Opposition Brief — Brink's Co. v. United States

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No. 04-589

In the Supreme Court of the Guited States

THE BRINK’S COMPANY, FKA THE PITTSTON COMPANY,

ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT

Acting Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

MARK B. STERN

JONATHAN H. LEVY

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

The Coal Industry Retiree Health Benefit Act of

1992, Pub. L. No. 102-486, Tit. XTX, Subtit. C, §§ 19141-

19143, 106 Stat. 3036-3056 (26 U.S.C. 9701 et seq.) (Coal

Act), requires petitioners to make payments into a statu-

torily-created fund. That fund provides health benefits

for retired coal miners and their dependents, including

specified miners assigned to petitioners by the Commis-

sioner of Social Security. The questions presented for

review are as follows:

1. Whether the Coal Act unconstitutionally vests

governmental authority in the private persons who

administer the fund that Congress created to receive

Coal Act payments.

2. Whether this Court’s decision in Kastern Enter-

prises v. Apfel, 524 U.S. 498, 511 (1998), which held the

Coal Act to be unconstitutional as applied to certain coal

operators other than petitioners, effectively requires

that the Act be invalidated in its entirety.

3. Whether the Coal Act permits the assignment to

petitioners of liability for retired miners whose original

assignments to other coal operators were voided as

unconstitutional following Kastern Enterprises.

(I)

TABLE OF CONTENTS

Page

IEE ee a ee ore

SE Ee 1

EE ES 2

EES ty a 8

aE a ee 21

TABLE OF AUTHORITIES

Cases:

A.T. Massey Coal Co. v. Massanari, 305 F.3d 226

(4th Cir. 2002), cert. denied, 538 U.S. 1012 (2003) .. 10

Alaska Airlines, Inc. v. Brock, 480 U.S. 678

Ese eee kuhed uuln mhpb ids abo0 00005) 6 en crbs 15

Barnhart v. Peabody Coal Co., 537 U.S. 149

Ee ES es ay nine £0 540% obedhies 6 > knw xe 6, 15, 18

Barnhart v. Sigmon Coal Co., 534 U.S. 438

TUR RUASURGUNS ay Pues onsuneabanseadsanaccness 15

Bay Area Laundry & Dry Cleaning Pension Trust

Fund v. Ferbar Corp., 522 U.S. 192 (1997) .... 11,12

Buckley v. Valeo, 424 U.S.1(1976) ............ 12, 13

Carter v. Carter Coal Co., 298 U.S. 238 (1936) ....... 9

Eastern Enters. v. Apfel, 524 U.S. 498 (1998) ........ 2

Heckler v. Community Health Servs., 467 U.S. 51

ERR T Uh mahaydavGaus tik Fecknda kadwanvonas 12

Holland v. Big River Minerals Corv., 181 F.3d

597 (4th Cir. 1999), cert. denied, 528 U.S. 1117

Se ned ESL Tau ois ben beantunvdudene succes 2

Minnesota v. Mille Lacs Band of Chippewa Indi-

OIA ROM CRMOED oc cnccccscncsccdenccsecen 14

Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87

bee ASE OR tne ean ne ae aD 12

United States v. La Franca, 282 U.S. 568 (1931) ....10

(IIT)

Case—Continued: Page

Vermont Agency for Natural Res. v. United

States ex rel. Stevens, 529 U.S. 765 (2000) ......... 11

Constitution and statutes:

Sree RCC Sn ce cueucdvinedossaauneekeani 17

Sr I OD Cc vchnaadcadewesabaeaacucs 35

Just Compensation Clause ................ceeeee: 5

Coal Industry Retiree Health Benefit Act of

1992, Pub. L. No. 102-486, Tit. XIX , Subtit. C,

§§ 19141-19143, 106 Stat. 3036-3056 (26 U.S.C.

9701 et seq.):

RMA OEY 8605 bude dbcdus sd secdineens 17

ea ED dwn 3 4045540500 54 nk en eeeees 3

BPA PUREE aed ap enededsnaewaainesans 17

26 U.S.C. 9701 note (§ 19142, 106 Stat. 3037) ..... 2

AiR eS | Serer Tyrer ere er ere 2

Be Mla WUD 6 neds dknewsnekscivecnauns 2,7

ee eA PEE hi kbedba saad dadsnwneeen 3,17

ee UD -hasn sacks Wissvacneudabanas 3

PP A OPED 60.68.0055 s5Kd8a esa deeadeees 10

ED hoki ddcbuncwawscdadwanxaunenes 4

Ee EPPO CTTTUT OCCULT CUTER TTC OT TCT CT 4

OU EIAL, DOD 6a cvedcccenesangass 3, 4, 9, 16, 18

BO UTA; FEED. hsbc ccscccasaseses 5, 18, 20

ee UN ED dwubesdidesves Kasakaausaws 19

EAE PUD os 6G 0kS kneaded cccbakanbun 19

ee ER ED 55k nae decaduseecsazwisnnees 4

A SUMED Rabb iced nc keane benannanenes 4,10

Be OE kd see Aden neenneauukanenens 4

ER OEE BAS ape hcewncxenkidebadannones 4,13

UMMM OEE Kiwdeaeedbndaeccdsiaccuranasens 12

Employee Retirement Income Security Act of 1974,

29 U.S.C. 1001 et seq.:

DAE ie RED 44 daKaks hed ssa eedcataensaxavin 3

Statutes—Continued: Page

£9 U.S.C. 1002(87) (§ B(87)) on. ccc ccc ccccnncce 3

Labor Management Relations Act, 29 U.S.C.

i EES Ee ER EY CAO Pye ALA Ll 2

Se RE -ks 05k bade eae 11

BP Wa 4. thc ieee cae ae ee 13

BEE ME kb cee ee 20

SP ath RED “eeixedeskink cise 13

Miscellaneous:

138 Cong. Rec. (1992):

i eee EET Ce ee Meer ra npr te nu 15, 18

ee Oe rr Tee tk 15

Nonna A. Noto, Congressional Research

Service, Coal Industry: Use of Abandoned

Mine Reclamation Fund Monies for UMWA

“Orphan Retiree” Health Benefits (Sept. 10,

SUOUD 50006543.s d0bncckwa eee Lee 15

Jn the Supreme Court of the Gnited States

No. 04-589

THE BRINK’S COMPANY, FKA THE PITTSTON COMPANY,

ET AL., PETITIONERS

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-41a)

is reported at 368 F.3d 385. The opinion of the district

court (Pet. App. 42a-65a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

May 18, 2004. A petition for rehearing was denied on

August 5, 2004 (Pet. App. 66a-7la). The petition for a

writ of certiorari was filed on November 2, 2004. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

1. Congress enacted the Coal Industry Retiree

Health Benefit Act of 1992, Pub. L. No. 102-486, Tit.

XIX, Subtit. C, §§ 19141-19143, 106 Stat. 3036-3056 (26

U.S.C. 9701 et seq.) (Coal Act), “to provide coal industry

retirees with the lifetime benefits they had been prom-

ised.” Holland v. Big River Minerals Corp., 181 F.3d

597, 604 (4th Cir. 1999), cert. denied, 528 U.S. 1117

(2000). The Coal Act represents Congress’s response to

the inadequate funding of health-care benefits promised

by coal operators over a period of decades, and to the

efforts of many such operators to avoid their benefits

obligations by switching to non-union labor or by leaving

the coal industry. See, e.g., Eastern Enterprises v.

Apfel, 524 U.S. 498, 511 (1998) (plurality opinion); see

generally id. at 504-515 (providing detailed historical

background of the Coal Act).

In enacting the Coal Act, Congress sought “to

identify persons most responsible” for the liabilities of

the underfunded private health-care benefit plans then

in existence, and to provide a private funding stream “to

stabilize plan funding and allow for the provision of

health care benefits” to retired coal miners and their

dependents. Coal Act § 19142, 106 Stat. 3037. The Coal

Act created the Combined Fund, a private entity whose

trustees are designated by representatives of coal

miners and coal industry operators. 26 U.S.C. 9702.

The Combined Fund is the product of the merger of

prior benefit plans that were created by collective bar-

gaining agreements. See 26 U.S.C. 9702(a)(2); Eastern

Enterprises, 524 U.S. at 514 (plurality opinion). Con-

gress specified that the Combined Fund shall be a plan

described in Section 302(c)(5) of the Labor Management

Relations Act, 29 U.S.C. 186(¢)(5); an employee welfare

benefit plan within the meaning of Section 3(1) of the

Employee Retirement Income Security Act of 1974

(ERISA), 29 U.S.C. 1002(1); and a multiemployer plan

within the meaning of Section 3(37) of ERISA, 29 U.S.C.

1002(37). See 26 U.S.C. 9702(a)(3). The Coal Act

directs the Combined Fund to provide retired miners

and their dependents with “substantially the same”

health benefits as were provided under previous plans.

26 U.S.C. 9703(b)(1).

Under the Coal Act, the Commissioner of Social

Security (Commissioner) assigns each eligible retired

miner to a coal operator, making that operator and a

broad class of “related persons” (e.g., other entities

under common ownership) liable to pay the Combined

Fund premiums for that miner and his or her depend-

ents. See 26 U.S.C. 9701(c)(2), 9706(a). The assign-

ment is to a coal operator (or to any “related person” of

such an operator) that “remain[ed] in business” on the

Coal Act’s effective date, according to the following

order of preference:

(1) First, to the signatory operator which—

(A) was a signatory to the 1978 coal wage

agreement or any subsequent coal wage agree-

ment, and

(B) was the most recent signatory operator to

employ the coal industry retiree in the coal

industry for at least two years.

(2) Second, if the retiree is not assigned under

paragraph (1), to the signatory operator which—

(A) was a signatory to the 1978 coal wage

agreement or any subsequent coal wage agree-

ment, and

(B) was the most recent signatory operator to

employ the coal industry retiree in the coal

industry.

(3) Third, if the retiree is not assigned under para-

graph (1) or (2), to the signatory operator which

employed the coal industry retiree in the coal

industry for a longer period of time than any

other signatory operator prior to the effective

date of the 1978 coal wage agreement.

26 U.S.C. 9706(a).

The Commissioner notifies the relevant signatory

operator or related person of the assignment. 26 U.S.C.

9706(e)(2). The assignee may ask the Commissioner to

review an allegedly erroneous assignment, and the

miner is reassigned if the assignment is determined to

be erroneous. 26 U.S.C. 9706(f). An assignee is subject

to statutory penalties if it fails to pay premiums. 26

U.S.C. 9706(f)(5), 9707. An assignment is made for

every miner under Section 9706(a) unless no former coal

industry employer or related person remains in busi-

ness. The health benefits of an “unassigned” miner are

funded by transfers of funds from other sources or, if

those sources are insufficient, from a premium imposed

on the signatory operators to whom assignments have

been made. 26 U.S.C. 9704(d), 9705.

2. The miners whose benefits are at issue in this case

were all employed by petitioners at some point in the

past. Some of those miners were originally assigned to

petitioners by the Commissioner after the Coal Act was

enacted. The Commissioner reassigned 95 additional

miners to petitioners following this Court’s decision in

Eastern-Enterprises, which held that the Coal Act is

unconstitutional insofar as it authorizes the imposition

of liability on coal operators that had not signed, and

were not related persons to operators that had signed,

collective-bargaining agreements in or after 1974, the

year that miners were first explicitly promised lifetime

health benefits.’

In implementing the Court’s decision, the Commis-

sioner voided all assignments to coal operators, like

Eastern Enterprises, that had not signed the 1974 or

later agreements and were not related persons to such

operators. Pet. App. lla. The Commissioner then

reassigned each such miner based on the statutory order

of priority (see 26 U.S.C. 9706(a)(1)-(3)), while excluding

Eastern Enterprises and similarly-situated operators

from the pool of potential assignees. See Pet. App. 11a.

“As a result of this reevaluation and interpretation of

the Coal Act, the Commissioner reassigned to [petition-

ers] 95 beneficiaries whose earlier assignments had been

invalidated.” Ibid.

3. Petitioners filed suit against the United States,

challenging Coal Act assignments made to them and

Although a majority of this Court agreed that the imposition of

Coal Act liability on Eastern Enterprises (which had not signed, and

was not a related person to any entity that had signed, the 1974 or later

wage agreement) was unconstitutional, no majority agreed on the

precise rationale for that holding. Four Justices concluded that the

Coal Act’s application to Eastern Enterprises violated the Just Com-

pensation Clause. 524 U.S. at 522-537 (opinion of O’Connor, J.). Jus-

tice Kennedy found that the assignments to Eastern Enterprises did

not violate the Just Compensation Clause but did violate the Due Pro-

cess Clause. /d. at 539-550 (Kennedy, J., concurring). The remaining

four Members of the Court found no constitutional infirmity. /d. at 553-

568 (Breyer, J., dissenting).

seeking a refund of premiums. Petitioners argued, inter

alia, that (1) the Coal Act unconstitutionally vests

governmental power in the private persons who adminis-

ter the Combined Fund, see Pet. App. lla, 12a; (2) the

decision in Kastern Enterprises has the effect of invali-

dating the entire Coal Act because the application of the

Act to Eastern Enterprises and _ similarly-situated

operators is not severable from the remainder of the

Act’s applications, see id. at 12a, 22a; and (3) the Coal

Act by its terms does not permit the reassignment to

petitioners of those miners whose initial assignments

were voided on the basis of the Eastern Enterprises

decision, see id. at 12a, 27a.” Because Coal Act pay-

ments are made directly to the Combined Fund, the

United States filed a third-party complaint against the

Fund and its Trustees, seeking indemnification for any

amounts that it might be ordered to pay to petitioners.

See zd. at 44a.

The district court granted respondents’ motion for

summary judgment. Pet. App. 42a-65a. The court held

that the Coal Act does not effect an unconstitutional

delegation of Executive power because the Act ade-

quately constrains the discretion of the Combined Fund

* Petitioners also argued that the application of the Coal Act to them

violated the Fifth Amendment. See Pet. App. lla, 34a. That claim was

rejected by the district court and the court of appeals, see td. at 34a-

35a, 59a-60a, and petitioners do not pursue it in this Court. Petitioners

also alleged that they had been overcharged for the beneficiaries

assigned to them. /d. at lla. That claim was ultimately settled, see ?d.

at 12a, and it is not at issue here. In addition, petitioners contended

that any original assignments made after October 1, 1993, were invalid

by reason of the Commissioner’s failure to meet that statutory deadline.

The district court deferred ruling on that contention, see id. at 65a,

which was subsequently rejected by this Court in Barnhart v. Peabody

Coal Co., 5387 U.S. 149 (2008).

and its Board of Trustees. /d. at 47a-59a. The court

further held that the applications of the Coal Act de-

clared to be unconstitutional in Kastern Enterprises

could be severed from the Act’s remaining valid applica-

tions, id. at 60a-62a, and that miners originally assigned

to “Eastern and Eastern-like companies” (id. at 64a)

could validly be reassigned to operators like petitioners,

id. at 62a-65a.

4. The court of appeals affirmed. Pet. App. la-41a.

a. The court of appeals held that the Coal Act does

not unconstitutionally delegate governmental functions

to the Combined Fund or its Board of Trustees. Pet.

App. 12a-22a. The court explained that “the Coal Act or

the Social Security Commissioner defines the nature of

the Combined Fund and who must contribute to it;

specifies the amount of each premium payable by a coal

operator to the Combined Fund; specifies with particu-

larity each beneficiary who is entitled to receive benefits

from the Combined Fund; and designates the nature and

amount-of the benefits.” /d. at 16a-17a. The court

concluded that the functions assigned to the Trustees

are sufficiently ministerial and/or advisory that they

may properly be entrusted to a private entity. Jd. at

17a-22a.

b. The court of appeals rejected petitioners’ conten-

tion that this Court’s decision in Fastern Enterprises

had the effect of invalidating the entire Coal Act. Pet.

App. 22a-27a. The court noted that the background

presumption of severability, which applies to federal

statutes generally, is reinforced by Congress’s enact-

ment of a severability clause applicable to the Coal Act.

See id. at 24a-25. The court further explained that the

Act can function independently even if Eastern Enter-

prises and similarly-situated operators are excluded

from the pool of potential assignees (and indeed has

continued so to function since the Court decided Eastern

Enterprises in 1998); that the Act’s legislative history

reflects a congressional intent to assign as many miners

as possible to responsible coal operators; and that

Congress has continued to appropriate funds for the

implementation of the Coal Act since the decision in

Eastern Enterprises. Id. at 25a-27a.

ec. The court of appeals held that the Coal Act

authorized the Commissioner to reassign miners whose

original assignments were invalid under Eastern Enter-

prises. Pet. App. 27a-34a. The court explained that

Eastern Enterprises had created a statutory gap, which

the Commissioner had reasonably chosen to fill by

“remov[ing] Eastern-like coal companies from the pool

of qualified signatory operators and reassign[ing] their

beneficiaries to other companies.” /d. at 28a.

d. Chief Judge Wilkins filed an opinion concurring in

part and dissenting in part. Pet. App. 37a-4la. Chief

Judge Wilkins agreed with the majority that the Coal

Act does not effect an unconstitutional delegation of

governmental power, and that the decision in Eastern

Enterprises does not require that the Act be invalidated

in its entirety. See 7d. at 37a. He would have held,

however, that miners originally assigned to Eastern

Enterprises and similarly-situated operators must be

treated as “unassigned” rather than assigned to particu-

lar operators such as petitioners. /d. at 37a-41a.

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or of any

other court of appeals. The retiree health benefits plan

established by the Coal Act has been in effect and paid

much-needed benefits to retired miners and their

beneficiaries for more than 14 years, and for more than

seven years since this Court’s decision in Eastern

Enterprises. Petitioners’ efforts at this late date to

invalidate the Coal Act in its entirety, or to undo the

Commissioner’s manifestly reasonable response to the

Eastern Enterprises decision, lack merit. Further

review is not warranted.

A. The court of appeals correctly rejected petition-

ers’ contention (see Pet. 13-16) that the Coal Act uncon-

stitutionally delegates governmental power to the

Combined Fund and its Board of Trustees. The decision

in Carter v. Carter Coal Co., 298 U.S. 238 (1936), repre-

sents the last occasion on which this Court has relied on

nondelegation principles to invalidate a_ statutory

provision vesting governmental authority in a private

entity. The provision that was struck down in Carter

Coal authorized private actors within the coal industry

to fix the minimum wages and maximum hours of labor

for coal miners. See id. at 310-311. This Court charac-

terized the power conferred as the power to regulate the

production of coal, which the Court held was “necessar-

ily a governmental function.” /d. at 311. The Court

concluded that “[t]he delegation is * * * clearly

arbitrary, and * * * clearly a denial of rights safe-

guarded by the due process clause of the Fifth Amend-

ment.” bid.

The powers vested in the Combined Fund and its

Board of Trustees are not remotely comparable to the

powers at issue in Carter Coal. The pertinent regula-

tory functions under the Coal Act are performed by a

public official—the Commissioner of Social Security.

The Commissioner assigns beneficiaries to coal opera-

tors pursuant to the statutory criteria. 26 U.S.C.

9706(a); see Pet. 6; Pet. App. 10a, 16a; A.7. Massey Coal

Co. v. Massanari, 305 F.3d 226, 232 (4th Cir. 2002), cert.

denied, 538 U.S. 1012 (2003). At the request of the

assignee, the Commissioner may review an allegedly

erroneous assignment and may reassign the miner if the

initial assignment is found to be in error. 26 U.S.C.

9706(f). The Commissioner also calculates the per-

beneficiary annual premiums, applying “specific formu-

las” set forth in the statute. Pet. App. 15a; accord

26 U.S.C. 9704(b)(2); Pet. 6 (Commissioner “calculate[s]

a per beneficiary health benefit premium for each plan

year”). As a result, a coal operator’s liability under the

Act is determined by the Commissioner pursuant to

criteria established by Congress, not by the Fund or its

trustees. Pet. App. 15a; accord 2d. at 17a, 21a.

Petitioners contend that the Coal Act effects an

unconstitutional delegation of governmental power by

authorizing the Combined Fund “to collect and spend

taxes” (Pet. 16), “to sue to collect public funds” (Pet. 14),

and “to write its own rules for implementing the Coal

Act” (Pet. 15). Petitioners’ arguments lack merit.

1. Even assuming for purposes of argument that the

Coal Act premiums are “taxes,” neither the collection

of funds owed to a private party nor the expenditure of

such funds is an inherently governmental function.

Petitioners do not contest the court of appeals’ conclu-

Although some courts of appeals have characterized Coal Act

yremiums as taxes for some purposes (see Pet. 12), the government has

consistently argued that the premium is not a tax because it is not “an

enforced contribution to provide for the support of government.”

United States v. La Franca, 282 U.S. 568, 572 (1931). The consti-

tutionality of the Coal Act provisions at issue here, however, does not

depend on whether the premiums are properly characterized as taxes.

sion that “the power to receive taxes (premiums) and

other federal revenues (which private employers do with

every paycheck) does not violate the nondelegation

doctrine.” Pet. App. 18a-19a. To the contrary, they

acknowledge that “private parties routinely collect taxes

from other private parties.” Pet. 2; see 26 U.S.C. 429]

(requiring the providers of certain products and services

to collect federal taxes from certain purchasers). And

even if Coal Act premiums were properly regarded as

taxes in some constitutionally significant sense, petition-

ers have failed to identify any basis on which the Consti-

tution would prohibit Congress from assigning the

resulting revenue stream to a private party. Cf. Ver-

mont Agency of Natural Res. v. United States ex rel.

Stevens, 529 U.S. 765, 773-774 (2000) (analogizing qui

tam provision to assignment of government’s claim).

Private entities may also validly be authorized to

spend funds collected pursuant to statutory mandate.

For example, the Multiemployer Pension Plan Amend-

ments Act of 1980 (MPPAA) requires the payment of

statutorily-mandated withdrawal liabilities to private

pension funds, which then spend those penalties. See 29

U.S.C. 1381-1461; Bay Area Laundry & Dry Cleaning

Pension Trust Fund v. Ferbar Corp., 522 U.S. 192, 195

(1997) (The MPPAA “requires employers who withdraw

from underfunded multiemployer pension plans to pay

a ‘withdrawal liability’ * * * by making a series of

periodic payments according to a postwithdrawal sche-

dule set by the pension fund’s trustees, or [by] pre-

payling] the entire debt at any time.”).! Similarly,

* Petitioners seek (Pet. 16) to distinguish the MPPAA from the Coal

Act on the ground that the former codified preexisting contractual

obligations, while the latter imposes a new tax. Even assuming that

distinction is accurate, it is irrelevant to the question whether a private

under the Medicare statute, private entities known as

“fiscal intermediaries” disburse and account for funds

used in making Medicare payments. Heckler v. Com-

munity Health Servs., 467 U.S. 51, 54 (1984); Shalala v.

Guernsey Mem'l Hosp., 514 U.S. 87, 91 (1995).

2. The Combined Fund’s authority to file and prose-

cute lawsuits to recover funds owed to it pursuant to

statute is not a uniquely governmental prerogative. See

Pet. App. 18a (noting that the Coal Act grants the

Combined Fund “the power to sue for monies owed to

itself, which is not a governmental power, but a private

one”). Private actors routinely sue for money to which

they allege an entitlement under federal law. Indeed,

the Coal Act provision that authorizes the Combined

Fund to bring suit specifically refers to the provision

under which a private pension plan may sue an employer

for withdrawal liability under the MPPAA. See 26

U.S.C. 9721 (referring to “section 4301 of the Employee

Retirement Income Security Act of 1974”). As this

Court has noted, the MPPAA authorizes private pension

funds to pursue a variety of means, including the filing

of lawsuits, to enforce participants’ statutory payment

obligations. See Bay Area Laundry, 522 U.S. at 197.

Petitioners’ reliance (Pet. 13) on Buckley v. Valeo,

424 U.S. 1 (1976) (per curiam), is misplaced. The Court

in Buckley addressed the constitutional status of the

Federal Election Commission (FEC), which wielded

“extensive rulemaking and adjudicative powers,” id. at

110, and exercised “primary and substantial responsi-

bility for administering and enforcing” the federal elec-

tion laws, id. at 109. The governmental status of the

entity may validly be authorized to collect and spend mandatory

statutory fees.

FEC was undisputed; the issue was whether that body’s

members could be appointed by congressional officers

rather than in conformity with the Appointments

Clause. See id. at 124-143. It was in that context that

the Court struck down the statutory provisions “vesting

in the [FEC] primary responsibility for conducting civil

litigation in the courts of the United States for vindicat-

ing public rights.” Id. at 140 (emphasis added).

The role of the Combined Fund under the Coal Act

cannot plausibly be analogized to that of the FEC.

Enforcement of the Coal Act on behalf of the govern-

ment is entrusted to Executive Branch officials, and

primarily to the Commissioner. See pp. 9-10, supra.°

When the Combined Fund sues under the Act, it does so

to vindicate its discrete interest as a multiemployer

benefits plan in receiving the payments to which it is

entitled by statute, not to vindicate the general public

interest in the Act’s enforcement. N othing in Buckley

purports (or has been construed by this Court) to cast

doubt on Congress’s frequent practice of creating

private rights of action for persons who are injured by

violations of federal statutes. his

3. Petitioners offer no plausible rationale for their

assertion (Pet. 15) that the Combined Fund’s ability “to

write its own rules for implementing the Coal Act”

violates the Constitution. The Commissioner, not the

° The Secretary of the Treasury enforces the payment of Coal Act

premiums through penalties that are treated as taxes. See 26 U.S.C.

9707 (providing for penalty for failure to pay Coal Act premiums, and

treating that penalty as a tax under 26 U.S.C. 4980B). The Secretary

of Labor enforces the proper operation of the Combined Fund as a plan

under ERISA. See 26 U.S.C. 9702(a)(3) (stating that the Combined

Fund is an ERISA plan); 29 U.S.C. 1132(a) (Secretary of Labor may

bring suit to enforce ERISA requirements).

Fund, assigns beneficiaries to coal operators and cal-

culates the per-beneficiary premiums pursuant to a

statutory formula. The Combined Fund has the author-

ity to establish its own internal rules, but that authority

is possessed by many private entities and is not govern-

mental in character. See Pet. App. 18a.

4. Petitioners have identified no cognizable injury to

themselves resulting from any action taken by the

Combined Fund or its Board of Trustees. The imple-

mentation of the Coal Act affects petitioners only to the

extent that the Act itself requires them to pay premi-

ums. Those premiums are calculated by the Commis-

sioner pursuant to statutory direction. Petitioners have

experienced no harm resulting from the Coal Act’s

directive that premiums be paid to the Fund rather than

to the Secretary of the Treasury or the Commissioner of

Social Security, or from decisions made by the Fund

regarding expenditures on behalf of its beneficiaries.

B. Petitioners contend (Pet. 16-21) that the Coal Act

provisions struck down in Eastern Enterprises are not

severable from the remainder of the statute, and that

the Court’s decision in that case therefore effectively

invalidated the Coal Act in its entirety. That claim lacks

merit. “The inquiry into whether a statute is severable

is essentially an inquiry into legislative intent.” Minne-

sota v. Mille Lacs Band of Chippewa Indians, 526 U.S.

172, 191 (1999); accord Pet. App. 24a. As the court of

appeals explained, there is generally a “presumption

that when an application of a statute is determined to be

unconstitutional, courts seek to preserve as much of the

statute as is still consistent with legislative intent.” Pet.

App. 24a; see Alaska Airlines, Inc. v. Brock, 480 U.S.

678, 684 (1987). That presumption is especially strong

where, as here, implementation of the relevant statute

is governed by a severability clause. See Pet. App. 24a-

25a; Alaska Airlines, 480 U.S. at 686.

The structure of the Coal Act further refutes any

inference of congressional intent to abandon the statu-

tory enterprise solely because assignments cannot be

made to Eastern Enterprises and similarly-situated coal

operators. As this Court recently noted, the “congres-

sional objective” in enacting the Coal Act was “to allo-

cate the greatest number of beneficiaries * * * to a

prior responsible operator.” Barnhart v. Peabody Coal

Co., 537 U.S. 149, 171-172 (2003) (quoting 138 Cong.

Rec. 34,001 (1992) (Sen. Wallop)); accord id. at 172

n.15 (“[T]he Act envisioned that ‘[w]herever possible,

responsibility for individual beneficiaries would be

assigned . . . toaprevious employer still in business.”)

(quoting Nonna A. Noto, Congressional Research

Service, Coal Industry: Use of Abandoned Mine Recla-

mation Fund Monies for UMWA “Orphan Retiree”

Health Benefits (Sept. 10, 1992), reprinted in 138 Cong.

Rec. at 34,005). In furtherance of that goal, the Coal Act

requires the Commissioner to assign each miner to a

coal operator remaining in business unless “no existing

company falls within the [statutory] categories.”

Barnhart v. Sigmon Coal Co., 534 U.S. 438, 447 (2002);

accord Peabody Coal Co., 537 U.S. at 164-165 (noting

Congress’s assumption that all “beneficiaries matchable

with operators still in business” would be assigned).

That objective is directly served by the assignment to

petitioners of their former employees whose benefits are

at issue in this case, and it would be substantially

disserved by invalidation of the Coal Act in its entirety.

Congress’s intent to maintain the Coal Act regime in

operation is further evidenced by its continued appropri-

ations for implementation of the Act even after this

Court’s decision in Kastern Enterprises. See Pet. App.

26a.

Petitioners contend (Pet. 19-20) that the continued

operation of the benefits plan put in place by the Coal

Act is inconsistent with Congress’s intention to assign

Coal Act liability to the specific coal operator “most

responsible for plan liabilities” for each beneficiary. But

while the Act sets forth a hierarchy of the coal operators

to whom a particular miner may be assigned, it directs

the Commissioner to consider only those operators that

“remain in business.” See 26 U.S.C. 9706(a). Congress

clearly understood that the coal operators “most respon-

sible” for some miners would have gone out of business,

and its evident intent was to require such miners to be

assigned to the most responsible coal operators to whom

assignments could be made. The Commissioner’s deci-

sion to treat Eastern Enterprises and similarly-situated

operators in the same manner as operators who had

gone out of business, and to assign their former workers

to other former employers like petitioners, is far more

consistent with that intent than is facial invalidation of

the statutory scheme.

C. Petitioners contend (Pet. 21-22) that the Com-

missioner’s reassignment to them of 95 individual bene-

ficiaries, who had previously been assigned to Eastern

Enterprises or similarly-situated operators, is pre-

cluded by the terms of the Coal Act. That claim lacks

merit.

Section 9706(a)(3) of Title 26 states that any eligible

beneficiary not assigned to an individual coal operator

under Section 9706(a)(1) or (2) should be assigned “to

the signatory operator which employed the coal industry

retiree in the coal industry for a longer period of time

than any other signatory operator prior to the effective

date of the 1978 coal wage agreement.” 26 U.S.C.

9706(a)(3). The Coal Act defines the term “signatory

operator” to mean “a person which is or was a signatory

to a coal wage agreement.” 26 U.S.C. 9701(c)(1). Peti-

tioners contend (Pet. 22) that the reassignments at issue

here were inconsistent with the terms of the statute

because petitioners did not in fact employ the relevant

miners “for a longer period of time than any other signa-

tory operator prior to the effective date of the 1978 coal

wage agreement.” 26 U.S.C. 9706(a)(3). Rather, those

miners were employed for longer periods by operators,

like Eastern Enterprises, that had not signed the 1974

or later wage agreements but had signed prior agree-

ments and therefore are “signatory operators” within

the literal terms of Section 9701(c)(1).

The square holding of Eastern Enterprises, however,

is that the Fifth Amendment precludes literal applica-

tion of the Coal Act’s assignment provisions to operators

who did not sign the 1974 or later wage agreements. As

the court of appeals recognized, the Commissioner’s

reassignment of the 95 miners at issue here was a rea-

sonable means of filling the statutory gap created by

this Court’s decision in Eastern Enterprises. See Pet.

App. 31a (explaining that “Congress did not contemplate

that some members of the ‘signatory operators’ group

could not constitutionally be required to contribute to

the Combined Fund,” and that “[t]he situation faced by

the Commissioner was thus the kind of ‘ease unprovided

for’ that allows her to engage in gap-filling”) (quoting

Peabody Coal Co., 537 U.S. at 169). Thus, “after East-

ern Enterprises the Commissioner in fact interpreted

‘signatory operators,’ as used in the Coal Act and in

light of the requirements of the Constitution, to include

only operators that had signed a 1974 [wage agreement]

or later agreement.” Jd. at 30a. After eliminating

Eastern Enterprises and similarly-situated coal opera-

tors from the pool of potential assignees, the Commis-

sioner reassigned each retiree whose assignment had

been declared invalid to the appropriate “signatory

operator” (as thus more narrowly defined), based on the

order of priority set forth in 26 U.S.C. 9706(a)(1)-(3).

See Pet. App. 30a. That approach furthered Congress’s

intent “to minimize the number of unassigned beneficia-

ries by assigning each retiree to a coal operator most

responsible for providing benefits.” Jd. at 32a-338a; see

Peabody Coal Co., 537 U.S. at 171-172 (The Coal Act “is

‘designed to allocate the greatest number of beneficia-

ries * * * toa prior responsible operator.”) (quoting

138 Cong. Rec. at 34,001 (Sen. Wallop)).

While arguing that reassignment of the 95 retirees

violated the terms of the Coal Act, petitioners conspicu-

ously fail to specify how the Commissioner ought to have

treated those miners after the Court’s decision in

Eastern Enterprises (assuming that the Coal Act is not

declared invalid in its entirety). Petitioners do not dis-

pute that each of those individuals is an “eligible benefi-

clary” within the meaning of 26 U.S.C. 9706(a). Petition-

ers recognize, moreover, that “there is no provision

authorizing the Commissioner or the Combined Fund to

declare a beneficiary unassigned” in the circumstances

presented here. Pet. 18; see 26 U.S.C. 9706(a) (“[T]he

Commissioner of Social Security shall * * * assign

each coal industry retiree who is an eligible beneficiary

to a signatory operator which (or any related person

with respect to which) remains in business.”); Pet. App.

32a n.3 (court of appeals explains that “Section 9706(a)

leaves unassigned only those retirees who were never

employed by a signatory operator that was ‘in business’

at the enactment of the Coal Act”). In light of petition-

ers’ failure to identify any alternative approach that

would have fully comported with the literal require-

ments of the Coal Act, their textual objection to the

reassignments at issue here is without force.

Petitioners also object (Pet. 22) that “[t]he reassign-

ments are going not to the employer which employed the

retiree ‘for a longer period of time than any other

signatory operator,’ but to companies which may have

employed the retiree for only few months, a few days, or

even a few hours.” But while the Coal Act authorizes

assignment of a retired miner only to an operator that

previously employed the individual (ef. Pet. App. 25a-

26a), the Act does not require any minimum length of

service with the particular operator as a condition of

assignment. See 26 U.S.C. 9706(a)(2) and (3) (authoriz-

ing assignment to former employer regardless of the

length of employment). Even apart from this Court’s

decision in Eastern Enterprises, the Act will sometimes

require that a miner be assigned to a particular operator

based on a very short period of prior employment if, for

example, the other operators for whom the miner

worked had gone out of business before the Coal Act was

enacted. See Pet. App. 31a n.3 (court of appeals notes

that “Congress intended to include in the [assignment]

pool only those companies then ‘in business’”). The

practical effect of the Commissioner’s approach is that

operators to whom retirees may not constitutionally be

assigned under Eastern Enterprises will be treated, for

purposes of 26 U.S.C. 9706(a)(1)-(3), as though they

were not in business as of the Act’s effective date. See

Pet. App. 3la n.3. The fact that petitioners have been

assigned retirees whom they employed for short periods

of time cannot properly be regarded as an unintended

consequence of the statute Congress drafted.

Finally, petitioners contend (Pet. 22) that the Com-

missioner’s approach is inconsistent with the sever-

ability provision applicable to the Coal Act. That pro-

vision states that, “[i]f any provision of [the Act], or the

application thereof to any person or circumstances, is

held invalid, the remainder of the [Act], and the applica-

tion of such provision to other persons or circumstances,

shall not be affected thereby.” 26 U.S.C. 7852(a). In

petitioners’ view (Pet. 22), Section 7852(a) precludes the

assignment of additional retirees to remaining coal

operators as a result of the Court’s holding in Eastern

Enterprises.

The court of appeals correctly rejected that argu-

ment. Pet. App. 33a-34a. As the court explained, Sec-

tion 7852(a)’s directive that the Coal Act’s “application”

to petitioners “shall not be affected” by its invalidation

as to others does not require that the amount of petition-

ers’ liability must remain unchanged. /d. at 34a. After

Eastern Enterprises as before, petitioners will be

treated as “signatory operator[s]” to whom their former

employees may be assigned, and the assignment of

retirees to individual operators will be governed by the

order of priorities set forth in 26 U.S.C. 9706(a)(1)-(3).

The elimination of certain operators (7.e., those who did

not sign the 1974 or later wage agreements) from the

pool of potential assignees may cause some former

miners to be reassigned, but “the fact and method of

applying the Coal Act to [petitioners] have not changed.”

Pet. App. 34a.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.