Amicus Curiae Brief — Barnhart v. Sigmon Coal Co.

Supreme Conrt, US.

FILED

JUL 23 2001

No. 00-1307

| COO me eK

IN THE

Supreme Court of the Gnited States

LARRY G. MASSANARI,

ACTING COMMISSIONER OF SOCIAL SECURITY,

Petitioner,

V.

SIGMON COAL COMPANY, INC. ET AL.,

Respondents.

On Writ of Certiorari

To the United States Court of Appeals

For the Fourth Circuit

BRIEF AMICUS CURIAE OF

BELLAIRE CORPORATION,

IN SUPPORT OF RESPONDENTS

THOMAS A. SMOCK DONALD B. AYER

MICHAEL D. GLASS (Counsel of Record)

Polito & Smock, P.C. JONATHAN C. ROSE

Four Gateway Center CYNTHIA L. BAUERLY

Suite 400 Jones, Day, Reavis & Pogue

444 Liberty Avenue 51 Louisiana Avenue, N.W.

Pittsburgh, PA 15222 Washington, D.C. 20001

(412) 394-3333 (202) 879-3939

Counsel for Amicus Curiae

i

QUESTIONS PRESENTED

1. Whether the Combined Fund provisions of the Coal Act

should be construed to impose retroactive liability upon

successors in interest to signatory operators, even though the

statute’s unambiguous language does not so provide.

2. Whether statutory language that is_ entirely

unambiguous, both on its face and when viewed in context

with other portions of the same statute, and which if applied as

written it would withstand a constitutional challenge under

rational basis scrutiny, may be interpreted and applied in a

manner contrary to its meaning.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................0.00005. i

TABLE OF AUTHIORITIES ..... cc ccc ccccccccnees iil

STATEMENT OF INTEREST ..................5.. l

EET <checuddeneescnesenesscenetecceeses 3

I. The Statutory Language At Issue Is Entirely

Unambiguous In Imposing No Retroactive

Liability On Pre-Act Successors In Interest Of

Es ocenceecebensésscececess 4

Il. This Court’s Cases Dictate That Unambiguous

Statutory Language Must Be Applied As

Written Unless The Result Would Be Absurd

Or Demonstrably At Odds With The Intentions

tT jcoddebsnngnghesneseeseesess )

Ill. The Principle Of Separation Of Powers

Demands That Unambiguous Statutory

Language Shoutd Be Given Effect In

Accordance With Its Terms, Unless So Read

It Is Invalid Under Rational Basis Scrutiny ...... 12

[V. The Coal Act’s Express Provisions Imposing

No Retroactive Liability On Pre-Act Successors

In Interest To Signatory Operators Should Be

Applied As Written, Even Though The Act

Allows Limited Retroactive Liability Of

Successors In Interest Of Related Persons ...... 17

i! ccépnbueseccecccecesccesaucseces 24

TABLE OF AUTHORITIES

Page

Cases

Aloe Energy v. Apfel, No. 99-39 5 (3d Cir. 2000)... .. 4,5

American Trucking Ass'n Inc. v. Aichison, Topeka &

Santa Fe Ry., 387 U.S. 397 (1967) ..........555. 14

Bellaire Corp. et. al. v. Apfel, No. C-2-99-532

(S.D. Ohio Apr. 25, 2001) ........ 2... c eee eeee 2-3

Brock v. Pierce County, 476 U.S. 253 (1986) ......... 14

Brown v. Gardner, 513 U.S. 115 (1994) .............. 8

Caminetti v. United States, 242 U.S. 470 (1917) ....... 10

Chevron U.S.A., Inc. v. Nat'l Resources Defense

CE Se ee ED ovcccutusoctoneees 23

Church of the Holy Trinity v. United States,

Sh AR dncttebidesteeseuseveceess 12

Community for Creative Non-Violence v. Reid,

Ss Ms pndncedeaneessescucdcvcnes 14

Conroy v. Aniskoff, 507 U.S. 511 (1993) ........-..-. 10

Crooks v. Harrelson, 282 U.S. 55 (1930) ............ 10

Eastern Enter. v. Apfel, 524 U.S. 498

PUD otaccsdbnenecansacnseeceansa 2, 17-18, 21-22

Eastern Enter. v. Chater, 110 F.3d 150 (ist Cir.

1997) rev'd on other grounds sub nom.,

Eastern Enter. v. Apfel, 524 U.S. 498 (1998) ....... 8

FCC v. Beach Communications, Inc.,

SP eh Se EE oe ccccsécescscececucess 15,17

Ferguson v. Skrupa, 372 U.S. 726 (1963) ..........-- 16

Flemming v. Nestor, 363 U.S. 603 (1960) ............ 16

Garcia v. United States, 469 U.S. 70 (1984) .......... 14

Griffin v. Oceanic Contractors Inc.,

Se es SOc 6c oS eédb ce ccedesccccosses 11

Holland v. New Era Coal Co., 179 F.3d 397

(Gta Cin. 1999) 2... ccc ccccccccccccceccccceces 6

Katzenbach v. Morgan, 384 U.S. 641 (1966) ......... 16

Loving v. United States, 517 U.S. 748 (1996) ...... 13,14

—_—

iv

TABLE OF AUTHORITIES

(continued)

Page

McGowan v. Maryland, 366 U.S. 420 (1961) ......... 15

Nordlinger v. Hahn, 505 U.S. 1 (1992) .... 2.2.2.2... 16

Pension Benefit Guar. Corp. v. R.A. Gray & Co.,

Ps MT acuddcscedckedsedaddsnccce 17

Public Citizen v. United States Dep't of Justice,

lo cccnensncdnccsetansdas 11,12

R.G. Johnson Co. v. Apfel, 172 F.3d 890

Mt St etcnhecennededessoeenee 4, 5, 8, 20

Red Lion Broad. Co. v. FCC, 397 U.S. 367

iesebenendstess bedesneunsebesncdunsecs 14

Skidmore v. Swift & Co., 323 U.S. 134(1944) ..... 23-24

Solid Waste Agency of N. Cook County v. United

States Army Corps of Eng'rs, 531 U.S. 675

DP cécdevusdsdsantekdeded debhecskecdinvwas 14

South Dakota v. Yankton Sioux Tribe, 522 U.S. 329

eS eee 14

Tennessee Valley Auth. v. Hill, 437 U.S. 153

Dt sivtdcissvdsdageduendeddacedidueeaeas 13

United States v. Mead, 121 S. Ct. 2164 (2001) ........ 23

United States v. Ron Pair Enter., Inc., 489 U.S. 235

Ps wcdneeuvedendnensetecessdeenteuniccs 11

United States v. X-Citement Video, Inc., 513 U.S. 64

De aeecansanecenseseeksosdhsesacctdesase 14

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1

DE bd banedKAehdeseRedatoneseteecene< 16-17

Williamson v. Lee Optical Co., 348 U.S. 483 (1955) ... 19

Vv

TABLE OF AUTHORITIES

(continued)

Statutes & Rules

PURBE. GEES ccnccccccccccsasdsccsvesccccscces 9

Coal Industry Retiree Health Benefit Act of 1992,

26 USC. BE DTOUGTE, .nccccccccccccccces passim

Supreme Court Rule 37 ........ 2... 62sec eee eens l

Miscellaneous

Carol Chomsky, Unlocking the Mysteries of Holy

Trinity: Spirit, Letter and History in Statutory

Interpretation, 100 Colum. L. Rev. 901 (2000) ..... 12

William N. Eskridge, The New Textualism, 37

UCLA L. Row. G21 (ISDE) .. wc ccccccccccccccses 14

Joseph Story, Commentaries on the Constitution

CGR. GEBED cc ccccccccesccecescccccceceses 16

Adrian Vermeule, Legislative History and the

Limits of Judicial Competence: The Untold

Story of Holy Trinity Church, 50 Stan. L. Rev.

errr 12

STATEMENT OF INTEREST!

Bellaire Corporation formerly mined coal under National

Bituminous Coal Wage Agreements (“NBCWAs’’) signed with

the United Mine Workers of America (“UMWA”) and has

been charged with liability for retiree health benefits under the

Coal Industry Retiree Health Benefit Act of 1992, 26 U.S.C.

§§ 9701-9722 (“Coal Act”). Bellaire last signed an NBCWA

in 1984 and stopped mining bituminous coal at about the same

time. Based upon its own mining operations, Bellaire has been

assigned responsibility under the Coal Act’s United Mine

Workers of America Combined Benefit Fund (“Combined

Fund”’) for retiree health benefits for several hundred retired

miners (and their dependents) whom it actually employed for

some period of time.

In addition to Combined Fund liabilities arising from

Bellaire’s own coal mining operations, the Commissioner of

the Social Security Administration assigned to Bellaire

responsibility for a total of eighty-nine beneficiaries,

consisting of retirees and their dependents, of two coal mining

companies whose assets were acquired by Bellaire decades

before Congress passed the Coal Act. All of the assigned

retirees left their employment with the sellers before Bellaire

purchased those companies’ assets; none ever worked for

Bellaire. Bellaire acquired the assets of Cambria Mining

Company (“Cambria”) in 1954 and acquired the assets of

Independent Coal & Coke Company (“ICC”) in 1968.

Cambria was a signatory to the 1954 and earlier NBCWAs.

ICC was a signatory to the 1966 and earlier NBCWAs.

' Counsel for all parties have consented to the filing of this amicus brief,

and amicus have filed those consents with the Clerk of Court. Sup. Ct. R.

37.3. No counsel for a party in this case authored this brief in whole or in

part, and no person or entity, other than amicus or its counsel, made a

monetary contribution to this briefs preparation or submission.

Sup. Ct. R. 37.6.

2

Neither Cambria nor ICC continued to operate under its own

name or signed another NBCWA after its assets were sold. If

either company existed today, its signatory operator liability to

the Combined Fund would be unconstitutional under Eastern

Enterprises v. Apfel, 524 U.S. 498 (1998).

The Commissioner recognizes that either Cambria or ICC

was the actual “signatory operator” and “last signatory

operator” as defined in sections 9701(c)(1) and 9701(c)(4) of

the Coal Act with respect to each retiree and dependent at

issue. According to the Commissioner, Cambria or ICC also

would have been the “assigned operator” under section

9701(c)(5) of the Coal Act for purposes of Combined Fund

premiums with respect to each retiree (and his or her

dependents) if Cambria or ICC had remained in business on

July 20, 1992. But neither Cambria, ICC, nor any “related

person” to either of them, as defined by the statute, remained

in business on that date. Instead of relying on the Act’s

provisions for the assignment of the miners, _ the

Commissioner concluded that Bellaire, as the successor in

interest to a signatory operator, was a “related person” despite

the fact that it did not meet the statutory definition of a

“related person.” § 9701(c)(2)(A). “Related persons” are

jointly and severally liable, along with the last signatory

operator. §§ 9704(a), 9706(a).

Accordingly, Bellaire has a direct interest in the outcome of

this case. Its liability to pay premiums to the Combined Fund

to finance lifetime health care benefits for eighty-nine miners

and their dependents turns upon whether Congress in fact

imposed liability to the Combined Fund retroactively upon

pre-Coal Act successors in interest of signatory operators.’

? In fact, Bellaire was litigating this very issue in the United States District

Court for the Southern District of Ohio when certiorari was granted in

Sigmon, whereupon the district court stayed and admunistratively closed

the case, subject to reopening after this Court decides Sigmon. Bellaire

3

More generally, as a corporate citizen that does its best to

adhere to the law as it understands it, and which experiences

substantial inefficiencies and unexpected costs when statutory

requirements with which it must comply are either uncertain

or are ultimately given an interpretation contrary to their

unambiguous meaning, Bellaire has a direct interest in the

interpretation of statutes in a manner that is consistent with the

words used.

ARGUMENT

This case presents the question whether the plain language

of section 9701(c)(2) of the Coal Act should be applied as

written.’ Under this Court’s decisions, the resulting pattern of

liabilities based on an unambiguous literal reading cannot be

disturbed by a court unless it is so absurd or-inconsistent with

Congress’s demonstrable intentions that one can say with

assurance that a different meaning was intended.

The Fourth Circuit in this case, over a dissent, noted that the

statutory definition of “related persons” in _ section

9701(c)(2)(A) itemizes three categories of entities defined by

particular relationships to a signatory operator, and goes on to

include “successor(s] in interest” to the entities thus defined.

Pet. App. 24a. Because this language clearly does not extend

to successors in interest of signatory operators themselves, and

because the court found that the literal language was not

“contrary to clearly expressed congressional intent,” it upheld

the district court’s ruling against the Commissioner. Pet. App.

28a.

Corp., et al. v. Apfel, et al., No. C-2-99-532 (S.D. Ohio Apr. 25, 2001).

> There is no issue in this case about whether any retired miners or their

dependents will receive health care benefits. The Act assures coverage for

those individuals whether or not the Commissioner assigns to entities such

as Respondents or amicus Bellaire liability to the Combined Fund.

4

In R.G. Johnson Co. v. Apfel, 172 F.3d 890 (D.C. Cir.

1999), the District of Columbia Circuit Court of Appeals, by

a 2-1 vote, reached the opposite conclusion. While conceding

that the literal language of the statute excludes successors in

interest to signatory operators from the definition of related

persons, the court concluded “that because such an

interpretation would frustrate the clear intent of Congress . . .

‘related person’ must be construed to include a successor in

interest to a signatory operator.” /d. at 891-92. It reached this

conclusion in light of Congress’s stated intention, in a note to

the Act’s first section, to impose financial responsibility on

“persons most responsible for plan liabilities,” and the court’s

inability to think of any “reason why Congress would have

intended to impose liability” on a successor in interest to a

related person, but not on a successor in interest to the

signatory operator. /d. at 895.

The Third Circuit Court of Appeals followed the reasoning

of R.G. Johnson and held that the literal application of section

9701(c) of the Coal Act produced “‘a result [that was]

demonstrably at odds with the intentions of the drafters.”

Aloe Energy v. Apfel, No. 99-3915, slip op. at 8 (3d Cir. 2000)

(quoting R.G. Johnson, F.3d 890 (D.C. Cir. 1999).

I. The Statutory Language At Issue Is Entirely

Unambiguous In Imposing No Retroactive Liability

On Pre-Act Successors In Interest Of Signatory

Operators

All of the judges who have labored on these cases,

including those judges who ultimately declined to follow the

literal language, agree that the words of the statute are

unambiguous in extending the status of “related person” to

successors in interest of anyone otherwise fitting the

description of “related person,” and in not extending that status

to successors in interest of parties defined as “signatory

5

operators.” A fuller consideration of the Coal Act’s relevant

provisions confirms this judgment, as well as the further

conclusion that the statute affords no other basis on which to

impose retroactive liability on pre-Act successors in interest

of signatory operators.

The Coal Act addresses separate obligations for retiree

health care benefits arising in connection with two separate

funds—the Combined Fund, 26 U.S.C. §§ 9701-9708, and the

1992 UMWA Benefit Fund, 26 U.S.C. § 9712—as well as in

connection with Individual Employer Plans, 26 U S.C. § 9711.

Only the provisions concerning the Combined Fund are at

issue in this case.”

Those provisions place primary liability on a signatory

operator, who becomes the “assigned operator” under section

9704(a), for whom the retiree worked in the past. 26 U.S.C.

§ 9706(a). The Act also provides that where a person becomes

* See Pet. App. 26a (text is “clear and unambiguous”); Pet. App. 39a

(“literal reading . . . unambiguously excludes successors in interest to

signatory operators”) (Murnaghan, J., dissenting); R.G. Johnson, 172 F.3d

at 891 (“we cannot fault the district court’s literal reading of the

definition”); id. at 896 (the definition “excludes successors in interest to

signatory operators”) (Randolph, J., dissenting); Aloe Energy, slip op. at

7-8 (relying entirely on R.G. Johnson, and quoting its conclusion that the

“literal application of [the] statute will produce a result demonstrably at

odds with the intentions of the drafters.”’)

* The Combined Fund, established by the 1992 Coal Act, covers miners

who retired prior to July 20, 1992. 26 U.S.C. § 9703(f). Retired miners

whose benefits are provided by Individual Employer Plans, which were

required to be created under 1978 and later wage agreements, are covered

by section 9711. The 1992 Benefit Plan is established by section 9712 and

covers those miners who retired between July 20, 1992 and September 30,

1994.

6

a successor of an assigned operator after enactment of the Act,

the assigned operator may—but need not—transfer liability for

Combined Fund beneficiaries to that successor. § 9706(b)(2).

When that occurs, the assigned operator remains liable as a

guarantor of the benefits. /d. The statute contains no

provisions of any sort addressing the liability to the Combined

Fund of entities which became successors in interest to

signatory operators before the enactment of the Act. As a

result, the statute unmistakably provides that prospective

liability of successors to signatory operators—that is, resulting

from transfers occurring after enactment of the Act—is

optional, and may result from a voluntary agreement of the

parties to the transaction. At the same time, the Act fails to

impose any retroactive liability upon successors or successors

in interest to such operators based on pre-Act transfers.

The provisions further state that any related person of an

assigned operator shall be jointly and severally liable for any

premium owed by the operator. § 9704(a). Related persons,

in turn, are explicitly defined to include three categories of

entities related to a signatory operator in specified ways,

including where they are under common or shared control.

§ 9701(c)(2)(A)(i-iii). The Act also provides that successors

in interest of related persons so defined shall themselves be

related persons.° Jd. The status of related persons based on

° Bellaire notes that the Commissioner made each of the assignments of

Cambria and ICC retirees to Bellaire on the basis that it is a “successor”

to those entities, not a “successor in interest.” The Commissioner

apparently ignored the fact that Congress employed the two terms in

different provisions of the Coal Act in such a way that they clearly have

separate and distinct meanings. See Holland v. New Era Coal Co., 179

F.3d 397, 402 (6th Cir. 1999). The court in Holland relied on Treasury

Regulation § 1.1503-2(c)(12) and found that “successor in interest”

requires a substantial transfer of assets or stock so that the acquiring

corporation succeeds to the tax attributes of the acquired corporation.

“Successor” is a general term, encompassing a broader set of transactions

and resulting entities. Because only “successors in interest” are liable

7

the relationships defined in section 9701(c)(2)(A)(i-ili) is to be

determined as of July 20, 1992, 106 days prior to enactment on

October 24, 1992, unless the signatory operator is then no

longer in business. In that event the determination is to be

made as of the time just before the operator ceased to be in

business. § 9701(c)(2)(B).

As a result of these related person provisions, the statute is

explicit that a successor in interest of an entity meeting the

definition of related person on July 20, 1992 is itself also a

related person. § 9701(c)2)(A). Thus, post-Act successors in

interest of related persons have liability under the Act. At the

same time, retroactive liability of successors in interest to

related persons can arise in only limited circumstances. First,

because the Act states that related person status is generally to

be determined as of July 20, 1992, entities that become

successors in interest to related persons (as determined on

July 20, 1992) prior to the date of enactment (October 29,

1992), are in fact related persons themselves. Second, the

same section also provides that if a signatory operator is no

longer in business on July 20, 1992, related person status is to

be determined at the time just before that operator ceased to

exist. In that case, those who became successors in interest to

related persons after the date the signatory operator went out

of existence are also “related persons” under the Act, even if

the succession occurred prior to the Act. Other than these two

instances, the Act imposes no retroactive liability on

successors in interest to related persons, because there can be

under section 9701(c)\(2)A), Bellaire assumes that the Commissioner used

“successor” imprecisely when he meant “successor in interest.”

Whichever term is used, as explained below, Bellaire is a successor in

interest to a signatory operator, not a related person, and the Act excludes

it from liability.

8

no successor in interest to a related person before the related

persons are identified.’

The Government claims that the language of the Act is

actually ambiguous and that various extrinsic indications of

legislative intent mandate retroactive liability for Respondents.

It argues that the definition of “related person” includes

successors in interest to signatory operators because each of

the three statutory categories of related persons is defined in

terms of entities related in certain ways to a signatory operator.

U.S. Br. at 24. This argument does not, however, succeed in

creating ambiguity sufficient to justify a search for meaning

outside the text of the statute. As the Fourth Circuit pointed

out, the suggested interpretation necessitates accepting the

conclusion that a signatory operator is a related person to

itself, a proposition that is difficult to grasp, let alone to accept

as true. Pet. App. 25a, (citing R.G. Johnson, 172 F.3d at 894).

’ Even the Commissioner agrees that Congress intended that, in cases of

pre-Coal Act succession where the seller or a related person remains in

business for purposes of the Coal Act, liability to the Combined Fund

should rest with the seller signatory operator or its related persons, and not

with any successor in interest, thus avoiding retroactive imposition of

liability on successors in interest in that circumstance. In Eastern

Enterprises v. Chater, 110 F.3d 150, 154 (1st Cir. 1997), rev'd on other

grounds sub nom., Apfel v. Eastern Enterprises, 524 U.S. 498 (1998), the

Commissioner successfully resisted the argument of a pre-Act seller of

coal assets that the successor company, rather than the original signatory

operator, should bear the Coal Act liability. In upholding the

Commissioner’s position, the First Circuit noted the Act’s express

provisions assigning responsibility to the signatory operator, and rejected

the argument that “Congress overlooked the possibility of assignment to

successors” in interest of such an operator. The court reasoned that

Congress is generally presumed to act “intentionally and purposely” when

it “includes particular language in one section of a statute but omits it in

another section of the same Act.” 110 F.3d at 155 (quoting Brown v.

Gardner, 513 U.S. 115, 120 (1994)).

la

- 9

Nor is any ambiguity concerning the meaning of the statute

created by the argument offered by the Combined Fund, Br. at

22, that the statutory definition of “signatory operator” should

itself be read to encompass successors in interest to signatory

operators. This assertion is made by reference to general

definitions of “person” and “company” which appear in

sections one and five of Title 1 of the U.S. Code, and by

linking those two definitions together in a manner that is

fallacious on a number of grounds. Most obviously, these

generic provisions of Title 1 are inapplicable because the Coal

Act specifically addresses the liability of successors to a

signatory operator with assigned liability to the Combined

Fund under the Act, 26 U.S.C. § 9706(b)(2). That section

provides that, following enactment of the Act, liability may or

may not, by agreement, be transferred to the successor. The

Coal Act thus expressly contradicts the assertion that

responsibility to the Combined Fund is passed automatically

from a signatory operator to its successor or successor in

interest based on general definitions in Title 1.

Despite the lack of ambiguity, the Government argues for

expanding the statutory definition of related person beyond

that found in the statute based on broad notions of the purpose

of the Coal Act. The question thus presented is whether the

Coal Act should be construed to impose retroactive liability on

SUCCESSOTS In interest to signatory operators, even though its

unambiguous language does not do so.

Il. This Court’s Cases Dictate That Unambiguous

Statutory Language Must Be Applied As Written

Unless The Result Would Be Absurd Or

Demonstrably At Odds With The Intentions Of The

Drafters

It is clear from this Court’s decisions that where statutory

language is unambiguous, it should be applied in accordance

with its terms except in rare circumstances. What is less clear

is the precise nature of the unusual circumstances that justify

10

a court’s amendment of the particular words selected by

Congress.

Most commonly, this Court has stated the rule that the plain

and unambiguous language of a statute must be followed

unless the literal construction is “so absurd or illogical that

Congress could not have intended it.” E.g., Conroy v.

Aniskoff, 507 U.S. 511, 516 (1993). This Court has articulated

the level of absurdity required to justify departure from the

letter of the law as that which is “so gross as to shock the

general moral or common sense,” Crooks v. Harrelson, 282

U.S. 55, 60 (1930), or which leads to “wholly impracticable

consequences.” Caminetti v. United States, 242 U.S. 470, 490

(1917).

As nearly categorical as this language at first sounds, it in

fact fails to define the range of considerations by which the

absurdity or illogic of the textual result is to be assessed. A

court might find a statute to be absurd or illogical because,

when its separate provisions are viewed together, they are seen

to be incongruous or inconsistent with each other.

Alternatively, if a court is permitted to look beyond the statute

itself, absurdity, illogic, or incongruity may be found where

the statutory language in question is fully consistent with other

provisions of the statute, on the ground that it is contrary to

some notion of the statute’s intent drawn from considerations

extrinsic to the statute itself. Legislative history, in any

number of forms, could lead a court to this conclusion. What

requires clarification is when, if ever, in assessing absurdity

that may justify negating the clear meaning of a statute’s

words, a court may consider these extrinsic factors beyond the

language of the statute itself.

A second test regularly articulated by this Court for

determining whether to depart from the unambiguous literal

language of a statute requires the determination of whether

“the literal application of a statute will produce a result

demonstrably at odds with the intentions of its drafters.”

11

United States v. Ron Pair Enter. Inc., 489 U.S. 235, 242

(1989) (quoting Griffin v. Oceanic Contractors Inc., 458 U.S.

564, 571 (1982)). Where that is true, this Court has stated

“those intentions must be controlling” over the statute’s literal

words. Griffin, 458 U.S. at 571. Once again, while this

language also clearly contemplates that the literal language

will govern except in “rare cases,” Ron Pair, 489 U.S. at 242,

the test is indeterminate in failing to define the sources to be

relied upon in divining the “intentions of [the] drafters.” If

such intentions must be drawn from the language of the statute

itself—perhaps from other sections, with which the language

at issue is in conflict—then the literal language must govern

except where other portions of the same enactment render the

statute, as thus read, irrational or inconsistent. If, alternatively,

the “intentions of [the] drafters” may be discerned from

materials outside of the statute itself, then the way is open for

a statute’s unambiguous words to be trumped by legislative

reports and by extrinsic arguments of sponsors and others.

In one case, this Court injected additional uncertainty into

this inquiry by suggesting that a court should look beyond the

plain meaning of an unambiguous statute where the result

“seems inconsistent” with the intent of Congress. See Public

Citizen v. United States Dep't of Justice, 491 U.S. 440, 455

(1989). This directive suffers not only from the uncertainty

discussed above, but also from a lack of clarity as to the degree

or character of the perceived inconsistency. That same

decision goes on to suggest that, perhaps, no actual

inconsistency is required at all, by stating that a court is

justified in looking beyond the literal text “when the result it

apparently decrees is difficult to fathom.” /d. The level of

subjectivity imported by this standard into the process of

reading statutes is substantial. Some courts may have an easier

time “fathoming” certain results than other courts, and how

much “difficulty” is enough to justify departing from the

statutory language is left undefined.

12

Even more severe problems inhere in other articulations by

this Court. In Church of the Holy Trinity v. United States, 143

U.S. 457, 459 (1892), the Court found it proper to rely on the

“spirit” of a statute rather than the plain meaning of its text,

where “the whole legislation or . . . the circumstances

surrounding its enactment . . . makes it unreasonable to believe

that the legislator intended” it to be read in accordance with its

literal language. This language, which has been much

discussed during the intervening century,* leaves open-ended

not only the range of considerations properly to be considered

in determining whether the literal language should be ignored,

but also the breadth of resources to be referenced to identify

the statute’s “spint” from which its meaning may be derived.

Accordingly, as more fully discussed below, there is a need

for clarification of the circumstances under a court may

override unambiguous statutory language.

Ill. The Principle Of Separation Of Powers Demands

That Unambiguous Statutory Language Should Be

Given Effect In Accordance With Its Terms, Unless

So Read It Is Invalid Under Rational Basis Scrutiny

Amicus Bellaire submits that the ambiguity inherent in the

standards articulated in this Court’s opinions raises serious

® See Carol Chomsky, Unlocking the Mysteries of Holy Trinity: Spirit,

Letter and History in Statutory Interpretation, 100 Coium. L. Rev. 901

(2000) (collecting discussion of the case in Supreme Court decisions,

articles by members of the Court and at oral argument); Adnan Vermeule,

Legislative History and the Limits of Judicial Competence: The Untold

Story of Holy Trinity Church, 50 Stan. L. Rev. 1833 (1998) (asserting that

the Court’s selective reading of legislative history in Holy Trinity led it to

an incorrect conclusion about Congress’ intent in passing the law at issue).

Justice Kennedy's concurrence in Public Citizen criticizes Holy Trinity's

“unhappy genesis” and “unwelcome potential,” in allowing “judges to

substitute their personal predelictions for the will of the Congress.” Public

Citizen, 491 U.S. at 473-74 (Kennedy, J., concurring).

13

probiems of separation of powers in cases like the present one,

where legislation enacted by Congress is entirely unambiguous

on its face.

While “[i]t is emphatically the province and duty of the

judicial department to say what the law is,” Marbury v.

Madison, | Cranch 137, 177, 2 L.Ed. 60 (1803), it is

equally—and emphatically—the exclusive province of the

Congress not only to formulate legislative policies and

mandate programs and projects, but also to establish their

relative priority for the Nation. Once Congress,

exercising its delegated powers, has decided the order of

priorities in a given area, it is for the Executive to

administer the laws and for the courts to enforce them

when enforcement is sought.

Tennessee Valley Auth. v. Hill, 437 U.S. 153, 194 (1978). As

Justice Kennedy noted, concurring in Public Citizen, the

absurdity exception to the application of a statute’s plain

meaning “remains a legitimate tool of the Judiciary . . . only so

long as the Court acts with self-discipline by limiting the

exception to situations where . . . it is quite impossible that

Congress could have intended the result.” 491 U.S. at 470-71.

Otherwise, it amounts to an encroachment on one of the

“central prerogatives” of the legislature—to enact legislation.

See Loving v. United States, 517 U.S. 748, 757 (1996).

Without question, the case before the Court, in which

legislative language can be said to be utterly clear and

unambiguous on its face, is not the most common situation. In

the more usual case, where the literal meaning is debatable,

various principles of statutory interpretation are applied in

order to discern the meaning of the language used. In the case

of ambiguous statutory language, there is room for

disagreement about the reliance properly to be placed on

various forms of legislative history, and even concerning the

propriety of considering factors separate and apart from both

14

the legislation itself and its circumstances of enactment.’

There, because there is doubt about the meaning of the words

enacted, at least it cannot be said that the court is simply

invalidating the language chosen by Congress and substituting

its own.

* This Court has relied on all of the following sources in determining the

meaning of legislation: committee reports; sponsor statements; rejected

proposals; floor and hearing colloquy; nonlegislative drafters and

sponsors; and legislative silence and subsequent history. See William N.

Eskndge. The New Textualism, 37 UCLA L. Rev. 621, 636-40 (1990).

Compare Garcia v. United States, 469 U.S. 70, 76 (1984) (the

“authoritative source” of Congressional intent is found in the Committee

Reports on the bill; eschewing reliance on statements of individual

members); with Brock v. Pierce County, 476 U.S. 253, 263 (1986)

(statements by individual legislators provide evidence of Congress’ intent

when they are consistent with the statutory language and other legislative

history) (citation omitted); and Community for Creative Non-Violence v.

Reid, 490 U.S. 730, 744-45 n.11 (1989) (relying on report of the “Joint

Committee of the American Book Publishers Council and the American

Textbook Publishers Institute” in construing the Copyright Act); with

American Trucking Ass'n Inc. v. Atchison, Topeka and Santa Fe Ry., 387

U.S. 397, 417-18 (1967) (refusing to consider administrative agency

advocacy in support of legislation as part of legislative history).

The Court has held both that reliance on subsequent legislative history is

“dangerous” and that it is “entitled to great weight.” Compare, Solid

Waste Agency of N. Cook County v. United States Army Corps of Engrs,

531 U.S. 159, 170 (2000) (“subsequent history is less illuminating than the

contemporaneous evidence”) (internal citation omitted); South Dakota v.

Yankton Sioux Tribe, 522 U.S. 329, 355 (1998) (“the views of a

subsequent Congress form a hazardous basis for inferring the intent of an

earlier one’’) (internal citation omitted); United States v. X-Citement Video,

Inc., 513 U.S. 64, 77 n.6 (1994) (“the views of one Congress as to the

meaning of an Act passed by an earlier Congress are not ordinarily of great

weight . . . and the views of the committee of one House of another

Congress are of even less weight”) with Loving v. United States, 517 U.S.

at 770 (“[s}ubsequent legislation declaring the intent of an earlier statute

is entitled to great weight in statutory construction”) (internal citation

omitted); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 380-81 (1969).

15

Such judicial legislation is precisely what occurs when a

statute’s meaning is free from doubt, but a court nevertheless

declines to apply it as written, instead assigning to it a

different meaning because the court perceives that extrinsic

considerations suggest a contrary intent. Separation of powers

is offended not once but twice in such cases—first, by failing

to enforce the enactment as indisputably written, and again, by

giving force to an enactment that the legislature never adopted.

To avoid this result, amicus Bellaire urges the Court to

adopt a rule of construction applicable only in a case such as

this one, where the meaning of the literal language is

unmistakable. Because the failure to follow such language

amounts to not only its invalidation, but also to the

substitution of an alternative enactment, Bellaire suggests that

the unambiguous literal language should be followed, except

in those circumstances where enforcement of the words as

written would be unconstitutional.

This approach makes directly relevant this Court’s

numerous decisions in cases where statutory classifications are

challenged on the basis that they offend the Equal Protection

or Due Process Clauses. Under those cases, statutory language

is enforced as written, and the constitutional challenge is

rejected, regardless of Congress’ actual intent, if there is any

conceivable basis on which it can be said to be rational.

“In areas of social and economic policy, a statutory

classification that neither proceeds along suspect lines nor

infringes fundamental constitutional nghts must be upheld

against equal protection challenge if there is any reasonably

conceivable state of facts that could provide a rational basis for

the classification.” FCC v. Beach Communications, Inc., 508

U.S. 307, 313 (1993). Accord McGowan v. Maryland, 366

U.S. 420, 425-26 (1961) (“A statutory discrimination will not

be set aside if any state of facts reasonably may be conceived

to justify it.”). It is enough that the Court “be able to perceive

a basis upon which the Congress might resolve the conflict as

= 16

it did.” Katzenbach v. Morgan, 384 U.S. 641, 653 (1966).

Accord Nordlinger v. Fiahn, 505 U.S. 1, 11 (1992) (requiring

only some “plausible” policy reason to support a statutory

categorization).

Likewise, where legislation is challenged under the Due

Process Clause, a court’s authority does not reach the question

“whether the Congressional judgment expressed . . . is sound

or equitable, or whether it comports well or ill with the

purposes [of] the act. . . . [T]he Due Process Clause can be

thought to interpose a bar only if the statute manifests a

patently arbitrary classification, utterly lacking in rational

justification.” Flemming v. Nestor, 363 U.S. 603, 611 (1960).

This Court thus seeks explanations for legislative actions

which meet only a minimal level of rationality. For example,

in Ferguson v. Skrupa, 372 U.S. 726, 731 (1963), the Court

upheld a state law criminalizing certain conduct, stating that

“we refuse to sit as a ‘superlegislature to weigh the wisdom of

legislation.’” (internal citation omitted).

' A statute imposing obligations retroactively facés

heightened scrutiny under a due process challenge because its

obligations are based on conduct which occurred in the past,

over which the party adversely affected has no continuing

control. Because “retrospective laws are, indeed, generally

unjust,” 2 J. Story, Commentaries on the Constitution § 1398

(Sth ed. 1891), this Court has held that such enactments should

be subjected to somewhat closer scrutiny. Such retroactive

legislation, however, is sometimes upheld against

constitutional challenges. In Usery v. Turner Elkhorn Mining

Co., 428 U.S. 1 (1975), for example, the Court upheld the

retrospective imposition of liability for black lung benefits

upon former employers, on the ground that it was justified as

a “rational measure to spread the costs of the employees’

disabilities to those who have profited from the fruits of their

labor.” /d. at 18. “It is enough to say that the Act approaches

the problem of cost spreading rationally; whether a broader

17

cost-spreading scheme would have been wiser or more

practical under the circumstances is not a question of

constitutional dimension.” /d. at 19. Accord Pension Benefit

Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 729 (1984).

These cases, and others like them, make clear that, absent

strict scrutiny triggered by a suspect classification or

fundamental interest, a statute may not be invalidated simply

because it fails to implement the perceived intentions ascribed

to the drafters in a tidy and estimable manner. The Court has

further made clear that a “legislative choice is not subject to

courtroom fact-finding and may be based on rational

speculation unsupported by evidence or empirical data.”

Beach Communications, 508 U.S. at 315. It is enough that a

conceivable rationale is “arguable” to “immuniz{e]” the

Congressional choice from constitutional challenge. /d. at

320.

No lesser standard should apply where the issue is not

only the invalidation, but the rewriting of a statute’s

unambiguous words. Thus courts should do so only where the

constitutional test is met and not on the basis that the clear

words fail to neatly advance a supposed purpose derived from

evidence extrinsic to the statute.

IV. The Coal Act’s Express Provisions Imposing No

Retroactive Liability On Pre-Act Successors In

Interest To Signatory Operators Should Be Applied

As Written, Even Though The Act Allows Limited

Retroactive Liability Of Successors In Interest Of

Related Persons

The Coal Act is a highly complex and intricate set of

provisions which, as the Court’s opinion in Eastern

Enterprises v. Apfel details, was the product of a long history

of labor unrest in a declining industry, combined with a

legislative determination to identify funding sources to secure

lifetime health benefits to miners whose former employers

18

were not obligated or not able to provide them. 524 U.S. 498,

504-514 (1998). It accomplishes this objective by placing on

the shoulders of selected current and former coal operators and

their related persons responsibility for the future health

benefits of retired mine workers and their dependents. In most

instances, the retired miners worked for the entity charged with

financial responsibility for some period of time. In Eastern

Enterprises, the Court recognized that the Act, viewed as a

whole, is fundamentally retroactive in character. /d. at 534.

Ultimately, for that and other reasons, the Court found an

absence of rationality within the Act to be so profound, as it

relates to the “third tier” of liability, as to invalidate that

provision on constitutional grounds. /d. at 537-38 (opinion of

Justice O’Connor) (the Act “singles out certain employers to

bear a burden that is substantial in amount, based on .. .

conduct far in the past, and unrelated to any commitment that

the employers made.”’); /d. at 548-49 (Kennedy, J., concurring)

(noting the capacity of retroactive laws to “change the legal

consequences of transactions long closed . . . thus destroy[ing]

the reasonable certainty and security which are the very objects

of property ownership”).

This case presents no question whatsoever relating to

prospective liability arising from successorship—that is, from

assuming the status of a successor after the enactment of the

Act. The statutory responsibility of such entities is clear and

is not disputed here.'’ At issue in this case is only whether

'0 The Act unambiguously provides, as to “a person becom{ing] a

successor of an assigned operator after the enactment date,” that it may, but

need not, contractually undertake primary responsibility for liabilities

under the Act. If it does so, the original signatory operator will remain

liable as a guarantor. § 9706(b)(2). The “related persons” provision

applies only to acts of succession after July 20, 1992 and states that all

such successors in interest are themselves related parties. § 9701(c)(2).

Whatever the reason for this distinction in the imposition of prospective

liability of successors in interest to signatory operators and related persons,

19

retroactive liability should be imposed upon entities, like

Respondents and amicus Bellaire, who became successors in

interest to signatory operators prior to adoptior. of the Act.

Eastern’s invalidation of the Act’s most remote imposition

of retroactive liability on a former employer makes

emphatically clear that the Act’s failure to impose such

retroactive liability upon successors in interest to signatory

operators would survive any constitutional challenge.

Congress may well have considered such pre-Coal Act buyers

from signatory operators to be too remote in terms of time and

lack of any employment relationship to justify the imposition

of liability. Whatever the reason, the disfavored character of

retrospective liability makes it all but unthinkable for this

Court to infer such retroactive liability out of thin air based on

a concern for statutory symmetry.

The Government argues for recognition of just such implied

retroactive liability, based in part on the Coal Commission

Report and several statements put in the record by individual

legislators. It contends that Congress meant to cast a broad net

of liability over various corporate entities related to the

signatory operator, and specifically that it intended to reach

pre-Act successors in interest to the signatory operator. U.S.

Br. at 26-28. Most emphatically, it argues, as the D.C. Circuit

found and as the dissent below argued, that the literal language

of the Act is at odds with:

there can be no doubt that it would withstand constitutional challenge. A

concern to facilitate the sale of coal companies, as suggested by the court

below, Pet. App. 32a-33a, is one clearly rational explanation. But given

the prospective character of the legislation, it is unlikely that any such

explanation is even necessary. Congress “may take one step at a time,”

and “may select one phase of one field and apply a remedy there,

neglecting others.” Williamson v. Lee Optical, 348 U.S. 483, 489 (1955).

Congress need not select the most effective or efficient approach to any

particular problem. A court’s ability to discern a better alternative does not

permit it to legislate in Congress’ place.

20

Congress’s stated purposes of ensuring that each Combined

Benefit Fund beneficiary’s health-care costs is borne (if

possible) by the person with the most direct responsibility

for the beneficiary, and not by other signatory operators that

had no connection with the beneficiary, or by the public

fisc.

U.S. Br. at 28; 172 F.3d at 895; Pet. App.39a-40a

Amicus Bellaire submits that, for two reasons, this Court

should reject the argument of the United States and its amicus

that the statute’s language must be modified to accord with

their view of congressional intent as derived from evidence

extrinsic to the statute.

First, this form of argument is fundamentally irrelevant in

any discussion of constitutionality under rational basis review

and should be irrelevant as well to the interpretation of

language that is entirely clear and unambiguous on its face.

The supposed intentions of the drafters, as reflected in floor

statements, reports, or other advocacy, should have no bearing

on whether unmistakable legislative intent, found in the plain

language of the Act, should be given effect. Only where the

statute makes no sense—because it is self-contradictory or

because no set of facts or objectives can be conceived of under

which it is rational—is a court justified in departing from the

explicit provisions adopted by Congress.

Second, even if the statements of alleged intent are

considered, neither they nor the supposed lack of symmetry in

the statute as written is remotely adequate to justify reading

into the statute a broad provision imposing retroactive liability

on pre-Act successors in interest to signatory operators. The

general statement of intent to reach those with the “most direct

responsibility” for the retiree hardly supports imposition of

liability on successors in interest who had no notice they were

undertaking such responsibility. More generally, this Court

has made clear that statutes imposing retroactive liability are

21

to be read narrowly and scrutinized carefully. Petitioner and

its amicus cite no case where this Court has inferred the

existence of such legislative intent to impose retroactive

liability, based on extra-statutory statements of intent, or in the

absence of statutory language compelling that conclusion.

Certainly it should not do so here.

This conclusion is not altered by the fact that the Act

provides for limited retroactive liability of successors in

interest of related persons, though not those of signatory

operators. Retroactive liability for successors in interest to

related persons arises only where 1) the related persons

transfer of ownership or assets occurs between July 20, 1992

(presumptive date for determining related person status) and

October 24, 1992 (date of enactment), or 2) if the signatory

operator was out of business before July 20, 1992, between

that date and October 24, 1992. Indeed, this Court’s decision

in Eastern Enterprises, invalidating the Act’s most remote

retroactive imposition of liability upon a retiree’s former

employer, raises serious questions about the constitutionality

of retroactive liability of successors in interest to related

persons with whom the retired miner never had an

employment relationship of any sort."

'' Indeed, such pre-Act successors in interest of related persons are two

steps removed from any employment relationship with the retiree, and had

no basis on which to foresee that the acquisition might result in potentially

mammoth liabilities. In Eastern Enterprises v. Apfel, this Court

recognized that “[rjetroactivity is generally disfavored in the law.” 524

U.S. at 532. The four members of the Court who concluded that the

Commiussioner’s assignment of retired miners to Eastern Enterprises was

an unconstitutional taking, found that “Eastern cannot be forced to bear the

expense of lifetime health benefits for miners based on its activities

decades before those benefits were promised.” /d. at 537. Considering the

three factors relied upon to determine whether legislation amounts to a

regulatory taking, the plurality found that the Act had substantial economic

impact, it interfered with Eastern’s reasonable investment-backed

22

But the validity vel non of the statute’s retroactive

provisions concerning successors in interest to related persons

cannot alter the fact that it does not impose retroactive liability

on successors in interest to signatory operators. And given this

Court’s strongly expressed reservations about retroactive

legislation that imposes obligations based on conduct

undertaken before the law was enacted, it would be ironic

indeed if this Court, based on a perceived lack of legislative

symmetry, were to read into the law a retroactive provision

that Congress very clearly has not enacted.

It may be that legislators were motivated by a desire to cast

the net of liability widely, and to thus expand available sources

expectations and the nature of governmental action was unusual in that it

singled out employers to bear a substantial burden based on past conduct

that was unrelated to any commitment made or injury caused. /d. at 529-

37. Justice Kennedy concurred in the plurality’s conclusion that Congress

exceeded its constitutional bounds when it imposed “liability for events

which occurred 35 years ago” in the Coal Act. /d. at 549. Although

relying on due process instead of takings theory, Justice Kennedy also

focused on the Court’s general distrust of retroactive legislation. “[D]ue

process protection for property must be understood to incorporate our

settled tradition against retroactive laws of great severity.” /d. at 549.

Justice Kennedy agreed that application of the Coal Act to Eastern

represented one of the rare cases where Congress overstepped its otherwise

broad constitutional bounds in the area of economic legislation.

Such reasoning raises a serious question about the constitutionality of

imposing retroactive liability on successors in interest to related persons.

Assignment of any number of miners will have a significant economic

impact on the successor. It will interfere with reasonable, investment

backed expectations because at the time the successor in interest made its

purchase the Act was not in existence and future liability was completely

unknown. Finally, the government’s conduct in such a case is exactly that

which this Court found objectionable in Eastern Enterprises: imposition

of retroactive liability on parties who took no action to incur or assume

liability to pay for benefits—indeed, who had no antecedent employment

relationship at all with the beneficiary. Nonetheless, whether or not such

liability is constitutional against a takings or due process challenge is a

question for another day.

23

of funds to those with some historical connection—albeit

remote—to the original employer, as they adopted this broadly

retroactive legislation. However, there can be no doubt that

Congress refrained from imposing one additional layer of

retroactive liability—upon those who became successors in

interest to signatory operators prior to the Act. That act of

prudence obviously must be given effect by the

Commissioner’* and this Court, regardless of the other forms

2 Petitioner argues that the Commissioner’s assignment is entitled to

deference under Chevron and thus must be upheld as a reasonable exercise

of authority to administer the Act. U.S. Br. at 44-45, n.24. Chevron

deference is improper for a number of reasons. First, Chevron applies only

where an agency is resolving a particular statutory ambiguity. Chevron

U.S.A., Inc. v. Nat'l Resources Defense Council, Inc., 467 U.S. 837, 845-

46 (1984). Here, the statutory language is unambiguous. Second, even if

ambiguity existed, courts apply Chevron deference ohly to agency

decisions where the agency acts pursuant to delegated authority “to make

rules carrying the force of law,” as when it engages in adjudication or

notice-and-comment rulemaking. United States v. Mead, 121 S. Ct. 2164,

2171 (2001).

Congress delegated neither legislative authority nor adjudicatory power to

the Commissioner. Instead, the Coal Act imposes on the Commissioner

the administrative tasks of identifying miners, signatory operators and

related persons, and making assignments pursuant to Congress’

specifications. Similarly, the Act’s provisions allowing reconsideration of

assignments, see § 9706(f), are insufficient to find that Congress granted

authority to engage in adjudication. The Commissioner need only conduct

a review of the assignment “if the Commissioner finds the operator

provided evidence with the request constituting a prima facie case of

error.” § 9706(f(2). This discretionary review is not equivalent to the

rigorous procedures required for agency adjudication. The

Commissioner’s actions pursuant to the Act do not warrant Chevrun

deference.

Where Chevron deference is inapplicable, courts need only appreciate that

agencies may possess “specialized experience” meriting deference.

Skidmore v. Swift & Co., 323 U.S. 134, 139 (1944). The Commissioner’s

assignments are not entitled to even this less deferential form of review

because the assignment of retired miners to statutorily enumerated entities

24

of retroactive liability that the Act did, in fact, impose.

CONCLUSION

The decision of the Fourth Circuit Court of Appeals should

be affirmed.

Respectfully submitted,

THOMAS A. SMOCK DONALD B. AYER ~

MICHAEL D. GLASS (Counsel of Record)

Polito & Smock, P.C. JONATHAN C. ROSE

Four Gateway Center CYNTHIA L. BAUERLY

Suite 400 Jones, Day, Reavis & Pogue

444 Liberty Avenue 51 Louisiana Avenue, N.W.

Pittsburgh, PA 15222 Washington, D.C. 20001

(412) 394-3333 (202) 879-3939

Counsel for Amicus Curiae

July 23, 2001

requires no “specialized experience” or expertise. Moreover, the brief time

period in which the Commissioner has been making assignments under

section 9706 narrows the “body of experience” that might make deference

to an agency’s “informed judgment” appropriate. /d. at 140.

In sum, the Commissioner’s decision to ignore the express language of the

Coal Act excluding successors in interest to signatory operators from

retroactive liability is not entitled to any form of deference.