of Retired Employees v. City of Stockton (In re City of Stockton)

OPINION

The retired employees of the City of Stockton want this court to order the City to keep paying for their health benefits during this chapter 9 case. The difficulty is that 11 U.S.C. § 904 forbids the court from using any of its powers to “interfere with” property or revenues of a chapter 9 debtor. Accordingly, although the City’s unilateral interim reduction of retiree health benefit payments may lead to tragic hardships for individuals in the interval before their claims are redressed in a chapter 9 plan of adjustment, the motion for injunctive relief must be DENIED. No relief being available and determining that this is an “arising in” core proceeding under 28 U.S.C. § 1334(b) and § 157(b)(2), the adversary proceeding will be DISMISSED.

Procedural Posture

This adversary proceeding was filed as a class action by the Association of Retired Employees of the City of Stockton (“ARE-COS”) and eight retirees on July 10, 2012, together with an Application for Temporary Restraining Order (“TRO”) or Preliminary Injunction or in the Alternative Relief From Stay.

The retirees contend they have vested contractual rights that are protected from impairment by the Contracts Clause of the United States Constitution, a similar clause in -the California Constitution, and by other provisions of California law.

The complaint, the application for in-junctive relief, and the supporting papers conspicuously omit reference to § 904, which operates as an anti-injunction statute and bars the court, without the municipality’s consent, from interfering with its political or governmental powers, property or revenues, and use or enjoyment of income-producing property.

The court set the TRO/preliminary injunction hearing for July 23, 2012, and *14ordered the parties to brief the question of the effect of § 904 on this adversary proceeding. It further ordered the City to state whether, as permitted by § 904, it consents to this court resolving the interim health benefit payment dispute. Notice was also given that the court might dismiss the adversary proceeding on its own motion if it concludes that § 904 prevents all of the relief being sought.

At the July 23 hearing, the parties addressed all facets of the adversary proceeding, questions of jurisdiction, and judicial authority. The City did not consent to permit this court to resolve the interim health benefit payment dispute. This decision announces and explains the court’s ruling.

Facts

The City of Stockton filed this chapter 9 case on June 28, 2012. The questions of the City’s eligibility for chapter 9 relief and whether to order relief are the subject of a separate process progressing under a schedule fixed by the court.

The Stockton City Council adopted a budget for the Fiscal Year commencing July 1, 2012, that, by state law, must be balanced. The required balance was achieved by cutting costs, including unilaterally reducing retiree health benefits.

This adversary proceeding seeks: an injunction prohibiting the City from implementing the retiree health benefit reduction; a declaration that the changes are unlawful; and an order compelling the City to pay for the retiree health benefit for all retirees entitled to it as of July 1, 2012; and attorney fees.1

For purposes of the present analysis (but without deciding the question), the retiree health benefits are regarded as bargained-for and vested contractual rights.

Persons whose benefits have been reduced may file proofs of claim that must be addressed in a plan of adjustment under the standards prescribed in the Bankruptcy Code for confirming plans.

Discussion

Since the complaint rélies on the supposed inability of the City to impair contracts, we begin with basic points of constitutional law and history that give context to the § 904 limitation on the court’s authority. Then the focus shifts to how the plaintiffs’ due process rights are protected, and thence to the jurisdictional and procedural status of this proceeding.

I

This adversary proceeding is premised at bottom on the Contracts Clause of the United States Constitution: “No State shall ... pass any ... Law impairing the Obligation of Contracts.” U.S. Const., art. I, § 10, cl. 1.

*15Counsel clarified in open court that an immutable Contracts Clause is the centerpiece of plaintiffs’ case. The first cause of action is: “Impairment of Contract — U.S. Constitution” and alleges that in “unilaterally changing the terms of the Retiree Health Benefit, the City impaired contractual obligations, in violation of Article I section [10] of the United States Constitution and 42 U.S.C. § 1983.” Complaint, ¶ 56. The other causes of action flow from that premise.2 The premise is flawed.

While the Contracts Clause is a key navigational star in the firmament of our Constitution and economic universe, it is subject to being eclipsed by the Bankruptcy Clause: “The Congress shall have Power to ... establish ... uniform Laws on the subject of Bankruptcies throughout the United States.” U.S. Const., art. I, § 8, cl. 4.

Significantly, the Contracts Clause bans a state from making a law impairing the obligation of contract; it does not ban Congress from making a law impairing the obligation of contract. This asymmetry is no accident.

The Bankruptcy Clause necessarily authorizes Congress to make laws that would impair contracts. It long has been understood that bankruptcy law entails impairment of contracts. Sturges v. Crowninshield, 17 U.S.(4 Wheat.) 122, 191, 4 L.Ed. 529 (1819).

In Sturges, the Supreme Court reasoned that Congress “is expressly vested with the power of passing bankrupt laws, and is not prohibited from passing laws impairing the obligation of contracts, and may, consequently, pass a bankrupt law which does impair it; whilst the states have not reserved the power of bankrupt laws, and are expressly prohibited from passing laws impairing the obligation of contracts.” Id.

In 1936, the Supreme Court noted that the “especial purpose of all bankruptcy legislation is to interfere with the relations between the parties concerned — to change, modify, or impair the obligation of their contracts.” Ashton v. Cameron Cnty. Water Improvement Dist. No. 1, 298 U.S. 513, 530, 56 S.Ct. 892, 80 L.Ed. 1309 (1936).

Again, in its 1938 decision validating the second municipal insolvency statute, the Court explained that the “natural and reasonable remedy through composition” is not available under state law “by reason of the restriction imposed by the Federal Constitution upon the impairment of contracts by state legislation” but the “bankruptcy power is competent to give relief.” Hence, a state, by authorizing a municipality to file a case, legitimately “invites the intervention of the bankruptcy power to save its agency which the State itself is powerless to rescue.” United States v. Bekins, 304 U.S. 27, 54, 58 S.Ct. 811, 82 L.Ed. 1137 (1938).

*16In other words, while a state cannot make a law impairing the obligation of contract, Congress can do so. The goal of the Bankruptcy Code is adjusting the debtor-creditor relationship. Every discharge impairs contracts. While bankruptcy law endeavors to provide a system of orderly, predictable rules for treatment of parties whose contracts are impaired, that does not change the starring role of contract impairment in bankruptcy.

It follows, then, that contracts may be impaired in this chapter 9 case without offending the Constitution. The Bankruptcy Clause gives Congress express power to legislate uniform laws of bankruptcy that result in impairment of contract; and Congress is not subject to the restriction that the Contracts Clause places on states. Compare U.S. Const. art. I, § 8, cl. 4, with § 10, cl. 1. Hence, the key premise of the centerpiece of this lawsuit rests on infirm constitutional ground.

The federal bankruptcy power also, by operation of the Supremacy Clause, trumps the similar contracts clause in the California state constitution. U.S. Const. Art. VI, cl. 2; Cal. Const. Art. I, § 9 (“A bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed.”); Int’l Bhd. of Elec. Workers, Local 2376 v. City of Vallejo (In re City of Vallejo), 432 B.R. 262, 268-70 (E.D.Cal.2010), aff'g, 403 B.R. 72, 76-77 (Bankr.E.D.Cal.2009). For the same reason, the plaintiffs’ other theories also fall.

In sum, even if the plaintiffs’ benefits are vested property interests, the shield of the Contracts Clause crumbles in the bankruptcy arena.

II

A delicate state-federal relationship of mutual sovereigns in which the Tenth Amendment looms large provides the framework for municipal bankruptcy and gives context to this dispute.

A

A pair of chapter 9 provisions honors state-federal balance by reserving certain state powers and by correlatively limiting the powers of the federal court: 11 U.S.C. §§ 903 and 904.

1

Section 903 reserves to the state the power to control political and governmental powers, as well as expenditures:

§ 903. Reservation of State power to control municipalities

This chapter does not limit or impair the power of a State to control, by legislation or otherwise, a municipality of or in such State in the exercise of the political or governmental powers of such municipality, including expenditures for such exercise, but—

(1) a State law prescribing a method of composition of indebtedness of such municipality may not bind any creditor that does not consent to such composition; and

(2) a judgment entered under such a law may not bind a creditor that does not consent to such composition.

11 U.S.C. § 903.

This reservation is limited by the Supremacy Clause. A state cannot rely on the § 903 reservation of state power to condition or to qualify, i.e. to “cherry pick,” the application of the Bankruptcy Code provisions that apply in chapter 9 cases after such a case has been filed. Mission Indep. School Dist. v. Texas, 116 F.2d 175, 176-78 (5th Cir.1940) (chapter IX); Vallejo, 403 B.R. at 75-76; In re City of Stockton, 475 B.R. 720, 727-29 (Bankr.E.D.Cal.2012) (“Stockton I”); In re Cnty. *17of Orange, 191 B.R. 1005, 1021 (Bankr.C.D.Cal.1996).

While a state may control prerequisites for consenting to permit one of its municipalities (which is an arm of the state cloaked in the state’s sovereignty) to file a chapter 9 case, it cannot revise chapter 9. Stockton I, 475 B.R. at 727-29. For example, it cannot immunize bond debt held by the state from impairment. Mission In-dep. School Dist., 116 F.2d at 176-78.

2

Section 904 complements § 903. In view of the inability of a state to control or condition chapter 9 proceedings after the municipal case is filed with the state’s permission, § 904 imposes limits on the federal court to assure that powers reserved to the states are honored:

§ 904 Limitation on jurisdiction and powers of court

Notwithstanding any power of the court, unless the debtor consents or the plan so provides, the court may not, by any stay, order, or decree, in the case or otherwise, interfere with—

(1) any of the political or governmental powers of the debtor;

(2) any of the property or revenues of the debtor; or

(3) the debtor’s use or enjoyment of any income-producing property.

11 U.S.C. § 904.

As the construction of § 904 is central to the instant matter, its history is important.

The statutory limit on the authority of the court that is now § 904 has been enacted four times. Each revision has reduced the latitude within which the court can act. The limit has come to be described as “absolute.”

The overall goal is a balance that does not.offend the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, or to the people.” U.S. Const, amend. X.

B

The evolution of the limit on court authority in what is now § 904 — from 1934 to its current version — is instructive. Perceived defects in the limit were a basis for invalidating the first municipal bankruptcy law as unconstitutional. Ever since, Congress has keep a weather eye on the constitutionality problem.

1

The first enactment of the limit on court authority was in the first municipal bankruptcy law in 1934:

The judge ... (11) shall not, by any order or decree, in the proceeding or otherwise, interfere with (a) any of the political or governmental powers of the taxing district, or (b) any of the property or revenues of the taxing district necessary in the opinion of the judge for essential governmental purposes, or (c) any income-producing property, unless the plan of readjustment so provides.

Bankruptcy Act § 80(c)(ll), Act of May 24, 1934, 48 Stat. 801 (emphasis supplied).

The Supreme Court disapproved the 1934 statute as an unconstitutional interference with the sovereignty of a state on two theories. First, structurally, municipal bankruptcy was an impossible contradiction of federalism. Second, the particular statutory terms might enable the federal government to impose its will on an unwilling sovereign state. Ashton, 298 U.S. at 532, 56 S.Ct. 892.

Although the Bekins Court repudiated Ashton’s structural objection when validating the 1937 municipal bankruptcy act, the *18second Ashton rationale has endured and has influenced Congress always to confíne its exercise of the bankruptcy power to measures that do not usurp state sovereignty.

2

Congress reacted to Ashton in 1937 by reenacting the municipal bankruptcy provisions with revisions designed to reduce the opportunity for excessive federal control over state sovereignty. Act of Aug. 16, 1937, 50 Stat. 653.

One significant change was deletion of the phrase “in the opinion of the judge” so as to make the concept of “property or revenues necessary for essential services” less dependant on the subjective view of a federal judge.

The revised provision, with that deletion and with shifts in nomenclature from “taxing district” to “petitioner” and “plan of arrangement” to “plan of composition,” was otherwise unchanged:

The judge ... shall not, by any order or decree, in the proceeding or otherwise, interfere with (a) any of the political or governmental powers of the petitioner; or (b) any of the property or revenues of the petitioner necessary for essential governmental purposes; or (c) any income-producing property, unless the plan of composition so provides.

Bankruptcy Act § 83(c), Act of Aug. 16, 1937, 50 Stat. 657.

The Supreme Court validated the 1937 municipal bankruptcy statute in Bekins, reasoning that it was a cooperative enterprise by state and federal sovereigns that was carefully drawn so as not to infringe state sovereignty. Bekins, 304 U.S. at 51, 58 S.Ct. 811. It emphasized that a state “retains control of its fiscal affairs” and that “no control or jurisdiction over that property and those revenues of the petitioning agency necessary for essential governmental purposes is conferred” on the federal court. Id.

3

The third version of the statutory limit on court authority was part of a modernization of former Bankruptcy Act chapter IX in 1976. Act of Apr. 8, 1976, Pub. L. 94-260, 90 Stat. 315.

The statutory limit changed in three important respects. First, the municipality could consent to exercise of otherwise-prohibited federal judicial authority. Second, it was clarified that the limitation applied to stays, including automatic stays. Third, the qualification “necessary for essential government services” was deleted from the ban on interference with property or revenues of the debtor.

This 1976 version, new Bankruptcy Act § 82(c), provided:

(c) Limitation. — Unless the petitioner consents or the plan so provides, the court shall not, by any stay, order or decree, in the case or otherwise, interfere with—

(1) any of the political or governmental powers of the petitioner;

(2) any of the property or revenues of the petitioner; or

(3) the petitioner’s use or enjoyment of any income-producing property.

Bankruptcy Act § 82(c), Act of Apr. 8, 1976, 90 Stat. 316.

Congress made plain that it was preserving the strict limitation on judicial interference with political or governmental powers, property or revenue, or income-producing property based on Ashton and Bekins and their progeny: the Supreme Court and Courts of Appeals have “made it very clear that the jurisdiction of the court ‘is strictly limited to disapproving or to approving and carrying out a proposed composition.’ The bill follows these holdings and retains the limitation on the *19court’s power.” H.R.Rep. No. 94-260, 94th Cong., 1st Sess., at 9-10, reprinted in 1976 USCCAN at 547-48.3

The deletion of the phrase “necessary for essential government services” from § 82(c)(2) aimed to broaden the limitation. The words “necessary” and “essential” invited unnecessary litigation. The “governmental services” language reflected an obsolete distinction between governmental and proprietary functions that the Supreme Court abolished in 1946. The phrase overlapped and confused the related ban on judicial interference with income-producing property.4

4

The 1976 version was reenacted in 1978 as 11 U.S.C. § 904 with the addition of the preambular phrase “Notwithstanding any power of the court.”

This additional limiting language forbids resort to a federal court’s inherent or equitable powers. It reflects reinvigorated sensitivity in 1978 by Congress to the need to avoid unnecessary intrusions of state sovereignty in order to obviate the risk of invalidation by the Supreme Court.

That heightened concern stemmed, in part, from the Supreme Court’s then-recent invocation of the Tenth Amendment to invalidate part of a labor statute. Nat'l League of Cities v. Usery, 426 U.S. 833, 842-52, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), overruled, Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 531, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985).

Usery worried the drafters of the Bankruptcy Code. The House Committee noted, the “Usery case underlines the need for this limitation on the court’s powers” and added that § 904 “makes clear that the court may not interfere with the choices a *20municipality makes as to what services and benefits it will provide to its inhabitants.” H.R.Rep. No. 95-595, at 398. Even though later overruled, Usery is a reminder that the Tenth Amendment is a brooding presence over the chapter 9 landscape.

C

The message derived from this history regarding the power of this court to interfere with the City’s actions regarding retiree health benefits compels the conclusion that § 904 prevents any federal court from doing what the plaintiffs request, regardless of whether the City’s action is fair or unfair.

The concern has constitutional proportions. Chapter 9 passed constitutional muster on the basis that the federal bankruptcy power be exercised at the request of, but not at the expense of, the sovereign state in an exercise of cooperation among sovereigns. Bekins, 304 U.S. at 51-53, 58 S.Ct. 811 (here “we have cooperation to provide a remedy for a serious condition in which the States alone were unable to afford relief.”).

As a state-federal cooperative enterprise conducted in delicate circumstances in which state sovereignty must be respected, Congress has been sedulous to assure that the bankruptcy power not be used in municipal insolvencies in a manner that oversteps delicate state-federal boundaries.

The entire structure of chapter 9 has been influenced by this pervasive concern to preserve the niceties of the state-federal relationship. The foundation involves multiple levels of consent. No chapter 9 case can be filed other than a voluntary case filed by the municipality with the consent of the state. 11 U.S.C. § 109(c)(2). The municipality consents by filing the voluntary case. 11 U.S.C. § 301, incorporated by § 901(a). Consent is implicit in the restriction that only the municipality can propose a plan of adjustment. 11 U.S.C. § 941. Another consent is the express consent recognized in § 904 that the City has declined to give in this proceeding. 11 U.S.C. § 904.

Other provisions further the Constitutional restriction against encroaching on state sovereignty. For example, the Bankruptcy Code’s restrictions on use, sale, or lease of property do not apply in chapter 9. Compare 11 U.S.C. § 901(a), with id. § 363. Nor is there provision for a trustee or examiner in a chapter 9 case. Compare 11 U.S.C. § 901(a), with id. § 1104.

In the overall construct, § 904 performs the role of the clean-up hitter in baseball. Its preambular language “[n]ot-withstanding any power of the court, ... the court may not, by any stay, order, or decree, in the case or otherwise ...” is so comprehensive that it can only mean that a federal court can use no tool in its toolkit — no inherent authority power, no implied equitable power, no Bankruptcy Code § 105 power, no writ, no stay, no order — to interfere with a municipality regarding political or governmental powers, property or revenues, or use or enjoyment of income-producing property. 11 U.S.C. § 904. As a practical matter, the § 904 restriction functions as an anti-injunction statute — and more.

In short, the § 904 limitation on the court’s authority is absolute, with only the two exceptions stated in § 904: consent; and provision in a plan of adjustment (which can only be proposed by the municipality). 6 COLLIER ON BANKRUPTCY ¶ 904.01 (Alan N. Resnick & Henry J. Sommer eds., 16th ed. 2011) (“Colliek”).

Ill

The plaintiffs contend that § 904 does not apply and does not prevent the relief *21sought. They say they challenge only the role of the City as employer, not as governmental regulator, and that neither § 904(1) nor § 904(3) is implicated. While that argument is weak, § 904(2) is disposi-tive.

A

Conceding that the § 904(2) prohibition on interfering with the debtor’s “property or revenues” poses an obstacle, plaintiffs argue5 that their relief would be an innocuous preservation of the status quo that would not directly interfere with City property or revenues, and would not indirectly interfere with revenues, because the retirees’ rights to the health benefit is fixed and immutable. That argument is not persuasive.

Coercively preserving a status quo that entails payment of money from the City treasury interferes with the City’s choice to suspend such payments. The contents of the City treasury are “property or revenues” within the meaning of § 904(2).

It is impossible to envision how granting the plaintiffs’ prayer for an “order compelling the City to maintain the Retiree Health Benefit with respect to ARECOS members and Class Plaintiffs and all other City of Stockton retirees entitled to the Retiree Health Benefit as of July 1, 2012,” and to pay attorney’s fees, would not require the payment of money from the City’s property or revenues. In fact, payment would be required.

It follows that the relief sought is barred by § 904(2) as an interference with the City’s “property or revenues.”

B

That a TRO was issued in the Orange County chapter 9 case does not compel the conclusion that a TRO is permitted here. The TRO in that case required that certain employees who had nominally been “permanently” laid off instead be treated as “temporarily” laid off, and required the parties to meet and confer to work out their differences. Orange Cnty. Emps. Ass’n v. Cnty. of Orange (In re Cnty. of Orange), 179 B.R. 177, 185 (Bankr.C.D.Cal.1995) (“Orange County ”). It does not appear the “property or revenues” were being interfered with; it also was noted that the parties thereafter settled apparently before a monetary consequence ensued. Id. at 185, n. 21.

Another distinction is that the Orange County TRO related to the process of assuming or rejecting unexpired collective bargaining agreements as § 365 executory contracts. 11 U.S.C. § 365; NLRB v. Bildisco & Bildisco, 465 U.S. 513, 521-23, 104 5.Ct. 1188, 79 L.Ed.2d 482 (1984) (“Bildisco ”); Orange County, 179 B.R. at 183.

1

The formal statutory analysis is as follows. The § 365 executory contract provisions apply in chapter 9 cases by virtue of § 901(a). 11 U.S.C. § 901(a), incorporating id. § 365.

Sovereign immunity of a municipality is abrogated as to § 901. 11 U.S.C. § 106(a)(1).6 All chapter 1 provisions, in-*22eluding § 106(a)(1), apply in chapter 9. 11 U.S.C. § 103(f).7

Since § 901(a) lists sections from chapters other than chapters 1 or 9 that apply in chapter 9 cases, including § 365, it follows that the municipality’s sovereign immunity is abrogated with respect to ex-ecutory contracts.

In other words, the municipality’s voluntary act of filing a chapter 9 case triggers two relevant consequences. First, the municipality consents, within the meaning of § 904, to interference by a federal court as to the Bankruptcy Code provisions that apply in chapter 9 cases. Vallejo, 403 B.R. at 75-76; In re Cnty. of Orange, 191 B.R. at 1021. Second, sovereign immunity is voluntarily abrogated to the extent provided in § 106.

In short, the naked fact of the issuance of a TRO in Orange County regarding a § 365 issue did not necessarily offend § 904, even though the rationale for that TRO seems dubious.8 The county consented under § 904 to federal judicial interference in the form of assessing the merits of § 365 assumption or rejection of executory contracts and waived its sovereign immunity by virtue of § 106 regarding executory contracts.

2

Here, the retiree health benefits are not executory contracts. Performance does not remain due to some extent on both sides—there are no reciprocal obligations with performance due by both parties. Bildisco, 465 U.S. at 522 n. 6, 104 S.Ct. 1188.

The retirees insist they have performed their side of the bargain: “The City already exercised its political discretion to provide the Benefit and accepted the full performance by the Retirees of their services to the City to earn the Benefit.” Supplemental Brief, at 3. And, “Each of the ARECOS members and Class Plaintiffs have satisfied their obligations under their respective contracts with the City.” Complaint, ¶ 60.

Under any definition of a § 365 executo-ry contract, the plaintiffs’ prior full performance means they have no executory contract. So viewed, the Orange County TRO regarding an executory contract is inapposite to the question of the effect of § 904(2) on the City’s interim cost cutting.

To the contrary, and it is hereby so held, § 904(2) prevents this court from granting the relief requested in this proceeding.

*233

Plaintiffs’ counsel agreed at oral argument that plaintiffs want the court to impose, by way of its injunctive power, the equivalent of the provisions of Bankruptcy Code § 1114 relating to “Payment of insurance benefits to retired employees” in chapter 11 cases even though § 1114 is not specifically made applicable in chapter 9 cases. 11 U.S.C. § 1114.

Section 1114 was enacted in 1988 to provide procedures and standards for modifying retiree insurance benefits during a chapter 11 case. The basic rule for chapter 11 is that retiree insurance payments must continue to be made timely during the case unless and until the court approves a modification. 11 U.S.C. § 1114(g). Modification requires compliance with a prescribed negotiation process and prescribed standards to be applied by the court. 11 U.S.C. § 1114(f)-(h).

The retiree insurance benefits provisions were modeled on § 1113, which was adopted in 1984 following the Supreme Court’s Bildisco decision that collective bargaining agreements are executory contracts eligible for rejection under § 365 and that they may be unilaterally rejected or modified before formal rejection is approved by the court. Bildisco, 465 U.S. at 521-27, 104 S.Ct. 1188. New § 1113 imposed rejection procedures and standards for chapter 11 cases that were more stringent than the rejection standards prescribed in Bildisco.

But neither § 1113 nor § 1114 is designated in § 901(a) as applicable in chapter 9 cases. 11 U.S.C. § 901(a) (omitting § 1113 and § 1114).

Contentions that the absence of § 1113 from § 901(a) should be disregarded as an accident and that courts should apply § 1113 in chapter 9, instead of the Bildisco standards, have regularly been rejected. The judicial consensus is that Bildisco controls rejection of collective bargaining agreements in chapter 9 cases. Vallejo, 432 B.R. at 270-72, aff'g Vallejo, 403 B.R. at 77-78; Orange County, 179 B.R. at 183. This court agrees.

The delicate constitutional balance that has loomed large over municipal bankruptcy ever since Ashton further cautions against taking liberties to cure perceived legislative mistakes. In chapter 9, where Congress has been careful to observe the delicacies of the state-federal relationship, it is particularly appropriate to leave to Congress, not the courts, the decision to revise § 901(a). See Vallejo, 432 B.R. at 272.

The logic focused on the structure of chapter 9, and the attendant importance of § 901(a) in the context of Congress taking care not to overstep the Tenth Amendment constraint, applies as much to § 1114 as to § 1113. The omission of § 1114 from § 901(a) warrants the conclusion, for the same reasons as articulated in the Vallejo and Orange County decisions, that § 1114 does not apply in chapter 9 cases.

To be sure, this conclusion appears to leave a gap in chapter 9 cases in the sense that some retiree insurance benefits are protected from modification by Bildisco’s § 365 rejection standards because they are included in collective bargaining agreements, while others are not. In reality, any gap is less than meets the eye in view of the Bildisco holding that it is not an unfair labor practice for a debtor unilaterally to modify a collective bargaining agreement during the interval between the filing of the case and the formal rejection of the executory contract. Bildisco, 465 U.S. at 527-34, 104 S.Ct. 1188. In other words, regardless of whether the retiree insurance benefit is part of an exec-*24utory contract or not, the benefit can be modified or suspended during the pen-dency of the case.

IV

The argument that the City has imposed a plan of adjustment without meeting fundamental requirements of due process, and in circumvention of plan confirmation standards, relies on the false premise that the City’s so-called “Pendency Plan” adopted for use during the chapter 9 case is a plan of adjustment.

A

The pendency plan is not a plan of adjustment. A formal plan of adjustment must be filed as such, either with the petition or at such later time as the court fixes. 11 U.S.C. § 941. No plan was filed with the petition in this case. No plan has yet been filed. This court has not yet fixed a time for filing such a plan. If and when such a plan is filed, the confirmation of the plan will be considered under the standards prescribed by the statute. 11 U.S.C. § 943.

Rather, the pendency plan is an interim survival mechanism that enables the financially embarrassed municipality, in the political and governmental judgment of its governing body, to continue to provide what it deems to be essential governmental services during the interval between the filing of a chapter 9 case and the confirmation of a plan of adjustment.

Suspending payment of various obligations during a case under the Bankruptcy Code is a routine aspect of the reorganization process. When the Supreme Court clarified in Bildisco that it is not an unfair labor practice for a chapter 11 debtor unilaterally to implement changes to a collective bargaining agreement — i.e. unilaterally to breach it — before the bankruptcy court acts on a § 365 motion to reject the contract, it necessarily determined that such unilateral changes do not offend due process. Bildisco, 465 U.S. at 527-34,104 S.Ct. 1188. The rationale is that upon filing a chapter 11 case, the debtor becomes “empowered by virtue of the Bankruptcy Code to deal with its contracts and property in a manner it could not have done absent the bankruptcy filing.” Id. at 528,104 S.Ct. 1086.

Unilaterally-modified contracts are dealt with, as the Supreme Court explained, through conventional bankruptcy law provisions that entitle the victim of a breach of a prepetition obligation to file a proof of claim that will be dealt with in the ordinary claims process and receive the priority provided by the Bankruptcy Code. Id. at 530 n. 12, 104 S.Ct. 1188. It is most unlikely that the Supreme Court, after having impliedly endorsed the process in