# Opposition Brief — Barnhart v. Peabody Coal Co.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0523%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2003
- **Citation:** 537 U.S. 149

## Text

| Supreme Court, U 5 |
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oe one - | DEC iv 2001 |
No. 01-7157)
“ae

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

EE 11

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

vi
ON ie ieee dels ibeetete wads 11
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0523%3A03. Public record. Not legal advice.