# Petition for Writ of Certiorari — Unity Real Estate Co. v. Hudson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 963

## Text

BO 12 Jw 281999

OFFICE Cr THE CLERK

No.

IN THE

Supreme Court of the Gnited States

UNITY REAL ESTATE COMPANY, ef al.,

Petitioners,

VS.

MARTY D. HUDSON, ef al.,

Respondents.

On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

ANTHONY J. POLITO
MICHAEL D. GLASS
POLITO & SMOCK, P.C.
Four Gateway Center
Pittsburgh, PA 15222
(412) 394-3333

ROBERT H. BORK

Counsel Of Record
1150 17th Street
Washington, D.C. 20036
(202) 862-5851

DONALD B. AYER

GREGORY G. KATSAS

JONES, DAY, REAVIS & POGUE
51 Louisiana Avenue, N.W.
Washington, D.C. 20001
(202) 879-3939

Counsel for Petitioners

oe NX

i
QUESTION PRESENTED

Whether the severe retroactive liability imposed by the Coal
Industry Retiree Health Benefit Act of 1992 on companies that
last signed a National Bituminous Coal Wage Agreement in
1981 (eleven years before the Coal Act was enacted) or 1984
(eight years before the Coal Act was enacted) violates the
Takings Clause or the Due Process Clause of the Fifth
Amendment.

ii
PARTIES TO THE PROCEEDINGS

Petitioners Unity Real Estate Company and Barnes &
Tucker Company were plaintiffs and appellants in the
proceedings below. Respondents Marty D. Hudson, Michael
H. Holland, Thomas O.S. Rand, Elliott A. Segal, Carlton R.
Sickles, Gail R. Wilensky, and William P. Hopgood, as trustees
of the United Mine Workers of America Combined Benefit
Fund, were defendants and appellees below. Respondents
Hudson, Holland, Thomas F. Connors, and Robert G. Wallace,
as trustees of the United Mine Workers of America 1992
Benefit Plan, also were defendants and appellees below.
Respondent United States of America was an intervenor-
defendant and appellee below. The LTV Corporation and
NACCO Industries, Inc. appeared in the court of appeals as
amici curiae supporting the appellants.

Neither Unity nor Barnes & Tucker has a parent corporation
or a publicly held company that owns 10 percent or more of its
stock. Unity is a family-owned company. Since 1986, five
individuals have owned all the stock of Barnes & Tucker.

ili

TABLE OF CONTENTS

Page

QUESTION PRESENTED ver ae oe
PARTIES TO THE PROCEEDINGS _ rae talate a oe S ll
TABLE OF AUTHORITIES ee , yea |
OPINIONS BELOW ...___. SOP ee ee a
JURISDICTION ........ er ee oe
PERTINENT PROVISIONS __ |
STATEMENT OF THECASE...... l
|. National Bituminous Coal Wage Agreements... 2
eo 6

3. Eastern Enterprises... Pe COR eee et

4. ThisLitigation..........00..00 9
REASONS FOR GRANTING THE WRIT ae 14

| THE DECISION BELOW CONFLICTS WITH
EASTERN ENTERPRISES ON THE SPECIFIC
QUESTION WHETHER THE COAL ACT IS
UNCONSTITUTIONAL ............. 14

ll_ THE DECISION BELOW IS IMPORTANT
FAR BEYOND THE SPECIFIC CONTEXT OF
eer "ih nae 23

A. The Court Should Clarify The Rules For
Construing Its Own Plurality Opinions Under
Marks v. United States ........... 24

B. The Court Should Clarify The Appropriate Legal
Principles Applicable To Constitutional Review
Of Retroactive Economic Statutes...... 27

iV

30

SPER so et ras Pee aG VP eee eas

Vv

TABLE OF AUT’ | RITIES

Page
Cases
Anker Energy Corp. v. Consolidated Coal Co.,

No. 98-3451, 1999 WL 301735

(3d Cir. May 14, 1999) oo 14
Association of Bituminous ( ‘ontractors, Ine. vy. Apfel,

156 F.3d 1246 (D.C. Cir. See 22, 26
Barnes v. Glen Theatre, Inc., 501 U.S. 560 £.)) oe 27
Bowen v. Georgetown [ /niversity Hospital,

Derigghaar te Rent beac: eT 29
Calder v. Bull 3 U.S. (3 Dall.) 386 (1798) 25
In re Chateaugay Corp., 53 F.3d 478 (2d Cir.),

cert. denied, 516 U.S. 913 Li So ae 22
Central States, Southeast & Southwest Areas

Pension Fund. No. 98-2512, 1999 WL 37167]

(Ne. SED, PO 28
Concrete Pipe & Products yv. Construction Laborers

Pension Trust, 508 U.S. 602 i. - : See 8, 28
Connolly v. PBGC, 475 U.S. 21] i. eee 8, 9, 28
Curtis-Wright Corp. vy. Schoonejongen, 514 U.S. 73

cialis, Ronee a MOT Oa a eerie 2]
Davon, Inc. v. Shalala, 75 F.3d 1114 (7th Cir.),

cert. denied, 519 U.S. 808 | EES cen 14
Eastern Enterprises vy. Apfel, 118 S. Ct. 2131

GE Wtioretionokinini ee Passim
Eastern Enterprises v. Chater, 110 F.3d 150

(Ist Cir. 1997), rev'd, 118 S. Ct. 213] | 28
Holland v. Keenan Trucking Co., 102 F.3d 736

esate tig. ene 22
Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155

A A Sie le 21
King v. Palmer, 950 F.2d 77] (D.C. Cir. 1991)

sain tenet SO oN Nae 26

Landgraf v. U.S.1. Film Products,
al. | a: Se Ne 29

vi
TABLE OF AUTHORITIES (cont'd)

Litton Financial Printing v. NLRB, 501 U.S. 190

(Gp NS RO LOCA EASE CMR Deed SORT SRS RR th 17
Marks v. United States, 430 U.S. 188

5 PERT PREM Rees ro: Be oR ER IEEE DOOD 24, 26
NLRB v. American National Insurance Co.,

ST TE GE IEE” oo nceca casa lsncacesscetnascscavariassriavcsovecens 21

PBGC v. R.A. Gray & Co., 467 U.S. 717 (1984) ... 9, 16, 28
Pap’'s A.M. v. City of Erie, 719 A.2d 273 (Pa. 1998),

cert. granted, 119 S. Ct. 1753 (1999)

III ence hanes 2 asec ese Crue ceena ese kaer veces aes 27
Parella v. Retirement Board of the Rhode Island

Employees’ Retirement System, 173 F.3d 46

(Ist Cir. 1999) ........... sescuk aceasmscomnelaks kc hachn easendaesaal eeak 28
Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air, 483 U.S. 711 (1987) .............0....0ee 26
Railroad Retirement Board v. Alton R.R. Co.,

TP, SEINE oo incdie 20s satedsaseareceantiecesecdkadadeksaecscex, 28

Sprague v. General Motors Corp., 133 F.3d 388
(6th Cir.) (en banc), cert. denied, 118 S. Ct. 2312

(2 OARERAE RS Ret Ret eee alain bac Nate aeeene herr bo SE Sond 17
Turner Broadcasting System v. FCC, 512 U.S. 622
RRR A pe ta SEB IP ARE Dec nna Se de Seta ce 22

UMWA 1950 Benefit Plan & Trust v. Bituminous Coal
Operators’ Association, 898 F.2d 177

(5 ae aD ENERO ae AAS PLR Ae a a RIE 20
UMWA 1974 Pension v. Pittston Co. , 984 F. 2d 469
(D.C. Cir.), cert. denied, 509 US. 924 (1993) .......... 5,6

United Mine Workers of America v. Nobel, 720 F. Supp.
1169 (W.D. Pa. 1989), aff'd, 902 F.2d 1558 (3d Cir.
1990), cert. denied, 499 U.S. 904 (1991) 0000... 20

United States v. Carlton, 512 U.S. 26 (1994) ....0.0.000000.. 16

United States v. Darusmont, 449 U.S. 292 (1981)
Renate oan aN rtp OU Rroo in VE once DR 16

Vii

TABLE OF AUTHORITIES (cont'd)

Unity Real Estate Co. v. Hudson, 889 F Supp. 818

Nae Becta capaci: fee eT OO er 1]
Usery v. Turner Elkhorn Mining Co.,

IE SAA BO ovticdulbcsdd ccccesccictee hi 8) 9, 28, 29
Vermont Assembly of Home Health A gencies, Inc. v.

Shalala, 18 F. Supp. 2d 355, (D. Vt. ne 28
Wisconsin Department of Revenue v.

William Wrigley, Jr., Co., 505 US. 214 (1992) ....... 15
Youngstown Sheet & Tube Co. y. Sawyer, 343 U.S. §79

ie eee RS PLS SETTER TOY ae dy 21
Statutes
Coal Industry Retiree Health Benefit Act of 1992,

yeas oe re |

wiohiagttn ca BO ea «CE ONE RO Ne NN 16

vcttby hori het pda Rn Neem ete 6

eke a EE Te ee EL, 7

he a. Ee eal, 7

WP BE sinc s6doliing csc cooesesecsheetss coca. 7, 16

tech bp, TERE LocadF 7
tadashi ics) NC l
Miscellaneous

Brief for Respondents UMWA Combined Benefit

stipe pitas Boe ROE NDF ty 25
Michelman, 7akings 1987, 88 Colum. L. Rev.
sextatets cpesny. Boe EE OE ge, 25

CRIN ccc tent Peers ame eRe ht 2: 24

Vill

TABLE OF AUTHORITIES (cont’d)

Note, Lastern Enterprises v. Apfel: Is the Court One
Step Closer to Unraveling the Takings and Due
Process Clauses, 77 N.C. L. Rev. 1524 (1999) ........... 25
Staff of the House Comm. on Ways & Means,
103d Cong., Ist Sess. Financing UMWA Coal Miner
“Orphan Retiree” Health Benefits

EN = I sr EL, aceckekeoses 20
The Supreme Court, 1997 Term — Leading Cases,
Pie Us Ge, I, BEI OOD | orvcsvnsciscvovsceccesssxetevecsees 23

L. Tribe, American Constitutional Law
gE ARR ee eNO al Bt EERE 28

PETITION FOR A WRIT OF CERTIORARI

Unity Real Estate Company and Barnes & Tucker Company
respectfully petition for a writ of certiorari to review the
judgment of the United States Court of Appeals for the Third
Circuit.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a) is not yet
reported. The opinion of the district court in the { /nity case
(Pet. App. 61a) is reported at 977 F. Supp. 717. The opinion
of the district court in the Barnes & Tucker case (Pet. App
79a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on March
29, 1999. This Court has jurisdiction under 28 USC
§ 1254(1).

PERTINENT PROVISIONS

The Fifth Amendment of the Constitution and pertinent
provisions of the Coal Industry Retiree Health Benefit Act of
1992, 26 U.S.C. §§ 9701-9722. are reproduced at Pet. App.
17Sa.

STATEMENT OF THE CASE

The Coal Industry Retiree Health Benefit Act of 1992
(“Coal Act”), 26 U.S.C §§ 9701-9722, requires former
signatories of expired National Bituminous Coal Wage
Agreements (“NBCWAs”) to provide lifetime health benefits
to former employees and their spouses and dependents. In
Eastern Enterprises v. Apfel, 118 S. Ct. 213] (1998), the
Court held that the Coal Act was unconstitutional as applied to
a company that last signed an NBCWA before 1974. This case
presents the question whether the Coal Act is also
unconstitutional as applied to companies that last signed an
NBCWA either in 1981 (eleven years before the Coal Act was
enacted) or in 1984 (eight years before the Coal Act was

2

enacted). It involves an even more draconian application of the
Coal Act than did astern, for the liability at issue here, if
upheld, would retroactively take away all assets of both
petitioners

This case presents several important questions left unsettled
by the divided opinions in Eastern, including (1) the
appropnate legal framework for assessing the constitutionality
of retroactive economic statutes, (2) the appropriate rules for
construing plurality opinions of this Court, and (3) the scope of
the holding in Lastern itself. The Coal Act imposes on
petitioners devastating retroactive liabilities, based on activities
years before its enactment, that are unrelated to past promises
made or injuries caused by petitioners. In Lastern, five Justices
concluded that such retroactive liabilities are unconstitutional.
See id at 2149-53 (plurality opinion of O’Connor, J.) (applying
Takings Clause), id. at 2158-60 (Kennedy, J., concurring in the
judgment and dissenting in part) (applying Due Process
Clause). In this case, however, the court of appeals reached a
different result. It held that, because the plurality and the
concurrence rested on different clauses of the Fifth
Amendment, astern establishes no general constitutional or
retroactivity principles, but instead must be restricted to its
facts. Then, applying its own due process analysis, which
ciosely tracked the Eastern dissent, the court upheld the Coal
Act as applied.

1. National Bituminous Coal Wage Agreements

For over five decades, the terms of employment in
bituminous coal mines have been governed by the NBCWAs,
a series of collective bargaining agreements between the United
Mine Workers of America (“UMWA”) and the Bituminous
Coal Operators’ Association (“BCOA”). At least eleven
different NBCWAs were executed between 1947 and 1971.
See id. at 2138 (plurality), id. at 2165-66 (Breyer, J.,
dissenting). Four different NBCWAs were executed between
1974 and 1984. Pet. App. 96a-174a.

3

The pre-1974 NBCWAs provided pension and health
benefits to UMWA retirees and their dependents through a
single multi-employer fund. During this period, “miners and
their dependents were not promised specific benefits.” 118 S.
Ct. at 2138 (plurality). Instead, signatory employers promised
to make defined contributions to the relevant fund during the
term of each NBCWA, and the trustres of that fund were
authorized to “adjust the level of benefits __ to remain within
the budgetary constraints.” See id

The 1974 NBCWA created two new employee welfare plans
to provide health benefits to UMWA retirees (and their spouses
and dependents): the United Mine Workers of America 1950
Benefit Plan and Trust (“1950 Plan”), which provided health
benefits to miners who retired before 1976, and the United
Mine Workers of America 1974 Benefit Plan and Trust (“1974
Plan”), which provided health benefits to miners who retired
after 1975. See id at 2139.' As incorporated into the 1974
NBCWA, Article III of the 1950 Plan stated explicitly that no
benefits were guaranteed: “In the event the assets of the 1950
Benefit Trust become insufficient to pay the benefits provided
under the Plan, the benefits may be suspended or reduced to
amounts which, in the judgment of the trustees, can be paid
from the assets of the 1950 Benefit Trust.” Pet. App. 110a.
The 1974 Plan contained an identical restriction on benefits.
Pet. App. Illa-13a. Article XX(d) of the 1974 NBCWA
required signatory employers to make defined contributions to
the 1950 Plan and the 1974 Plan These obligations were
specified by reference to current production, either in terms of
cents-per-ton (for each ton of coal mined) or cents-per-hour
(for each hour of UMWA labor). Pet. App. 99a-10la. All of

'To comply with the Employee Retirement Income Security Act of 1974
(“ERISA”), the 1974 NBCWA also created two separate funds to provide
pension benefits to UMWA retirees (and their spouses and dependents).
See 118 S. Ct. at 2139 (plurality).

4

these obligations applied only “{d]uring the life of this agree-
ment .. . and ending when this agreement is terminated.” /d.

The 1978 NBCWA provided health benefits to three
different categories of UMWA retirees (and their spouses and
dependents). /irst, miners who retired before 1976 continued
to receive health benefits through the 1950 Plan. See 118 S.
Ct. at 2139-40 (plurality), As incorporated into the 1978
NBCWA, Article III of the 1950 Plan expressly stated that, if
plan assets “become insufficient to pay the benefits provided
under the Plan on or after March 27, 1981,” the expiration date
of the 1978 NBCWA, “the benefits may be suspended or
reduced to amounts which, in the judgment of the Trustees, can
be paid from the net assets” of the 1950 Plan. Pet. App. 13 1a.
Second, miners who retired after 1975, if their former employer
remained in the coal mining business, received benefits through
newly-created individual-employer plans (“IEPs”). See 118 S.
Ct. at 2140 (plurality). Article XX(c)(3)(i) of the 1978
NBCWA stated that “[t]he benefits provided pursuant to such
{LEPs] shall be guaranteed during the term of this Agreement.”
Pet. App. 117a. 7hird, miners who retired after 1975, if their
former employer was no longer in the coal mining business,
continued to receive benefits through the 1974 Plan. See 118
S. Ct. at 2140 (plurality). Article XX(c)(3)(iii) of the 1978
NBCWA provided that the “sole purpose” of the 1974 Plan
was to provide health benefits “during the term of this
Agreement.” Pet. App. 117a. Similarly, Article III of the 1974
Plan stated that, if plan assets “become insufficient to pay the
benefits provided hereunder, on or after March 27, 1981, the
benefits may be suspended or reduced to amounts which, in the
judgment of the Trustees, can be paid from the net assets” of
the 1974 Plan. Pet. App. 132a.

The 1978 NBCWA contained several provisions to ensure
adequate funding for these benefits. Like its predecessor
provision, Article XX(d) of the 1978 NBCWA required
signatory employers to make defined cents-per-ton or cents-

EEE ee

5

per-hour contributions to the UMWA plans “during the life of
this Agreement . . . and ending when this Agreement is
terminated.” Pet. App. 118a-2la Moreover, the 1978
NBCWA contained a new Article XX(h), the so-called
“Guarantee Clause,” under which signatory employers agreed
to “fully guarantee” all of the promised benefits. Pet App.
12la. The Guarantee Clause further provided for contribution
rates to be increased “[i]n order to fully fund these guaranteed
benefits.” /d. By its express terms, the Guarantee Clause also
applied only “during the term of this Agreement.” /d?

Successor NBCWAs were executed in 1981 and 1984
These agreements left essentially unchanged the structure
through which UMWA retirees (and their spouses and
dependents) received health benefits The 1981 NBCWA
carned forward the various term-of-the-agreement limitations
contained in Article XX(c) (Pet. App. 135a-37a), in Article
XX(d) (Pet. App. 137a-39a), in Article XX(h) (Pet. App.
140a), and in Article III of the incorporated 1950 Plan and
1974 Plan (Pet. App. 152a-53a). The 1984 NBCWA also
carried forward all of these same term-of-the-agreement
limitations. Pet. App. 1S6a-61a, 173a-74a.

* The 1978 NBCWA also incorporated a new so-called “Evergreen
Clause,” which required former NBCWA signatories to contribute to the
UMWA benefit plans “at the rates Specified in the current NBCWA.
irrespective of the employer’s failure [to] sign that NBCWA.” UA(W4
1974 Pension v. Pittston Co., 984 F.2d 469, 473 (D.C. Cir.), cert. denied.
509 U.S. 924 (1993). The Evergreen Clause “addressed only employer
funding, not the scope of the underlying employee benefits.” Pet. App
59a (concurrence). As the majority below recognized, because the
NBCWAs have always specified contribution obligations in terms of
current production, the Evergreen Clause “has no bearing” on former
signatories who have ceased mining bituminous coal entirely. Pet. App.
36a.

2. The Coal Act

Following a long strike against the Pittston Coal Company
in 1989,* Secretary of Labor Elizabeth Dole created the
Advisory Commission on United Mine Workers of America
Retiree Health Benefits (“Coal Commission”). In its final
report to Secretary Dole, the Coal Commission asserted that
“coal miners have been promised and guaranteed health care
benefits for life.’” See 118 S.Ct. at 2141 (plurality) (quoting
report). That report did not discuss any contractual terms of
the pre- or post-1974 NBCWAs, and did not state where,
when, or by whom this alleged promise of lifetime health
benefits had been made* However, in testimony before
Congress, the Chairman of the Coal Commission stated that
this alleged promise “‘began in the collective bargaining
process nearly 50 years ago.’” See 118 S. Ct. at 2141
(plurality) (quoting testimony by W.J. Usery, Jr.).

The Coal Act merged the 1950 Plan and the 1974 Plan into
a successor United Mine Workers of America Combined
Benefit Fund (“Combined Fund”) 26 U.S.C. § 9702(a)(2).
Eligible beneficiaries of that fund include all retirees who were

* That strike arose because Pittston mined coal, but refused to contribute
to the UMWA funds, during the term of the 1988 NBCWA. Ultimately,
the D.C. Circuit held that the Evergreen Clauses contained in pre-1988
NBCWAs, which Pittson had signed, required the company to contribute
to the UMWA funds so long as it mined coal during the term of the 1988
NBCWA. See 984 F.2d at 471-75.

* The Coal Commission appears never to have examined the actual
NBCWAs at all, for its final report acknowledged that the Commission
rclied only on secondary materials “prepared and presented” by the
UMWA and the BCOA. See Coal Comm'n Report at 15 n.1, reprinted in
CA3 Supp. App. at 375 n.1. Those entities had every incentive to contend
that former signatories of expired NBCWAs had continuing obligations
even after they had ceased mining bituminous coal entirely. In contrast
to the UMWA and the BCOA, such former signatories were not
represented on the Coal Commission.

7

eligible to receive benefits and were receiving benefits from a
predecessor UMWA plan on July 20, 1992. /d. § 9703(f).
These beneficiaries are entitled to receive, for the rest of their
lives, “substantially the same” health benefits that they
previously had received under the predecessor UMWA plans.
Id. § 9703(b)(1). The Coal Act funds these benefits through
retroactive liabilities imposed on former signatories of expired
NBCWAs. /d. § 9704(a)(1) & (b)(1).°

The Coal Act also created a new United Mine Workers of
America 1992 Benefit Plan (“1992 Fund”) — Eligible
beneficiaries of the 1992 Fund are miners who would otherwise
receive no Coal Act benefits, who retired on or before
September 30, 1994, and who would have been eligible to
receive benefits (but for enactment of the Coal Act) under the
predecessor UMWA plans as of February 1, 1993. /d
§ 9712(b)(2). These beneficiaries also are entitled to receive,
for the rest of their lives, “substantially the same” benefits that
they would have received under the predecessor UMWA plans.
Id. § 9712(c)\(1). These benefits also are financed by
retroactive liabilities imposed on former signatories of expired
NBCWAs. /d. § 9712(d)(1)(B), (d)(3)

3. Eastern Enterprises

Fastern involved a company that had signed eight NBCWAs
between 1947 and 1964 and left the coal mining industry in
1965. See 118 S. Ct. at 2142-43 (plurality). There was no
majority opinion: four Justices concluded that the Coal Act as
applied in that case violated the Takings Clause, one Justice
concluded that the Coal Act as applied violated the Due

* Each former signatory must pay a “health benefit premium” to cover
benefits for all beneficianes “assigned” to it. 26 U.S.C. § 9704(a)(1) &
(b)(1). Beneficiaries are “assigned” to a former employer according to
criteria set forth in § 9706. The Coal Act also imposes on cach former
signatory an additional “death benefit premium” (id. § 9704(c)) and
“unassigned beneficiaries premium” (id. § 9704(d)).

8

Process Clause, and four Justices concluded that the Coal Act
as applied violated neither clause. Nonetheless, five Justices
agreed that the Coal Act was unconstitutional as applied
because of its severe, disproportionate, and unjustified
retroactivity. See id. at 2151 (“Retroactivity is generally
disfavored in the law, in accordance with ‘fundamental notions
of justice’ that have been recognized throughout history.”’)
(citations omitted), id. at 2158-59 (concurrence) (“for centuries
our law has harbored a singular distrust of retroactive
statutes’).

The astern plurality proposed a four-part test for assessing
the constitutionality of retroactive employee benefits funding
legislation. They concluded that if a statute

singles out certain employers to bear a burden that is [1]
substantial in amount, [2] based on the employers’ conduct
far in the past, and [3] unrelated to any commitment that the
employers made [4] or to any injury they caused, the
governmental action implecates fundamental principles of
fairness underlying the Takings Clause

118 S. Ct. at 2153. Applying that test, the plurality concluded
that the Coal Act was unconstitutional as applied because (1)
it imposed on Eastern a “considerable” liability of at least $50
million, id. at 2149; (2) that liability arose out of conduct
concluded in 1965, long before the Coal Act was enacted in
1992, id. at 2150, (3) neither Eastern nor any other pre-1974
NBCWA signatory had made “any agreement — implicit or
otherwise” to provide lifetime retiree health benefits, id. at
2152; and (4) Eastern did not cause its employees’ need for
general health benefits, id. at 2152-53. The plurality explained
that the absence of any prior employer commitment
distinguished Connolly v. PBGC, 475 U.S. 211 (1986), and
Concrete Pipe & Products v. Construction Laborers Pension
Trust, 508 U.S. 602 (1993), which had upheld the withdrawal
liability provisions of the Multiemployer Pension Plan
Amendments Act of 1980 (“MPPAA”) as sufficiently

9

“calibrated” to past promises. See 118 S. Ct. at 2152°
Similarly, the plurality explained that the absence of any causal
connection between past employment and the retirees’ current
need for general health benefits distinguished Usery v. Turner
Llkhorn Mining Co., 428 U.S. 1 (1976), which had upheld the
imposition of retroactive liability for black lung disease caused
by past employment in coal mines. See 118 S. Ct. at 2152-53

Justice Kennedy concluded that the same considerations
establish a violation of due process. Like the plurality, he
stressed that the Coal Act “imposes a staggering financial
burden,” sd at 2154, “has a retroactive effect of unprecedented
scope,” id. at 2159, and “bears no legitimate relation” to any
asserted governmental interest, id. On the latter point, Justice
Kennedy specifically agreed with the plurality that the absence
of any past commitments made, or injuries caused, by pre-1974
NBCWA signatories distinguished this Court’s prior decisions
upholding the imposition of retroactive liability on employers
See id. Justice Kennedy stressed that he and the plurality relied
on the same “retroactivity precedents” (id at 2158) and that his
analysis was “in full accord with many of the plurality’s
conclusions” (id. at 2154)

4. This Litigation

This case involves application of the Coal Act to petitioners
Unity Real Estate Company and Barnes & Tucker Company
Through a subsidiary, Unity last signed an NBCWA and ceased
all of its coal mining operations in 1981 (eleven years before
the Coal Act was enacted). Pet. App. 8a. Barnes & Tucker

* MPPAA requires employers withdrawing from a multi-employer pension
plan to pay their proportionate share of the plan’s “unfunded vested
benefits.” See, e.g, Connolly, 475 U.S. at 217 (emphasis added and
citations omitted). Thus, MPPAA merely sought to ensure that employees
would be “fully compensated” with pension benefits that their employers
previously had promised. See PBGC v. R.A. Gray & Co., 467 U.S. 717,
725, 733-34 (1984).

10

last signed an NBCWA in 1984 (eight years before the Coal
Act was enacted) and ceased the last of its coal mining
operations in 1986 (six years before the Coal Act was enacted).
Pet. App. 9a. Application of the Coal Act would bankrupt
Unity immediately and would bankrupt Barnes & Tucker within
two years. Pet. App. 9a-10a

Unity is a family business that owns a small commercial
building and a parking lot. It employs two individuals, a
corporate officer who earns $7000 per year and a janitor. Its
net worth is approximately $85,000. Pet. App. 9a. Unity’s
predecessor companies signed NBCWAs between 1947 and
1961, and a subsidiary signed the 1974, 1978, and 1981
NBCWAs. Unity ceased all of its coal mining operations in
1981. Pet. App. 8a. In 1992, however, Unity was assigned 76
Coal Act beneficiaries. By 1996, its accrued and unpaid Coal
Act liabilities exceeded $450,000. Those liabilities are “over
six times its total assets.” Pet. App. 9a.’

Barnes & Tucker signed NBCWAs in 1971, 1974, 1978, and
1981. In 1984, it signed a “me-too” agreement incorporating
the 1984 NBCWA. It closed its last coal mining operation in
1986. Since then, its activities have been confined to paying
workers’ compensation and black lung claims, treating acid
mine drainage from its closed mines, and leasing property to
third parties. In 1992, Barnes & Tucker was assigned 1564
Coal Act beneficiaries. Pet. App. 9a. Its Coal Act liability is
approximately $2.5 million per year. Pet. App. 4la.* By
contrast, its average gross revenue, between 1992 and 1996,
was barely over $1 million per year. CA3 App. at 338. Thus,

’ As the court of appeals acknowledged: “Unity’s assets are tiny, and its
Coal Act liabilities dwarf them. If we uphold the defendants’ position,
this small family business will be bankrupted instantly.” Pet. App. 53a.

* Barnes & Tucker estimated that its total Coal Act liability is approxi-
mately $50 million. See CA3 App. at 337-38.

1]

if Barnes & Tucker “is forced to continue paying its Coal Act
liabilities, all of its assets will be consumed in less than two
years.” Pet. App. 10a.’

Petitioners filed separate actions to challenge the
constitutionality of the Coal Act as applied. In the Unity case,
the district court granted a preliminary injunction on takings
grounds, noting that Unity’s past employment relationships
“did not create any legitimate expectation of lifetime benefits.”
Unity Real Estate Co. v. Hudson, 889 F. Supp. 818, 832 (W_D.
Pa. 1995). Despite that decision, however, the district court
later granted summary judgment against both petitioners. Pet.
App. 6la, 79a. A divided panel affirmed, but only with
“substantial hesitation” about what it characterized as an
“exceedingly close question.” Pet. App. 3a.'°

In Part II of its opinion, the majority below addressed the
extent to which /asfern controls other cases. The majority
held that the lower courts are not bound by the points of
agreement between the retroactivity analyses of the Eastern
plurality and concurrence, because those opinions rested on the
Takings Clause and the Due Process Clause respectively, and
because “neither constitutional ground is a more limited version
of the other.” Pet. App. 16a. Instead, the majority concluded,
Eastern controls only “substantially identical” cases involving
the constitutionality of the Coal Act as applied to companies
that last signed an NBCWA prior to 1974. Pet. App. 16a-17a.
At the same time, however, the majority held that the lower
courts are bound by the points of agreement between the

* In April 1996, Barnes & Tucker estimated that its Coal Act liabilities
would lead to its complete liquidation and bankruptcy within approxi-
mately four years (i.e., by April 2000). CA3 App. at 338.

'° Consistent with that characterization, the Third Circuit took the
extraordinary course of holding two oral arguments and ordering three
rounds of briefing.

12
takings analyses of the astern concurrence and dissent, both
of which had stated that impact on a “specific” property
interest is an essential element of any Takings Clause claim.
Pet. App. 17a (“we are bound to follow the five-four vote
against the takings claim in astern’)

In Part III of its opinion, the court of appeals rejected
petitioners’ claims under its own due process analysis. The
lynchpin of the court’s analysis was its conclusion that the post-
1974 NBCWAs created a “reasonable expectation” (or could
reasonably be construed to create a “reasonable expectation’)
that retirees would receive lifetime health benefits from the
UMWA funds. Pet. App. 26a-36a. The court acknowledged
that, under the plain language of the post-1974 NBCWAs and
the incorporated fund documents, the trustees of the UMWA
funds “were obligated to provide benefits only ‘during the term
of this agreement,’ just as the companies were only required to
contribute during the term of the contract.” Pet. App. 34a
Nonetheless, the court relied heavily on what it characterized
as “contradictory language” (id ) in a “General Description” of
benefits attached to the post-1974 NBCWAs, which refers to
beneficiaries’ retaining a health services card “for life” or “until
death.” Pet. App. 29a-30a.'' The court also relied heavily on
“(t]he fact that NBCWAs continue[d]” through a series of
successor agreements. Pet. App. 31a, see also Pet. App. 33a
n.9 (noting “the fact that the NBCWAs persisted for decades”).
The court asserted two further rationales for imposing
perpetual obligations on former signatories of expired
NBCWAs: their purported “responsibility” for the UMWA
funds’ financial difficulties (Pet. App. 21a-25a) and the fact that
“(t]he coal industry has been heavily regulated for decades”

'! In discussing “Other Contractual Provisions” (Pet. App. 36a-37a), the
court mentioned only the Evergreen Clause, which it acknowledged is
inapplicable to former NBCWA signatories who have left the coal mining
industry (Pet. App. 36a), and the Guarantee Clause, which by its terms
applied only “during the term” of cach NBCWA (e.g., Pet. App. 12 1a).

F

13

(Pet. App. 25a).'""_ After concluding that the post-1974
NBCWAs created a “reasonable expectation” of lifetime health
benefits, the court had little trouble holding that the Coal Act
was constitutional despite its “quite long” periods of
retroactivity (Pet. App. 39a) and its “substantial” economic
burdens (Pet. App. 42a).

Judge Aldisert concurred only in the majority's judgment
He stated emphatically that “the Wage Agreements expressly
limited all of the promised retiree health benefits to the term of
each agreement”

I simply can find no evidence of any “promise” of lifetime
benefits contained in any Wage Agreement. Any reliance on
extra-contractual “promises” looks to a novel theory of law
that turns a blind eye to the centuries-old law of contracts
and to the current law on collective bargaining agreements.

* * * *

To the miner, the actual contract controlled, not the
expectation of future agreements. Without the contract in
hand, the miners would not pick up their lamps at the lamp
house and descend into the shafts. They worked under the
precise language in a given contract and under no other
representations.

Pet. App. 58a-59a. Judge Aldisert concluded that the Coal Act
could be sustained “for one reason only”: because the Coal
Commisson had construed the post-1974 NBCWAs differently,

The court rejected a separate argument, which it incorrectly attributed
0 petitioners, that the Coal Act is unconstitutional solely because it
imposes retroactive liability for benefits unrelated to past mining injuries.
Pet. App. 20a-2la. What petitioners argued, however, is that this feature
of the Coal Act merely forecloses the particular justification for retroactive
liability approved by this Court in Turner Elkhorn.

14

and because its report was among the materials considered by
Congress. Pet. App. 55a-56a."’

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW CONFLICTS WITH
EASTERN ENTERPRISES ON THE SPECIFIC
QUESTION WHETHER THE COAL ACT IS
UNCONSTITUTIONAL

Five Justices in Eastern, reasoning from the common
premise that retroactivity is highly disfavored in our legal
culture, concluded that retroactive employee benefits funding
legislation is unconstitutional if it imposes on employers a
“substantial” economic burden, based on conduct “far in the
past,” that is “unrelated to any commitment that the employers
made or to any injury they caused.” See 118 S. Ct. at 2153
(plurality); id. at 2158-60 (concurrence). The court of appeals
failed to apply that rule, however, for it concluded that the
retroactivity analyses of the astern plurality and concurrence
control only “substantially identical” cases involving companies
that signed only pre-1974 NBCWAs. Pet. App. 1Sa-17a Had
the court applied the retroactivity principles endorsed by five
Justices in Eastern, it would have had to invalidate the Coal
Act as applied to companies that signed post-1974 NBCWAs.
As another court of appeals has explicitly recognized, for
purposes of assessing the constitutionality of the Coal Act as
applied, “[n]othing radical happened in 1974.” Davon, Inc. v.
Shalala, 75 F.3d 1114, 1128 (7th Cir.), cert. denied, 519 U.S.
808 (1996).

'’ In Anker Energy Corp. v. Consolidated Coal Co., No. 98-3451, 1999
WL 301735 (3d Cir. May 14, 1999), the court of appeals confirmed its
view that Eastern contains no binding legal holdings (id. at *8-*11) and
that the Coal Act is constitutional as applied to companies that signed
post-1974 NBCWAs (id. at *11-*13).

15

A. Under the retroactivity principles endorsed by five
Justices in astern, the Coal Act is plainly unconstitutional as
applied to companies that, as former signatories of expired
post-1974 NBCWAs, are burdened by severe, dispropor-
tionate, and retroactive Coal Act liabilities. Each of the four
elements of the retroactivity analysis adopted by the Eastern
plurality, and endorsed by the astern concurrence, is present
in this case.

First, as the court of appeals acknowledged, the Coal Act
liabilities imposed on Unity (over $450,000 by 1996) and
Barnes & Tucker (estimated to total approximately $50
million) are “certainly substantial” under any rational measure
Pet. App. 42a. They are obviously substantial in absolute
amount.'* More importantly, they are substantial relative to the
limited three- or four-year commitments undertaken by Unity
on three occasions between 1974 and 1981, and by Barnes &
Tucker on four occasions between 1974 and 1984. Finally,
they are substantial relative to the total size of both petitioners,
for the court of appeals acknowledged that application of the
Coal Act would “put these particular [petitioners] out of
business.” Pet. App. 42a. That fact underscores not only the
severe burden imposed on petitioners in this case, but also the
crucial importance of the question presented to small
businesses throughout the coal mining industry. As Judge
Aldisert ominously noted, “the operation of the present
Statutory solution to the vexing health benefit problem of
retirees . . . may serve as a full employment program for
bankruptcy lawyers.” Pet. App. 60a.

'* The court of appeals observed that a small absolute liability might be
constitutional even if it were disproportionate. Pet. App. 4la-42a
(hypothetical involving “a one-dollar burden”). However, this case is
obviously not governed by the maxim that “the law cares not for trifles.”
see, e.g., Wisconsin Dep't of Rev. v. William Wrigley, Jr., Co., 505 U.S.
214, 231 (1992).

16

Second, as the court of appeals acknowledged, the degree
of retroactivity at issue here, although less extreme than that
present in Eastern, “is still quite long.” Pet. App. 39a. The
Coal Act imposed liability in this case eleven years after Unity
last signed an NBCWA and ceased mining coal, eight years
after Barnes & Tucker last signed an NBCWA, and six years
after Barnes & Tucker terminated the last of its coal mining
operations. Pet. App. 8a-9a. This multi-year reachback cannot
be defended as “confined to short and limited periods required
by the practicalities of producing national legislation,” United
States v. Darusmont, 449 U.S. 292, 296-97 (1981) (per
curiam). That justification for retroactivity typically applies to
statutes with a reachback period of not more than one year.
See, e.g., United States v. Carlton, 512 U.S. 26, 32-33 (1994)
(one-year retroactivity period designed to cure drafting error);
PBGC v. R.A. Gray & Co., 467 U.S. 717, 730-31 (1984) (five-
month retroactivity period designed to prevent strategic
behavior “while Congress debated necessary revisions in the
statute”).'°

Third, the retroactive Coal Act liabilities imposed on
petitioners are vastly broader than any of their past promises or
commitments. On their face, the post-1974 NBCWAs made
absolutely clear that both the retiree entitlements (to receive
defined health benefits) and the corresponding employer duties
(to pay for those benefits) were limited to the term of each
contract: Article XX(c) of each NBCWA limited retiree

'’ The court of appeals held that the relevant retroactivity period for
Barnes & Tucker was only four years (measured from the expiration date
of the 1984 NBCWA). Pet. App. 38a-39a. That analysis is incorrect
because Coal Act liability is triggered by the signing of an NBCWA or
“me too” agreement, see 26 U.S.C. §§ 9701(c)(1), 9706 — an event that,
for Barnes & Tucker, last occurred in 1984. The court of appeals’ error
in this regard is immaterial, however, because even a four-year
retroactivity period cannot possibly be justified by “the practicalities of
producing national legislation” (Darusmont, 449 U.S. at 296-97).

17

entitlements to “the term of this Agreement” (e.g., Pet. App.
116a-117a); Article XX(d) of each NBCWA limited employer
contribution requirements to “the life of this Agreement” (e.g.,
Pet. App. 118a-121a); Article XX(h) of each NBCWA limited
the guarantee of full funding to “the term of this Agreement”
(e.g., Pet. App. 121a); and Article III of the incorporated plan
documents stated that all defined benefits could be “suspended
or reduced” after expiration of the underlying NBCWA (e.g.,
Pet. App. 152a-153a). The judges below repeatedly acknowl-
edged these clear contractual limitations. £.g., Pet. App. 34a
(majority) (“the Trustees were obligated to provide benefits
only ‘during the term of this agreement,’ just as the companies
were only required to contribute during the term of the
contract”); Pet. App. 58a (concurrence) (“the Wage Agree-
ments expressly limited all of the promised retiree health
benefits to the term of each agreement”)."°

Fourth, the broad package of health benefits afforded under
the Coal Act is in no sense a remedy for injuries caused by past
employment in coal mines. Five Justices reached that conclu-
sion in Eastern, see 118 S. Ct. at 2152-53 (plurality); id. at
2159 (concurrence), and their analysis in this regard applies to
signatories of post-1974 NBCWAs no less than to signatories
of pre-1974 NBCWAs.

B. Every justification asserted by the court below for
upholding the Coal Act as applied is inconsistent with the
retroactivity principles endorsed by five Justices in Eastern.

'© General labor-law and ERISA principles confirm this straightforward
interpretation of the NBCWAs. See, e.g., Litton Financial Printing Div.
v. NLRB, 501 U.S. 190, 207 (1991) (employee benefits are presumed to
“cease, in the ordinary course, upon termination of the [collective]
bargaining agreement”), Sprague v. General Motors Corp., 133 F.3d 388,
400 (6th Cir.) (en banc) (“Because vesting of welfare plan benefits is not
required by law, an employer’s commitment to vest such benefits is not to
be inferred lightly.”), cert. denied, 118 S. Ct. 2312 (1998).

18

First, the Coal Act cannot be upheld on the ground (Pet.
App. 29a-34a) that a “reasonable expectation” of lifetime
health benefits arose from statements in the “General Descrip-
tion” that retirees would retain a health services card “for life”
or “until death.” The record in Eastern contained various
statements by contracting parties indicating that the pre-1974
NBCWAs had “promised lifetime health benefits.” See 118 S.
Ct. at 2139 (plurality).'’ Nonetheless, five Justices held that,
where the applicable contractual limitations are clear, such
statements cannot support the imposition of a severe
retroactive liability. The contention that employers had
promised lifetime benefits, the Court concluded, “is not
supported by the pre-1974 NBCWA’s,” and “[n]Jo contrary
conclusion can be drawn from the few isolated statements of
individuals involved in the coal industry.” 118 S. Ct. at 2152
(plurality); see id. at 2159 (concurrence) (endorsing this
reasoning). The “General Description” is analogous to these
extra-contractual statements because, although it was attached
to the post-1974 NBCWAs, it was plainly not a source of bene-
fits above and beyond those specified in Article XX or in the
incorporated plan documents. The “General Description”
stated at the outset:

The following is a general description of certain information
contained in the [UMWA plans]. This description is
intended merely to highlight certain information; it is not a
complete statement of all of the provisions of the Plans and
Trusts, nor is it intended to be a Summary Plan Description
as defined in [ERISA], and is qualified in its entirety by,
and subject to the more detailed information contained in,
the Plans and Trusts.

" For example, the president of the Southern Coal Operators’ Association
stated in 1953 that miners had been “promised and grown accustomed
to’” continuing health benefits, and a UMWA official stated in 1951 that
miners had been promised benefits ““without limit as to duration.
118 S. Ct. at 2166 (dissent).

%99

See

19

E.g., Pet. App. 121a (emphasis added). Moreover, the
NBCWAs contained repeated and even more emphatic
statements that “[t]he specific provisions of the plans will
govern in the event of any inconsistency between the general
description and the plans.” Pet. App. 133a, 140a, 154a, 16la.
Accordingly, under the retroactivity principles adopted by five
Justices in Eastern, the “General Description” could not
support the imposition of retroactive Coal Act liability even if
it did contain statements about the alleged promise of lifetime
health benefits."*

Second, the Coal Act cannot be upheld on the ground (Pet.
App. 31a-33a) that an “expectation” of lifetime benefits arose
because the NBCWAs had been repeatedly renewed. Five
Justices rejected that reasoning in Eastern, which invalidated
the Coal Act as applied to a company that had signed eight
NBCWAs during the eighteen years between 1947 and 1965
(see 118 S. Ct. at 2142-43 (plurality). If repeated renewal of
those NBCWAs was insufficient to sustain the Coal Act as
applied in Eastern, it is also insufficient to sustain the Coal Act
as applied here to Unity, which signed approximately seven
NBCWAs during the fourteen years between 1947 and 1961,
and three NBCWAs during the seven years between 1974 and
1981 (Pet. App. 8a-9a), and to Bames & Tucker, which signed
three NBCWAs and one “me-too” agreement during the
thirteen years between 1971 and 1984 (Pet. App. 9a). In
Eastern, five Justices plainly recognized that the imposition of
retroactive liability can be justified only by reference to past
commitments made by the company at issue, not by reference

'8 The majority’s interpretation of the “General Description” is untenable
in any event, because the “General Description” itself confirmed that the
health benefits referenced in each NBCWA were guaranteed only “during
the term of this Agreement.” F.g., Pet. App. 129a. As Judge Aldisert
charitably put it, “[t]o suggest that the clear language limiting benefits to
the term of the Wage Agreement is trumped by the ‘lifetime’ health card
is a stretch.” Pet. App. 58a.

20

to commitments made by other companies in successor or
predecessor agreements. See 118 S. Ct. at 2152 (plurality)
(“the question is not whether miners had an expectation of
lifetime benefits, but whether Eastern should bear the cost of
those benefits”); id. at 2159 (concurrence) (endorsing this
analysis). In other words, contrary to the decision below, the
analysis of employee “expectations” cannot be divorced from
the analysis of past commitments by the employer in question.

Third, the Coal Act cannot be upheld on the ground (Pet.
App. 22a) that petitioners’ actions “helped to create the finan-
cial crisis” in the UMWA plans. The majority reasoned that
petitioners, by not signing successor NBCWAs when they “left
the industry,” created “obligations on the part of other
companies to increase contributions to the benefit funds.” Pet.
App. 23a-24a. That analysis, however, presupposes that
petitioners’ retirees reasonably expected to receive lifetime
health benefits even though petitioners and other signatories
had promised to provide benefits and funding only during the
term of each underlying NBCWA. As explained above, five
Justices in Eastern squarely rejected any retroactivity analysis
based on employee expectations so completely divorced from
past employer promises. See 118 S. Ct. at 2152-53 (plurality);
id. at 2158-59 (concurrence). The cost of providing health
benefits during the term of an NBCWA reflected promises
made only by the signatories of that particular agreement.'”

'’ The “financial crisis” referred to by the court of appeals arose because
the 1988 NBCWA, in contrast to its predecessors, was intentionally
underfunded. See, e.g., United Mine Workers of America v. Nobel, 720
F. Supp. 1169, 1177 (W.D. Pa. 1989), aff'd, 902 F.2d 1558 (3d Cir. 1990),
cert. denied, 499 U.S. 904 (1991); UMWA 1950 Benefit Plan & Trust v.
Bituminous Coal Operators’ Ass'n, 898 F.2d 177, 180-82 (D.C. Cir.
1990). As a result, the financial condition of the 1950 and 1974 Plans
deteriorated from a combined surplus of $33 million in 1987, the last full
year during which the 1984 NBCWA remained effective, to a combined
deficit of over $109 million in 1990, mid-way through the term of the
1988 NBCWA. See Staff of the House Comm. on Ways & Means, 103d

dnshisiabaicnatt wisseonnnnniailall

21

Fourth, the Coal Act cannot be upheld on the ground (Pet.
App. 25a) that “[t]he coal industry has been heavily regulated
for decades.” The same regulatory history was asserted as a
ground for upholding the Coal Act in Eastern. See 118 S. Ct.
at 2166-67 (dissent). Nonetheless, five Justices concluded that
the extent of government involvement, at least as of 1965,
could not justify the imposition of retroactive Coal Act
liabilities.2° The only significant post-1965 legal development
not considered in Eastern was the enactment of ERISA in
1974. That event undercuts the regulated field argument even
more, for the framers of ERISA made conscious decisions to
create no “substantive entitlement to employer-provided health
benefits,” Curtis-Wright Corp. v. Schoonejongen, 514 U.S. 73,
78 (1995), and to impose no vesting requirements on employee
welfare plans such as the UMWA plans at issue here, see, e.g.,
Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1160 (3d
Cir. 1990).

Finally, the concurrence below erred in asserting that
reviewing courts are powerless to look beyond the Coal Com-

Cong., Ist Sess., Financing UMWA Coal Miner “Orphan Retiree” Health
Benefits 9 (Comm. Print, 1993) (citing Funds’ annual reports). Of course,
petitioners cannot be charged with responsibility for the underfunding of
an agreement to which they were not a party.

© The regulatory events cited by the court below were President Truman's
seizure of the coal mines in 1946 and the 1948 execution of the Krug-
Lewis agreement, which effectively imposed collective-bargaining terms
on the mining industry. Pet. App. 4a-5a, 25a. In 1952, however, it
became clear that the mine seizure had been unconstitutional, see
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), and that
the executive branch has no statutory authority to “compel concessions or
otherwise sit in judgment upon the substantive terms of collective
bargaining agreements,” NLRB v. American Nat'l Ins. Co, 343 U.S. 395,
404 (1952). Thus, even apart from Eastern, the events cited by the court
below cannot possibly demonstrate that the coal industry was a “heavily
regulated” field that petitioners entered only at their pen.

22

mission’s mistaken conclusion that UMWA retirees had been
promised “health care benefits for life” (Pet. App. 56a-57a) —
even though, in fact, “the Wage Agreements expressly limited
all of the promised retiree health benefits to the term of each
agreement” (Pet. App. 58a). In Eastern, five Justices invali-
dated the Coal Act as applied to a company that last signed an
NBCWA in 1964, despite congressional testimony from the
Coal Commission’s Chairman that legislation was necessary to
vindicate “‘promises that began in the collective bargaining
process nearly 50 years ago.’” See 118 S. Ct. at 2141 (plural-
ity) (quoting testimony). Those Justices did not hesitate to
conclude that this mistaken assertion was “not supported” by
the actual terms of the governing contracts. See id. at 2152; id.
at 2159 (concurrence). Thus, a patently incorrect construction
of the underlying NBCWAs is not dispositive, even if made by
the Coal Commission and even if accepted by Congress.”

C. The constitutionality of the Coal Act as applied to
signatories of the post-1974 NBCWAs is an obviously
important and recurring question. This question has been
frequently litigated, both before Lastern, see, e.g., Holland v.
Keenan Trucking Co., 102 F.3d 736 (4th Cir. 1996), Jn re
Chateaugay Corp., 53 F.3d 478 (2d Cir.), cert. denied, 516
U.S. 913 (1995), and after, see, e.g., Association of Bitumi-
nous Contractors, Inc. v. Apfel, 156 F.3d 1246 (D.C. Cir.
1998) (“ABC”), Pet. App. la. Indeed, this question has far
more practical significance than the question whether the Coal

*! The court of appeals concluded that Congress’s assessment of the
antecedent NBCWAs was subject only to “substantial evidence” review.
Pet. App. 18a-19a (majority), 56a-57a (concurrence). Judge Aldisert’s
analysis cannot be justified even under that deferential standard, which
“does not mean” that Congress’s factual determinations “are insulated
from meaningful judicial review altogether.” Turner Broadcasting Sys.
v. FCC, 512 U.S. 622, 666 (1994). As five Justices implicitly recognized
in Eastern, a patently incorrect construction of the antecedent NBCWAs
is not “substantial” evidence.

23

Act is unconstitutional as applied to companies that last signed
a pre-1974 NBCWA, because the vast majority of companies
subject to the Coal Act are signatories of post-1974 NBCWAs.
Moreover, the coal industry contains “literally thousands of
individual mines” run by small companies like petitioners. Coal
Comm'n Report at 9, CA3 Supp. App. at 369. As Judge
Aldisert noted (Pet. App. 60a), the Coal Act threatens the very
survival of these companies. The Court should grant review
because of the importance of the question presented and
because, as explained above, the decision below conflicts with
this Court’s decision in Lastern.

Il. THE DECISION BELOW IS IMPORTANT FAR
BEYOND THE SPECIFIC CONTEXT OF THE
COAL ACT

The court of appeals’ holding that Kasfern contains no
binding retroactivity principles raises questions with
significance far beyond the specific context of the Coal Act. In
Eastern, five Justices agreed that the Fifth Amendment
provides significant protection against the operation of
retroactive economic civil statutes, and further agreed on what
specific protection applies in the context of retroactive
employee benefits funding legislation. However, these Justices
divided on whether the controlling retroactivity principles arise
out of the Takings Clause or the Due Process Clause. As one
commentator explained, these Justices “agreed on legal
principles,” and disagreed only on “doctrinal categorization.”
The Supreme Court, 1997 Term — Leading Cases, 112 Harv.
L. Rev. 122, 219 (1998) (discussing Kastern). The court of
appeals’ conclusion that the operative retroactivity principles
govern only Eastern itself and “substantially identical” cases —
i.e. Coal Act cases involving signatories of pre-1974
NBCWAs (Pet. App. 15a-17a) — raises troubling and
important questions about the rules for construing plurality
opinions of this Court and about the appropriate legal standards

24

for assessing the constitutionality of retroactive economic
statutes

A. The Court Should Clarify The Rules For Construing
Its Own Plurality Opinions Under Marks v. United
States

In Marks v. United States, 430 U.S. 188, 193 (1977), this
Court held that “[w]hen a fragmented Court decides a case and
no single rationale explaining the result enjoys the assent of five
Justices, ‘the holding of the Court may be viewed as that
position taken by those Members who concurred in the
judgments on the narrowest grounds’” (citation omitted). The
proper application of Marks is an important question given this
Court’s increasingly frequent issuance of plurality opinions.”
The decision below raises three distinct Marks issues
warranting this Court’s review.

1. The court of appeals refused to give effect to the points
of agreement between the ‘astern plurality and concurrence.
The court reasoned that, despite five Justices’ agreement about
the relevant retroactivity principles, “[t]here is a fundamental
conceptual difference between a takings claim and a due
process claim,” so that a retroactivity analysis grounded in the
Takings Clause is not “a more limited version” of one grounded
in the Due Process Clause, or vice versa. Pet. App. 15a-16a.
The court thus held that agreement over substantive “legal
principles” is irrelevant under Marks, and that disagreement
over “doctrinal categorization” is dispositive.

The court of appeals’ analysis is both mistaken and
troubling. It is mistaken because, where five Justices agree

* During the 154 years between 1801 and 1955, the Court issued only 45
plurality opinions, by contrast, during the ten years between 1981 and
1991, the Court issued no fewer than 103 plurality opinions. See Note, A
Legitimacy Model for the Interpretation of Plurality Decisions, 77 Cornell
L. Rev. 1593, 1593 n.3 (1992)

25

about the controlling legal principles, those principles are
themselves a “common denominator” between the competing
opinions, which the lower courts can readily apply even absent
agreement about the “precise theoretical underpinnings.” See
J. Davis & W. Reynolds, Juridical Cripples: Plurality
Opinions in the Supreme ( ‘ourt, 1974 Duke L.J. 59, 72. The
court of appeals’ analysis is troubling because five Justices
currently agree about the need for meaningful constitutional
protection against retroactive civil statutes, even though the
Court has long disagreed about what clause of the Constitution
embodies that protection.*> Under the court of appeals’
analysis, as long as the latter disagreement persists, this Court
cannot establish any legal framework for assessing the constitu-
tionality of retroactive civil statutes, because it is impossible —
regardless of the extent of agreement on the appropriate
retroactivity principles — to establish a Marks majority for
those principles. The Court should grant review either to
determine what clause of the Constitution applies in these
circumstances, or to confirm that agreement on that point is
unnecessary to the development of a meaningful retroactivity
jurisprudence.

™ The Court's disagreement about what clause of the Constitution affords
protection against retroactive economic statutes has been longstanding.
See, e.g., Note, Eastern Enterprises v. Apfel: Is the Court One Step
Closer to Unraveling the Takings and Due Process Clauses, 77 N.C. L.
Rev. 1524, 1524 (1999) (“the Supreme Court has made a muddled mess
of the Takings and the Due Process Clauses”), Michelman, 7akings, 198 7,
88 Colum. L. Rev. 1600, 1607 n.40 (1988) (“judges and commentators
have [not] always maintained a clear distinction between the ‘due process’
and ‘takings’ inquiries”). In astern, Justice Thomas suggested that the
Ex Post Facto Clause might also apply in this context. See 118 S. Ct. at
2154 (concurrence). Although Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798),
restricted the Ex Post Facto Clause to criminal statutes, that decision
presupposed (contrary to statements by the Fasfern concurrence and
dissent) that the Takings Clause does apply in this context. See 118 S. Ct.
at 2151 (plurality).

26

2. The court of appeals did give effect to the agreement
between the astern concurrence and dissent that a burden on
a “specific” property interest is an essential element of any
Takings Clause claim. Pet. App. 17a (“we are bound to follow
the five-four vote against the takings claim in Eastern”). By
creating a Marks majority out of a concurrence and dissent, the
decision below conflicts both with Marks itself, which applies
only to positions taken by Justices “*who concurred in the
judgments,’” 430 U.S. at 193, and with King v. Palmer, 950
F.2d 771, 783 (D.C. Cir. 1991) (en banc), in which the D.C
Circuit held that “we do not think we are free to combine a
dissent with a concurrence to form a Marks majority.”
Applying that principle, the Ang court expressly refused to
create a Marks majority out of the points of agreement between
the concurrence and the dissent in this Court’s decision in
Pennsylvama v. Delaware Valley Citizens’ Council for Clean
Air, 483 U.S. 711 (1987). See 950 F.2d at 779-85. The Court
should grant review to resolve the circuit conflict between the
decision below and King.

3. Finally, the combined effect of the court of appeals’ two
Marks rulings — giving effect to the points of agreement
between the Lasfern concurrence and dissent, but not giving
effect to the points of agreement between the astern plurality
and concurrence — is to adopt, as the law of the land for
virtually all cases, the position urged by the Eastern dissent.”

4 Although the decision below would give effect to Eastern in the narrow
range of cases involving challenges to the Coal Act brought by pre-1974
NBCWA signatories, the D.C. Circuit has refused to do even that. In
ABC, the D.C. Circuit held that “the only binding aspect of Eastern
Enterprises is its specific result — holding the Coal Act unconstitutional
as applied to Eastern”, it held that “our basic inquiry in resolving [a] due
process challenge remains the same after Eastern as it was before”; and
it cited as valid authority several pre-Eastern decisions upholding the Coal
Act even as applied to pre-1974 NBCWA signatories, including the
reversed First Circuit decision in Eastern itself (which it cited as reversed
“on other grounds”). See 156 F.3d at 1255.

27

That position seems to reflect not a plausible approach to
Marks, but downright hostility to Eastern itself. This Court
recently granted certiorari to review a similarly result-oriented
application of Marks in Pap's A.M. v. City of Erie, 719 A.2d
273 (Pa. 1998), cert. granted, 119 S. Ct. 1753 (1999) (No. 98-
1161). Pap’s involved a nude dancing ordinance similar to one
that five Justices had upheld, in three fragmented opinions, in
Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991). In Pap ’s,
the Pennsylvania Supreme Court held that none of these
opinions constituted “binding precedent” under Marks, and it
proceeded to adopt and apply the First Amendment analysis of
the Barnes dissent. See 719 A.2d at 277-79. The Court should
grant review here, as it did in Pap’s, to prevent its decisions
from being so lightly disregarded.”

B. The Court Should Clarify The Appropriate Legal
Principles Applicable To Constitutional Review Of
Retroactive Economic Statutes

Under the court of appeals’ conclusion that Kastern controls
only a narrow range of “substantially identical” cases, that
decision raises, but does not itself answer, a series of
fundamental questions about application of the Fifth
Amendment to retroactive economic statutes. This Court
should grant review to establish an appropriate legal framework
for such constitutional challenges, assuming that astern has
not already done so.

1. After Eastern, the lower courts are divided about
whether the burdening of a “specific” property interest is an
essential element of any Takings Clause claim. Before that
decision, this Court had routinely conducted a regulatory
takings analysis in assessing the constitutionality of economic
statutes that, like the Coal Act, impose only general monetary

5 Alternatively, the Court should hold this case pending its resolution of
the \farks issues in Pap’s.

28

liabilities. See, e.g., Concrete Pipe, 508 U.S. at 641-47,
Connolly, 475 U.S. at 221-28. Following -astern, however,
at least two courts have held that a “specific” property interest
is now an essential element of any Takings Clause claim. See
Parella v. Retirement Bd. of the Rhode Island Employees’
Retirement Sys., 173 F.3d 46, 58-59 & n.10 (Ist Cir. 1999);
Pet. App. 15a-16a. Two other courts, however, have
continued to apply a regulatory takings analysis to assess the
constitutionality of statutes imposing general monetary
liabilities. See Central States, Southeast & Southwest Areas
Pension Fund v. Midwest Motor Express, Inc., No. 98-2512,
1999 WL 371671, at *7-*9 (7th Cir. June 9, 1999) (MPPAA
liability), Vermont Assembly of Home Health Agencies, Inc. v.
Shalala, 18 F. Supp. 2d 355, 369 (D. Vt. 1998) (Medicare
liability). The Court should grant review to address that
important takings question.

2. As construed below, Eastern also creates substantial
unceriainty regarding the appropriate parameters for due
process challenges to retroactive economic statutes.

Prior to Eastern, the Court had not struck down a
retroactive economic statute on due process grounds in over
six decades. See Lastern Enterprises v. Chater, 110 F.3d 150,
158-59 (1st Cir. 1997) (citing Railroad Retirement Board v.
Alton R.R. Co., 295 U.S. 330 (1935)), rev'd, 118 S. Ct. 2131
(1998). Moreover, this Court’s retroactivity precedents were
dominated by sweeping, and as a practical matter dispositive,
statements that statutes “adjusting the burdens and benefits of
economic life come to the Court with a presumption of
constitutionality,” 7urner Elkhorn, 428 U.S. at 15, and that
retroactivity need only be “justified by a rational legislative
purpose,” Gray, 467 U.S. at 730. See also L. Tribe, American
Constitutional Law 622 (2d ed. 1988) (noting “minimal
review” standard applied in 7urner Elkhorn). Not surprisingly,
the lower courts had unanimously concluded that the Coal Act
was constitutional in all of its possible applications. See Brief

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29

For Respondents UMWA Combined Benefit Fund and its
Trustees at 31 & n.31, Eastern Enterprises v. Apfel, 118 S. Ct.
2131 (1998) (No. 97-42).

In Eastern, however, the Court substantially changed its
emphasis and tone. For the first time ever, five Justices
incorporated into a constitutional analysis the principle,
developed in this Court’s recent statutory presumption cases,
that “[rJetroactivity is generally disfavored.” 118 S. Ct. at
2151 (plurality) (citing Landgraf v. USI Film Prods., 511 U.S
244 (1994), and Bowen v. Georgetown Univ. Hosp., 488 U.S
204 (1988)); id. at 2159 (concurrence) (“retroactive lawmaking
is a particular concern”) (citing Landgraf).”° And, for the first
time in decades, the Court actually invalidated a retroactive
economic statute.

The Court should grant review to determine whether due
process or other constitutional challenges to retroactive
economic statutes should be governed by a strong
“presumption of constitutionality” (7urner Elkhorn, 428 U.S
at 15), as they routinely were prior to Eastern, or whether, as
five Justices concluded in that case, such challenges should be
governed by the reverse presumption that “[rJetroactivity is
generally disfavored” (118 S. Ct. at 2151).

x * * *

By diminishing Eastern to a precedent only for “substantially
identical” cases, and by uphclding application of the Coal Act
in this case, the court of appeals has made Eastern effectively
meaningless and has announced that there are virtually no limits
on the government’s ability to appropriate private property by
imposing retroactive monetary liabilities. Under the decision
below, private parties need only tell Congress that they

2° Although the plurality engaged in only a Takings Clause analysis, it
substantially relied, as Justice Kennedy noted, on due process precedents.
See 118 S. Ct. at 2158 (concurrence).

30

expected to be given money or benefits from other private
parties, even if their “expectation” has no basis in any prior law,
contract, promise, or injury. The Court should grant review
because its obvious concern about unfair retroactivity has been
inverted and because, if that concern had been given effect in
this case, the Coal Act would plainly have been invalidated

CONCLUSION

The petition for a writ of certiorari should be granted

Respectfully submitted,

ANTHONY J. POLITO ROBERT H. BORK
MICHAEL D. GLASS Counsel of Record
POLITO & SMOCK, P.C 1150 17th Street

Four Gateway Center Washington, D.C. 20036
Pittsburgh, PA 15222 (202) 862-5851

(412) 394-3333
DONALD B. AYER
GREGORY G. KATSAS
JONES, DAY, REAVIS & POGUE
51 Louisiana Ave., N.W.
Washington, D.C. 20001
(202) 879-3939

Counsel for Petitioners

Dated: June 28, 1999

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0498%3A1. Public record. Not legal advice.