Petitioners Brief — Barnhart v. Peabody Coal Co.

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No. 01-705, 01-715 Gepreme Cou, US.

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In the Supreme Court of the United StatesPR 8 20k

OFFICE OF THE. CLERK

Jo ANNE B. BARNHART, Commissioner of Social Security, © ~~~

Petitioner,

V.

PEABODY COAL COMPANY, et al.

MICHAEL H. HOLLAND, ef al., as Trustees of the United

Mine Workers of America Combined Benefit Fund,

/ Petitioners,

V.

BELLAIRE CORPORATION, ef ai.

On Writs of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF FOR PETITIONERS THE TRUSTEES OF THE

UMWA COMBINED BENEFIT FUND

JOHN R. MOONEY PETER BUSCEMI

ELIZABETH A. SAINDON Counsel of Record

MOONEY, GREEN, BAKER, & ANNE BRAFFORD

SAINDON, P.C. MORGAN, LEWIS &

1920 L Street, N.W., Suite 400 BOCKIUS LLP

Washington, D.C. 20036 1111 Pennsylvania Avenue, N.W.

(202) 783-0010 Washington, D.C. 20036

DAVID W. ALLEN (202) 739-5190

JONATHAN SOKOLOW

Office of the General Counsel

UMWA HEALTH &

RETIREMENT FUNDS

2121 K Street, N.W.

Washington, D.C. 20037

(202) 521-2220

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

® Ee 60

whee

a at ~

-

QUESTION PRESENTED

In the Coal Industry Retiree Health Benefit Act of

1992, 26 U.S.C. §§ 9701-9722 and 30 U.S.C. § 1232(h),

Congress directed the Social Security Administration to

assign each of the retired coal miners and their dependents

who are beneficiaries of the United Mine Workers of

America Combined Benefit Fund to a specific coal operator

or related company in accordance with the statutory criteria

set forth in Section 9706. The Act provided that the

beneficiary assignments “shall” be made before October 1,

1993. SSA completed most, but not all, of the initial

assignments by that date.

The question presented is whether SSA retained

authority to make initial assignments of Combined Fund

beneficiaries after September 30, 1993.

PARTIES TO THE PROCEEDINGS

In addition to the parties named in the caption, the

following persons were parties in the court of appeals: Larry

G. Massanari, Acting Commissioner of Social Security;

William P. Hobgood, Marty D. Hudson, Thomas O.S. Rand,

Elliot A. Segal, Carl E. Van Horn, and Gail R. Wilensky, as

Trustees of the United Mine Workers of America Combined

Benefit Fund; and Eastern Associated Coal Company,

NACCO Industries, Inc., and North American Coal

Corporation.

TABLE OF CONTENTS

Page

LL i

PARTIES TO THE PROCEEDINGS .............cccccccccecceeeeeeees il

TL a Vv

LT l

Te 2

STATUTORY PROVISIONS INVOLVED ............ccccccc00000- 2

gg) CE 2

I. HISTORY OF THE COAL ACT o0.0......cccccccccccececeeees 5

ll. STRUCTURE OF THE COAL ACT ....0......0cc0000. 10

A. Eligibility For Benefits And Liability

Eee 10

B. The Coal Act’s Timetable And Interim

ee 11

C. Funding Benefits For “Orphans””................. 13

D. Obstacles to SSA’s Assignment

ee 15

Ill. PROCEEDINGS BELOW .....0........cccccccccccceees 16

SUMMARY OF THE ARGUMENT ...............cccccccccceeeeeeee 19

ED 23

I. THE DECISIONS BELOW CONFLICT

WITH THIS COURT’S PRECEDENTS

REGARDING THE EFFECT OF A

GOVERNMENT AGENCY’S NON-

COMPLIANCE WITH A STATUTORY

IIs salirhansintninnemenieenitdtieaniitaricieniatiaetanntainatmietnansanenen 23

ill

Il.

Il.

IV.

NOTHING IN THE COAL ACT REFLECTS

A CONGRESSIONAL INTENT THAT SSA

LOSE JURISDICTION TO MAKE INITIAL

ASSIGNMENTS ON OCTOBER 1, 1993

AND THAT BENEFICIARIES NOT YET

ASSIGNED ON THAT DATE BE

DESIGNATED AS FOREVER

UNASSIGNED. ...........c00:000seeeeeeeeeeeneneeeneenennnnenns

OTHER INDICIA OF CONGRESSIONAL

INTENT CONFIRM THAT SSA RETAINED

AUTHORITY TO MAKE ORIGINAL

ASSIGNMENTS AFTER THE

STATUTORY DATE .........-::::ccsssesseseesneenenenennnens

DEFERENCE IS DUE TO _ SSA’S

INTERPRETATION OF “UNASSIGNED

BENEFICIARIES” TO INCLUDE ONLY

COMBINED FUND ORPHANS ...........::-2:20:0+008

... 30

CONCLUSION. .........:-:cccsescceesseereesseessennersnnnsesnenennnsannannnees 50

iv

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Yungkau,

ania cee 27

Association of Bituminous Contractors, Inc. v.

Apfel, 156 F.3d 1246 (D.C. Cir. 1998)... 48

Barnhart v. Sigmon Coal Co., Inc.,

534U.S. __, 122 S. Ct. 941 (2002) 0.00... passim

Bellaire Corp. v. Shalala,

995 F. Supp. 125 (D.D.C. 1997) 000.00... ccccceeeeeeeeees 3,4

Brock v. Pierce County,

EE Re passim

Brotherhood of Ry. Carmen Div., Transp.

Communications Intern. Union v. Pena,

GO PDS FOR GAL, Cae. 19DG) nncecccececscccccsecescovcsesecess 27

Brown v. Duchesne,

ee a ccierirtirectshieniiinisicinpeentiaintiiniriailaaatiie 26

Brown v. Gardner,

I ee 34,36,41

Chevron v. Natural Resources Defense Council,

gg 31,48

Comm 'r of Internal Revenue v. Lundy,

er 36

Davis v. Michigan Dep't of Treasury,

EIT cinescninicieencesineniesiiiipiintebiinessenenamenes 31

Department of Commerce v. United Staies House

of Representatives, 525 U.S. 316 (1999)................ 5-6

Dixie Fuel Co. v. Commissioner of Social Security,

171 F.3d 1052 (6th Cir. 1999) 000... ecco passim

Dixie Fuel Co. v. Callahan,

Civ. No. 97-373 (E.D. Ky. Jan. 7, 1999)................. 18

Eastern Enterprises v. Apfel,

ee TIE ccrnciniedinensiinncnieionemsniscinnsatin passim

Edelman v. Lynchburg College,

122 S. Ct. 1245 (2002) ...........sccsccrroserrereerresesrerssnees 34

Edwards v. Aguillard,

4B2 U.S. $78 (1987) ......00cccccrcsssscrcoscresscreeersessessees 6,33

Fort Worth Nat'l Corp. v. FSLIC,

469 F.2d 47 (Sth Cir. 1972)........ccccccceeeeeeereeeseneneneees 26

French v. Edwards,

80 U.S. (13 Wall.) 506 (1871)..........ccccceceeeeeneees 25,26

General Motors Corp. v. United States,

496 U.S. $30 (1990) .....0cecrccsrcsscscoresseeeceeesessessess 25,37

Gottlieb v. Pena,

41 F.3d 730 (D.C. Cir. 1994) ..........ccccceeeeeeeeeeeens 27,37

Hendrickson v. FDIC,

113 F.3d 98 (7th Cir. 1997)........cccccccccceeseeeneneennnees 26

Hewitt v. Helms,

459 U.S. 460 (1963) .....000c0cccecvcessceccsssevessseeesesessesess 27

Holland v. Pardee Coal Co., Inc.,

269 F.3d 424 (4th Cir. 2001), cert. pending,

No. 01-1366 (docketed Mar. 18, 2002)............ passim

Idaho Farm Bureau Fed'n v. Babbitt,

58 F.3d 1392 (9th Cir. 1996) ..........cccccccceeeeeeereeeeenees 26

In re Blue Diamond Coal Co. (Blue Diamond Coal

Co. v. Shalala), 79 F.3d 516 (6th Cir. 1996),

cert. denied, 519 U.S. 1055 (1997) .........ccceeeeeeeeeeees 5

In re Siggers,

132 F.3d 333 (6th Cir. 1997).........:cccccceeeeeeeneneens 25,26

Kelso v. United States Dep't of State,

13 F. Supp. 2d 12 (D.D.C. 1998) ..........ccecceeereeeneees 24

King v. St. Vincent's Hosp.,

$02 U.S. 215 (1991) ......ccercccscccscsesseecrsccersrssscosssoess 32

Kinion v. United States,

8 F.3d 639 (8th Cir. 1993)..........ccccccceeeeeeeeeeeneeeenenens 26

Lindsey Coal Mining Co. v. Chater,

90 F.3d 688 (3d Cir. 1996) ...........cccccceceeeeeeenenenenenneees 5

Marshall Durbin Food Corp. v. I.C.C.,

FIP FBG DES (RBG Ce, 19GB) .oceccccccccscccecccccevsccececes 27

McNary v. Haitian Refugee Center, Inc.,

ERENT 27

NationsBank of N.C. v. Variable Annuity

Life Ins. Co., 513 U.S. 251 (1995) ....ccccccccccceecseeeeees 48

Oy v. United States,

Gl F.3d 966 (Ped. Cir. 1995)..........c.cceccecseccoccceserseees 32

Pension Benefit Guaranty Corp. v. LTV Corp.,

ESSERE Ee CD 48

Regions Hospital v. Shalala,

__ REE ER eer a 25,30

Shell Oil Co. v. lowa Dep't of Revenue,

EE ea 32

Societe Nationale Industrielle Aerospatiale v. United

States Dist. Court,482 U.S. 522 (1987)......ccccccc000- 27

Southwestern Pa. Growth Alliance v. Browner,

121 F.3d 106 (3d Cir. 1997) .00.0.....ccccccescecceseseeeseeees 26

St. Regis Mohawk Tribe v. Brock,

769 F.2d 37 (2d Cir. 1985), cert. denied,

oe Ce 30

Twin Pines Coal Co. v. United States Dep't of Labor,

854 F.2d 1212 (10th Cir. 1988) 0.0.0... ccceccesceeeeeeeee 26

United States v. Boccanfuso,

882 F.2d 666 (2d Cir. 1989) .00.0.....cccccccsceseeseeeeseeeees 26

United States v. General Motors Corp.,

876 F.2d 1060 (Ist Cir. 1989) oo... ecccccceeseseeseeeees 26

United States v. James Daniel Good Real Property,

STC ee passim

United States v. Mead Corp.,

| mee 48

United States v. Monsanto,

TA a TED 27

United States v. Mosstal\vo-Murillo,

| Ee 19,25,45

Vii

United States v. Nashville, C. & L. Ry. Co.,

118 U.S. 120 (1886) .......:...cssssorosrscerrcsrsssrersssers 20,26

Unity Real Estate Co. v. Holland,

178 F.3d 649 (3d Cir. 1999), cert. denied,

$28 U.S. 963 (1999) .......ccscccoscsrssessserrsesssesresssessessees 5

University of Texas v. Camenisch,

451 U.S. 390 (1981) ......:cccccssssscerserrerseeensseesseesserens 18

Young v. United States,

535 U.S. _, 122 S. Ct. 1036 (2002) ......seccercereeereees 27

STATUTES

11 Fed. Reg. 5593 (1946).........::ccscsscssesereneesnscseeseerssnenneneenes 6

20 C.F.R. §§ 422.601-607 ........ccccccseeseeeessessesseeenesensenseeneneees 38

20 C.F.R. § 422.606(f) ......:cccccccsereesersrseseessrsnsersenereesnesnennens 38

20 C.F.R. § 422.607 ......cccccscsssssssersssesssessserssnenessanessnssennenns 38

26 U.S.C. § 97ON ......ccceccerssssssssssrssrceesersssssssssssssessnsonres passim

26 U.S.C. § 9702 .......ccscscssssssrssesseseessrsesssssssssssoesnsenes 3,12,36

26 U.S.C. § 9703 .....csccecssrsscsrcscssvsessecsersessrssrssssnsssssnsooses 10,12

26 U.S.C. § 9704 .....cecsorsersscsccsccsscessessosenssesersessssssssooees passim

26 U.S.C. § 97OS ......ceccscccsrsssssessersersssnssesssesssensesenssenses passim

26 U.S.C. § 970 .......ccsccssssescrsseeesessssssssssessressssrssenssnss passim

28 U.S.C. § 1254 .......scccscssssssssssserseseessnsssessssssszessessssnssnsenennes 2

28 U.S.C. § 1292 ....sccccscsssssssrssserserssssrssesssssessesssssrsnnsenenss 18

29 U.S.C. § 1002(1).....:ccccscrserecseseserseseeesssnssneneseessesseneesnenney 3

FO U.S.C. § 1232 ....cccecsscsccsscsorsosccsorsecscsessessesssssossvssosees passim

Coal Industry Retiree Health Benefit Act of 1992,

26 U.S.C. §§ 9701 - 9722......cccccereeseereeereeensenes passim

Employee Retirement Income Security Act of 1974,

29 U.S.C. § 1002 ......scecccsscsssrserssrresnesssssssessrssessenennes 3

Energy Policy Act of 1992,

Pub. L. No. 102-486, 106 Stat. 2776, 3036-56 ....... 10

Labor Management Relations Act,

29 U.S.C. § 186 ....ceccrcsrcsrcsrcsscsorsesersessssrssrsssssrsssssseres 3

Surface Mining Control and Reclamation Act of 1977,

30 U.S.C. §§ 1231-1233 ........ssscerrerreeersseeseresseseeees 13

Vill

Supplemental Appropriations Act of 1993,

Pub. L. No. 103-50, 1993 U.S.C.C.A.N

REESE AS Te 15,44

OTHER AUTHORITIES

138 Cong. Rec. 5,325-35 (1992) .oooccccccccccssseseeccsrecceseeceeveeees 9

138 Cong. Rec. 20,118 (1992) ....cccccccccccsceseseseeeeeeee, 43,44,45

138 Cong. Rec. 20,120 (1992) .....ccccccccccscsssesseseseeseereees 11,44

138 Cong. Rec. 34,001-04 (1992) oooccccccccccseeseeeeeees passim

HOUSE COMMITTEE ON WAYS AND MEANS, 103D CONG.,

Ist SESS., FINANCING UMWA COAL MINER

“ORPHAN RETIREE” HEALTH BENEFITS (Comm.

a ee passim

CONGRESSIONAL RESEARCH SERVICE REPORT FOR

CONGRESS, 102D CONG, 2D SEss., COAL

INDUSTRY: USE OF ABANDONED MINE

RECLAMATION FUND MONIES FoR UMWA

“ORPHAN RETIREE” HEALTH BENEFITS,

reprinted in 138 Cong. Rec. 34,004-11 (1992) passim

THE SECRETARY OF LABOR’S ADVISORY COMMISSION ON

UNITED MINE WORKERS OF AMERICA RETIREE

HEALTH BENEFITS, COAL COMMISSION REPORT: A

REPORT TO THE SECRETARY OF LABOR AND THE

AMERICAN PEOPLE (1990) .........cccccccceseeseseeseeees passim

NORMAN J. SINGER, SUTHERLAND ON STATUTES AND

STATUTORY CONSTRUCTION

Fs Se ertteciictrnnnicersemnenicnssctntentecsensaencias 25-26, 32

ix

Jn the Supreme Court of the United States

No. 01-705

JO ANNE B. BARNHART, Commissioner of Social Security,

Petitioner,

V.

PEABODY COAL COMPANY, et al.

No. 01-715

MICHAEL H. HOLLAND, ef al., as Trustees of the United

Mine Workers of America Combined Benefit Fund,

Petitioners,

V.

BELLAIRE CORPORATION, et al.

On Writs of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF FOR PETITIONERS THE TRUSTEES OF THE

UMWA COMBINED BENEFIT FUND

OPINIONS BELOW

The opinions of the court of appeals (01-705 Pet.

App. la-4a) are not officially reported. The opinion and

order of the district court in Bellaire (id. at 14a—25a) are not

reported. The order of the district court in Peabody (id. at

7a~—8a) is not reported.

JURISDICTION

The judgments of the court of appeals were entered

on June 21, 2001 in Peabody and June 22, 2001 in Bellaire.

On September 10, 2001, Justice Stevens extended the time

within which the Trustees could file a petition for a writ of

certiorari in Bellaire to and including October 22, 2001. On

September 12, 2001, Justice Stevens extended the time

within which the Commissioner could file a petition for a

writ of certiorari to and including October 19, 2001 in

Peabody and October 20, 2001 in Bellaire. On October 10,

2001 Justice Stevens further extended the Commissioner’s

time for petitioning to and including November 18, 2001 in

Peabody and November 19, 2001 in Bellaire. On October

15, 2001, Justice Stevens further extended the Trustees’ time

for petitioning in Bellaire to and including November 19,

2001. The Commissioner’s petition in the two cases, and the

Trustees’ petition in Bellaire, were filed on November 19,

2001 (a Monday). The petitions were granted and the cases

consolidated on January 22, 2002. This Court’s jurisdiction

rests on 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

This case concerns the Coal Industry Retiree Health

Benefit Act of 1992 (the “Coal Act”), 26 U.S.C. §§ 9701-

9722 and.30 U.S.C. § 1232(h), which is reproduced in 01-

715 Pet. App. 16a-5 1a.

STATEMENT OF THE CASE

The Coal Act established a statutory system for

providing retiree health benefits to more than 100,000

beneficiaries, including retired coal miners represented by the

United Mine Workers of America (“UMWA”) and their

survivors and dependents. Petitioners in No. 01-715 are the

Trustees of the United Mine Workers of America Combined

Benefit Fund (“Combined Fund”), which is one of two

statutory trust funds created under the Coal Act. See 26

2

U.S.C. § 9702(a). The Combined Fund is a multiemployer

employee welfare benefit plan within the meaning of the

Employee Retirement Income Security Act of 1974

(“ERISA”), 29 U.S.C. § 1002(1), (37), and an employee trust

fund within the meaning of the Labor Management Relations

Act, 29 U.S.C. § 186(c)(5).

Section 9706(a) of the Coal Act provides that the

Social Security Administration (“SSA”), using a statutory set

of priorities, “shall, before October 1, 1993” assign each

Combined Fund beneficiary to a specific coal operator that

had signed a “coal wage agreement” (or to a “related person”

of such a signatory). 26 U.S.C. § 9706(a). SSA assigned

certain Combined Fund beneficiaries to respondent Bellaire

Corporation (“Bellaire”), and as a result Bellaire became

liable to pay annual health care premiums to the Combined

Fund to finance the health care of the assigned beneficiaries.

26 U.S.C. § 9704(a). Respondents NACCO Industries, Inc.

and North American Coal Corp., two companies that are

“related” to Bellaire under the statutory definition in 26

U.S.C. § 9701(c)(2)(A), are jointly and severally liable for

Bellaire’s premiums. See 26 U.S.C. § 9704(a).

Almost immediately after enactment of the Coal Act,

Bellaire challenged the constitutionality of the statute as

applied to Bellaire and its related persons. Bellaire Corp. v.

Shalala, 995 F. Supp. 125 (D.D.C. 1997) (complaint filed

Jan. 29, 1993). Bellaire argued that Congress committed an

unconstitutional taking or acted arbitrarily and irrationally in

violation of due process by requiring it to pay annual

premiums to finance health benefits for Bellaire’s former

employees and their eligible dependents.

Before enactment of the Coal Act, Bellaire’s

participation in the collectively bargained UMWA

multiemployer health care system spanned at least four

decades. During this period, Bellaire was a signatory to,

among other agreements, the National Bituminous Coal

3

Wage Agreements of 1974, 1978, 1981, and 1984. /d. at

130. Each of these collective bargaining agreements,

discussed in more detail below, explicitly referred to lifetime

retiree health benefits and the retention of a health services

card until death. Moreover, beginning in 1978, each

NBCWA obligated signatory coal operators to continue

making contributions to the relevant trust funds for as long as

the NBCWAs required, regardless of whether the operators

actually signed any subsequent NBCWA. Id. at 128.

Bellaire nevertheless ceased contributions to the UMWA

trust funds and discontinued its individual employer health

plan. /d. at 131. Bellaire thus left its post-1975 retirees to

receive health coverage from a multiemployer system to

which Bellaire no longer contributed.

Having participated in creating coal miners’

legitimate expectations of lifetime health benefits and in

bringing about the funding crisis that afflicted the UMWA

Funds before enactment of the Coal Act, Bellaire was in a

poor position to challenge the validity of Congress’s

remedial legislation. Bellaire’s constitutional attack failed,

and it sought no further review.

Now, in this action, Bellaire seeks to reduce

substantially its liability under the Coal Act. It argues that

SSA lacked authority to make any initial assignments of

Combined Fund beneficiaries after September 30, 1993, and

that, therefore, SSA’s assignments of 270 Combined Fund

beneficiaries to Bellaire after that date were automatically

invalid. Relying on the court of appeals’ prior ruling in Dixie

1/ Some coal operators executed so-called “me too” agreements

with the UMWA in which they agreed to abide by the terms of the

NBCWA. Bellaire, 995 F. Supp. 128 n.2. Bellaire was a “me too”

signatory to the 1981 and 1984 NBCWAs and signed two extension

agreements that obligated it to provide health benefits to its own retirees

until January 20, 1990. /d. at 130.

Fuel Co. v. Commissioner of Social Security, 171 F.3d 1052

(6th Cir. 1999), the district court ruled in Bellaire’s favor and

entered final judgment on this count of the complaint. 01-

715 Pet. App. 3a-Il4a. SSA and the Trustees of the

Combined Fund, recognizing that Dixie Fuel would bind a

Subsequent panel in the Sixth Circuit, asked the court of

appeals to hear their appeal en banc. The court of appeals

denied the request, and a subsequent panel affirmed the

district court’s decision on the basis of Dixie Fuel. Id. at la —

2a, 1 Sa.

I. HISTORY OF THE COAL ACT

The history of the events leading to enactment of the

Coal Act has been reviewed at length by various courts,

including this Court. Barnhart v. Sigmon Coal Co., Inc., 534

U.S. __, 122 S. Ct. 941, 946-48 (2002); Eastern Enterprises

v. Apfel, 524 U.S. 498, 504-11 (1998) (plurality opinion);?

Holland v. Pardee Coal Co., 269 F.3d 424, 427-29 (4th Cir.

2001), cert. pending, No. 01-1366 (docketed Mar. 18, 2002);

Unity Real Estate Co. v. Holland, 178 F.3d 649, 653-54 (3d

Cir.), cert. denied, 528 U.S. 963 (1999); In re Blue Diamond

Coal Co. (Blue Diamond Coal Co. vy. Shalala), 79 F.3d 516

(6" Cir. 1996), cert. denied, 519 U.S. 1055 (1997): Lindsey

Coal Mining Co. v. Chater, 90 F.3d 688 (3d Cir. 1996); see

also Report of the Secretary of Labor's Advisory

Commission on United Mine Workers of America Retiree

Health Benefits (Nov. 5, 1990) (“Coal Comm'n Report’).

Accordingly, we summarize here only briefly the relevant

factual background and the essential features of the Coal Act

related to Bellaire’s liability.”

2/ Unless otherwise indicated, subsequent citations to Eastern refer

to the plurality opinion.

3/ See Department of Commerce v. United States House of

Representatives, 525 U.S. 316, 335 (1999) (understanding Act's

5

The coal industry and health care for retired coal

miners have been subject to extensive government

intervention and regulation for more than 50 years. In 1946,

a breakdown in negotiations between the UMWA and coal

companies about medical services for miners prompted a

nationwide strike. Eastern, 524 U.S. at 504-05. The federal

government declared a national emergency, seized the

nation’s coal mines, and conducted its own negotiations with

the UMWA in an effort to resolve the dispute. /d.; 11 Fed.

Reg. 5593 (1946). The negotiations produced the historic

Krug-Lewis Agreement between the federal government and

the UMWA that ended the strike and created the UMWA

Health and Retirement Funds.* Since then, retiree health

benefits have been provided through a _ series of

multiemployer health plan trust funds (the “UMWA Plans”)

that have been developed through successive collective

bargaining agreements known as National Bituminous Coal

Wage Agreements (“NBCWAs”). Coal Comm'n Report at

20-29; Eastern, 524 U.S. at 505-11. The UMWA and the

Bituminous Coal Operators’ Association, Inc. (“BCOA”)

have negotiated these agreements since 1951. /d. at 506.

Beginning in 1947, the NBCWAs provided for the

funding of health benefits for retirees through levies assessed

against the coal operators and paid into the UMWA Plans on

the basis of the amount of coal mined or the number of

covered hours worked. Eastern, 524 U.S. at 505; Pardee,

269 F.3d at 427. By their nature as multiemployer trusts, the

UMWA Plans continued to provide benefits to eligible

retirees even if the retirees’ former employers went out of

historical background “is essential to a proper interpretation of the Act's

present text”); Edwards v. Aguillard, 482 U.S. 578, 595 (1987) (Court

considers historical context and the specific sequence of events leading to

statute’s enactment).

4/ Eastern, 524 U.S. at 505; Coal Comm'n Report at 5-20.

;

business or otherwise stopped paying into the Plans. Pardee,

269 F.3d at 427; Eastern, £24 U.S. at 511. The participating

coal operators that remained financed the benefits of these

so-called “orphan” retirees.* The 1974 NBCWA referred

expressly to retiree health benefits and provided that retired

miners would retain a health services card until their death.

The provision of lifetime health benefits and the extension of

benefits for surviving spouses combined with various other

circumstances, including the retirement of a generation of

miners and rapid escalation of health care costs, to create

financial problems for the UMWA Plans. /d. at 509-10;

Pardee, 269 F.3d at 427-28. To protect the Plans’ solvency,

the 1978 NBCWA included a “guarantee” clause obligating

Signatories to make sufficient contributions to maintain

benefits during the term of the agreement. Eastern, 524 U.S.

at 510-11. The 1978 agreement also introduced the so-called

“evergreen” clause, which required signatories to continue

contributing to the UMWA Plans as long as they remained in

the coal business, regardless of whether they signed a

subsequent NBCWA. /d. at 509-10; Bellaire, 995 F. Supp. at

128. ‘

Despite the 1978 changes, by the late 1980s, the

UMWA Plans were in financial trouble. Eastern, 524 U.S. at

511. As health care costs increased, coal operators exited the

coal industry in increasing numbers and “dumped” their

retirees into the UMWA Plans, where their benefits would be

funded by those operators still mining coal.* As the number

S/ Pardee, 269 F.3d at 427; Sigmon, 122 S. Ct. at 947 n.4 (“term

‘orphan retirees’ encompassed both ‘true orphans,’ whose former

employers were no longer in business and ‘reachback orphans’ whose

former employers were still in business but no longer signatories to a coal

wage agreement”).

6/ Eastern, 524 US. at 510-11; Coal Comm'n Report at 75

(statement of Vice Chairman Perritt) (employers have been allowed to

:

of coal operators contributing to the UMWA Plans dwindled,

fewer and fewer operators remained to carry the burden of

rapidly rising health care costs, not only for their own retirees

but also for thousands of retirees with whom none of the

remaining contributing operators had ever had any

employment relationship” As a result, the continued

viability of the UMWA multiemployer health care system

was Cast into serious doubt.

This funding crisis for orphan retirees culminated in

1989, when the UMWA led a ten-month strike against the

Pittston Coal Company, a major coal producer that refused to

sign the 1988 NBCWA. Eastern, 524 U.S. at 511; Pardee,

269 F.3d at 428. The dispute was not resolved until

Secretary of Labor Dole intervened. As part of the

settlement, the Secretary established the Coal Commission to

study the retiree health care crisis and to recommend “a

solution for ensuring the orphan retirees in the [UMWA

Plans] will continue to receive promised medical care.” Coal

Comm'n Report at 2; Pardee, 269 F.3d at 428. The Coal

Commission observed that coal miners had, in their labor

negotiations, “traded lower pensions over the years for better

health care benefits,” and thus were entitled to received the

promised benefits. Coal Comm'n Report, Exec. Summary at

vii; Eastern, 524 U.S. at 511-12. On November 5, 1990, the -

dump their retiree health benefit obligations on the existing health care

funds and to evade contribution obligations).

7/ See Eastern, 524 U.S. at 510-11; HOUSE COMMITTEE ON WAYS

AND MEANS, 103D CONG., 1ST SESS., FINANCING UMWA COAL MINERS

“ORPHAN RETIREE” HEALTH BENEFITS (Comm. Print 1993) [hereinafter

“Financing Orphan Retirees") at 25 (BCOA employers complained that

for every $1 they paid into the Fund for their own retirees, they were

paying an additional $3 for other companies’ retirees); Coal Comm'n

Report, Exec. Summary at vii (“Signatory coal operators who are still in

the coal business are willing to pay the fair cost of their retirees, but are

increasingly unwilling to shoulder the burden of paying for orphans”).

Coal Commission issued its Report recommending that “a

Statutory obligation to contribute to the plans should be

imposed on current and former signatories to the

[NBCWAs].” Coal Comm'n Report, Exec. Summary at vii.

Recognizing that health benefits for more than

100,000 beneficiaries were in jeopardy and that many of the

beneficiaries were retired miners and dependents whose

former employers were no longer in business, Congress

undertook its own intensive examination of the crisis.® In

March 1992, Congress passed an earlier version of the Coal

Act, which funded health care for orphan retirees through a

controversial industry-wide tax on future coal production.2

This version was passed as part of more extensive tax

legislation, which President Bush vetoed. Sigmon, 122 S. Ct.

at 948 n.6. The expiration of the 1988 NBCWA, scheduled

for February 1993, loomed on the horizon, and members of

Congress continued to push for legislation.“

After much negotiation, the final version of the bill

provided that only companies that were signatory to one or

more coal wage agreements would be required to help

8/ Sigmon, 122 S. Ct. at 947; Financing Orphan Retirees at 25.

9/ Eastern, 524 U.S. at 513; see 138 Cong. Rec. 5,325-35 (1992)

(Senate debate on industry-wide tax to finance orphan health care).

10/ Sigmon, 122 S. Ct. at 948 n.6; 138 Cong. Rec. 5,333 (1992)

(remarks of Sen. Rockefeller) (crisis created by approaching expiration of

the 1988 agreement which threatened to leave thousands of orphan

retirees with no benefits); id. at 34,005 (reproducing submission by

Senator Wallop, CONGRESSIONAL RESEARCH SERVICE REPORT FOR

CONGRESS, 102D CONG., 2D SEss., COAL INDUSTRY: USE OF

ABANDONED MINE RECLAMATION FUND MONIES FOR UMWA “ORPHAN

RETIREE” HEALTH BENEFITS (1992) [hereinafter “CRS Report”) (coal

industry faced imminent time deadline to find solution for funding orphan

retirees because 1988 Agreement was scheduled to expire and failure to

resolve the issue could have led to a strike by miners or refusal by coal

companies to fund benefits).

finance retiree health care for the beneficiaries of the UMWA

Plans. Sigmon, 122 S. Ct. at 948 n.6. The Coal Act in its

final form was enacted on October 24, 1992, as part of the

Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat.

2776, 3036-56. The statute placed a strong emphasis on

“identifying the former signatory employer of each

beneficiary.” Financing Orphan Retirees at 51. Within the

Coal Act itself, Congress explicitly found that:

it is necessary to modify the private health care

benefit plan structure for retirees in the coal industry

to identify persons most responsible for plan

liabilities in order to stabilize plan funding and allow

for the provision of health care benefits to such

retirees.

26 U.S.C. § 9701 (historical note). Congress further stated

(id.) that the policy of the Coal Act was:

to remedy problems with the provision and funding of

health care benefits with respect to the beneficiaries

of multiemployer benefit plans that provide health

care benefits to retirees in the coal industry . . . [and]

to provide for the continuation of a privately financed

self-sufficient program for the delivery of health care

benefits to the beneficiaries of such plans.

Il. STRUCTURE OF THF COAL ACT

A. Eligibility For Benefits And Liability

Structure

Persons are eligible for benefits from the Combined

Fund if, as of July 20, 1992, they were eligible to receive,

and were receiving, benefits from either of the two then-

existing collectively bargained UMWA health care plans—

the UMWA 1950 Benefit Plan and the UMWA 1974 Benefit

Plan. 26 U.S.C. § 9703(f). The beneficiary population of the

Combined Fund is thus closed, and the number of

beneficiaries will gradually decline. Financing Orphan

10

Retirees at 66. Indeed, during the current Combined Fund

plan year, the number of remaining beneficiaries is only

around half of the approximately 108,000 with which the

Combined Fund began operations in February 1993.

To finance the Combined Fund, Congress

apportioned liability to coal operators on a “pay for your

own” basis. Pardee, 269 F.3d at 428.” This principle is

codified at Section 9706(a) of the Coal Act, which directs

SSA to assign Combined Fund beneficiaries to signatory

operators (and “related persons” of such operators) according

to a statutorily prescribed system of priorities. 26 U.S.C. §

9706(a). Under this funding system, coal operators, like

Bellaire, that previously had agreed to contribute to the

UMWA Plans pursuant to the terms of their collective

bargaining agreements are required to pay for the care of

their own former employees and their dependents. This

liability scheme reflects Congress’ determination that all coal

operators, including Bellaire, that had employed the retirees

in question, “and thereby benefited from their services,

[should] be assigned responsibility for providing the health

care benefits promised in their various collective bargaining

agreements.” 138 Cong. Rec. 34,001 (1992).

B. The Coal Act’s Timetable And Interim

Funding Scheme

Congress outlined a timetable for implementing the

Coal Act’s funding scheme. It directed that the UMWA

1950 Benefit Plan and the UMWA 1974 Benefit Plan be

merged into the Combined Fund as of February 1, 1993 (the

Ll/ See also 138 Cong. Rec. 20,120 (1992) (remarks of Senator

Ford) (Coal Act “close[s] the new orphan fund” and “allocate[s] costs

according to the principle that those most responsible should bear the

greatest portion of costs”); id. at 34,001 (proposed Senate Conference

Report) (Coal Act is “designed to allocate the greatest number of

beneficiaries in the Plans to a prior responsible operator”).

11

termination date of the 1988 NBCWA). 26 U.S.C. §

9702(a)(2). The Combined Fund began at that time to

provide health and death benefits to surviving coal industry

retirees and their dependents. 26 U.S.C. § 9703(b)(4).

Under the statute, the Combined Fund’s first “plan year” was

the eight-month period from February | to September 30,

1993. 26 US.C. § 9702(c). Each succeeding plan year

begins on October 1 and ends on the following September

30. Id.

Congress provided an interim funding mechanism for

the Combined Fund’s first plan year, while SSA performed

the daunting task of assigning each of the Combined Fund’s

beneficiaries to a specific former employer or related person.

Under Sections 9704(i) and 9705(a) of the statute, benefits

for the first plan year were to be funded through a

combination of $70 million transfer from the UMWA 1950

Pension Plan and interim contributions from the 1988

NBCWA signatories apportioned on the basis of the amounts

of their payments to the 1950 and 1974 Benefit Plans during

the term of the 1988 agreement. Once the actual health care

premiums for the Combined Fund's first and second plan

years were determined and assessed, the 1988 agreement

operators were then entitled to a credit against those

premiums in the amount of their interim contributions during

the first plan year. See 26 U.S.C. § 9704(i)(D)(i); see also

138 Cong. Rec. 34,002-03 (1992) (explaining establishment

of Combined Fund and financing of benefits). Under the

Coal Act’s scheme, the interim funding period was to end

with the beginning of the Combined Fund’s second plan year

on October 1, 1993, and health care premiums for the first

and second plan years were to be assessed and paid during

the second plan year. See 26 U.S.C. § 9704(g)(1).

In Section 9706(a), Congress directed SSA to assign

Combined Fund beneficiaries to specific former employers

“before October 1, 1993.” Congress anticipated that the

12

Combined Fund could then use those beneficiary

assignments as a basis for assessing premiums—-for the

Combined Fund’s first and second plan years—to assigned

operators. Pardee, 269 F.3d at 428; 138 Cong. Rec. 34,003

(1992). The statutory schedule thus reflected Congress’ goal

of having a new benefits system in place by the time of the

termination of the 1988 NBCWA on February 1, 1993, and

the impossibility of completing the beneficiary assignment

process between the Coal Act’s October 24, 1992 enactment

date and ihe date in February 1993 when the Combined Fund

would need to begin providing benefits.

Cc. Funding Benefits For “Orphans”

Critical to the Coal Act’s funding scheme was

Congress’ adoption of a method of providing for “orphan”

beneficiaries in the Combined Fund (i.e., Combined Fund

beneficiaries whose former employers are no longer in

business and who could not be assigned under the criteria in

Section 9706 of the Coal Act). To help alleviate the

financial burden of health care for such beneficiaries whom

none of the assigned operators ever employed, Congress

authorized transfers of substantial sums to the Combined

Fund from the UMWA 1950 Pension Plan and from the

Abandoned Mine Reclamation Fund (the “AML Fund”)

established under the Surface Mining Control and

Reclamation Act of 1977. 26 U.S.C. § 9705(a), (b); 30

U.S.C. § 1232(h).” Congress provided that, on the first day

12/ See 138 Cong. Rec. 34,001 (1992) (proposed Senate Conference

Report) (“if no operator remains in business under the formulation [in

Section 9706(a)], that retiree becomes an unassigned beneficiary”).

13/138 Cong. Rec. 34,001 (1992) (subsidy for unassigned

beneficiaries is “a key component of legislative compromise” and is

provided in recognition that such beneficiaries were not employed by the

assigned operators); id. at 34,004 (CRS Report) (evaluating proposal to

transfer interest on AML Fund to “help finance UMWA orphan retiree

health benefits”).

13

of each of the Combined Fund’s first three plan years, a $70

million transfer would be made from the UMWA 1950

Pension Plan to the Combined Fund. 26 U.S.C. § 9705(a).

These funds, totaling $210 million, would be used in large

part to defray the cost of health care for unassigned

beneficiaries. 26 U.S.C. § 9705(a)(3)(B); 138 Cong Rec.

34,003 (1992) (explaining transfers). Thereafter, for

Combined Fund plan years beginning on and after October 1,

1995, Congress provided for annual transfers to the

Combined Fund from the AML Fund. 26 U.S.C. § 9705(b);

30 U.S.C. § 1232(h). These transfers, which are limited by

the amount of annual interest earned by the AML Fund or

$70 million (whichever is greater), can be used only to defray

the expense cf providing health benefits to unassigned

beneficiaries, and the amount transferred cannot exceed the

amount necessary to cover these expenses. 30 U.S.C. §

1232(h)(2) & (3).

If the transfers described in the preceding paragraph

prove insufficient to cover the orphan retirees, the Coal Act

provides for the assessment of an annual unassigned

beneficiaries premium against all assigned operators. 26

U.S.C. § 9704(d). The unassigned beneficiaries premiums

for a given plan year are to be allocated among signatory

operators on the basis of their pro rata share of the

beneficiaries that have been assigned for that year. /d. Thus,

the more beneficiaries an operator is assigned, the greater its

share of the total unassigned beneficiaries premiums.” To

date, the transfers have proven sufficient, and assigned coal

operators have paid no premiums for unassigned

beneficiaries. Pardee, 269 F.3d at 429.

14/ Financing Orphan Retirees at 69 (company’s contributions for

unassigned orphans will be in direct proportion to the number of its

assigned beneficiaries; thus, companies with largest dollar responsibility

will bear largest dollar responsibility for orphan retirees).

14

D. Obstacles To SSA’s Assignment Process

Once the Coal Act became law, SSA was charged

with the massive responsibility of implementing Section

9706(a)’s assignment criteria, which required identifying and

locating former employers for more than 100,000

beneficiaries, and unraveling the corporate relationships

between employers and potentially related companies.

Despite the magnitude of the task, no funds were

appropriated for SSA to commence its assignment work until

July 13, 19931” This was less than 80 days before October

1, 1993, the date by which SSA was to have assigned

Combined Fund beneficiaries to the appropriate former

employers. In early September 1993, the House Committee

on Ways and Means was aware that SSA would not complete

the initial assignments by October 1, 1993:

SSA anticipated that checking the [employment]

records would be very time consuming . . . Linking an

individual’s work history to a specific employer will

. . . Fequire searching through microfilm records and

entering the information by hand into the computer

system. Preliminary estimates by the SSA suggest

that it would take approximately 150 work years just

to retrieve the microfilm records. This does not

include the additional work involved in determining

the assignment to an employer. On a routine basis,

15/ Financing Orphan Retirees at 64-65 (most Combined Fund

beneficiaries retired before 1976, social security records were not

computerized prior to 1978, and SSA does not maintain information

needed to track the interrelationships among companies to identify

“related persons”); J.A. 179-84 (Decl. of Richard Harron, Dir. of Div.

Coverage and Support, SSA) (describing difficulty of assignment process

and SSA’s effort to complete it on time).

16/Supplemental Appropriations Act of 1993, H.R. 2118, Pub. L.

No. 103-50, Ch V, 139 Cong. Rec. D. 765.

15

SSA has 140 technicians specially trained to work

with the microfilm records, which are difficult to

decipher. Extra resources would be needed to

complete the assignments by the October 1, 1993

target date.

Financing Orphan Retirees at 64-65 (emphasis supplied).

Congress provided no extra resources to expedite the initial

assignment process. There is no indication, however, that

Congress bel‘eved that any initial assignments of Combined

Fund beneficiaries made on or after October 1, 1993 would

be automatically void or that the liability scheme envisioned

in the Coal Act would be substantially altered by treating as

“unassigned” thousands of beneficiaries who properly could

be assigned according to the statutory criteria.

Because of Congress’ delayed funding and SSA's

limited resources, approximately 10,000 initial assignments

of Combined Fund beneficiaries were made on or after

October 1, 1993. At the time of the proceedings in the

district court, these assignments accounted for approximately

$112 million in premiums that had been assessed to the 247

operators who received such assignments. 01-715 Pet. App.

52a-54a. The Combined Fund had collected approximately

$105 million of this amount, an amount that presumably

would need to be refunded if all assignments made on or

after October 1, 1993 were void. Jd.

Ill. PROCEEDINGS BELOW

In June 1999, Bellaire filed a six-count complaint

against SSA, challenging the assignment of Combined Fund

beneficiaries on various grounds. Among Bellaire’s claims

was its contention that, under the Coal Act, the 270

beneficiaries that SSA initially assigned to Bellaire on or

after October 1, 1993 were improperly assigned and that

those beneficiaries instead should be permanently

unassigned. J.A. 83-85. According to Bellaire, Section

9706(a)’s statement that SSA “shall” make assignments

16

—

“before October 1, 1993” established a jurisdictional deadline

by which SSA was required to make initial beneficiary

assignments to signatory operators.

Bellaire’s argument was based on the Sixth Circuit’s

earlier decision in Dixie Fuel. The Sixth Circuit there held

that SSA had no continuing power to make initial

assignments of Combined Fund beneficiaries to signatory

operators on or after October 1, 1993. The court reasoned

that the word “shall” in Section 9706(a) unambiguously

expressed Congress’ intent that SSA complete all initial

assignments before October 1, 1993, and that the Coal Act’s

entire scheme for assigning beneficiaries and financing the

Combined Fund confirmed this interpretation. 171 F.3d at

1062-63.

On April 5, 2000, Bellaire moved for preliminary and

permanent injunctive relief, partial summary judgment, and

for the entry of final judgment on its Dixie Fuel claim.”

Based entirely on Dixie Fuel, the district court entered

judgment in favor of Bellaire. 01-705 Pet. App. 12a-13a. It

directed the Trustees to provide Bellaire with a credit in the

amount of the total premiums previously paid for the 270

beneficiaries at issue. Jd. The court of appeals affirmed in

reliance on Dixie Fuel. Id. at 3a-4a (Dixie Fuel “controls

until and unless ‘an inconsistent decision of the United States

Supreme Court requires modification of the decision or [the

Sixth Circuit] sitting en banc overrules the prior decision.””).

Dixie Fuel, the court’s sole basis for ruling in favor of

Bellaire, is dubious precedent. The ruling in Dixie Fuel had

17/The April 5, 2000 motion was filed only against SSA, because

the district court had not yet granted the Trustees’ motion to intervene as

party-defendants, a motion that Bellaire opposed. After the district court

granted the Trustees’ motion to intervene, Bellaire filed a motion against

the Trustees that was in all other material respects identical to the one

filed against SSA on April 5, 2000.

17

no practical effect on the parties in that case, and indeed, it

appears clear that the court of appeals lacked jurisdiction to

render its decision. The case came to the court of appeals

under 28 U.S.C. § 1292 (a)(1), on plaintiff's appeal from the

district court’s denial of its motion for a preliminary

injunction. By the time the court of appeals heard the case,

however, the preliminary injunction motion had become

moot. This Court had decided Eastern in June 1998, and, on

the basis of that decision, SSA notified Dixie Fuel that all of

its beneficiary assignments were void (for reasons having

nothing to do with the date on which the assignments were

made). Accordingly, Dixie Fuel’s preliminary injunction

motion—and the appeal from the denial of that motion—

were moot, because neither the government nor the

Combined Fund was seeking to collect any premiums from

Dixie Fuel or otherwise to impose any Coal Act obligations

against the company. As a consequence, Dixie Fuel was not

- threatened with any harm, irreparable or otherwise, during

the pendency of the litigation. Under these circumstances,

the court of appeals’ appellate jurisdiction under Section

1292(a)(1) was nonexistent. University of Texas v.

Camenisch, 451 U.S. 390 (1981).

Moreover, before the court of appeals decided the

case, Dixie Fuel moved for, and the district court granted,

final judgment for Dixie Fuel as a matter of law, as a result of

Eastern and the consequent voiding of Dixie Fuel’s

beneficiary assignments. Dixie Fuel Co. v. Callahan, No.

97-373 (E.D. Ky. Jar:. 7, 1999). SSA, the only defendant in

the case, did not appeal. Thus, the entire case had been

concluded for some time, when in late March 1999, the court

of appeals decided the appeal from the denial of a

preliminary injunction. By that time, not only had the

preliminary injunction motion become moot, but the entire

case was over, and there was no case or controversy left for

the Sixth Circuit to decide. Though the court’s decision has

generated extensive litigation, with a huge potential impact

18

on the Combined Fund and the Coal Act’s allocation of

liability, it had no effect whatever on Dixie Fuel itself, whose

assignments already had been voided and which therefore

had no Coal Act liability.

SUMMARY OF THE ARGUMENT

As the Fourth Circuit correctly concluded in Pardee,

269 F.3d at 438, “[t]o excuse the financial obligations of coal

operators, where liability is both identifiable and identified,

would frustrate the text, purpose, and legislative history of

the [Coal] Act.” Yet that is precisely the result Bellaire seeks

here, in attempting to jettison responsibility for the 270

Combined Fund beneficiaries at issue. Bellaire does not

dispute that it is the signatory operator to which these

beneficiaries should have been assigned under the Coal Act’s

criteria. | Nonetheless, because the beneficiaries were

assigned to Bellaire after September 30, 1993, and because

they had not previously been assigned to any other operator,

Bellaire seeks a windfall of several million dollars. Because

SSA did not act quickly enough, Bellaire maintains that it

should be permanently relieved of responsibility for the

beneficiaries in question and that the cost of financing their

health care should be shifted either to the AML Fund or to

the entire group of assigned operators, all of whom have

either no employment connection to these beneficiaries or a

lesser connection than Bellaire. Bellaire’s position cannot be

reconciled with prior authority from this Court.

This Court has ruled that even when a statutory date

is paired with mandatory language such as the word “shall,”

a government agency will not “in the ordinary course” be

divested of power to act after a statutory date. United States

v. James Daniel Good Real Property, 510 U.S. 43, 63

(1993); United States v. Montalvo-Murillo, 495 U.S. 711,

717 (1990); Brock v. Pierce County, 476 U.S. 253, 260-66

(1986). The presumption in favor of agency retention of the

authority to act, repeatedly applied by the Court, is based on

19

the public policy tha: the public interest should not be

prejudiced by the failings of government officials. United

States v. Nashville, C. & St. L. Ry. Co., 118 U.S. 120, 125

(1886). Dixie Fuel virtually ignored this line of precedent,

and acted instead as if the question of SSA’s authority to

make initial assignments of Combined Fund beneficiaries

after September 30, 1993 was resolved by the statutory

declaration that assignments “shall” be made before October

1, 1993. To the contrary, however, the statutory date only

raises, but does not answer, that question.

Congress’ use of the mandatory word “shall” in the

Coal Act does not depart from “the ordinary course,” nor

does any other provision of the Coal Act indicate that the

statutory date is jurisdictional rather than directory. The

important issue is not whether the word “shall” is used, but

whether Congress has specified in the statute what should

happen if the government fails to comply with the prescribed

date. Nowhere in the Coal Act did Congress state or suggest

that, if SSA could not complete beneficiary assignments by

October 1, 1993, Congress wanted SSA to terminate the

initial assignment process and deposit the remaining retirees

and dependents into the category of unassigned beneficiaries.

The plain purpose of the October 1, 1993 date was to spur

SSA to make the assignments promptly so that the Combined

Fund could assess health care premiums at the beginning of

its second plan year and thus secure a steady flow of monthly

premium payments after the conclusion of the statutory

interim funding arrangements for the first plan year. That in

no way implies that Congress wanted to relieve employers of

financial responsibility for former employees that SSA was

unable to assign until after October 1, 1993.

There is no sensible reason why Congress would

intend such a result. The ruling below and in Dixie Fuel

undercuts Congress’ carefully crafted liability structure.

Treating thousands of eligible retirees and dependents as

20

s ay

—

unassigned solely because the assignments were not

completed by October 1, 1993, would shift liability from

former employers and related persons, such as Bellaire, who

have the most proximate connection to the Combined Fund

beneficiaries, to less responsible assigned operators, most (if

not all) of which had no employment connection at all with

the beneficiaries. Congress could not have intended its

framework to be so disrupted simply because SSA was

unable to complete the assignment process before October 1,

1993.

Nor can such disruption be justified by any alleged

need to permanently fix assignments by October 1, 1993 for

the liability scheme to work properly. It is undisputed (and

acknowledged in Dixie Fuel) that, under the Coal Act,

beneficiary assignments made before October 1, 1993 and

later determined to be incorrect could be rescinded and the

beneficiaries involved reassigned to other employers. See

Dixie Fuel, 171 F.3d at 1061, 1064; 26 US.C.

§ 9706(f)(3)(ii). Accordingly, the entire issue here could

have been avoided if SSA, on September 30, 1993, simply

had assigned at random all not-yet-assigned beneficiaries to

some particular coal company. These assignments then

could have been reviewed at a later date and the appropriate

corrections could have been made. But, because SSA

(having no reason to believe that the statute would be

interpreted as it has been by the Sixth Circuit) did not employ.

such a strategy, the court of appeals would forever bar SSA

from assigning the beneficiaries at issue to the proper

operators.

This peculiar result perhaps would be more tolerable

if there were any indication that Congress intended the

October 1, 1993 date to confer rights on the signatory

operators. Nothing in the Coal Act, however, suggests that

Congress was concerned with protecting any interest in

repose or certainty on the part of the signatory operators, and

21

thus adopted some sort of across-the-board amnesty for

health care premiums for beneficiaries not assigned before

October 1, 1993. There is not a hint in the proceedings

below or in Dixie Fuel that any assigned operator is even

remotely prejudiced by the date of the assignments at issue.

Here, for example, there is no dispute that the beneficiaries

should have been assigned to Bellaire under the criteria in

Section 9706(a). If SSA had made the assignments before

October 1, 1993, Bellaire would have been asked to pay the

exact same amount that it is being asked to pay today. The

only reason why Bellaire has been absolved of liability is that

SSA made its determination “too late.” Nothing in the text

of the Coal Act suggests that this is the result Congress

intended.

Under this Court’s well-established canon of statutory

construction, the absence of any clearly expressed

consequence of SSA’s non-compliance compels the

conclusion that Congress did not intend for SSA to forfeit its

authority to make initial assignments after September 30,

1993. Even if it were necessary to continue beyond an

analysis of the statutory text, however, other indicia of

congressional intent foreclose any suggestion that Congress

intended Section 9706’s date to be jurisdictional. The Coal

Act’s legislative history, purpose, and historical context

demonstrate that the unassigned beneficiary designation was

intended to be reserved for beneficiaries who were

unassignable under the statutory criteria, /.e., orphan retirees

and their dependents. Congress intended to keep the number

of unassigned beneficiaries to an absolute minimum, not to

increase that number by thousands because of administrative

delay.

Furthermore, voiding all initial assignments made on

or after October 1, 1993 would undermine Congress’ express

purpose of stabilizing funding of a private health care benefit

plan. If the Sixth Circuit’s approach were upheld, an

22

~~ ah ——

— ~~.

increased amount would be needed from the AML Fund to

help defray the health care expenses of the increased number

of unassigned beneficiaries. These funds then would not be

available for other public uses, such as to reclaim abandoned

mine lands, which was the original purpose for the AML

Fund.

If any ambiguity remains, the Court should defer to

SSA’s reasonable interpretation of the statute, which

expressly committed to the agency the Combined Fund

beneficiary assignment process. SSA reasonably interpreted

“unassigned beneficiaries” to include only those beneficiaries

for whom no signatory operator or related person could be

identified. Having received no instruction from Congress

that any unfinished assignment work should be discontinued

on October 1, 1993, SSA proceeded to make original

assignments after that date. This had the effect of placing

financial responsibility for the affected beneficiaries’ health

care exactly where Congress intended to place it. Because

SSA’s interpretation is consistent with the Coal Act, it should

be upheld, and original assignments made on or after October

1, 1993 should not be invalidated on the basis of their timing.

ARGUMENT

I. THE DECISIONS BELOW CONFLICT WITH

THIS COURT’S PRECEDENTS REGARDING

THE EFFECT OF A GOVERNMENT

AGENCY’S NON-COMPLIANCE WITH A

STATUTORY DATE.

The Sixth Circuit stripped SSA of the authority to

make initial beneficiary assignments under Section 9706(a)

solely because the agency was unable to complete the task

“before October 1, 1993.” The court considered itself bound

by Dixie Fuel, and simply adhered to the earlier decision,

without further analysis. Dixie Fuel, however, applied the

wrong analytical framework for determining the legal effect

23

of a government agency’s failure to meet a statutory date,

and this led to an erroneous interpretation of the Coal Act.

Congress directed in Section 9706(a) of the Coal Act

that SSA “shall, before October !, 1993” initially assign each

eligible beneficiary to a signatory operator or related person

that remains in business. 26 U.S.C. § 9706(a). According to

Dixie Fuel, this language, “plain on its face,” is “explicitly

mandatory.” 171 F.3d at 1061. If by this characterization the

Sixth Circuit meant that Congress wanted initial Combined

Fund beneficiary assignments to be made before October |,

1993, no one would quarrel. But the Sixth Circuit meant far

more. It assumed that its use of the label “mandatory”

resolved the question of whether SSA retained authority to

make initial assignments of Combined Fund beneficiaries

after September 30, 1993.18 That was error.

The Coal Act’s direction to act by a statutory date

merely raises, but does not answer, the question presented

here.” It does not determine whether SSA loses jurisdiction

to act if it has not completed its work on schedule. As this

Court held in Brock v. Pierce County, 476 U.S. 253, 262

(1986), “the mere use of the word ‘shall’ . . . standing alone,

is not enough to remove [the agency’s] power to act after”

the statutory date. Although Dixie Fuel gave Brock a

formalistic nod, see 171 F.3d at 1062, the court analyzed the

issue as if SSA were required to overcome a general

18/ See Kelso v. United States Dep't of State, 13 F. Supp. 2d 12, 14-

15 (D.D.C. 1998) (“The word ‘mandatory,’ though it sounds redoubtable

and impressive, is no more than a term of art with a precise legal

meaning; one that bears no resemblance to that advocated by the

Plaintiff.”).

19/ Kelso, 13 F. Supp. 2d at 14-15 (finding a word “mandatory” is

only part of the inquiry needed to determine whether and to what extent

to sanction agencies that fail to comply with a statutory deadline).

24

presumption against its power to act after September 30,

1993.

Such a presumption is the opposite of that applied by

this Court, which repeatedly has held that the use of

mandatory language such as “shall” does not, in the ordinary

course, divest a government agency of the power to act after

a statutory date. United States v. James Daniel Good Real

Property, 510 U.S. 43, 63 (1993) (unanimously holding that

if a statute “does not specify a consequence of

noncompliance with statutory timing provisions, the federal

courts will not in the ordinary course impose their own

coercive sanction”); see Regions Hosp. v. Shalala, 522 U.S.

448, 460 n.3 (1998) (“The Secretary’s failure to meet the

deadline, a not uncommon occurrence when heavy loads are

thrust on administrators, does not mean that official lacked

power to act beyond it.””); United States v. Montalvo-Murillo,

495 U.S. 711, 718 (1990) (“Although the duty is mandatory,

the sanction for breach is not loss of all later powers to act.”’);

General Motors Corp. v. United States, 496 U.S. 530, 542

(1990) (“In the absence of a specific provision suggesting

that Congress intended to create an enforcement bar [as the

consequence of a missed statutory date], we decline to infer

one.””); Brock, 476 U.S. at 260 (“We would be most reluctant

to conclude that every failure of an agency to observe a

procedural requirement voids subsequent action, especially

when important public rights are at stake.”’).

Congress will not be deemed to have departed from

the “ordinary course” unless it clearly says so by specifying a

consequence in the statute for non-compliance with the

timing provision, James Daniel Good, 510 U.S. at 63, or by

using negative words that prohibit the agency from acting in

any other manner or at any other time than that specified.*”

20/E.g., In re Siggers, 132 F.3d 333, 336 (6th Cir. 1997) (quoting

French v. Edwards, 80 U.S. (13 Wall.) 506, 511 (1871)); 3 NORMAN J.

25

Here, of course, the statute contains no such negative words.

The Coal Act does not say that SSA may not make

beneficiary assignments on or after October 1, 1993, and it

does not say that any assignments made on or after that date

are automatically invalid.

Thus, contrary to Dixie Fuel’s approach, the general

presumption in this context is against forfeiture of an

agency's power to act. This Court’s rulings on the point go

back more than a century,” and the principle has been

applied in a multitude of contexts by many federal courts of

appeals. Congress presumably was aware of this well-

SINGER, SUTHERLAND ON STATUTES AND STATUTORY CONSTRUCTION §

57:19 (6th ed. 2001) [hereinafter Statutory Construction] (the “absence of

negative words may be considered in support of directory construction”).

1/ United States v. Nashville, C. & St. L. Ry. Co., 118 U.S. 120,

125 (1886) (“It is settled beyond doubt or controversy, upon the

foundation of the great principle of public policy . . . which forbids that

the public interests should be prejudiced by the negligence of the officers

or agents to whose care they are confided . . . unless congress clearly

limitations}.”); French, 80 US. at 511; Brown v. Duchesne, 60 U.S. 183,

195 (1856) (“Neither will the court, in expounding a statute, give to it a

construction which would in any degree disarm the Government of a

power which has been confided to it to be used for the general good...

unless plain and express words indicated that such was the intention of

the Legislature.”).

22/ United States v. General Motors Corp., 876 F.2d 1060 (1st Cir.

1989) (Clean Air Act); United States v. Boccanfuso, 882 F.2d 666, 671

(2d Cir. 1989) (Clean Air Act); Southwestern Pa. Growth Alliance v.

Browner, 121 F.3d 106, 114 (3d Cir. 1997) (Clean Air Act); Pardee, 269

F.3d at 431 (Coal Act); Fort Worth Nat'l Corp. v. FSLIC, 469 F.2d 47, 58

(Sth Cir. 1972) (National Housing Act); In re Siggers, 132 F.3d 333, 336

(6th Cir. 1997) (habeas corpus); Hendrickson v. FDIC, 113 F.3d 98, 101

(7th Cir. 1997) (Federal Deposit Insurance Act); Kinion v. United States,

8 F.3d 639, 644 (8th Cir. 1993) (Agricultural Credit Act); Idaho Farm

Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1400 (9th Cir. 1995) (Endangered

Species Act); Twin Pines Coal Co. v. United States Dep't of Labor, 854

F.2d 1212, 1216 (10th Cir. 1988) (Federal Mine Safety and Health Act);

26

established canon of statutory construction and the applicable

case law when it enacted the Coal Act.”

Virtually ignoring the foregoing line of authority and

relying instead on United States v. Monsanto, 491 U.S. 600,

607 (1989), and like cases, Dixie Fuel attributed undue

weight to its determination that the word “shall” is

mandatory. 171 F.3d at 1061-62. Monsanto and other cases

cited by Dixie Fuel had nothing to do with the effect of a

government agency’s failure to meet a statutory date.”

Marshall Durbin Food Corp. v. LC.C., 959 F.2d 915, 919 (11th Cir.

1992) (Interstate Commerce Act); Brotherhood of Ry. Carmen Div.,

Transp. Communications Intern. Union v. Pena, 64 F.3d 702, 704 (D.C.

Cir. 1995) (Federal Railroad Administration regulations); Gottlieb v.

Pena, 41 F.3d 730, 734 (D.C. Cir. 1994) (Coast Guard Authorization

Act); Oy v. United States, 61 F.3d 866, 871 (Fed. Cir. 1995)

(Antidumping Act regulations).

23/ Gottlieb, 41 F.3d at 736 (“Congress is deemed to act with

knowledge” of James Daniel Good, Brock, etc.); Pardee, 269 F.2d at 433

(same); see McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 496

(1991) (“presumable that Congress legislates with knowledge of our basic

rules of statutory construction,” including a “well-established

presumption”); Young v. United States, 122 S. Ct. 1036, 1040 (2002)

(Congress must be presumed to draft limitations periods in light of

“hornbook law” that limitations periods are subject to equitable tolling).

24/ The cases cited in Dixie Fuel were decided in the following very

different contexts: United States v. Monsanto, 491 U.S. 600 (1989)

(criminal defendant who is convicted “shall” forfeit property related to

the crime); Societe Nationale Industrielle Aerospatiale v. United States

District Court, 482 U.S. 522, 534 & n.15 (1987) (Hague Evidence

Convention’s omission of mandatory language such as “shall” indicates

that treaty was not intended to provide exclusive and mandatory

for obtaining documents within foreign territory); Hewitt v.

Helms, 459 U.S. 460, 471-72 (1983) (use of mandatory terms like “shall”

in regulations for confining prison inmates to administrative segregation

created liberty interest protected by Due Process Clause); Anderson v.

Yungkau, 329 U.S. 482, 485-86 (1947) (a civil case “shall” be dismissed

against decedent under Fed. R. Civ. P. 25(a) if substitution not made

within two years).

27

Cases like James Daniel Good and Brock, by contrast,

specifically arose in the latter context. They acknowledge the

interpretive principles and public policy concerns that govern

when and under what circumstances time constraints can be

imposed on a qpvemnment agency’s power to complete its

delegated tasks. ;

In Brock, for exarnple, the Court considered whether

the Secretary of Labor lost the power to recover misused

funds from participants in a training program because he

failed to make timely final determinations under the

program’s authorizing statute. 476 U.S. at 253. The statute

provided that the Secretary “shall issue a final determination

as to the misuse of” such funds within 120 days. /d.

Notwithstanding the statute’s use of the term “shall,” the

Court held that the Secretary of Labor did not lose his power

to recover misused funds even if the requisite final

determination did not come until after the statutory date. /d.

at 264. The Court reasoned that the Secretary’s

responsibility to issue final determinations was a “substantial

task,” and that his ability to complete it within 120 days was

“subject to factors beyond his control.” Jd. at 259. Rejecting

the argument that the Secretary lacked authority to act, the

Court found it difficult “to believe that Congress intended

such drastic consequences to follow from the Secretary’s

failure to meet the 120-day deadline,” particularly since the

25/See James Daniel Good, 510 U.S. at 64 (“There is no

presumption or general rule that for every duty imposed upon the

government there must exist some corollary punitive sanctions for

departures or omissions, even if negligent.”); id. at 63 (“many statutory

requisitions intended for the guide of officers in the conduct of business

devolved upon them do not limit their power or render its exercise in

disregard of the requisitions ineffectual”) (citations and internal

quotations omitted); Brock, 476 U.S. at 260 (public policy forbids that the

negligence of government officers be permitted to prejudice the public

interest).

28

taxpaying public would be prejudiced by the Secretary’s

inability to recover the misused funds. /d. at 259-62.

Here, proper implementation of the Coal Act’s

beneficiary assignment system affects thousands of retirees

as well as hundreds of operators and former operators within

the coal industry, and SSA’s task of researching retirees’

work histories and assigning them to the most responsible

entities was enormous. Further, SSA’s ability to complete its

task in a timely manner was dependent on circumstances

over which the agency had no control. SSA could not begin

the assignment process until Congress provided funding on

July 13, 1993, and, once funded, SSA had to rely on the

cooperation of other entities to gather the information needed

to assign retirees in accordance with the statutory criteria.*”

In addition, as in Brock, conserving public funds—in

particular, the AML Fund monies earmarked for mine

reclamation activities—is in the public interest. Absent a

very clear expression of congressional intent to produce such

a result, SSA’s tardiness should not mean that public funds,

rather than Bellaire’s funds, are used to pay for the health

care of Bellaire’s retirees.

26/E.g., 26 U.S.C. § 9706 (d) (directing federal agencies to

“cooperate” with SSA in its effort to gather the information needed to

make assignments).

29

II. NOTHING IN THE COAL ACT REFLECTS A

CONGRESSIONAL INTENT THAT SSA LOSE

JURISDICTION TO MAKE INITIAL

ASSIGNMENTS ON OCTOBER 1, 1993 AND

THAT BENEFICIARIES NOT YET ASSIGNED

ON THAT DATE BE DESIGNATED AS

FOREVER UNASSIGNED.

The Coal Act makes clear that Congress wanted all

initial assignments of Combined Fund beneficiaries to be

made before October 1, 1993. 26 U.S.C. § 9706(a). The

statute also makes clear, however, that Congress wanted

Combined Fund beneficiaries to be assigned according to the

criteria set forth in Section 9706(a), and that Congress

wanted as many beneficiaries as possible to be assigned to

specific employers or related persons, so that the number of

unassigned beneficiaries could be kept to an absolute

minimum. Because in some cases SSA did not meet the

statutory date, Congress necessarily has been deprived of full

adherence to its intended schedule. But, like other federal

statutes, the Coal Act does not suggest that this departure

also should require a departure from Congress’s intended

substantive scheme. See, e.g., Regions Hospital, 522 U.S. at

459-60 (Congress would intend government agency to

“exercise . . . authority to effectuate the Legislature’s

overriding purpose” rather than perpetuate error due to

agency’s failure to act swiftly enough); St. Regis Mohawk

Tribe v. Brock, 769 F.2d 37, 41 (2d Cir. 1985), cert. denied,

27/E.g., U.S.C. § 9701 (historical note) (“it is necessary to. . .

identify persons most responsible for plan liabilities”); 138 Cong. Rec.

34,002 (1992) (“[T]he Conference Agreement’s overriding purpose is to

find and designate a specific obligor for as many beneficiaries in the

Plans as possible.”); id. at 34,003 (“The Conference Report’s purpose is

to assure that any beneficiary, once assigned, remains the responsibility

of a particular operator, and that the number of unassigned beneficiaries

is kept to an absolute minimum.”).

30

476 U.S. 1140 (1986) (statutory deadline not jurisdictional

because Clean Air Act sets up a “hierarchy of priorities” in

which goal of improving air quality takes precedence over

other goals).

As noted above, the Coal Act neither prohibits initial

assignments from being made on or after October 1, 1993,

nor does it say that any Combined Fund beneficiary not

assigned by October 1, 1993 shall be permanently classified

as “unassigned.” Pardee, 269 F.3d at 433. Read as a whole,

the Coal Act uses the term “unassigned” to refer only to

beneficiaries who are unassignable because SSA was unable

to identify an existing employer that satisfies Section 9706’s

criteria; there is no indication that the “unassigned”

designation should be applied merely because SSA had not

yet completed the initial assignment process. See Davis v.

Michigan Dep't of Treasury, 489 U.S. 803, 809 (1989) (“the

words of a statute must be read in their context and with a

view to their place in the overall statutory scheme”); Chevron

v. Natural Resources Defense Council, 467 U.S. 837 (1984)

(“the meaning of a word must be ascertained in the context of

achieving particular objectives”); cf. Sigmon, 122 S. Ct. at

948 (beneficiary is “unassigned” if “no existing company

falls within [Section 9706(a)’s] categories”).

Notwithstanding the foregoing, the Sixth Circuit in

Dixie Fuel ruled that the Coal Act specified a consequence

for SSA’s delay, because any beneficiary not assigned before

October 1, 1993 could be treated as an unassigned

beneficiary. 171 F.3d at 1063 (“The consequence flowing

from the failure of the Commissioner to make those

assignments before October 1, 1993, is clear from the plain

language of the statute: the eligible beneficiaries who were

not assigned are the unassigned beneficiaries.”). But this

approach simply assumes away the issue in this case.

Respondent in Brock could just as well have declared that, on

the 121st day, the Secretary of Labor’s determination had to

31

be final or there could be no enforcement action. See also Oy

v. United States, 61 F.3d at 872 (in rejecting claim that

revocation of anti-dumping finding is necessary consequence

of agency’s failure to meet statutory deadline, Federal Circuit

states that “this argument assumes the very argument urged

_ by” the importer).

Altogether missing from Dixie Fuel is any

consideration of whether the language of the Coal Act

indicates that Congress intended beneficiaries to be

designated “unassigned” as a “consequence” of SSA's

lateness (i.e., whether there is any apparent linkage between

unaengnes status and non-compliance with the statutory

date). ‘ The Coal Act, when read as a whole, shows that the

statutory provisions for financing the health care of

unassigned beneficiaries are intended to provide a safety net

for financing orphans’ benefits, not to sanction SSA for not

completing the assignment process fast enough or to provide

a windfall for responsible operators who did not receive their

assignments “in time.” It is clear from the structure of the

Coal Act’s remedial scheme and the nature of the practical

problem faced by Congress that the statutory date of October

1, 1993 was connected to the legislative need to have a new

system in place by the time of the termination of the 1988

NBCWA on February 1, 1993 and the impossibility of

completing the beneficiary assignment process contemplated

by Congress between the October 24, 1992 enactment date

28/ See Statutory Construction § 57:8 (“[t}he problem . . . is one of

determining whether the legislature intended to impose sanctions to

secure compliance, and if so, what sanctions were intended”).

29/ See King v. St. Vincent's Hosp., 502 U.S. 215, 221 (1991) (it is a

“cardinal rule that a statute is to be read as a whole”); Shell Oil Co. v.

lowa Dep't of Revenue, 488 U.S. 19, 26 (1988) (in expounding a statute,

Court is not guided by a single sentence or member of a sentence, but by

the provisions of the whole law, and its object and policy).

32

and the date in February 1993 when the Combined Fund

would need to begin providing benefits. The schedule

adopted by Congress was designed to protect retiree health

benefits and forestall labor unrest at the end of the term of the

1988 NBCWA.

It is not surprising, then, that Congress did not say,

either explicitly or implicitly, that beneficiaries not yet

assigned on October 1, 1993 must be left permanently

unassigned. Section 9706 does not use the term “unassigned

beneficiary” at all. Section 9704(d) provides for an

“unassigned beneficiaries premium,” but it does not purport

to define “unassigned beneficiary”:

The unassigned beneficiaries premium for any

plan year for any assigned operator shall be equal to

the applicable percentage of the product of the per

beneficiary premium for the plan year multiplied by

the number of eligible beneficiaries who are not

assigned under section 9706 to any person for such

plan year.

26 U.S.C. § 9704(a) (emphasis added). Section 9704(f)

defines the term “applicable percentage”:

(1) In general. The term “applicable percentage”

means, with respect to any assigned operator, the

percentage determined by dividing the number of

eligible beneficiaries assigned under section 9706 to

such operator by the total number of eligihie

beneficiaries assigned under section 9706 to all 2h

operators (determined on the basis of assignments as

of October 1, 1993).

30/See Edwards, 482 U.S. at 595 (historical context and sequence

of events leading to passage of the statute relevant to Statutory

construction).

33

26 U.S.C. § 9704(f)(1). The statute then provides for annual

adjustments in that percentage to take account of changes in

assignments as a result of administrative appeals or assigned

operators and their related persons ceasing to do business. 26

U.S.C. § 9704(f)(2). Read together, these provisions allocate

the unassigned beneficiaries premiums among signatory

operators on the basis of their pro rata share of the

beneficiaries that have been assigned. None of the

provisions, however, defines “unassigned beneficiary,” and

none suggests that beneficiaries not assigned before October

1, 1993 must be left permanently unassigned. In fact,

Section 9704(d)’s reference to beneficiaries who “are not

assigned under section 9706 to any person for such plan

year” and Section 9704(f)(1)’s calculation based on

assignments “as of October 1, 1993,” suggest that, even if

some assignments are made after October |, 1993, the

necessary calculation can be performed “as of” that date. At

a minimum, the statutory provisions are ambiguous and do

not foreclose SSA’s interpretation.*/

The definitional provisions in Section 9701 do not

change the situation. The terms “assigned beneficiary” and

“unassigned beneficiary” are not defined, and the term

“assigned operator” merely refers back to Section 9706. The

statutory definitions of “assigned operator,” “signatory

operator,” “related persons,” and “business” reflect the broad

coverage of the statute, and are thus consistent with the

announced congressional intent “to provide the greatest

31/See Edelman v. Lynchburg College, 122 S. Ct. 1145, 1154

(2002) (O’Connor, J., concurring) (where Title VII's definition section

does not define “charge,” and the statutory requirement that a “charge” be

verified is not framed as a definition, Congress cannot be said to have

unambiguously expressed its intent that a charge be verified when filed;

Chevron-deference is due to the agency’s interpretation); Brown v.

Gardner, 513 U.S. 115, 118 (1994) (“Ambiguity is a creature not of

definitional possibilities but of statutory context.”).

34

number of beneficiaries with health care benefits paid for by

a company which remains in business and was the retiree’s

signatory employer, or is Or was a person related to such

signatory.”

Contrary to this intent, under Dixie Fuel’s

interpretation, all signatory operators who otherwise would

be liable under the Coal Act, but did not receive assignments

before October 1, 1993, would not be classified as “assigned

operators” at all. They would escape all responsibility,

including responsibility for their own former employees as

well as their proportionate share of any unassigned

beneficiaries premium. Signatory operators who received at

least some assignments before October 1, 1993 would

become liable also for those beneficiaries for whom others

were more responsible under the statutory framework.

Operators who received all or nearly all of their assignments

before October 1, 1993 (perhaps because they conceded

liability or because their corporate structures and

employment relationships were more straightforward and

thus more readily susceptible to SSA’s investigation) would

bear the brunt of the impact. This would pervert the plan

adopted by Congress and would skew Coal Act liability

based on the ease and rapidity with which assignments were

made—factors very different from the employment

relationships with signatory operators that Congress sought

to stress.

For additional reasons as well, Dixie Fuel’s

conclusion that the Coal Act’s “entire statutory scheme for

assigning beneficiaries and financing the Combined Fund

reflects Congress’s intent that all assignments be completed

by October 1, 1993” cannot withstand scrutiny. 171 F.3d at

32/ 138 Cong. Rec. 34,002 (1992); see also id. at 34,001 (definitions

intended to be given “broad interpretation” to advance goal of assigning

retirees to companies that benefited from their services).

35

1062. Dixie Fuel’s reliance on the word “shall” is

undermined by the numerous appearances of the same word

in other timing provisions throughout the Coal Act. Usual

principles of statutory construction would require “shall” to

have the same meaning in each such provision. It simply

is implausible, however, that Congress would have intended

Dixie Fuel’s interpretation to apply, with the result that all

action under the Coal Act would come to a halt if any of the

prescribed dates » cr > missed. It cannot be, for example, that

if Combined Fund «rustees were not designated within 60

days of the statute’s enactment, then they could not be

designated at all, or if the required transfers from the 1950

Pension Plan to the Combined Fund were not made on the

specified dates, then they could not be made at all.

Nor can the outcome in Dixie Fuel be justified by the

court of appeals’ assertion that “the calculation of the

obligation of every assigned operator for payment of

unassigned beneficiary premiums is dependent upon the

completion of the assignment of beneficiaries by October 1,

1993.” 171 F.3d at 1063. This assertion hinged on the

erroneous assumption that, because the Coal Act contains a

33V/Eg, 26 US.C. § 9702(a1) (no later than 60 days after

enactment, trustees “shall” be designated); 26 U.S.C. § 9702(aX(2) (1950

and 1974 UMWA Benefit Plans “shall” be merged as of February |,

1993); 26 U.S.C. § 9704(h) (no later than 60 days after enactment date,

Combined Fund “shall” furnish information to SSA); 26 U.S.C. § 9705(a)

(transfers from 1950 UMWA Pension Plan “shall” be made by specified

dates); 26 U.S.C. § 9706(c) (by the later of October 24, 1992 or twentieth

day after the enactment date, the UMWA Benefit Plans “shall” provide

SSA with information); 26 U.S.C. § 9706(d)(2) (information “shall be

promptly transmitted” from other agencies to SSA).

34/ Comm 'r of Internal Revenue v. Lundy, 516 U.S. 235, 250 (1996)

(“the normal rule of statutory construction [is] that identical words used

in different parts of the same act are intended to have the same

meaning”); Brown, 513 U.S. at 118 (“a word is known by the company it

keeps”) (internal quotation and citation omitted).

36

detailed timetable for various events, the statutory date by

which SSA was to make Combined Fund beneficiary

assignments is necessarily jurisdictional. This Court,

however, already has rejected the argument that the existence

of such a timetable divests an agency of authority to act after

statutorily specified dates.

In General Motors Corp. v. United States, 496 U.S.

530 (1990), for example, an environmental protection statute

contained a statutory deadline and an integrated timetable

that reflected the urgency of establishing air-pollution

controls. /d. at 533, 536. The agency did not comply with

all of the timing provisions. Although the statute included an

integrated timetable, and compliance with the timetable

would have promoted the underlying objective of reducing

air pollution, this Court stated that “[iJn the absence of a

specific provision suggesting that Congress intended to

create an enforcement bar, we decline to infer one.” /d. at

542.

Here, not only is there no such specific provision in

the Coal Act, but there is also no good policy reason for

divesting SSA of the power to make assignments after the

statutory date.“ Nothing about the Coal Act’s system for

calculating health care premiums makes it essential that the

number of unassigned beneficiaries be determined once and

for all by September 30, 1993. The number of unassigned

beneficiaries has been changed on numerous occasions

throughout the history of the Combined Fund, and the statute

expressly contemplates that possibility. Section 9706(f) of

the Coal Act provides an administrative procedure through

which any assigned operator can challenge SSA’s assignment

35/See Gottlieb, 41 F.3d at 736 (even where Congress had

comparably strong reasons for placing time limitations on agencies, if

Congress failed to specify the consequence of a violation, Court refused

to create one of its own).

37

of beneficiaries. 26 U.S.C. § 9706(f); 20 C.F.R. §§ 422.601-

607. If, as a result of such a challenge, SSA determines that

one or more assignments were in error, those assignments are

rescinded, and SSA considers whether the beneficiaries can

be assigned to another operator. 20 C.F.R. § 422.606(f). If

SSA cannot identify any operator that fulfills the assignment

criteria of Section 9706(a) with respect to a particular

beneficiary, that beneficiary is treated as unassigned. See 26

U.S.C. § 9704(f)(2)(A); 20 C.F.R. § 422.606(f). Similarly, if

and when an assigned operator is no longer “in business”

within the meaning of the Coal Act and there are no related

persons in existence, the beneficiaries assigned to that

operator become unassigned for future years. 26 U.S.C. §

9704(f)(2)(B). In addition, SSA may reopen and revise an

assignment on its own initiative within one year of its notice

of assignment to the assigned operator. 20 C.F.R. § 422.607.

These scenarios have occurred with some frequency since

September 30, 1993, and as a consequence, the number of

unassigned beneficiaries has been adjusted annually.

The same sort of adjustment occurred after this

Court’s decision in Eastern, in which the Court declared the

Coal Act unconstitutional as applied to the petitioner in that

case. After Eastern, SSA reviewed the circumstances of all

assigned operators and, for those that SSA concluded were

similarly situated to Eastern, SSA declared the operators’

beneficiary assignments void. Some of these beneficiaries

could be reassigned, but many could not. Thus, Eastern,

which was not decided until the Combined Fund’s sixth plan

year, significantly increased the number of unassigned

beneficiaries, and it did so as of February 1, 1993, the date on

which the Combined Fund began providing benefits.

To deal with these many changes in beneficiary

assignments and the number of unassigned beneficiaries, the

Combined Fund uses an accounting method called “inception

billing,” which annually adjusts for the retroactive effect of

38

peat OO ee

changes in beneficiary assignments. Pardee, 269 F.3d at

434. Operators relieved of assignments receive credits or

refunds going back to the first plan year, and beneficiaries

that become unassigned as a result of successful challenges

to the assignments or court decisions increase the unassigned

beneficiary premium account under Section 9704(d) of the

Coal Act for all prior years. All operators prior premium

assessments are recalculated accordingly, and a consolidated

bill (including the adjusted version of all prior bills and

payments) is issued at the beginning of each new plan year.

Dixie Fuel is simply wrong, therefore, in asserting that the

Coal Act’s premium assessment and calculation system will

not work if the number of unassigned beneficiaries is not

determined once and for all by September 30, 1993. To the

contrary, as the Fourth Circuit recognized in Pardee, the

Coal Act explicitly contemplates annual readjustments of

operator liability based on changes in assignments, and these

adjustments cannot be reconciled with the static system

envisioned by Dixie Fuel. 269 F.3d at 434.

In addition, as the Fourth Circuit also recognized,

adoption of Dixie Fuel’s approach “would create irrational

distinctions in the SSA’s power to reevaluate its initial

assignments.” Pardee, 269 F.3d at 435. For example, if SSA

erroneously concluded before October 1, 1993 that a

beneficiary was unassignable, but later received information

connecting the beneficiary to an extant employer, SSA would

be barred from making the appropriate assignment. That

would not be so, however, if SSA initially assigned a

beneficiary to the wrong coal operator. Dixie Fuel would

permit reassignment of beneficiaries who were initially

assigned to the wrong operator, but it would forbid

“reassignment” of beneficiaries who were initially assigned

to no operator. Congress could not have “intended the

allocation of liability to rest on such a hollow distinction.”

Pardee, 269 F.3d at 435.

39

The Sixth Circuit’s statutory construction in Dixie

Fuel, if it could have been anticipated by SSA, would have

presented the agency with a “perverse incentive to make a

timely ‘rough cut.”” Pardee, 269 F.3d at 435 n.15. SSA

would have avoided the entire issue here if, realizing by

September 30, 1993 that it could not complete the

assignment process by that day, it had simply assigned all

not-yet-assigned beneficiaries to coal company X or Y or Z.

These assignments then could have been reviewed at a later

date and the appropriate corrections could have been made.

But, because SSA had no reason to believe that it would be

stripped of authority to make beneficiary assignments after

September 30, 1993, it sought to comply with Congress’

intent that it make determinations based on “reasonable

inferences” and “accurate data,” 138 Cong. Rec. 34,004

(1992). Given Congress’ chief concern of assigning as many

beneficiaries as possible to the most responsible parties,

Congress could not have intended that SSA be forever barred

from assigning the beneficiaries at issue to the proper

operators simply because SSA was behind schedule or

because SSA did not uncover on its own relevant information

regarding corporate or employment relationships that only

came to light in later administrative appeals involving

beneficiaries already assigned.

Nothing in the Coal Act suggests that Congress

intended the October 1, 1993 date in Section 9706(a) to

protect whatever interest signatory operators (or related

persons) might have in prompt assignment of beneficiaries.

Neither the Sixth Circuit nor Bellaire has identified any

evidence that Congress was concerned with repose or

mathematical certainty for the signatory operators. To the

contrary, the definitions of responsible parties are broad, and

may reach back many years in the employment relationship.

26 U.S.C. § 9706(a)(1) - (3); 26 U.S.C. § 9701(5) and (7).

Pardee, 269 F.3d at 434 (the Coal Act subordinates coal

operators’ interests, if any, to overriding interest in ensuring

40

fair and accurate assignments). Further, as noted above, the

Coal Act expressly authorizes SSA to make assignments to

operators well after the October 1, 1993 date, as part of the

appeals process through which original beneficiary

assignments may be rescinded and the affected beneficiaries

assigned to new operators. 26 U.S.C. § 9706(f).

Consequently, a signatory operator can receive its very first

beneficiary assignment well after October 1, 1993, even

under the Dixie Fuel rationale. Thus, there is no basis, let

alone a sufficient basis, to infer that Congress intended the

statutory date to be inflexible, so as to create a “safe-harbor”

for responsible signatory operators like Bellaire.

In sum, although Congress indicated its intent that

beneficiary assignments be made promptly, it did not specify

a consequence for SSA’s non-compliance with the statutory

date, and there is no indication in any provision of the Coal

Act of an intent or reason for cutting off SSA’s power to

make assignments on or after October 1, 1993. The lack of a

specified consequence in the statutory text should be

dispositive of SSA’s authority to make assignments on or

after the statutory date. See James Daniel Good, 510 U.S. at

63. Because “the text and reasonable inferences from it give

a clear answer” in favor of SSA, that should be “the end of

the matter.” Brown, 513 U.S. at 120.

Il. OTHER INDICIA OF CONGRESSIONAL

INTENT CONFIRM THAT SSA RETAINED

AUTHORITY TO # =MAKE ORIGINAL

ASSIGNMENTS AFTER THE STATUTORY

DATE.

Although the text of the Coal Act, properly read in

light of this Court’s precedents, is sufficient to demonstrate

the error in Dixie Fuel, the Coal Act’s legislative history,

historical context, purpose, and public policy implications all

point to the same conclusion. The Senate’s proposed

Conference Report for the Coal Act and other legislative

41

materials show that Congress intended “unassigned

beneficiaries” to mean only Combined Fund orphans.

Provision after provision of the report reflects the Coal Act’s

fundamental principle that employers should pay for the

health care of their own former employees and that

“unassigned” beneficiaries are those not assignable under the

statutory criteria:

The method of assignment of eligible beneficiaries

was the source of much debate and controversy prior

to the Conference Agreement. The conferees intend

that the largest possible number of beneficiaries in

the Plans be assigned to a specific or designated

company. Under the statute, each eligible

beneficiary shall be assigned in the following order

.. . . Finally, if no operator remains in business

under the formulations described above, that retiree

becomes an unassigned beneficiary.

138 Cong. Rec. 34,003 (1992).

As a practical matter, not all beneficiaries can be

assigned to a specific last signatory operator, related

person or assigned operator for payment purposes.

This is because in some instances, none of those

persons remain in business, even as defined to include

non-mining related businesses. Thus, provisions are

made for unassigned beneficiary premiums. In each

plan year each assigned operator will pay a premium

earmarked tc cover the heaiih costs of these

unassigned beneficiaries.

Id.

The essence of the Conference Agreement is that

those companies which employed the retirees in

question, and thereby benefited from their services,

will be assigned responsibility for providing health

care benefits promised in their various collective

42

bargaining agreements. This will be accomplished

through a formulation designed to allocate the

greatest number of beneficiaries in the Plans to a prior

responsible operator.

Id. at 34,001.

[T]he Conference Agreement’s overriding purpose is

to find and designate a specific obligor for as many

beneficiaries in the Plans as possible.

Id. at 34,002.

The Conference Report’s purpose is to assure that any

beneficiary, once assigned, remains the responsibility

of a particular operator, and that the number of

unassigned beneficiaries is kept to an absolute

minimum.

Id. at 34,003.

The remarks of Senator Rockefeller, the primary

sponsor of the legislation, confirm this understanding:

The key difference [in this bill] relates to the funding

of health benefits for the orphan retirees. In general,

these are the people whose companies are out of

business.

***

The approach of this legislation rests on the

important principle that responsible companies

should bear the cost of these health benefits. It is a

rational approach. It is a fair approach.

138 Cong. Rec. 20,118 (1992). Senator Ford, a co-sponsor,

agreed:

We have closed the new orphan fund so to limit the

problem and ensure a long-term solution. We have

attempted to allocate costs according to the principle

43

that those most responsible should bear the greatest

proportion of the costs.

Id. at 20,120. Senator Wallop placed in the record the CRS

Report, which analyzed the use of transfers from the AML

Funds to finance benefits for “orphan retirees.” Jd. at 34,001

(remarks of Sen. Wallop), 34,004-11 (CRS Report).

The Coal Act’s financing structure was carefully

considered, extensively debated, and determined by Congress

to be the best allocation of responsibility and best balance of

competing interests and limited resources. As noted by

Senator Rockefeller, “[t]he approach of the current

legislation was not lightly arrived at. Lengthy and difficult

negotiations were required because of the myriad of

conflicting interests in our nationwide coal industry.” 138

Cong. Rec. 20,118 (1992). It would be odd indeed if

Congress, having created such a careful balancing of

interests, would have chosen at the same time to cut off

SSA’s authority on October 1, 1993, which, as events

transpired, was less than 80 days after SSA received funding

from Congress to commence the beneficiary assignment

process.*”

In contrast, the legislative history relating to the

October 1, 1993 date is unremarkable.~” It does not indicate

36/ Supplemental Appropriations Act of 1993, H.R. 2118, Pub. L.

No. 103-50, Ch. V, 139 Cong. Rec. D. 765; see Brock, 476 U.S. at 265

(“It would be very odd if Congress had implemented [its intent to

discover and rectify abuses under federal training program] by cutting off

the Secretary’s authority to correct abuses just 120 days after learning of

them.”).

37/See, e.g., 138 Cong. Rec. 34,003 (“The amount of the

unassigned beneficiary premium payable by each assigned operator will

be calculated on the number of beneficiaries assignable to each operator

as of October 1, 1993.”); id. (“In the first plan year the Secretary of HHS

will review the work history of each beneficiary and will prepare the

assigned operator allocations which are required to be made by October

44

that the date is jurisdictional. Nor does it indicate any reason

why Congress would choose to make it so. “Conspicuously

absent” from the Coal Act’s text and legislative history “is

any reference to the possibility that the [October 1, 1993]

provision might convey rights on” the signatory operators.

See Brock, 476 U.S. at 264. To the contrary, the Coal Act’s

history evidences an antipathy toward coal operators’ past

“dumping” of retired coal miners and a clear intent to make

as many beneficiary assignments as possible and to hold the

most responsible persons liable. Senator Rockefeller’s

remarks sum up this point:

We must stop the past practice in which existing

companies dump their responsibilities onto the

companies that have faithfully kept their

commitments.

138 Cong. Rec. 20,118 (1992).

Furthermore, voiding all assignments made on or

after October 1, 1993 would undermine Congress’ express

purpose of stabilizing funding of a private health care benefit

plan. See 26 U.S.C. § 9701 (historical note). Leaving

thousands of beneficiaries unassigned despite the ability to

match them with employers under Section 9706(a)’s criteria

will create a windfall for certain coal operators at the expense

of other operators, as well as the general public. Pardee, 269

F.3d at 437; see Montalvo-Murillo, 495 U.S. at 720 (when it

is inevitable that delays will occur despite diligent efforts

“there is no reason to bestow upon the defendant a windfall

and to visit upon the Government and the citizens a severe

penalty”). Although premiums for the assigned beneficiaries

1, 1993.”). The Fourth Circuit ruled that the phrase “assignable...as of

October 1, 1993” provided significant evidence that assignments could be

made after that date. Pardee, 269 F.3d at 436; see also id. (“the paucity

of references to this ‘dead-line’ is conspicuous and compelling”).

45

are paid entirely hy coal operators, the costs of providing

health care for unassigned beneficiaries are not. Beginning

with the Combined Fund’s fiscal year 1996 (October 1, 1995

to September 30, 1996), the Secretary of the Interior makes

annual transfers of interest that has accrued on the AML

Fund to the Combined Fund to defray the cost of health care

for unassigned beneficiaries. 30 U.S.C. § 1232(h). The

funds thus transferred may be used only to pay for

unassigned beneficiary expenses. See 26 U.S.C. § 9705(b);

30 U.S.C. § 1232(h); 138 Cong. Rec. 34,004 (1992). If those

funds prove insufficient, the Coal Act provides for the

assessment of additional premiums against assigned

operators based on their proportionate share of the assigned

beneficiaries. 26 U.S.C. § 9704(d) & (f); Pardee, 269 F.3d at

438. To date, the transfers from the AML Fund, which as of

November 30, 2000, have amounted to more than $336

million, have been sufficient to cover the unassigned

beneficiary premiums. Pardee, 269 F.3d at 438. “Given the

high cost of health care for retired miners, and the likely

diminution of the fund’s interest earning capacity,” however,

“the interest may not last for long.” Sigmon, 122 S. Ct. at 961

n.5 (Stevens, J., dissenting).

The federal government’s portion of the AML Fund

interest not transferred to the Combined Fund remains

available to pay for the environmental clean-up of abandoned

mines (or for whatever other projects Congress may allocate

the funds). 30 U.S.C. § 1231(b)(5) and (c); see also 30

U.S.C. § 1232(g)(4)(A). The funding for mine reclamation

projects follows a strict order of priority that first targets

projects to protect the public “from extreme danger” at

abandoned mine sites. See 30 U.S.C. § 1233(a)(1); 30 U.S.C.

§ 1233(a)(2) - (5) (ranking additional priorities); see also

Pardee, 269 F.3d at 438 n.19 (“magnitude of nation’s

reclamation needs is alarming”). If the number of unassigned

beneficiaries is artificially inflated and greater costs are

absorbed by the AML Fund, rather than by the responsible

46

coal companies to which Congress intended the beneficiaries

to be assigned, the result will redound to the public’s

detriment by reducing the sums available in the AML Fund

for other public purposes. See CRS Report at 138 Cong. Rec.

34,004-11 (1992). Although Congress authorized AML

Fund transfers, it was based on the understanding that the

Fund would be used “solely and exclusively” for unassigned

beneficiaries, id. at 34,004, and that unassigned beneficiaries

would be kept to “an absolute minimum,” id. at 34,003. It is

highly unlikely that Congress would intend the AML Fund

interest to be depleted unnecessarily due simply to SSA’s

delay. There is no evidence that the Congress that enacted

the Coal Act had any such intent. See Pardee, 269 F.3d at

438.

IV. DEFERENCE IS DUE TO SSA’S

INTERPRETATION OF “UNASSIGNED

BENEFICIARIES” TO INCLUDE ONLY

COMBINED FUND ORPHANS.

At a minimum, the relevant Coal Act provisions are

ambiguous, and deference is, due to SSA’s reasonable

interpretation of Section 9706(a) and the term “unassigned

beneficiary.” Congress delegated to SSA the duty to carry

out the assignment process, 26 U.S.C. § 9706(a), to notify

assigned operators of their obligations, 26 U.S.C. §

9706(e)(2), to review assignment determinations for error, 26

U.S.C. § 9706(f), and to calculate the per beneficiary

premium for each plan year, 26 U.S.C. § 9704(b)(2). These

directions imply a delegation to SSA of the authority to

determine the proper assignment of beneficiaries to signatory

operators as well as definitions of general applicability, such

as “unassigned beneficiary.”*

38/See 138 Cong. Rec. 34,003 (1992) (“{I]t is intended under the

statute that the Secretary have authority to promulgate regulations

governing the method by which determinations of the assigned operator

47

To carry out its duties, SSA promulgated regulations

in compliance with the Administrative Procedure Act. See 58

Fed. Reg. 52914 (1993). Although SSA’s regulations do not

define “unassigned beneficiary,” they do state explicitly that

beneficiaries will be treated as unassigned “[{i]f no assigned

operator can be identified.” 20 C.F.R. § 442.606(f). In

addition, SSA has clearly and consistently expressed its

opinion on the issue. After a considered review, SSA

concluded that Dixie Fuel was wrongly decided and that the

agency would continue to litigate the issue in the Sixth

Circuit and other jurisdictions.

In these circumstances, SSA’s interpretation of the

Coal Act is entitled to deference under Chevron v. Natural

Resources Defense Council, 467 U.S. 837 (1984). The

only remaining question is whether SSA’s interpretation is

reasonable. /d. at 843.

SSA’s interpretation and implementation are plainly

reasonable and consistent with the aims of the Coal Act, as

the foregoing analysis of the text, legislative history, and

historical context shows. Interpreting “unassigned

will be made and setting out the review procedures available to an

assigned operator once such determinations are made.”); Association of

Bituminous Contractors, Inc. v. Apfel, 156 F.3d 1246, 1251 (D.C. Cir.

1998) (granting Chevron-deference to SSA’s interpretation of “coal

industry,” which term is not defined by Coal Act).

39/ See United States v. Mead Corp., 121 S. Ct. 2164, 2175 (2001)

(Chevron-deference due when Congress delegated authority to agency

and agency interpretation was promulgated under that authority); Pension

Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 647-52 (1990)

(Chevron-deference to PBGC’s interpretation of ERISA’s requirements

for restoring a terminated plan, which interpretation was reflected in

agency’s notice of restoration); NationsBank of N.C. v. Variable Annuity

Life Ins. Co., 513 U.S. 251 (1995) (Chevron-deference to Comptroller of

Currency’s letter to bank granting request to act as agent in sale of

annuities).

48

beneficiaries” to include only Combined Fund orphans, and

finding no evidence in the statute that Congress intended

SSA to halt its assignment work on October 1, 1993, SSA

reasonably proceeded to make original assignments after that

date. That SSA’s interpretation is fully reasonable is verified

by the Fourth Circuit’s identical conclusion:

Congress intended the status of individual

beneficiaries to depend not on the vicissitudes of

bureaucratic action, but instead on the merits, i.e.,

whether an extant operator could be identified and

held responsible.

Pardee, 269 F.3d at 438. Accordingly, original assignments

made on or after October 1, 1993 are valid, and Bellaire

should be held responsible for the 270 beneficiaries at issue

here.

49

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted,

John R. Mooney Peter Buscemi

Elizabeth A. Saindon Counsel of Record

MOONEY, GREEN, BAKER Anne Brafford

& SAINDON, P.C. MORGAN, LEWIS &

1920 L Street, N.W., Suite 400 BOCKIUS LLP

Washington, D.C. 20036 1111 Pennsylvania Ave., N.W.

(202) 783-0010 Washington, D.C. 20004

(202) 739-3000

David W. Allen

Jonathan Sokolow

Office of the General Counsel

UMWA HEALTH &

RETIREMENT FUNDS

2121 K Street, N.W.

Washington, D.C. 20037

(202) 521-2220

April 8, 2002

50