Opposition Brief — Barnhart v. Peabody Coal Co.

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No. 01-7157)

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Supreme Court of the Bnited States

Jo ANNE B. BARNHART, COMMISSIONER OF

SOCIAL SECURITY, Petitioner,

Vv.

BELLAIRE CORPORATION, NACCO INDUSTRIES, AND NORTH

AMERICAN COAL CORPORATION, Respondents.

Jo ANNE B: BARNHART, COMMISSIONER OF

SOCIAL SECURITY, Petitioner,

Vv

PEABODY COAL COMPANY AND EASTERN ASSOCIATED

COAL COMPANY, Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

BRIEF IN OPPOSITION FOR RESPONDENTS BELLAIRE

CORPORATION, NACCO INDUSTRIES, INC. AND THE

NORTH AMERICAN COAL CORPORATION

THOMAS A. SMOCK JEFFREY S. SUTTON

MICHAEL D. GLASS Counsel of Record

POLITO & SMOCK, P.C. BRIAN G. SELDEN

Four Gateway Center, Ste 400 JONES, DAY, REAVIS &

444 Liberty Avenue POGUE

Pittsburgh, Pennsylvania 15222 1900 Huntington Center

(412) 394-3333 41 South High Street

Columbus, Ohio 43215

Counsel for Respondents (614) 469-3855

i

QUESTION PRESENTED

Under the Coal Industry Retiree Health Benefit Act of

1992, 26 U.S.C. § 9701 et seq., Congress established a two-

Stage system for funding the health-care benefits of retired

coal miners and their dependents. In accordance with the

initial stage, Congress directed the Commissioner of the Social

Security Administration to assign miners to responsible coal

operators by October 1, 1993, and thereafter required those

coal operators to begin paying premiums to the United Mine

Workers of America Combined Benefit Fund for this initial

category of beneficiaries. In accordance with the second

stage, Congress provided that unassigned beneficiaries would

receive full benefits through a separate funding mechanism

that could draw upon, among other potential resources,

premiums collected from all assigned operators on a pro rata

basis.

The question presented is this: When the Act expressly

provides that the Commissioner “shall, before October 1,

1993, assign each coal industry retiree who is an eligible

beneficiary to a signatory operator” and when the Act

expressly establishes a separate funding mechanism providing

full benefits for all other miners and their dependents, may the

Commissioner continue to make initial assignments after

October 1, 1993 and as late as 1998?

ii

PARTIES TO THE PROCEEDING

Respondents Bellaire Corporation and The North

American Coal Corporation are subsidiaries or affiliates of

respondent NACCO Industries, Inc., a publicly-held

corporation. NACCO Industries itself has no publicly-held

subsidiaries or affiliates. This brief refers to the three

respondents collectively as “the Bellaire Group.”

The petition filed by Jo Anne B. Barnhart consolidates the

Bellaire Group’s case with that of Peabody Coal Company and

Eastern Associated Coal Company, parties that are not

affiliated with the Bellaire Group.

The petition of Michael H. Holland and the other Trustees

of the United Mine Workers Combined Benefit Fund includes

only the Bellaire Group as respondents, as the lower courts

denied these petitioners leave to intervene in the Peabody Coal

and Eastern Associated Coal action.

TABLE OF CONTENTS

EE Badedeccccccevcccccsccoce i

PARTIES TO THE PROCEEDING ................. ii

TABLE OF AUTHORITIES ...... Sedebacdecvecceee iv

EEE !SNSE EERE EET OPP PE EET ETTEE l

i cnceeccccceccecccccece ce 2

Il. PROCEDURAL HISTORY .................... 3

REASONS FOR DENYING THE WRIT ............. a

I. THIS SHALLOW DIVISION OF

AUTHORITY DOES NOT WARRANT

tT PEPPER EREGSGRESECe6ecccccccccceee: 4

Il. THE LOWER COURT CORRECTLY

RESOLVED THE QUESTION ON THE

EEE SSE EELS EEE PI PPE PEPE 6

A. The Text Of The Coal Act Supports The

Sixth Circuit’s Interpretation. ........... ... 6

B. The Structure Of The Coal Act Supports

The Sixth Circuit’s Interpretation. .......... 10

C. Petitioner’s Predecessor Agreed. ..... ..... 12

ST SUCbbeeeeechbededeceescececccece 14

TABLE OF AUTHORITIES

CASES

Anderson v. Yungkau, 329 U.S. 482 eye:

Dt .cedesdnacevondenaanpeseoesuieendedt 7

In re Blue Diamond Coal Co., 79 F.3d

PE ED nccdcdecéeéveceseededodecess 5

Brock v. Pierce County, 476 U.S. 253

SED noccccecdéedbesacbaucbésdcocteudaee 8-9

In re Chateaugay Corp., 53 F.3d 478

PM nccatsdeeetinecesceoesese teééec 5

Chevron, U.S.A., Inc. v. National Res.

Def. Council, Inc., 467 U.S. 837

DT 9060060006600600060060000e008600064 6-7

Davon, Inc. v. Shalala, 75 F.3d 1114

SE CEE adubdécladoesoekescescsebeconces 5

Dixie Fuel Co. v. Commissioner of

Social Security, 171 F.3d 1052

Sn ncccdwdesdesedstesccetouedciet 2, 4, 6, 7

Duncan v. Walker, 121 S.Ct.

DD sosedadnuccnasecsesotvecesoeses 10

Eastern Enterprise v. Apfel, 524 U.S.

DE ntcqnecedecsnbecdeeéecouteeonss 2,5

Elgin National Industries v. Halter,

ED pccccsscceceseoceseoes 5

Escoe v. Zerbst, 295 U.S. 490 (1935) .. 2... 6. cece eens 7

Holland v. Keenan Trucking Co., 102

Pee CEE SE cnctddcccsoecececsceess 5

Holland v. Pardee Coal Co., 269 F.3d

a ot nb cdtdncceseooseséeteens 4

Holland v. Williams Mountain Coal Co..,

B50 FBO Gee Ge Gee BED cccccccccecccccccs 5

Mead Corp. v. Halter, No. 01-3277 (6th Cir.) .......... 5

National Coal Association v. Chater, 81

F.3d 1077 (ith Cir. 1996)... 0.0... cece eee eens 5

v

Nell Jean Industries, Inc. v. Barnhardt,

No. 01-CV-2006 (D.D.C.) .............00cuee 4-5

Pratt Mining Co. v. Barnhart,

Ses GE WOCWED ccc cccccccccccccccccs 4

Regions Hospital v. Shalala,

EE 8

Shenango, Inc. v. Commissioner of

Social Security, No. 00-2525 (3d Cir.) ............ 4

In re Sunnyside Coal Co., 146 F.3d 1273

DT dskvbuibisateadbteuecccccctéee 5

TRW Inc. v. Andrews, 122 §.Ct. 441 (2001) .......... 10

United States v. James Daniel Good Real

Peg SE SPEED cceccccesedcccececec: 8

United States v. Monsanto, 491 U.S. 600

Dy esudeebebedeeuseudonessticscéébes< 7,11

United States v. Montalvo-Murillo, 495

DET (adi dbbascuabassédGteedéctKeded 8

United States v. Price, 361 U.S. 304 (1960) .......... 12

Unity Real Estate Co. v. Hudson, 178

dive wcncncecedeeuseseus 5

STATUTES

The Coal Industry Retiree Health

Benefit Act of 1992, 26 U.S.C.

tt sktuidnkbaddineueseeseouseocees< 11

tt cinnhstdieeivekenkeusawenddnede ll

i iithtbudheeceenadéesesedacedsceses 11

Mikes duh bens bide dame dicekedouss 11

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i hhiinth ociue unde ddeadcossucibuns 11

DT ihae6deveneensueteseeecdacncaenead passim

Dtehtecnisbeadeseedavsecsteodensceces 1,7

ttt Aekeeddeunndeuecavendeaasoeunhie 12

jj scedhebtadeeaskdbaneosesnieas tous 12

tT dnceenedpaneuaeaaunnnkéusetecedas 11

et ipeeuaahidevacesadessahunbecs passim

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RT Pe RET TE, eS 5

RS a ee 5

CONGRESSIONAL HISTORY

Coal Industry Retiree Health Benefit Act

of 1992: Hearing on Serial 104-67

Before the Subcomm. On Oversight

of the House Comm. On Ways and

Means, 104th Cong. 22 (1995) ..........505005- 13

Provisions Relating to the Health Benefits

of Retired Miners: Hearing on Serial

103-59 Before the House Committee on

Ways and Means, 103d Cong. 41 (1993) ......... 12

BRIEF IN OPPOSITION FOR RESPONDENTS

BELLAIRE CORPORATION, NACCO INDUSTRIES,

INC. AND THE NORTH AMERICAN COAL

CORPORATION

Respondents Bellaire Corporation, Nacco Industries, Inc.

and the North American Coal Corporation (collectively, “the

Bellaire Group”) respectfully submit this combined brief in

opposition to the petition filed in No. 01-705 by the

Commissioner of Social Security and to the petition filed in

No. 01-715 by Michael H. Holland and other trustees of the

United Mine Workers of American Combined Benefit Fund.

STATEMENT

In enacting the Coal Industry Retiree Health Benefit Act

of 1992, 26 U.S.C. § 9701 et seg., Congress established a

series of funding mechanisms that would provide health and

disability benefits for former coal miners and their dependents.

One innovation of the Act stemmed from its two-stage system

for funding benefits.

Under the first funding stage, the Act requires the

Commissioner of Social Security to “assign” miners (and their

dependents) to the coal operators for whom they worked. The

assigned operators then pay premiums to the United Mine

Workers of America Combined Benefit Fund for the health-

care benefits of this first category of beneficiaries. Under the

second stage, the Act requires the Commissioner to establish

a separate funding mechanism for all other miners and their

dependents, which draws resources from, among other funds,

“unassigned” beneficiary premiums collected from all

assigned operators on a pro rata basis. See 26 U.S.C. §§ 9704

and 9705.

In October 1992, Congress set this bifurcated system in

motion with a series of deadlines, the most important of which

required the Commissioner to make all first-level assignments

by October 1, 1993. “[T]he Commissioner of Social Security

shall,” the Coal Act unequivocally states, “assign each coal

industry retiree who is an eligible beneficiary” to a signatory

2

operator if one can be found “before October 1, 1993.”

26 U.S.C. § 9706(a).

More than two years ago, the Sixth Circuit treated the

October |, 1993 deadline as the lynchpin of “the entire scheme

for calculation of premiums of the assignments made as of that

date.” Dixie Fuel Co. v. Comm'r of Soc. Sec., 171 F.3d 1052,

1063 (1999). Later decisions in that court and elsewhere

agreed. Under each of these rulings, beneficiaries whom the

Commissioner did not assign as of October 1, 1993 were not

deprived of benefits. They simply received their benefits from

the unassigned pool, just as the two-stage funding system

contemplated.

The Commissioner and the Trustees of the Combined

Benefit Fund have been less than accepting of these decisions.

to litigate the point at every turn. Now that this strategy has

been rewarded with a favorable outcome in the Fourth Circuit,

the Commissioner and Trustees promptly claim that certiorari

is warranted. But because this modest division of authority is

insufficiently deep or mature to warrant review and because

no coal miner or dependent will lose a single benefit while

other courts look at this interpretive issue, the Court should

deny the writ. Further percolation of the issue not only may

eliminate this division of authority eventually, but at a

minimum it will provide other lower courts with an

opportunity to weigh in on, and contribute to the resolution of,

this question.

I. FACTUAL HISTORY

Between the Coal Act’s effective date of October 24,

1992 and October 1, 1993, the Commissioner assigned the

Bellaire Group responsibility to pay premiums for more than

1,000 Coal Act beneficiaries. While the Bellaire Group has

challenged a discrete number of those assignments on grounds

ranging from misidentification to unconstitutional-reachback

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

3

vast majority of these initial assignments remain undisputed

and all premiums on them have been paid. The Bellaire Group

also remains exposed to the potential obligation to make pro

rata “unassigned beneficiary premiums” in the event a fiscal

need to require such second-stage premiums ever arises.

At issue in this case are 270 miners whom the

Commissioner tried to assign to the Bellaire Group from the

unassigned miner pool and most notably tried to assign after

October 1, 1993. The Commissioner assigned just a handful

of this group—41 miners in all—to the Bellaire Group in

calendar year 1993. The overwhelming majority were

assigned after the Commissioner took a one-and-a-half year

hiatus from making initial assignments. The Commissioner

thus assigned a majority of the 270 miners in 1996, and made

some assignments as late as 1998. Nonetheless, according to

the Commissioner, the Bellaire Group owes premiums on all

270 miners from 1993 to the present.

The Bellaire Group has paid $4,042,510.56 in premiums

on those assignees to date and, were it not for injunctive relief

in the district court, would owe approximately $40,000 per

month in premium payments into the future.

Il. PROCEDURAL HISTORY

On June 30, 2000, the district court entered a final

judgment in favor of the Bellaire Group, voiding each of the

270 assignments that the Commissioner attempted to make

after the October 1, 1993 deadline. The Sixth Circuit has

refused the Government’s and Trustees’ invitation to alter that

ruling on three separate occasions—once by rejecting a

motion for preliminary en banc review, then by ruling against

petitioners in its panel decision, and lastly by rejecting a

subsequent motion for en banc review.

After three separate motions for an extension of time,

petitioners filed these two petitions for a writ of certiorari.

Both petitions were filed just a month after the Fourth Circuit

4

entered its decision in Holland v. Pardee Coal Co., 269 F.3d

424 (4th Cir. 2001)

REASONS FOR DENYING THE WRIT

Now that the Fourth Circuit has created what Judge

Niemeyer criticized in dissent as an “unnecessary” conflict

with the Sixth Circuit, Pardee Coal, 269 F.3d at 439, the

Commissioner and Trustees claim that this discrete Coal Act

question suddenly warrants review. In their haste, however,

they overlook the shallow nature of the division of authority,

to say nothing of the possibility that pending cases will give

the Fourth and Sixth Circuits additional opportunities for en

banc review and that pending cases within the D.C. and Third

Circuits will give those courts an opportunity to consider the

issue. Now is not the time and this is not the case to review

this question.

I. THIS SHALLOW DIVISION OF AUTHORITY

DOES NOT WARRANT REVIEW.

While the nascent conflict between Dixie Fuel and

Pardee Coal is real, it falls well below the Court’s traditional

requirements for granting review. As an initial matter, Pardee

Coal is now barely two months old, and several pending

district court cases will give the Fourth Circuit additional

opportunities to grant en banc review of this 2-1 decision.

There is in short ample reason to believe that the split Will not

last long.

But even if Pardee Coal survives, other opportunities

assuredly will arise for the Court to look at the question. In

the Third Circuit, a similar § 9706(a) issue is pending in

Shenango, Inc. v. Commissioner of Social Security, No. 00-

2525. In the Sixth Circuit, the same question is pending in

Mead Corp. v. Halter, No. 01-3277. And in the Fourth

Circuit, as noted, multiple district-level cases are percolating

on the issue, see, e.g., Pratt Mining Co. v. Barnhart, CA:00-

0856 (S.D. W.Va.), as is true in the D.C. Circuit, see Nell Jean

5

Indus., Inc. v. Barnhardt, No. 01-CV-2006 (D.D.C.) and Elgin

Nat'l Indus. v. Halter, No. 01-CV-397 (D.D.C.). Because the

Commissioner and Trustees thus far have chosen to litigate

this Coal Act issue at every opportunity, it is a virtual certainty

that they will present the Court with additional petitions

raising this question—assuming the division of authority does

not dissipate over time. ,

Nor may the Commissioner sidestep this deficiency in her

petition by contending (Pet. 23-24) that the most important

lower courts have voiced their opinions. True enough,

significant “extractive bituminous coal mining” occurs in the

States within the Sixth and Fourth Circuits. But it is also true

that Alabama, Utah, Pennsylvania and other States (from other

circuits) have substantial operations as well. Indeed, as the

Trustees themselves acknowledge (Pet. 4), the Coal Act has

generated appellate opinions from coast to coast. See, e.g.,

Eastern Enter. v. Apfel, 524 U.S. 498 (1998) (arising out of the

First Circuit); Jn re Chateaugay Corp., 53 F.3d 478 (2d Cir.

1995); Unity Real Estate Co. v. Hudson, 178 F.3d 649 (3d Cir.

1999); Holland v. Keenan Trucking Co., 102 F.3d 736 (4th

Cir. 1996); In re Blue Diamond Coal Co., 79 F.3d 516 (6th

Cir. 1996); Davon, Inc. v. Shalala, 75 F.3d 1114 (7th Cir.

1996). See also In re Sunnyside Coal Co., 146 F.3d 1273

(10th Cir. 1998); Nat’l Coal Ass'n v. Chater, 81 F.3d 1077

(11th Cir. 1996); Holland v. Williams Mountain Coal Co., 256

F.3d 819 (D.C. Cir. 2001). The Court has not traditionally

reviewed divisions of authority involving just two appellate

courts, and there is no compelling reason why it should do so

here.

Even less availing is the Trustees’ fear (Pet. 18-19) that

coal operators “will concentrate their litigation efforts” in the

Sixth Circuit. Certainly, coal operators may do so. But

federal law still requires proper jurisdiction and venue, see 29

U.S.C. § 1451 and 26 U.S.C. § 9721, and even the

Commissioner tacitly concedes (Pet. 23-24) that many

operators are unlikely to establish any basis for Sixth Circuit

6

review. In the end, if the issue carries the magnitude that

petitioners jointly assert, it undoubtedly will reach more

appellate courts in the next several years.

Il. THE LOWER COURT CORRECTLY RESOLVED

THE QUESTION ON THE MERITS.

A. The Text Of The Coal Act Supports The

Sixth Circuit’s Interpretation.

Besides involving a two-court circuit split that is barely

two months old, the petition should also be denied because the

Sixth Circuit faithfully adhered to the express language and

explicit two-stage funding structure that Congress established

in passing the Coal Act. This, too, counsels against review.

In creating this two-stage funding scheme, Congress in no

uncertain terms directed the Commissioner to act at once:

For purposes of this chapter, the Commissioner of Social

Security shall, before October 1, 1993, assign each coal

industry retiree who is an eligible beneficiary to a

signatory operator...

26 U.S.C. § 9706(a) (emphasis added). In a prior decision

involving this identical issue, the Sixth Circuit construed this

language to mean that “(t]he October 1, 1993 date is a

deadline” and that the Coal Act “does not permit the SSA to

make such assignments after that date.” Dixie Fuel, 171 F.3d

at 1064. And it supported that decision by pointing to the

funding provisions for miners who were not assigned by the

October 1, 1993 deadline. /d. at 1062. Relying on Dixie Fuel,

the Sixth Circuit applied the same reasoning to the

Commissioner’s and Trustees’ arguments here.

Not just stare decisis, but basic principles of statutory

construction, required the Sixth Circuit to do exactly that.

When a statute is clear and unambiguous, the Court has

reminded litigants, “that is the end of the matter.” Chevron,

U.S.A., Inc. v. Nat'l Res. Def. Council, Inc., 467 U.S. 837, 842

‘

9 a

7

(1984). That rulc has special applheation when Congress uses

the directive “shall,” which generally imposes mandatory

duties on the regulated entity, and when Congress provides

consequences for failing to satisfy the imposed duty. See, e.g.,

United States v. Monsanto, 491 U.S. 600, 607 (1989)

(observing that “Congress could not have chosen stronger

words” than “‘shall order’ the forfeiture” to “express its intent

that forfeiture be mandatory”); Anderson v. Yungkau, 329 U.S.

482, 485 (1947) (“The word ‘shall’ is ordinarily ‘the language

of command.””) (quoting Escoe v. Zerbst, 295 U.S. 490, 493

(1935)).

Applied here, these precedents and the common-sense

reasoning behind them support the Sixth Circuit’s decision.

The National Legislature’s unyielding language could not

have been more straightforward. The statute required the

Commissioner to make initial assignments by October 1, 1993,

plain and simple. Nor was the “shall” directive in the Act

without consequence. The Act explicitly provides a funding

mechanism for miners and their dependents not covered by

these initial assignments, which includes authority to impose

“unassigned” beneficiary premiums on coal operators. A two-

stage funding mechanism makes little sense if the initial

funding determination never ends.

Against this backdrop, petitioners’ three grounds for

reading “shall” in § 9706(a) as an exhortation rather than a

command are more wishful than real. Their first

argument—that the Sixth Circuit lacked jurisdiction even to

decide Dixie Fuel in 1999 (see U.S. Pet. 12, n.8 and Trustee

Pet. 19-20)—s the least persuasive of all. Even aside from

the fact that the Commissioner chose not to seek review of

Dixie Fuel on this ground or any other, the Sixth Circuit’s

reaffirmance of Dixie Fuel in this case by itself defeats the

point.

Petitioners next rely (U.S. Pet. 16, Trustee Pet. 21-23) on

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

Montalvo-Murillo, 495 U.S. 711 (1990), United States v.

James Daniel Good Real Prop., 510 U.S. 43 (1993), and

Regions Hosp. v. Shalala, 522 U.S. 448 (1998), to support

their claim. But this argument fares no better.

Regions Hospital, as an initial matter, did not involve a

deadline at all. Unlike other parts of the Medicare Act, the

applicable provision was “silent on the matter of time,” id. at

459, leading Regions Hospital sensibly to hold that the

Secretary of Health and Human Services could correct prior

miscalculations after the fact. Jd.

Nor do Brock, Montalvo-Murillo ot James Daniel involve

efforts to read “shall” in a non-mandatory way. The core issue

in each of those cases was how to determine “the

consequences of a failure to” comply with a statutory deadline

when the statute fails to suggest what that consequence should

be. See, e.g., Brock, 476 U.S. at 259. In Montalvo-Murillo,

for example, the Court considered whether the government’s

failure to complete a detention hearing on a person’s “first

appearance” before a judicial officer “requires the release” of

the suspect. /d., 495 U.S. at 717. Because Congress provided

no statutory consequence for failing to meet the deadline, the

Court refused to “invent a remedy” outside of the statutory

scheme. /d. at 721. James Daniel followed the same path in

the context of a civil forfeiture statute, reasoning that where

“Congress [fails] to specify a consequence for

noncompliance,” the Court would not infer a remedy of

dismissal. 510 U.S. at 64-65.

Brock comes to the same conclusion. At issue was the

Comprehensive Employment and Training Act, which

empowered the Secretary of Labor to investigate complaints

and audits regarding the alleged misuse of CETA funds, and

which provided that the Secretary “‘shall’ determine ‘the truth

of the allegation or belief involved, not later than 120 days

after receiving the complaint.”” Brock, 476 U.S. at 256. The

Statute, however, did not identify any consequences for the

9

Secretary’s failure to meet that 120-day deadline. /d. at 259.

Under these circumstances, Brock refused to hold that the

inability to meet the 120-day deadline meant that the agency

should “lose . . . enforcement power” altogether, creating an

enforcement vacuum. /d. at 266.

Yet no such vacuum and no such set of statutory

inferences exist here. Contrary to the Commissioner’s claim

(Pet. 17) that the Coal Act fails to establish any “consequence”

for unmade assignments, the Act’s two-stage assignment

scheme is tailored precisely to handle that contingency. It

places those beneficiaries whom the Commissioner fails to

assign by October 1, 1993 into the unassigned miner pool; it

does not provide that these beneficiaries must wait to go into

the unassigned pool until the Commissioner decides—one,

two, even five, years later—to make further assignments. A

similar conclusion follows from the specific funding

mechanisms established by the Coal Act for this group of

unassigned beneficiaries. The Act separately funds these

health-care benefits by (1) transfers from the overfunded 1950

UMWA Pension Plan; (2) transfers of interest from the corpus

of the Abandoned Mine Land Trust (“ ”); and, if

necessary, (3) “unassigned” beneficiary premiums collected

from all assigned operators on a pro rata basis. 26 U.S.C.

§§ 9704 and 9705.

In this statutory context, petitioners’ reliance or rock,

James Daniel Good, Montalvo-Murillo and Regions Hoxpital

ultimately gives analogy a bad name. The Coal Act’s explicit

“shall” directive, together with its provisions for funding

benefits for miners that are not included in these initial

assignments, represents a far cry from the statutes at issue in

Lastly, these same congressionally-enacted funding

mechanisms undermine petitioners’ concerns (U.S. Pet. 18-19,

Trustee Pet. 16-17) about the solvency of the AML fund and

the payment obligations of “other, private parties.” If

10

Congress did not want interest from the AML fund to be used

to pay for the health-care benefits of unassigned miners, it

would not have created a statute that mandated it, much less

made this funding mechanism a prominent source of revenue.

And as for “private parties”? One of them is the Bellaire

Group itself, which stands prepared to pay its full pro rata

share for benefits that must be provided to this group of

miners and their dependents.

Not one of petitioners’ three arguments, then, shows that

the Sixth Circuit erred. At the same time, moreover, neither

petitioner offers any tenable explanation why Congress would

establish an October 1, 1993 deadline if the deadline were in

the end utterly meaningless. Less than two months ago, the

Court reaffirmed the time-respected canon against such

constructions: “a statute ought, upon the whole, to be so

construed that, if it can be prevented, no clause, sentence, or

word shall be superfluous, void, or insignificant.” TRW Inc.

v. Andrews, 122 S.Ct. 441, 449 (2001) (quoting Duncan v.

Walker, 121 S.Ct. 2120, 2125 (2001)). Yet the petitioners’

reading would render “by October 1, 1993" purposeless and

irrelevant. Their a fails on this independent

ground as well.

B. The Structure Of The Coal Act Supports

The Sixth Circuit’s Interpretation.

Nor can petitioners’ collective effort to read the

October 1, 1993 deadline out of the Coal Act be justified by

the Act as a whole. The structure and organization of the Act

turn on a series of express deadlines and key dates. As even

a cursory reading of the Act reveals, these deadlines are

anything but casual:

— Coal Act beneficiaries are limited to miners and

dependents already enrolled in and receiving

benefits from the 1950 or 1974 United Mine

Workers Association benefit plans “as of July 20,

1992.” 26 U.S.C. § 9703(e).

11

— The 1950 and 1974 UMWA benefit plans had to

provide, “where ascertainable from plan records, the

names of all persons described in subsection (a) with

respect to any eligible beneficiary or deceased

eligible beneficiary” no later than October |, 1992 or

the 20th day after the enactment date. 26 U.S.C.

§ 9706(c).

— The Trustees of the new benefit plan had to be

designated “as soon as practicable (but not later than

60 days) after the enactment date.” 26 U.S.C.

§ 9702(a\ 1).

— The Trustees “shall, not later than 60 days after the

enactment date, furnish to the Commissioner of

Social Security information as to the benefits and

covered beneficiaries under the fund, and such other

information as the [Commissioner] may require to

compute any premium under this section.” 26

U.S.C. § 9704(h).

— The 1950 and 1974 UMWA benefit plans had to

merge by February 1, 1993. 26 U.S.C. § 9702(a){2).

— The Combined Fund became the source of all

benefits as of February |, 1993. 26 U.S.C.

§§ 9703(b)(4) and (c)(1).

And as to this dispute, the following deadlines are

inextricably bound up with the requirement that final

assignments be made by October |, 1993:

— The first “plan year” runs from February |, 1993 to

September 30, 1993. 26 U.S.C. § 9702(c).

— Coal operators’ premiums for unassigned

beneficiaries are calculated as of the October |, 1993

deadline. 26 U.S.C. § 9704(f).

12

— The first premiums are due on October 25, 1993—

three weeks after the assignment deadline. 26

U.S.C. § 9704(g).

From beginning to end, the Coal Act is a comprehensive

The Act relies on specific and pre-identified dates designed to

establish stability where there once had been chaotic plan

administratic...

C. Petitioner’s Predecessor Agreed.

One last merits point deserves a brief rebuttal. In addition

to the above arguments, the Commissioner relies (Pet. nn. 5,

6, 7, 19 and 20) on legislative history from committee and

an initial matter, such “history” is unreliable at best, as post-

enactment views generally ““form a hazardous basis for

inferring the intent’ behind a statute.” Monsanto, 491 U.S. at

610 (quoting United States v. Price, 361 U.S. 304, 313

(1960)).

But even if one does consider post-enactment —

commentaries or the financial analysis offered by hindsight,

that view fails the Commissioner as well. In one

post-enactment committee hearing, for example, Petitioner’s

predecessor, Acting Commissioner Lawrence H. Thompson,

acknowledged that he was on a deadline in making his initial

assignments:

I am also happy to report that we are making good

progress and fully expect to meet the statutory due date

for carrying out our assigned tasks under the Act.

Provisions Relating to the Health Benefits of Retired Coal

Miners: Hearing on Serial 103-59 Before the House

Committee on Ways and Means, 103rd Cong., September 9,

1993 (Committee Print 1994) at 21-26 (emphasis added). That

same day—just 21 days before October 1, 1993—NMr.

13

Thompson concluded with an express description of what

would become the lower court’s position here:

In conclusion, I want to stress that SSA is working hard

to fulfill its responsibilities under the Coal Act. I am

pleased to report that SSA is making excellent progress

with the assignment process. To date we have completed

about 40 percent of the assignments. We fully expect that

we will meet our statutory responsibility to calculate the

amount of the health benefit premium due for each

beneficiary and complete the assignment process by

October 1, 1993.

Id. at 26 (emphasis added). And two years later, Mr.

Thompson returned to Congress as Principal Deputy

Commissioner to report success: “SSA completed the process

of making the inital assignment decisions by October 1, 1993,

as required by law.” Coal Industry Retiree Health Benefit Act

of 1992: Hearing on Serial 104-67 Before the Subcomm. On

Oversight of the House Comm. On Ways and Means, \04th

Cong. 22-23 (1995). Of course, this testimony only reflected

the Commissioner’s actual practice; he stopped making

assignments in October 1993, and this litigation was not

triggered until the new Commissioner unexpectedly resumed

making original assignments in June 1995.

What was true when the Commissioner testified in 1993,

however, remains true now. The straightforward words of the

provision allow but one conclusion: The Coal Act’s explicit

October 1, 1993 deadline is in design (“shall”) and in effect

(see prior views of the Commissioner) mandatory. Even if

error correction were a traditional ground for seeking review

in this Court, which it is not, no interpretive errors occurred

here.

14

CONCLUSION

The petition should be denied.

R fully submitted

JEFFREY S. SUTTON

Counsel of Record

BRIAN G. SELDEN

JONES, DAY, REAVIS & POGUE

1900 Huntington Center

41 South High Street

Columbus, Ohio 43215

(614) 469-3855

THOMAS A. SMOCK

MICHAEL D. GLASS

PoLiTo & SMOCK, P.C.

Four Gateway Center

Suite 400

444 Liberty Avenue

Pittsburgh, Pennsylvania 15222

(412) 394-3333

Counsel for Respondents Bellaire

Corporation, NACCO Industries,

Inc. and the North American Coal

Corporation