Amicus Curiae Brief — Consolidation Coal Co. v. United States

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VYILLIAMS MULI

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Washington, D

202) 293-3116

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Promotion Cabinet a

Trade Promotion Coordinating ¢

Report to the President on the

National Export Initiative.

The Export Promotion Cabinet's |

Doubling U.S. Exports in Five }

(Sept. 2010),

http://www.white

‘files/nei report

§ 3(b)(2)(A),

http://thomas low

ell?

Foreign Inst

‘ax—Audit Techniqu

Guide,” (Jan. 18, 2011)

nttp://www.irs.gov/busine:

mall/article/0,,.1d=186963.00

Notice 2000-28.

r 22, ZUO0). http /IW~Www

irbs/irbOQ-21.pdi

ince of the United S

rade Representative, 2011

Policy Agenda and 2010 Ann

Report of the President of the

States on the Trade Agreem

Program (March 2011)

ttp

Lmporters

Manufacturers

respectfully submit this bnef amu

of the

RIEF AMICI ¢ [

i ne American cyabbion i | port

(“AAII”), the National Association

(“NAM”) and NEACO hereb

EL CUriLade LD upport

Petition for Writ of Certiorari to the U

Court of Appeals for the Federal Circuit filed t

Consolidation Coal Cempany et al

8)

A

ursuant to Rul

37.2(a), counsel of record received timely notice «

our intention to file ‘this brief. and all part

.

rovided their written consent

INTERESTS OF AMICI CURI

Founded in LYZI. LAK] nation

ociation that represent the entire spectrum ol

the international trade community acros

industry sectors. Members include

Importers

eCrvi¢

community

forwarders,

Ompanies and ports

and

mall

export to foreign markets

or exported by

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(mone

rm

part:

cjlal

uthored

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mitridbutit

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Ly

OT he rs

electronics,

manufacture!

exporter wholesalers, retailers

and

providers to the international trading

uch a customs brokers, freight

banks. insurers, transportation

Many of these enterprise

medium-sized

art

businesses seeking [

Products manufactured

member businesses

AAE]

include

chemicals

pharmaceutical

machinery. automobiles and automotive

energy, food, household consumer goods, t

iLem textile and Ap} yre] and rootwe

Ly entitv other thas ind ]

Ln DI f in whol ) in r mad moneta

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prohibits every tax on export sales, not every

that the Export Clause prohibits is a sales tax

eoods); and 48.4121-1l(c){2) (Apr. 1, 2009) (still stating that

exemptions” from the Black Lung Excise Tax exist on sale:

coal “for export”). True, seven years after U.S. Shoe, Congress

th

enacted a statutors exemption stating

laintenance Tax “shall not apply to any port use with respect

to any commercial cargo to be exported from the United

States.” 26 U.S.C.S. § 4462(d) (2011); enacted as Pub. L. Ni

109-59, 119 Stat. 1144. § 11116(a) (2005). More often, however

niv an Internal Revenue Bulletin gives notice that a court

decision has forced the Government to change its

implementation of an excise tax to comply with the Export

Clause. See, e.g., IRS Notice 2000-28, IRB 2000-21 at 1116-17

(May 22, 2000), available at http://www.irs.gov/pub/irs

irbs/irb00-21.pdf (last visited Feb. 15, 2011) (stating that the

Government would stop collecting the Black Lung Excise Tax

yn exports); IRS, “Foreign Imsurance Excise Tax—Audit

Technique Guide,” (Jan. 18, 2011) avallable

it http liwww irs POV businesses’small/article/O, id=186963 ,0¢

html (ast visited Feb. 21, 2011) (stating that the Government

al

would not apply the Excise Tax on Policies Issued by Foreign

Insurance to casualty insurance premiums paid to foreign

insurers for coverage of exported gs f

destinations)

4 See BM... 517 U.S. at 863 (finding unconstitutional, a

s |

|

applhed to casualty insurance on exported cargo, the excise tax

on imsurance policies issued by foreign insurers from 26

U.S.C.S. § 4371); Thames & Mersey, 237 U.S. at 27 (finding

unconstitutional the federal] stamp tax on policies insuring

1 +4

exports against marine risks); Hvosilef, 237 U.S. at 16-18

(finding unconstitutional the federal stamp tax on charter

parties exclusively to carry cargo from the United States to

foreign ports); Fairbank, 181 US. at 291 (finding

unconstitutional the federal stamp tax on bulls of lading fe

exported articles). Evidence that the agency uses an export

sale to trigger the tax or to calculate the amount of the tax

might be sufficient but is therefore not necessary to a

determination that the tax violates the Export Clause. Rather

the controlling (both necessary and sufficient) issue is when the

> anniies ¢t} , wolative +o vhen the ea rt hecan <S

igency applies tne (tax, relative to when tne export degal

As shown below, the Internal Revenue Service

(“I.R.S.”) has already substantially narrowed the

scope of statutory exemptions from excise taxes

through rulemaking. After Consolidation Coal, the

I.R.S. and other agencies will confidently go further

and create additional holes in the exemptions until

the exemptions disappear entirely and the Export

Clause loses all practical effect.

Consolidation Coal Will

Allow _a_Tax’s Statutorv

Label, Rather Than_its

Regulatory. Impact, to

Determine Whether It Is

an Impermuissible Tax on

Goods as Exports.

In adopting the government's position that t

reclamation fee statute at issue taxes the coal’s

extraction, rather than its sale, the Federal Circuit

in Consolidation Coal took a contrived and

A

problematic approach. The court said an agency's

regulation imposing the tax on the weight and value

of the coal at the time of sale should be regarded as

merely the “calculation” of a manufacturing tax

whose collection ts “deferred” until sale.

A.G. Spalding, 262 U.S. at 69-70 (fnding unconstitutional

ng, 262

tax on baseball bats delivered to the carrier for exportation,

because title passed at the moment of pick-up and because the

bats had therefore already entered the export stream); Gosho,

23 F.2d at 675-76 (finding unconstitutional the taxation of costs

to transport cotton by rail from interior Texas to Galveston

even though the cotton was not compressed and appropriated to

ar

7

particular export sales contracts until after it

rvead

itive

Galveston)

,co fT

L

lay r3 " + swriitarttr) + 1Y

i1lculation of a manulacturlng 4 ‘ et.

‘ircuit ignores this Courts strict adherence to tht

principle that an Export Clause violation

ister } ' = aAthAN J CS. at

etermined by the “operation 4a! effect

] } 7 } }

bject tax her tt ts labs

net r tr roT rTVT }

\ 4 2 . ‘ =F

f an article 1 article sold” or even

by the agency burden exports

‘ } 1 a aa — So P vn ,

Calculating the amount due based on the article's

f sale, its viue at time Ol sale, and

“

1e of sale, and imposing lability

ind collecting the tax onl uf 1 sal occur

re > ’ a _

s7utations Slmlial | CNnost in Consoltaation rere:

K an export sal ra i 1O¢ t

loc f

1ial f

ystitutional a tax on Daseball Dats SO! i tor exportation

U.S tional t

See U.S. Shoe, 523 U.S. at 363 (finding unconsiitutiona

Harbor Maintenance Tax from 26 U.S.C.S. § 4462(d) as appli

exported cargo, because the fee was imposed on an a

rem basis and so did not fairly match the exporters

e | | . r —

; to Princess Cruises, 22 ©.1.1. a

> ¢

Encourage Congress _{

Repeal Existing Statutory

Exemptions or to Continu

Enacting xport-Related

Taxes without Providin

Exemption

ati, Con |

restrict or completely 1 remove exist

exemptions for export r to enact new tax

lack such exemptions Certain constituen

begging Congress to rein in the burgeoning fed

deficit. Others are asking Congress to find yet n

cash for stimulating job-creation The curr

historical moment sorely tempts the Government

ignore Export-Clause prohibit

further to dilute them

Congress has already |

temptation. A bill introduced in the U.S. Hou

Representatives on February 8, 2011 would sul

ail U.S. exports to a fee equaling “.075 percent of tl

value of the article that is subject to the tee or soVUU

whichever is less.”!7 The bil ignores the Exp

Clause, as well as this Court's holding in U.S. Sh

and other cases As explained below, the

parallels certain other prev1ou sly enacted excl

statutes that either stull lack statutory exempt

(regarding coal, crud ind poli

Se H R WA: ] ZU0l (

Nation's Trade. nfrastructure, Mobilitv, and Eth

the “ON TIME Act), avauabdl t http://th

t Injguery/Z cl 12H K t H { | [

foreign insurers) or provide exemptions but

substantially limit their application (to a period no

longer than six months after sale or a geography no

closer than 225 mules beyond the international!

border)

Existing Excise Taxes

Violating the Export Clause

Demonstrate the Likelihood

That the Government Will

Tax Exports Further If This

Court Does Not Close the

Opening Created by

Consolidation Coal.

The federal excise tax Provisions generally

contain express exemptions for export

transactions;!® Congress, however, has whittled

away at the exemptions in a vaniety of ways

Sometimes, no such statutory exemption even

|

appears.!% For example, no statutory exemption

applaes to policies issued by foreign insurers t

See, e.g., 26 U.S.C.S. §§ 4041(g)(3), 4082(f(2), 4221(a)¢:

1272(b) 4462(d), 4662(e), 4682(d)(3) 50D3(a) 9214(a)(4

5362(c)(1), 5704(b), 5854 (2011) (making not applicable to

exports the excise tax imposed, respectively, on certain: special

fuels; motor and aviation fuels; luxury passenger automobiles,

heavy trucks and trailers, gas guzzlers, tires, vaccines, sporting

goods; transportation of property by air; port use; chemical:

ozone-depleting chemicals; beer; distilled spirits; wine; tobac

products and cigarette papers and tubes; firearms)

) See, e.g., 26 U.S.C.S. § 4371 (2011) (taxing certain polici

issued by foreign insurers but providing no statutory exemption

for policies insuring exported articles). The statute remains

ttect even though this tax was invalidated in /.B.M 21

protect | xported articles from casualty.”' in a few

instances, a statute expressly subjects to the excise

tax a particular type of exported article—namely,

coal and crude ou.*! And at times, a _ built-in

statutory exception taxes certain exportations within

the larger, generally exempted group.?? For

instance, the sale of a luxury automobile for export is

exempt only if the vehicle leaves the United States

within six months, and the cost of flying a person

overseas by air is exempt only for those miles that

the person flies after reaching a point 225 mil

beyond U.S. borders.*4

1.R.S. regulations further narrow the scope of

the statutory exemptions, thereby diminishing ths

Export Clause even more. For example, one I.R.S

regulation provides that the general exemptions in

26 U.S.C. § 4221(a)(2) for exported luxury passenge:

automobiles, heavy trucks and trailers, gas guzzler

! ’ yr | cq . = |) 1/h\ ") 17

4! See, e.g., 26 U.S.C.5. §§ 4221(a)(2), 4611(b) (2011) (subjectn

to an excise tax, without exe mption, exports of, respective

coal: crude oul)

22 See, e.g., 26 U.S.C.S. §§& 4221(b) and 4221(e)(2)(B) (2011

(ceasing the 26 U.S.C.S

&* oF abd oN obs y3

§ 4221(a)(2) exemptions for exported

|

luxury passenger automobiles, heavy trucks and trailers, gas

]

guzzlers, tires, vaccines and sporting goods when, despite a

demonstrated export sale, the manufacturer has not, within

months after the earler of that sale or the article's initial

shipment, received proof that the article has left the United

States); 26 C.F.R. §§ 48.4221-3(c) and 48.4221-7(c)(1) (Apr. 1

2009) (same); compare to 26 U.S.C.S. §§ 4221(b) and

1221(e)(2)(B) (2011) (authorizing the exemption’s temporal

imitation); 26 US.CS. § 4262 (2011) (providing that a

exemption from the 26 US.C. § 4261{a) excise tax

transportation of persons by air generally do t

first 225 miles of travel beyond U.S. borde1

é Lil

L5

tires, vaccines and sporting goods “apply only in

those cases where the exportation ... is to occur

before any other use.”24 Another regulation

similarly shrinks the 26 U.S.C. § 4221(a)(2)

exemptions by arbitranly restricting the number of

steps that an exempted exportation may include:

“An article may not be sold tax free under the

provisions of this section by a manufacturer to a

purchaser for resale to a second purchaser which

does not intend to export the article itself but plans

to resell it to a third purchaser for export.”25

All these laws contradict a specific finding of

this Court in A.G. Spalding: “The fact that further

acts were to be done before the goods would get to

sea does not matter so long as they were only the

regular steps to the contemplated result.” Once an

exported article is in transit and exportation has

begun, no federal tax may impose burdens that

ignore the time it can take an article to exit U.S

borders and an exportation to end

Other, similarly random regulatory

preconditions accompany specific tax exemptions.

For instance, should an export sale of motor and

aviation fuels occur as they are delivered into a

transport vessel, the excise tax exemption from 26

U.S.C. § 4082(f)(2) applies only iff among other

“4 26 C.F RR. § 48.4221-1(a)(2)(vi) (Apr. L, 2009); compare to 26

C.F.R. § 48.6416(b)(2)-2(a) (Apr. 1, 2009) (same)

25 26 C.F.R. § 48.422 1-3(a)(1) (Apr. 1, 2009).

26 Id., 262 U.S. at 69-70; compare to Gosho, 23 F.2d at 676

(stating, “The temporary stoppage at Galveston for sorting and

compression was reasonable and necessary for transshipmen

in order to enable the cotton to reach its destination, and

cannot be considered as interrupting the export movement”)

things, “[t]he vessel has a capacity of at least 20,000

barrels of fuel.”*, Should an exporter sell vaccine to

the U.S. Government for use abroad, the 26 U.S.C

§ 4221(a)(2) exemption applies only if, among other

things, the Government gives notice that it intends

to use the vaccine other than to vaccinate U.S.

citizens serving the U.S. Government outside the

UJnited States.28 Moreover, even when an exemption

from excise taxes does apply, the exporter who has

paid the tax and then sought a refund must, by

regulation, forego any interest on the refund that

results.29

In the shadow of these regulations lurk many

onerous related evidentiary requirements, whereby

the [.R.S. has further shrunk statutory exemptions

and eroded the Export Clause.“° These regulatory

27 26 C.F.R. § 48.4081-3()(2)(i) (Apr. 1, 2009).

28 See 26 C.F.R. §§ 48.4221-1(a)(2)(v), 48.4221-3(c)(2) and

48.6416(b)(2)-2(b)(2) (Apr. Lt, 2009) (providing for a “cessation of

exemption” in certain circumstances)

29 See 26 C.F.R. §§ 48.6416(b)(2)-1 and 48.6416(e)-l({a) (Apr. 1,

2009) (regarding “overpayments of tax” on certain

exportations).

” See, e.g., 26 C.F.R. §§ 48.4041-16(b); 48.4221-1(c)(1) and

48.4222(a)-1; 48.4221-L(c)(2), 48.4221-3(b), and 48.4222(b) 1(b);

48.4221-1(b)(4)(ii); —-48.4221-3(d); —-48.6416(b)(2)-3. sand

48.6416(b)(2)-4 (Apr. 1, 2009) (requiring, respectively: a

retailer selling special fuels for export to obtain documentary

proof from carriers, foreign customs officers or foreign

consignees; certain U.S. purchasers to register and to furnish

sellers with timely written notice of purchasers’ registration

numbers and their intentions with regard to exportation;

certain foreign purchasers to provide sellers with timely

written evidence that articles will be transported to a foreign

destination before further use; manufacturers to inform

purchasers that exportation triggers a tax exemption and

purchasers’ to inform manufacturers if articles are diverted

L7

requirements undercut Export Clause prohibitions

and foster more unconstitutional regulatory activity,

which the Government can now expand using

misyudements from Consolidation Coal.

B. ECONOMIC RECOVERY NECESSITATES

VIGILANCE AGAINST GOVERNMENTAL

ACTIONS THAT WOULD IMPOSE ANY

BURDEN ON EXPORTS.

The current economic environment amplifies

the injury that will be suffered if Consolidation Coal

is permitted to stand and to limit the protections of

the Export Clause. In his 2010 State of the Union

address, President Obama committed the

Government to work with U.S. companies and help

American-made goods and services succeed in global

markets with the aim of doubling U.S. exports in five

years. According to a September 2010 report. to the

President from the Export Promotion Cabinet and

the Trade Promotion Coordinating Committee (the

“Report’), the National Export Initiative (“NEI”) is a

key component of the President's plan to help the

“United States transition from the legacy of the most

severe financial and economic crisis 1n generations to

a sustained recovery.”®! This importance was

from the export stream; U.S. and foreign purchasers to furnish

sellers with timely, acceptable proof of actual exportation;

refund claimants to make certified statements regarding the

articles involved, to submit and retain supporting evidence, and

to obtain certifications from ultimate purchasers and vendors).

st Export) )=Promotion Cabinet and ‘Trade Promotion

Coordinating Committee, Report to the President on

the National Export Initiative: The Export Promotion Cabinet's

Plan for Doubling U.S Exports In

Five Years at I (Sept 2010), available at

18

reiterated in the March 2011 Trade Policy Agenda

issued by the United States Trade Representative.”

As the Report explains, export growth is needed for

various reasons, Including:

“ The size of and potential growth in the

consumer market outside the United

States. According to the Report, “95

percent of the world’s customers lhe

outside the United States.”3 The

International Monetary Fund predicts

that “nearly 87 percent of world

economic growth over the next five

years will take place outside of the

United States.”54 U.S. businesses’

ability to tap into this growth abroad

will be critical to the stabilty and

prosperity of the U.S. economy going

forward.?5 Thus, exports will play a

vital role in creating strong, sustainable

econom ic pre wre h 36

* The current tmportance of exports to the

U.S. economy. Exports have

represented over ten percent. of Gross

hitp://www whitehouse.gov/sites/default/files/nei_report_9-16-

10_full pdf (last visited Mar. 1, 2011) (“NEI Report”).

2 Office of the United States Trade Representative, 20/1 Trade

Policy Agenda and 2010 Annual Report of the President of the

United States on the Trade Agreements Program at 1 (March

2011), available at http://www.ustr.gov/webfm_send/2597 (last

visited Mar. 4, 2011)

83 NEE Report at 1

4 fd. at 11

33 See id

1% See rd. at 8

7 See id.

8 Jd. at 10

39 See ta ut AS

40 See 1d.

41 See jd

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a

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1

Domestic Product (“GDP”) annually

since 1994 (averaged over the period),

rising to a high of nearly 13 percent in

2008.*7 While exports fell during the

recession, they have been instrumental

in the recovery, contributing “more

than one percentage point to GDP

growth (at an annual rate)” in each of

the quarters of recovery and “over 1.)

percentage points to growth in the last

year (more than either consumption or

fixed investment).°8 Moreover, since

1994, exports have supported over

seven million jobs each year, with their

most significant impact in 2008, when

they supported over 10 million jobs.89

Manufacturing relies particularly

heavily on exports, with exports

supporting “over a third” of the jobs in

that sector.4° Exporting also improves

productivity and increases wages.4! As

the United States increases exports

successful compamies grow and = are

better equipped to focus U.S. production

in areas where American workers excel

and can earn higher wages.4

, The mumerous obstacles companies

currently must overcome to export.

[Information about exporting and

market research is not readily

available. 4% Companies also frequently

face financial hurdles. First, they

struggle to obtain export financing.

Then, they face strong financial

competition from both foreign

companies and foreign governments. *4

* The unportance of small and medium-

sized enterprises (“SMEs”) to the U.S.

economy. SMEs “account for about half

of all employment and economic activity

in the United States."45 They comprise

97% of all identified exporters and

account for 31% of total export value.*6

The obstacles highlighted above are

magnified for SMEs. whose resources

are already limited.4? The costs of

exporting, particularly the substantial

initial costs, tend to have a

disproportionate effect on SMEs.*8

SMEs are therefore a key part of the

Adminuistration’s export plans.49

If permitted, taxation of exports will serve as yet

another obstacle for U.S. exporters to overcome. The

fragile national economic recovery necessitates

heightened vigilance against decisions, such as

Consolidation Coal, that undermine Export Clause

protections. Consolidation Coal gives. the

government the latitude to tax goods, as long as the

tax 1s not imposed on the sale itself or based on the

sales price. Such attempts to dilute the protections

of the Export Clause must not be permitted

In [.B.M., this Court firmly rejected the

governments attempt to narrow the sweeping

protections of the Export Clause. Summarizing the

history of the Export Clause, the /.B.M. Court

emphasized the depth and breadth of the Clause’s

prohibitions

As a purely historical matter, the

Export Clause was originally proposed

by delegates to the Federal Convention

from the Southern States, who feared

that the Northern States would control

Congress and would use taxes and

duties on exports to raise a

disproportionate share of federal

revenues from the South . The

Government argues that this “narrow

historical purpose” justifies a narrow

interpretation of the text and that

application of § 4371 to policies insuring

exports does not conflict with the

policies embodied in the

Clause. ... While the original impetus

may have had a_narrow focus, the

remedial provision that ultimately

became the Export Clause does not, and

there 1s substantial evidence from the

Debates that proponents of the Clause

fully intended the breadth of scope that

is evident in the language. See, e.g., 2

Farrand, Records of the Federal

Convention, at 220 (Mr. King: “In two

great points the hands of the

Legislature were absolutely tied. The

importation of slaves could not be

prohibited—exports could not be

taxed”): id., at 305 (“Mr. Mason urged

the necessity of connecting with the

power of levying taxes .. . that no tax

should be laid on exports’); id., at 360

(Mr. Elseworth /stc/: “There are solid

reasons agst. Congs taxing exports’);

ibid. (“Mr. Butler was strenuously

opposed to a power over exports’) id., at

361 (Mr. Sherman: “It is best to

prohibit the National legslature in all

cases’); 1d., at 362 (‘Mr. Gerry was

strenuously opposed to the power over

exports ).*!

As the Framers recognized, only an absolute

prohibition against taxes on exported articles will be

sufficient to protect them. If any burden is imposed

on such goods, the damage is done. Thus, the Export

Clause cannot permit exceptions for taxes that are

not sales taxes or that are imposed on a umt

measurement of the goods rather than their sales

price.

51 Jd., 317 U.S. at 859-60 (certain citations omitted, emphasis

a d d S d }

WwW

. CONSOLIDATION COAL CREATES

BUSINESS UNCERTAINTY BY

THREATENING TO TAX EXPORTS.

The Consolidation Coal decision creates

confusion in how excise tax statues wul be

interpreted, leading to uncertainty for businesses.

Following Consolidation Coal, Congress may rework

existing excise tax statutes in an effort to evade the

Export Clause prohibition. Congress could change

references from “sale of X” or “X sold” to “X

produced,” the language used in Consolidation Coal.

As discussed earlier, however, Consolidation Coal

blurs the distinction between “sale” of articles,

articles “sold” and articles “produced,” leaving open

the possibility that a court could find a tax in any of

the three categories to be a pre-exportation event.

Further complicating the situation for

businesses, Congress's past actions indicate it has

not espoused the same interpretation as the court in

Consolidation Coal. Congress has previously

inserted export exemptions into excise tax statutes

even when they target “A produced” or “X

manufactured.”52 To whatever extent adherence to

the Constitution’s prohibition against taxation of

exports may have motivated Congress, such

exemptions imply that, in Congress's view, the

2 Compare 26 U:S.C.S. §§ 5001(a)(1), 5041(a), 5051(a)(1), 5701

(2011) (Qmposing an excise tax on, respectively, certain:

distilled spirits; wines; beer; tobacco products and cigarette

papers and tubes) and 26 U.S.C.S. §§ 5053(a), 5214(a)(4),

5362(c)(1), 5704(b) (2011) (making not applicable to exports the

excise tax umposed, respectively, on certain: beer; distilled

spirits; wine; tobacco products and cigarette papers and tubes)

24

corresponding excise taxes would likely violate th

Export Clause without them

\ CONCLUSION

Whichever strategy the Government adopts

after Consolidation Coal, the Government will in

fact be taxing export sales by pretending that the

Government is merely “collecting” at time of sale

certain taxes “incurred” at time of manufacture

Consolidation Coal therefore not only ignores the

Export Clause but also sets off an immediate peril

that further unconstitutional action by the

Government will burgeon. Even before

Consolidation Coal, periodic Governmental

overreaching has tested the Export Clause in the

context of federal excise taxes. In every instance,

only court action has halted the Government's

attempts to weaken Constitutional limits.

[he deral Cuircw Consolida

lecision:

* Merits review because the de Ccis10n0

violates the Export Clause and

contravenes the Court's previous cases

interpreting the Export Clause;

4 Eincourages both the Executive and the

Legislative Branches, desperately

seeking revenues that might combat

massive deficits, to create loopholes in

laws and regulations that contravene

the Constitutional prohibition against

taxing exports; and

nreaten injure exporter

specially small and medium-sized

nes, at a time when the U.S. economy

il] afford anv additional harm

srefore, this Court should grant the Petition

. 5 , , =

Consolidation Coal | orporation ef al. for rl]

Certiorari to the U.S. Court of Appeals for tl

de ral Circ

elyn M. Suart

Counsel of Record

WILLLAMS MULLEN

\ Professional Corporatio:

1666 K Street, N.W., Suite 1

Washington, DC 20006

(202) 293-8116

- -

suareA@Vwi lian nu