No. 00-1307 

In the Supreme Court of the United States 

KENNETH S. APFEL, COMMISSIONER OF SOCIAL 
SECURITY, PETITIONER 

v. 

SIGMON COAL COMPANY, INC., AND 
JERICOL MINING, INC. 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

PETITION FOR A WRIT OF CERTIORARI 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

Counsel of Record 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

The Coal Industry Retiree Health Benefit Act of 
1992 (Coal Act), 26 U.S.C. 9701 et seq., established the 
United Mine Workers of America Combined Benefit 
Fund (Fund) to ensure the continued provision of 
health-care benefits to retired miners and their depen- 
dents who worked under collective bargaining agree- 
ments that promised lifetime health-care benefits. For 
the purpose of calculating premiums to be paid to the 
Fund to finance those health-care benefits, the Coal Act 
directs the Commissioner of Social Security to assign 
responsibility for beneficiaries of the Fund to the 
“signatory operator” or “related person” of the signa- 
tory operator that formerly employed them, if that 
signatory operator (or related person) is still “in busi- 
ness.” 26 U.S.C. 9706(a). 

The question presented is whether the Coal Act 
permits the Commissioner to assign beneficiaries to the 
successor in interest of a signatory operator that is no 
longer in business. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 2 

Statutory provision involved ....................................................... 
2 

Statement ........................................................................................ 3 

Argument ........................................................................................ 13 

Conclusion ....................................................................................... 15 

Appendix A ..................................................................................... 
1a 

Appendix B ..................................................................................... 
45a 

Appendix C ..................................................................................... 
63a 

Appendix D ..................................................................................... 
65a 

Appendix E ..................................................................................... 
79a 

Appendix F ..................................................................................... 
81a 

Appendix G ..................................................................................... 
83a 

TABLE OF AUTHORITIES 

Cases: 

Aloe Energy Corp. v. Apfel, No. 99-3915 (3d Cir. 

June 20, 2000), petition for cert. pending, 

No. 00-725 ............................................................................ 

13, 15 

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

3, 6 

Eastern Enters. v. Chater, 110 F.3d 150 (1st Cir. 

1997), rev’d on other grounds, 524 U.S. 498 (1998) ......... 

13 

Holland v. New Era Coal Co., 179 F.3d 397 (6th 

Cir. 1999) ................................................................................. 

13 

R.G. Johnson Co. v. Apfel, 172 F.3d 890 (D.C. 

Cir. 1999) ............................................................................. 

11, 13 

Statutes: 

Coal Industry Retiree Health Benefit Act of 1992, 

26 U.S.C. 9701 et seq. ............................................................. 

3 

26 U.S.C. 9701(b)(1) ........................................................... 

4 

26 U.S.C. 9701(c) ................................................................ 2 

(III) 

IV 

Statutes—Continued: Page 

26 U.S.C. 9701(c)(1) ............................................................ 

4 

26 U.S.C. 9701(c)(2)(A) ................................................ 

2, 7, 11 

26 U.S.C. 9701(c)(2)(A)(i) ............................................ 

2, 7, 11 

26 U.S.C. 9701(c)(2)(A)(ii) ........................................... 

2, 7, 11 

26 U.S.C. 9701(c)(2)(A)(iii) .......................................... 

3, 7, 11 

26 U.S.C. 9701(c)(7) ............................................................ 

5 

26 U.S.C. 9702 ..................................................................... 

4 

26 U.S.C. 9703(f) ................................................................. 

4 

26 U.S.C. 9704 ..................................................................... 

4 

26 U.S.C. 9704(a) ................................................................ 

10 

26 U.S.C. 9704(d) ................................................................ 

6 

26 U.S.C. 9705(b) ................................................................ 

6 

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

4, 5 

26 U.S.C. 9706(a)(1) ........................................................... 

5 

26 U.S.C. 9706(a)(2) ........................................................... 

5 

26 U.S.C. 9706(a)(3) ........................................................... 

5 

26 U.S.C. 9706(e)(2) ........................................................... 

8 

26 U.S.C. 9706(f )(1) ............................................................ 

8 

26 U.S.C. 9706(f )(2) ............................................................ 

8 

26 U.S.C. 9706(f )(3)(A) ...................................................... 

8 

26 U.S.C. 9706(f )(3)(B) ...................................................... 

8 

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

§ 19142, 106 Stat. 3037 .......................................................... 

4 

Social Security Independence and Program Improve- 
ments Act of 1994, Pub. L. No. 103-296, 

§ 108(h)(9)(A), 108 Stat. 1487 ............................................... 

4-5 

Miscellaneous: 

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

6 

Social Security Administration Supplemental Coal 

Act Review Instructions No. 4 (July 1995) ....................... 7 

In the Supreme Court of the United States 

No. 00-1307 

KENNETH S. APFEL, COMMISSIONER OF SOCIAL 
SECURITY, PETITIONER 

v. 

SIGMON COAL COMPANY, INC., AND 
JERICOL MINING, INC. 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

PETITION FOR A WRIT OF CERTIORARI 

The Acting Solicitor General, on behalf of the 
Commissioner of Social Security, respectfully petitions 
for a writ of certiorari to review the judgment of the 
United States Court of Appeals for the Fourth Circuit 
in this case. 

OPINIONS BELOW 

The opinion of the court of appeals (App., infra, 1a- 
45a) is reported at 226 F.3d 291. The opinion and order 
of the district court (App., infra, 63a-64a, 65a-78a) are 
reported at 33 F. Supp. 2d 505. The orders of the Social 
Security Administration affirming the assignment of 

(1) 

2 

responsibility for various individuals to respondents 
(App., infra, 45a-62a) are unreported. 

JURISDICTION 

The judgment of the court of appeals was entered on 
August 29, 2000. A petition for rehearing was denied 
on November 15, 2000. App., infra, 81a-82a. The juris- 
diction of this Court is invoked under 28 U.S.C. 1254(1). 

STATUTORY PROVISION INVOLVED 

Section 9701(c) of Title 26, United States Code, pro- 
vides in pertinent part: 

Terms relating to operators 

For purposes of this section–- 
* * * * * 

(2) Related persons 

(A) In general 

A person shall be considered to be a 
related person to a signatory operator if that 
person is— 

(i) a member of the controlled group of 
corporations (within the meaning of [26 
U.S.C. 52(a)]) which includes such signatory 
operator; 

(ii) a trade or business which is under 
common control (as determined under [26 
U.S.C. 52(b)]) with such signatory operator; 
or 

3 

(iii) any other person who is identified 
as having a partnership interest or joint 
venture with a signatory operator in a 
business within the coal industry, but only if 
such business employed eligible beneficiar- 
ies, except that this clause shall not apply to 
a person whose only interest is as a limited 
partner. 

A related person shall also include a suc- 
cessor in interest of any person descibed in 
clause (i), (ii), or (iii). 

STATEMENT 

1. a. Congress enacted the Coal Industry Retiree 
Health Benefit Act of 1992 (Coal Act or Act), 26 U.S.C. 
9701 et seq., in response to a crisis that threatened to 
deprive more than 100,000 retired coal miners and their 
dependents of promised lifetime health-care benefits. 
In the 1980s and 1990s, the financial stability of private 
multi-employer plans set up by the coal industry to 
finance those benefits was threatened by increasing 
health-care costs and the termination of employers’ 
contribution obligations when they switched to non- 
union employees or left the coal mining business 
altogether. As more companies stopped contributing to 
the plans, the remaining contributors were forced to 
shoulder more of the costs, which in turn led to even 
more defections and created a downward spiral. See 
generally Eastern Enterprises v. Apfel, 524 U.S. 498, 
504-514 (1998) (plurality opinion). 

Congress’s objectives in enacting the Coal Act were 
to “identify persons most responsible for plan liabilities 
in order to stabilize plan funding and allow for the 
provision of health care benefits to [coal industry] 

4 

retirees,” to “allow for sufficient operating assets for 
[coal industry retiree health-care benefit] plans,” and to 
“provide for the continuation of a privately financed 
self-sufficient program for the delivery of health care 
benefits to the beneficiaries of such plans.” Energy 
Policy Act of 1992, Pub. L. No. 102-486, § 19142, 106 
Stat. 3037. In furtherance of those ends, the Coal Act 
established the United Mine Workers of America 
Combined Benefit Fund (Combined Fund or Fund), a 
private multi-employer health benefit plan. The Com- 
bined Fund provides health-care benefits to beneficiar- 
ies who, at the time of passage of the Act, were 
receiving (or were eligible to receive) benefits from 
multi-employer plans established by collective bargain- 
ing in the coal industry. See 26 U.S.C. 9702, 9703(f ). 
The Combined Fund is financed by premiums paid by 
the “signatory operator[s]” (or “related person[s]” of 
those signatory operators) that formerly employed the 
beneficiaries and that remain “in business.” 26 U.S.C. 
9704, 9706(a). The Act defines “signatory operator” as 
“a person which is or was a signatory to a coal wage 
agreement.” 26 U.S.C. 9701(c)(1). The particular col- 
lective bargaining agreements with the United Mine 
Workers of America (Union) governing the coal 
industry that are included within the term “coal wage 
agreement” are set forth in 26 U.S.C. 9701(b)(1). 

b. The Act delegates to the Commissioner of Social 
Security1 (Commissioner) the task of assigning eligible 

1 Many references in the legislative record are to the Depart- 
ment of Health and Human Services, which at the time included 
the Social Security Administration. In 1995, the Social Security 
Administration became an independent agency within the Execu- 
tive Branch, and the Commissioner of Social Security assumed the 
duties of the Secretary of Health and Human Services under the 
Coal Act. See Social Security Independence and Program 

5 

beneficiaries to signatory operators or related persons. 
26 U.S.C. 9706(a). Assignments are made according to 
a three-tiered hierarchy: 

The Commissioner must first seek to assign a 
beneficiary to the “signatory operator” (or “related 
person”) that remains “in business,” signed a collective 
bargaining agreement with the Union in 1978 or later, 
and was the most recent signatory operator to employ 
the miner in the coal industry for at least two years. 26 
U.S.C. 9706(a)(1). The Act specifies that “a person shall 
be considered to be in business if such person conducts 
or derives revenue from any business activity, whether 
or not in the coal industry.” 26 U.S.C. 9701(c)(7). 

If an assignment of a particular beneficiary cannot be 
made under the first tier, the Commissioner must then 
attempt to assign the beneficiary to the signatory 
operator (or related person) that remains in business, 
signed a collective bargaining agreement with the 
Union in 1978 or later, and was the most recent signa- 
tory operator to employ the miner in the coal industry 
for any period of time. 26 U.S.C. 9706(a)(2). 

If an assignment cannot be made under the first or 
second tiers, the Commissioner must then seek to 
assign the beneficiary to the signatory operator (or 
related person) that remains in business and employed 
the miner in the coal industry for a longer period of 
time than any other signatory operator prior to the 
effective date of the 1978 collective bargaining agree- 
ment. 26 U.S.C. 9706(a)(3).2 

Improvements Act of 1994, Pub. L. No. 103-296, § 108(h)(9)(A), 108 
Stat. 1487. 

2 In Eastern Enterprises, this Court struck down as uncon- 
stitutional an application of the third tier under which the 
Commissioner assigned a beneficiary to a coal mine operator that 

6 

If an assignment cannot be made under any of the 
three tiers, then the beneficiary is considered 
“unassigned,” and his health-care benefits are funded 
with money transferred from interest earned on the 
Abandoned Mine Reclamation Fund, 26 U.S.C. 9705(b), 
or, if that source of funds is exhausted or unavailable, 
from an additional premium imposed on all assigned 
signatory operators in a pro rata fashion. 26 U.S.C. 
9704(d). Congress understood that a principal cause of 
the financial instability of the multi-employer plans in 
existence before the Combined Fund was the problem 
of retirees whose employers had terminated their 
contribution obligations, and so it intended that the 
number of unassigned beneficiaries under the Coal Act 
be kept to “an absolute minimum.” 138 Cong. Rec. 
34,003 (1992) (technical explanation by Sen. Wallop). 

Because the Commissioner must determine whether 
a beneficiary can be assigned to either a signatory 
operator or any related person to a signatory operator 
under one of these tiers before proceeding to the next 
tier, the concept of “related person” is central to the 
operation of the Act. The Act sets forth the following 
explication of the kinds of relationships between 
entities that shall lead the Commissioner to consider an 
entity to be a “related person” to a signatory operator: 

A person shall be considered to be a related 
person to a signatory operator if that person is— 

had not signed a collective bargaining agreement with the Union in 
1974 or later. See 524 U.S. at 504 (plurality opinion); id. at 539 
(opinion of Kennedy, J., concurring in the judgment and dissenting 
in part). The Eastern Enterprises decision is not directly relevant 
to this case, which does not involve assignments made under the 
third tier. 

7 

(i) a member of the controlled group of 
corporations (within the meaning of [26 U.S.C.] 
52(a)) which includes such signatory operator; 

(ii) a trade or business which is under 
common control (as determined under [26 U.S.C.] 
52(b)) with such signatory operator; or 

(iii) any other person who is identified as 
having a partnership interest or joint venture 
with a signatory operator in a business within the 
coal industry, but only if such business employed 
eligible beneficiaries, except that this clause shall 
not apply to a person whose only interest is as a 
limited partner. 

A related person shall also include a successor in 
interest of any person described in clause (i), (ii), or 
(iii). 

26 U.S.C. 9701(c)(2)(A). 

Although Congress expressly provided for assign- 
ments to be made to the successor in interest of a 
person “related” to the signatory operator, the statute 
does not state in haec verba that an assignment may be 
made to a direct successor in interest of the signatory 
itself. The Commissioner has concluded, however, that 
in light of the text, structure, and purposes of the Coal 
Act, Congress intended to reach those successors as 
well if the signatory operator is defunct and if there is 
no other “related person” to that operator. See Social 
Security Administration Supplemental Coal Act Re- 
view Instructions No. 4 (July 1995); App., infra, 83a- 
94a. The Commissioner has, in addition, concluded that 
a business should be deemed a successor in interest of a 
signatory operator or other related person if it has, 

8 

through purchase, merger, or other transaction, 
acquired substantial assets from the signatory or its 
related person, if it continues running the same opera- 
tion in the same location, and if it uses many of the 
same employees who worked for the former owner. Id. 
at 86a. 

c. When the Commissioner assigns a Combined 
Fund beneficiary to a signatory operator or related 
person, he so notifies the assigned operator, 26 U.S.C. 
9706(e)(2), which then has 30 days to request “detailed 
information as to the work history of the beneficiary 
and the basis of the assignment,” 26 U.S.C. 9706(f)(1). 
After receiving that information, the assigned operator 
has an additional 30 days to request review of the 
assignment decision. 26 U.S.C. 9706(f)(2). If, on 
review, the Commissioner determines that an assign- 
ment was incorrect, he rescinds the assignment and 
reviews the beneficiary’s record to determine whether 
the beneficiary should be assigned to another operator. 
26 U.S.C. 9706(f)(3)(A). If the Commissioner deter- 
mines that there was no error in the assignment, he so 
notifies the assigned operator. 26 U.S.C. 9706(f )(3)(B). 

3. In this case, the Commissioner assigned 86 bene- 
ficiaries of the Combined Fund to the Jericol Mining 
Corporation on the ground that Jericol was the succes- 
sor in interest of a company that was the pertinent 
signatory operator. Those 86 beneficiaries are miners 
(or widows or dependents of miners) who had worked 
for the Shackleford Coal Company, a family-owned coal 
mining company located in Kentucky. In 1973, Irdell 
Mining, Inc., bought Shackleford’s coal mining assets. 
App., infra, 10a. The sales contract provided that Irdell 
would assume responsibility for Shackleford’s out- 
standing contracts, including its collective bargaining 
agreement with the Union. Ibid. Irdell also acquired 

9 

the right to use the Shackleford name. Shortly there- 
after, the original Shackleford went out of business. 
Irdell, however, continued to operate Shackleford’s 
mines under the existing collective bargaining agree- 
ment, using the name of Shackleford and using many of 
the original Shackleford’s former employees. Id. at 10a- 
11a. While it was using the Shackleford name, Irdell 
signed the 1974 national coal wage agreement with the 
Union. Id. at 11a. 

Shackleford eventually changed its corporate name 
to Jericol Mining, Inc., one of the plaintiffs in this 
action. App., infra, 11a. Jericol continued the coal min- 
ing operations that it had conducted under the Shackle- 
ford corporate name (ibid.) and retained the Employer 
Identification Number it had used to pay Social 
Security taxes for its employees under the Shackleford 
name. Id. at 47a. 

4. In a series of assignment decisions made between 
1993 and 1996, the Commissioner assigned Jericol 86 
Combined Fund beneficiaries who were employed by 
(or who are widows or dependents of miners employed 
by) Shackleford. See C.A. App. 61-77, 96-124, 136-156. 
Jericol filed administrative appeals of those assignment 
decisions. Id. at 78-81, 125-135, 157-168. The Commis- 
sioner denied those appeals on the ground that Jericol 
is the successor in interest of Shackleford. App., infra, 
45a-62a. In a representative decision, the agency 
explained: 

The sales contract [Jericol] submitted shows that 
Irdell Mining purchased the assets of Shackleford 
Coal, that Shackleford Coal was required to main- 
tain the goodwill of its customers, allowed Irdell to 
use the name of Shackleford after the purchase, 
transferred responsibility for all outstanding con- 

10 

tracts and agreements, and required that non- 
compete agreements be signed and submitted at the 
time of closing. You have also advised us that Irdell 
did conduct business under the Shackleford name 
and subsequently changed the company’s name to 
Jericol Mining. 

Id. at 48a-49a. The agency therefore concluded that 
Jericol is responsible for the Combined Fund premiums 
for retirees and their dependents who worked for 
Shackleford. Id. at 49a. 

5. a. Respondents Jericol and Sigmon Coal Company, 
Inc., challenged the final administrative decisions in 
district court.3 They argued that the Coal Act does not 
permit the Commissioner to assign Combined Fund 
beneficiaries to the direct successor in interest of a 
defunct signatory operator. The district court agreed, 
and granted respondents’ motion for summary judg- 
ment. App., infra, 63a-78a. 

b. The Commissioner appealed, and a divided panel 
of the court of appeals affirmed. App., infra, 1a-44a. 
The majority concluded that the Coal Act does not 
authorize the Commissioner to assign Fund beneficiar- 
ies to the direct successor in interest of a signatory 
operator that is no longer in business. The majority 
first rejected (id. at 24a-26a) the Commissioner’s posi- 
tion that the text of the Coal Act’s “related person” 
provision itself permits assignment to the direct 

3 The district court remarked that Sigmon appears to have 
joined Jericol as a plaintiff in this case because Sigmon is a “related 
person” to Jericol and thus is jointly and severally liable for pre- 
miums owed by Jericol. See App., infra, 66a n.3; see also 26 U.S.C. 
9704(a) (“Any related person with respect to an assigned operator 
shall be jointly and severally liable for any premium required to be 
paid by such operator.”). 

11 

successor of an original signatory. The Commissioner 
had pointed out that Section 9701(c)(2)(A) expressly 
authorizes assignments to the successor in interest of 
“any person described” in clauses of (i), (ii), or (iii) of 26 
U.S.C. 9701(c)(2)(A), and had argued that the original 
signatory operator itself is one of the persons “de- 
scribed” in those provisions because each of the perti- 
nent clauses in turn describes a group or family of 
related companies that expressly includes the signatory 
operator itself. The majority rejected that construction 
and concluded that the clauses defining “related 
person,” read in context, identify only classes of persons 
that have a relationship to the signatory operator but 
do not include the signatory operator itself. App., 
infra, 24a-25a. Thus, the majority ruled, although the 
text of the Coal Act does expressly authorize an assign- 
ment to the successor in interest of a person related to 
a signatory operator, it does not expressly provide for 
an assignment to the direct successor in interest of the 
signatory operator itself. Id. at 25a-26a. 

Second, the majority, expressly disagreeing with the 
decision in R.G. Johnson Co. v. Apfel, 172 F.3d 890 
(D.C. Cir. 1999), rejected the submission that the Coal 
Act should be construed to permit assignments to 
direct successors in interest in order to avoid absurd 
results that would be inconsistent with the objectives of 
the statute. App., infra, 27a-32a. In R.G. Johnson, the 
District of Columbia Circuit sustained assignments to 
the direct successor in interest of a signatory operator 
after concluding that the failure to permit such assign- 
ments would frustrate Congress’s intent to stabilize the 
financing of the Fund and to place responsibility for 
that financing on the businesses most responsible for 
plan liabilities. 172 F.3d at 895. The panel majority in 
the court below, however, concluded instead that 

12 

Congress might reasonably decide to promote sales of 
coal companies by shielding a direct purchaser of the 
signatory operator’s assets from additional liabilities 
not contemplated in the original transaction. App., 
infra, 33a-34a. The majority did acknowledge some 
anomaly in a statutory scheme that expressly permits 
liability to attach to the successor to a person “related” 
to the original signatory while shielding from liability 
the direct successor of the original signatory itself (id. 
at 35a), as well as legislative history supporting the 
Commissioner’s construction (id. at 30a-31a). But, the 
court concluded, “we are not simply free to ignore un- 
ambiguous language because we can imagine a 
preferable version.” Id. at 34a. 

c. Judge Murnaghan dissented. App., infra, 37a-44a. 
He agreed with the District of Columbia Circuit’s 
decision in R.G. Johnson that a literal interpretation of 
the “related person” provision to exclude direct succes- 
sors in interest of the signatory operator would conflict 
with Congress’s clear purposes in enacting the Coal 
Act. Id. at 41a. Judge Murnaghan stressed that the 
Coal Act was intended to ensure that companies would 
not avoid responsibility for retirement benefits by 
structuring business transactions so as to dump retire- 
ment costs on other companies that remained bound to 
collective bargaining agreements, and that that 
objective would be frustrated if the obligation to pay 
statutory premiums could not also be placed on 
the direct successor of an original signatory. Id. at 
41a-42a. Judge Murnaghan thus concluded that 
“[e]xcluding successors in interest to signatory opera- 
tors from liability for Fund benefits is plainly incon- 
sistent with Congress’s intent in enacting the Coal 
Act.” Id. at 44a. 

13 

The Commissioner filed a petition for rehearing en 
banc, which the court rejected by a vote of 7-2, with one 
judge not participating. App., infra, 81a-82a. 

ARGUMENT 

This case presents the same question as that 
presented by Aloe Energy Corp. v. Apfel, petition for 
cert. pending, No. 00-725 (filed Nov. 2, 2000). As we 
have explained in our response to the petition for a writ 
of certiorari (at 10-13) in Aloe, the question whether a 
direct successor in interest of a signatory operator may 
be assigned responsibility for Combined Fund bene- 
ficiaries under the “related person” provisions of the 
Coal Act merits review by this Court. There is a 
conflict on that issue in the courts of appeals. Whereas 
the Fourth Circuit, in the decision below in this case, 
has concluded that the Coal Act does not permit the 
Commissioner to assign responsibility for Fund 
beneficiaries to such direct successors in interest, App., 
infra, 35a, the District of Columbia Circuit, in a directly 
contrary decision, has concluded that the Coal Act does 
authorize such assignments, R.G. Johnson, 172 F.3d at 
895. The Third Circuit has joined the District of 
Columbia Circuit in an unpublished decision, see Aloe 
Energy Corp. v. Apfel, No. 99-3915 (June 20, 2000), 
petition for cert. pending, No. 00-725. The issue has 
also arisen in the First Circuit, which rejected the Com- 
missioner’s position in Eastern Enterprises v. Chater, 
110 F.3d 150, 155 (1997), rev’d on other grounds, 524 
U.S. 498 (1998). See also Holland v. New Era Coal Co., 
179 F.3d 397, 401 (6th Cir. 1999) (assuming without dis- 
cussion that assignments may be made to the successor 
in interest of a signatory operator). 

The validity of assigning statutory premium 
responsibilities to the direct successor in interest of an 

14 

original signatory operator is a matter of substantial 
importance to the proper operation of the Coal Act. 
The Commissioner’s authority to assign beneficiaries of 
the Combined Fund to an out-of-business signatory 
operator’s successor in interest is implicated in many 
assignment decisions.4 A broader adoption of the 
Fourth Circuit’s conclusion that no such authority 
exists could significantly undermine Congress’s deter- 
mination that corporate entities closely related to the 
signatory operator should be responsible for the 
signatory operator’s obligations, and it could also 
jeopardize the Fund’s financial stability. If the Com- 
missioner may not assign responsibility for a signatory 
operator’s employees to a direct successor in interest of 
that signatory, he will be required to assign responsibil- 
ity to entities that are more distantly related to the 
signatory operator, such as other corporations within 
the same control group, or to more remote successors in 
interest to those related corporations (which, respon- 
dents acknowledge, would be a proper assignment 
under the Coal Act), or to persons at the next tier 
under the Act’s three-tier framework. If no such 
entities exist, then the Commissioner must deem the 
beneficiaries to be “unassigned,” in which case their 
health-care benefits must be financed by transfers from 
the Abandoned Mine Reclamation Fund or (if those 
transfers are insufficient) contributions from other 

4 We are informed by the Social Security Administration that 
about 16,500 beneficiaries have been assigned to entities deemed 
“related” to an original signatory operator under the Coal Act’s 
“related person” provisions. Although the SSA has not conducted 
a manual search of its records to determine how many of those 
“related person” assignments were made on the basis of a direct 
successorship, the SSA believes that direct-successor assignments 
constitute a substantial proportion of those assignments. 

15 

former signatory operators, which did not employ them. 
Those possibilities are contrary to Congress’s intent 
that financial responsibility for miners’ benefits be 
placed on those entities most responsible for plan 
liabilities. The question presented herein therefore 
warrants review by this Court. 

The issue is clearly framed by the earlier-filed peti- 
tion in Aloe, and so we submit that Aloe is an appropri- 
ate vehicle for this Court’s resolution of the question 
presented. Although Aloe arises from an unpublished 
decision of the Third Circuit, there is a conflict on the 
issue presented between published decisions of the 
Fourth and District of Columbia Circuits. We therefore 
suggest that the Court hold the petition in this case 
pending its disposition of Aloe, and that the petition 
then be disposed of as appropriate in light of the 
Court’s disposition of Aloe. 

CONCLUSION 

The petition for a writ of certiorari should be held 
pending the disposition of the petition for a writ of 
certiorari in Aloe Energy Corp. v. Apfel, No. 00-725, 
and then disposed of as appropriate in light of the 
disposition of that case. 

Respectfully submitted. 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

FEBRUARY 2001 

APPENDIX A 

UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

No. 99-1219 

SIGMON COAL COMPANY, INCORPORATED; 
JERICOL MINING, INCORPORATED, 
PLAINTIFFS-APPELLEES 

v. 

KENNETH S. APFEL, COMMISSIONER OF SOCIAL 
SECURITY, DEFENDANT-APPELLANT 

TRUSTEES OF THE UNITED MINE WORKERS OF 

AMERICA COMBINED BENEFIT FUND, AMICUS CURIAE 

Argued: Oct. 26, 1999 
Decided: Aug. 29, 2000 

Before: MURNAGHAN, WILKINS, and TRAXLER, 

Circuit Judges. 

Affirmed by published opinion. Judge TRAXLER wrote 
the majority opinion, in which Judge WILKINS joined. 
Judge MURNAGHAN wrote a dissenting opinion. 

OPINION 

TRAXLER, Circuit Judge: 

Under the Coal Industry Retiree Health Benefit Act 
of 1992 (the Coal Act), see 26 U.S.C.A. §§ 9701-9722 
(West Supp. 1998), the Commissioner of the Social Se- 

(1a) 

2a 

curity Administration (“Commissioner”) assigns fiscal 
responsibility for a retired coal miner’s health benefits 
to the most appropriate coal mining company which 
employed the retired miner or, if the assigned coal 
operator is no longer in business, to an entity or 
individual that qualifies as a “related person” to the 
defunct coal company. See 26 U.S.C.A. § 9706(a). In 
1993, the Commissioner assigned eighty-six retired coal 
miners to the Jericol Mining Company (“Jericol”) on the 
basis that Jericol was a successor in interest to, and 
therefore a “related person” to, an out-of-business 
mining company that had employed the retired miners. 
The district court determined, based on a literal 
reading of the statutory text, that a successor in 
interest to a defunct signatory operator cannot be held 
accountable under the Coal Act as a “related person” 
and voided the Commissioner’s assignments. See Sig- 
mon Coal Co. v. Apfel, 33 F. Supp.2d 505, 508-11 (W.D. 
Va. 1998). The Commissioner appeals, contending that 
the district court’s literal reading of the statute frus- 
trates congressional intent to provide broad coverage 
for retired coal miners by identifying the “most 
responsible” employers, and that, in light of the general 
congressional purpose and various snippets of legisla- 
tive history, we should read the statutory definition of 
“related person” to include a successor in interest to a 
signatory operator. 

We decline the Commissioner’s invitation to rewrite 
the Coal Act. The statute is clear and unambiguous, 
and we are bound to read it exactly as it is written. 
Accordingly, we affirm the decision of the district court. 

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I. 

A. 

The Coal Act of 1992 was passed in an effort to 
remedy a faltering system of healthcare benefits for the 
nation’s retired coal miners. See Eastern Enterprises v. 
Apfel, 524 U.S. 498, 504-15, 118 S. Ct. 2131, 141 L.Ed.2d 
451 (1998). On a handful of occasions, this court has 
carefully detailed the history of the coal industry’s 
attempt to establish, through collective bargaining, an 
adequate system of health and retirement benefits for 
coal miners and the resulting labor unrest and financial 
instability which led to the Coal Act of 1992. See 
Holland v. Big River Minerals Corp., 181 F.3d 597, 600- 
01 (4th Cir. 1999), cert. denied, —— U.S. ——, 120 S. 
Ct. 936, 145 L.Ed.2d 814 (2000); Holland v. Keenan 
Trucking Co., 102 F.3d 736, 738-39 (4th Cir. 1996); 
Carbon Fuel Co. v. USX Corp., 100 F.3d 1124, 1127-29 
(4th Cir. 1996). We need not recount the full history of 
the coal miners’ health and retirement benefits system. 
Nevertheless, since the Coal Act incorporates specific 
benefit plans established by the coal wage agreements, 
consideration of the statutory scheme at issue requires 
at least a rudimentary understanding of these plans. 

Between 1950 and 1978, a series of National Bitumi- 
nous Coal Wage Agreements (“coal wage agreements”) 
between the United Mine Workers of America 
(“UMWA”) and the Bituminous Coal Operators Asso- 
ciation (“BCOA”) produced a number of multiemployer 
benefit plans. The 1950 coal wage agreement estab- 
lished a multiemployer fund to furnish health and 
retirement benefits for both coal miners and their 
dependents. See Carbon Fuel, 100 F.3d at 1127. 
Benefits under this fund, however, were determined at 

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the discretion of the trustees of the fund and were 
subject to reduction according to the fund’s budget. See 
Eastern Enterprises, 524 U.S. at 506-08, 118 S. Ct. 2131. 
Thus, the miners were not guaranteed specific benefits. 

In 1974, the UMWA and the BCOA entered into a 
coal wage agreement that expanded the benefits 
available under the 1950 coal wage agreement, creating 
four multiemployer plans to replace the 1950 fund: 

The 1974 [coal wage agreement] . . . divided the 
1950 Plan into several separate multiemployer 
plans. It established a 1950 Pension Plan and Bene- 
fit Plan and a 1974 Pension Plan and Benefit Plan. 
The 1950 Benefit Plan provided health-care benefits 
to miners who retired prior to January 1, 1976, and 
their dependents. The 1974 Benefit Plan provided 
health-care benefits to miners who were active, or 
who retired on or after January 1, 1976, and their 
dependents. 

Carbon Fuel, 100 F.3d at 1127. Significantly, the 1974 
coal wage agreement promised, in contrast to the prior 
agreements, lifetime benefits. Signatory coal operators 
to the 1974 coal wage agreement pledged to finance 
both the 1950 Benefit Plan and the 1974 Benefit Plan, 
but their obligation to do so did not extend beyond the 
effective dates of the agreement. See Eastern Enter- 
prises, 524 U.S. at 509-10, 118 S. Ct. 2131. 

In 1978, the UMWA and the BCOA again reorgan- 
ized the health-care benefit system for coal miners, this 
time moving toward decentralization. Under the 1978 
coal wage agreement, a coal miner retiring on or after 
January 1, 1976, would be provided benefits by his last 
employer pursuant to an individual employer plan. The 

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1974 Benefit Plan continued to exist, but only to cover 
miners, known as “orphans,” who had retired on or 
after January 1, 1976, and whose last employer was no 
longer participating in the multiemployer plans or had 
gone out of business. Likewise, the 1950 Benefit Plan 
would continue to afford benefits to miners who had 
retired prior to January 1, 1976 and their dependents. 
See Carbon Fuel, 100 F.3d at 1127. There were two 
other noteworthy features of the 1978 coal wage agree- 
ment. First, the agreement required signatory opera- 
tors to provide defined benefits rather than defined 
contributions as under previous agreements. See 
Holland, 181 F.3d at 600-01. Second, the agreement 
included an “evergreen” clause requiring signatories to 
continue contributing even if they did not sign a 
subsequent agreement, as long as they remained in the 
coal industry. See Eastern Enterprises, 524 U.S. at 510, 
118 S. Ct. 2131. 

The series of coal wage agreements and the numer- 
ous restructurings to the coal miners’ health benefit 
system effected by the coal wage agreements occurred 
against a backdrop of severe financial distress. By the 
latter part of the 1980s, the 1950 and 1974 Benefit Plans 
were facing the possibility of insolvency as many 
signatories to the 1978 coal wage agreement left the 
coal mining business, sending their retirees—now 
newly orphaned—back into the multiemployer 1974 
Benefit Plan. An increasingly small number of signato- 
ries shouldered the burden of funding the plan, which 
was providing healthcare benefits—the cost of which 
were rising—for a growing number of orphaned retir- 
ees. See id. at 511, 118 S. Ct. 2131; Carbon Fuel, 100 
F.3d at 1127. These factors, among others, created a 
vortex which simultaneously decreased funds and 

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increased beneficiaries, and threatened to undo the 
whole system. 

The dire financial state of the 1950 and 1974 Benefit 
Plans ultimately spurred a lengthy strike in 1989 at the 
Pittston Coal Company, which, in turn, prompted the 
creation of the Advisory Commission on United Mine 
Workers of America Retiree Health Benefits (“Coal 
Commission”) to devise a solution to the problem of 
health benefits for retired miners. Following the sub- 
mission of recommendations by the Coal Commission, 
Congress passed the Coal Act of 1992. 

B. 

The Coal Act of 1992 established two new multi- 
employer health benefit funds. The first of these, the 
United Mine Workers of America Combined Benefit 
Fund (“the Combined Fund”), resulted from the merger 
of the 1950 UMWA Benefit Plan and the 1974 UMWA 
Benefit Plan. See 26 U.S.C.A. § 9702(a)(2). In general 
terms, the Combined Fund provides health benefits to 
retired miners (or their dependents) who were eligible 
to receive benefits from the 1950 or the 1974 Plan and 
were receiving benefits as of July 20, 1992. See 26 
U.S.C.A. § 9703; see also Eastern Enterprises, 524 U.S. 
at 514, 118 S. Ct. 2131; Holland, 181 F.3d at 601. The 
second fund established by the Coal Act, the UMWA 
1992 Benefit Plan, provides health benefits “to any 
eligible beneficiary who is not eligible for benefits 
under the Combined Fund.” 26 U.S.C.A. § 9712(b)(1).1 

1 Thus, the UMWA 1992 Benefit Plan covered retired miners 
who were eligible for but were not drawing benefits under the 
1950 or 1974 UMWA Benefit Plans and who were also not receiv- 

7a 

We are concerned here only with the Combined Fund.2 

The Coal Act charges the Commissioner with assign- 
ing responsibility under the Combined Fund for each 
eligible retiree to an appropriate coal industry em- 
ployer. The Commissioner is required, pursuant to a 
three-tiered priority scheme, to pair each retiree “to a 
signatory operator which (or any related person with 
respect to which) remains in business.” 26 U.S.C.A. 
§ 9706(a). An assigned signatory operator must pay an 
annual premium to the Combined Fund based largely 
on the number of beneficiaries assigned to it. See 26 
U.S.C.A. § 9704. A “signatory operator” is “a person 
which is or was a signatory to a coal wage agreement.” 
26 U.S.C.A. § 9701(c)(1). For purposes of the Coal Act, 
a signatory operator “remains in business” if it “con- 
ducts or derives revenue from any business activity, 
whether or not in the coal industry.” 26 U.S.C.A. 
§ 9701(c)(7). 

In assigning retirees to signatory operators, the 
Commissioner must observe the following priority 
scheme: 

(1) First, to the signatory operator which— 

(A) was a signatory to the 1978 coal wage 
agreement or any subsequent coal wage 
agreement, and 

ing benefits under an individual employer plan. See Holland, 181 
F.3d at 601. 

2 The Coal Act also required coal operators to continue the 
individual employer plans established under the 1978 coal wage 
agreement or a subsequent coal wage agreement. See 26 U.S.C.A. 
§ 9711. 

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(B) was the most recent signatory operator to 
employ the coal industry retiree in the coal 
industry for at least 2 years. 

(2) Second, if the retiree is not assigned under 
paragraph (1), to the signatory operator which— 

(A) was a signatory to the 1978 coal wage 
agreement or any subsequent coal wage agree- 
ment, and 

(B) was the most recent signatory operator to 
employ the coal industry retiree in the coal 
industry. 

(3) Third, if the retiree is not assigned under 
paragraph (1) or (2), to the signatory operator which 
employed the coal industry retiree in the coal 
industry for a longer period of time than any other 
signatory operator prior to the effective date of the 
1978 coal wage agreement. 

26 U.S.C.A. § 9706(a)(1)-(3). 

Even if there are no signatory operators that remain 
in business to whom a retiree can be assigned, respon- 
sibility for the retiree’s Combined Fund benefits may 
still be attached to anyone qualifying as a “related 
person” to a signatory operator that would have been 
responsible for benefits had it remained in business. 
See 26 U.S.C.A. § 9704(a) (“Any related person with 
respect to an assigned operator shall be jointly and 
severally liable for any premium required to be paid by 

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such operator.”). The Coal Act defines a “related 
person” as follows: 

(2) Related Persons.— 

(A) In general.—A person shall be con- 
sidered to be a related person to a signatory 
operator if that person is— 

(i) a member of the controlled group 
of corporations (within the meaning of sec- 
tion 52(a) [of the Internal Revenue Code]) 
which includes such signatory operator; 

(ii) a trade or business which is under 
common control (as determined under 
section 52(b) [of the Internal Revenue 
Code]) with such signatory operator; or 

(iii) any other person who is identified 
as having a partnership interest or joint 
venture with a signatory operator in a 
business within the coal industry, but only 
if such business employed eligible bene- 
ficiaries, except that this clause shall not 
apply to a person whose only interest is as 
a limited partner. 

A related person shall also include a successor in 
interest of any person described in clause (i), (ii), or 
(iii). 

26 U.S.C.A. § 9701(c)(2)(A). According to the language 
of the statute, even if the signatory operator and its 
related persons are defunct, coverage for the retiree 
can be assigned to a “successor in interest” to a related 
person. The term “successor in interest,” however, is 

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left undefined by the Coal Act. A related person or its 
successor in interest is not liable for Combined Fund 
premiums unless the related person was related as 
described in section 9701(c)(2)(A) “as of the time imme- 
diately before such operator ceased to be in business.” 
26 U.S.C.A. § 9701(c)(2)(B). 

In the event there is no signatory operator or related 
person remaining in business, and there is no successor 
in interest to any entity that is “related” to a signatory 
operator within the meaning of section 9701(c)(2)(A), 
then the retiree or his dependents are unassigned but 
not uncovered. The Coal Act requires the assigned 
signatory operators to cover the benefits for the 
unassigned miners on a pro rata basis. See 26 U.S.C.A. 
§ 9704(d). The premiums paid on behalf of the unas- 
signed miners’ benefits are reduced by the transfer of 
funds from the Abandoned Mine Land Reclamation 
Fund (the “AML Fund”). See 26 U.S.C.A. § 9705(b); 30 
U.S.C.A. § 1232(h) (West Supp. 1998). 

C. 

In 1973, Irdell Mining, Incorporated (“Irdell”) bought 
the coal mining operating assets of the Shackleford Coal 
Company (“Shackleford”), a family-owned coal mining 
company in Kentucky. There was no common owner- 
ship between Irdell and Shackleford. According to the 
terms of the asset purchase agreement, Irdell assumed 
responsibility for Shackleford’s contractual and lease 
arrangements, including the collective bargaining 
agreement with the United Mine Workers. Otherwise, 
Irdell did not assume Shackleford’s liabilities. Follow- 
ing the sale of assets, Shackleford changed its name to 
Kelly & Associates, which dissolved shortly after the 
sale. For several years after the sale, Irdell used the 

11a 

Shackleford name, which it was permitted to do pur- 
suant to the asset purchase agreement. Eventually, it 
changed its name to Jericol Mining Company. It is 
undisputed that Jericol continued Shackleford’s coal 
operations, using many of Shackleford’s employees. 
Jericol, while it was using the Shackleford name, signed 
the 1974 coal wage agreement that expired in 1977. 
Jericol did not sign any subsequent agreements. 

From September 1993 to September 1997, the Com- 
missioner assigned to Jericol, in piecemeal fashion, 
eighty-six coal miners who had retired from Shackle- 
ford and qualified as Combined Fund beneficiaries. 
These retirees worked for Shackleford, but they retired 
prior to the asset sale and thus never worked for Jeri- 
col. The Commissioner’s original notice of assignment 
to Jericol explained that these retirees were assigned 
on the basis that Jericol was a “related person” to 
Shackleford, a signatory operator that would have been 
the assignee had it not been defunct: 

Our records and UMWA records indicate that you 
are related to the signatory operator named below 
[Shackleford] who is no longer in business. This 
operator would have been responsible under the law 
for the miner named below under the rules for how 
we assigned responsibility. . . . Therefore, as a 

related company you must assume responsibility. 

J.A. 64. Jericol requested that the Commissioner re- 
consider the assignment, disputing that it was a 
“related person” to Shackleford within the meaning of 
the Coal Act. The Commissioner reaffirmed the series 
of assignments of Shackleford’s retirees to Jericol, how- 
ever, indicating that Jericol was responsible as a “suc- 
cessor in interest” to Shackleford. In confirming his 

12a 

decision, the Commissioner provided Jericol with a 
number of written explanations which were substan- 
tially identical: 

While Jericol admits purchasing part of Shackle- 
ford’s assets in 1973, the company maintains it was 
not a successor in interest. However[,] Jericol 
adopted use of the Shackleford name, continued to 
operate under Shackleford’s UMWA agreement and 
otherwise acted as its successor. Therefore Jericol 
is Shackleford’s successor. Shackleford was the last 
coal company to employ the miner. Since Shackle- 
ford is a pre-78 signatory and employed the miner 
for more than 24 months the assignment must be 
made under category three. Shackleford employed 
the miner longer than any other coal company that 
is still active or has an active related company. 
Therefore the original assignment was correct. 

J.A. 94. 

Jericol then brought this action, seeking a deter- 
mination that it is not responsible for the Shackleford 
retirees. The district court concluded that under sec- 
tion 9701(c)(2)(A), a successor in interest to a defunct 
signatory operator (assuming Shackleford is one) can- 
not be held accountable as a “related person” to that 
signatory operator, reasoning that because Jericol did 
not succeed to any person described in clauses (i), (ii), or 
(iii) of section 9701(c)(2)(A), it did not qualify as a 
“related person” to Shackleford under the unvarnished 
terms of the statute. See Sigmon Coal, 33 F. Supp.2d 
at 510. The Commissioner argued that, regardless of 
the language of the statute, the court should read the 
definition of “related person” to include a successor in 
interest to a signatory operator because, when applied 

13a 

literally, the statute leads to results that are absurd or, 
at the very least, much different from what Congress 
intended. The district court rejected this argument, 
finding the meaning of the statute clear on its face. See 
id. at 510-11. Thus, the district court held that the clear 
and unambiguous language obviated the need for it to 
defer to the Commissioner’s interpretation under Chev- 
ron, U.S.A., Inc. v. Natural Resources Defense 
Council, Inc., 467 U.S. 837, 842-43, 104 S. Ct. 2778, 81 
L.Ed.2d 694 (1984). The Commissioner then brought 
this appeal. 

II. 

First, we must determine whether we have subject 
matter jurisdiction to reach the substantive issues 
raised in this appeal. 

The parties did not raise this 
issue in either their briefs or at oral argument. Sub- 
sequently, the Commissioner, pursuant to Rule 28( j) of 
the Federal Rules of Appellate Procedure, raised the 
possibility that the district court lacked jurisdiction 
under Pittston Co. v. United States, 199 F.3d 694 (4th 
Cir. 1999), a decision that was issued following oral 
argument in this case. 

We are duty-bound to clarify our subject matter 
jurisdiction even if the parties do not develop it as an 
issue. See Cook v. Georgetown Steel Corp., 770 F.2d 
1272, 1274 (4th Cir. 1985) (“Although plaintiffs have not 
questioned the district court’s jurisdiction, lack of 
subject matter jurisdiction is an issue that requires sua 
sponte consideration when it is seriously in doubt.”). 
Unlike personal jurisdiction, subject matter jurisdiction 
cannot be waived. See Insurance Corp. of Ireland v. 
Compagnie des Bauxites de Guinee, 456 U.S. 694, 704, 
102 S. Ct. 2099, 72 L.Ed.2d 492 (1982). Accordingly, we 

14a 

must address the basis of our jurisdiction even when 
the parties do not pursue the topic of subject matter 
jurisdiction full bore. See United States v. White, 139 
F.3d 998, 999-1000 (4th Cir.), cert. denied, 525 U.S. 933, 
119 S. Ct. 343, 142 L.Ed.2d 283 (1998). 

Thus, we directed the parties to submit supplemental 
briefs on the following question: 

Whether, in light of this court’s holding that Coal 
Act premiums are taxes, see Pittston Co. v. United 
States, 199 F.3d 694, 701-03 (4th Cir. 1999); UMWA 
1992 Benefit Plan v. Leckie Smokeless Coal Co. (In 
re Leckie Smokeless Coal Co.), 99 F.3d 573, 583 (4th 
Cir. 1996), and the federal courts’ lack of jurisdiction 
to consider “suit[s] for the purpose of restraining 
the assessment or collection of any tax,” 26 U.S.C.A. 
§ 7421(a) . . . , the court has jurisdiction over this 
action. 

The parties submitted supplemental briefs, and we now 
address the district court’s subject matter jurisdiction. 

A. 

The Anti-Injunction Act, see 26 U.S.C.A. § 7421(a) 
(West Supp. 2000), and the tax-exclusion provision 
of the Declaratory Judgment Act, see 28 U.S.C.A. 
§ 2201(a) (West 1994), reflect “[t]he congressional an- 
tipathy for premature interference with the assessment 
or collection of any federal tax.” Bob Jones University 

v. Simon, 416 U.S. 725, 732 n. 7, 94 S. Ct. 2038, 40 
L.Ed.2d 496 (1974). The Anti-Injunction Act provides 
that “no suit for the purpose of restraining the assess- 
ment or collection of any tax shall be maintained in any 
court by any person, whether or not such person is the 

15a 

person against whom such tax was assessed.” 
26 U.S.C.A. § 7421(a). The Act has two primary objec- 
tives: “efficient and expeditious collection of taxes with 
‘a minimum of pre-enforcement judicial interference,’ 
and protection of the collector from litigation pending a 
refund suit.” United States v. American Friends Serv. 
Comm., 419 U.S. 7, 12, 95 S. Ct. 13, 42 L.Ed.2d 7 (1974) 
(per curiam) (quoting Bob Jones, 416 U.S. at 736-37, 94 
S. Ct. 2038). Unless an exception to the Anti-Injunction 
Act applies, “the legal right to the disputed sums [must] 
be determined in a suit for a refund.” Bob Jones, 416 
U.S. at 736 (emphasis added) (internal quotation marks 
omitted). 

The Declaratory Judgment Act provides that “any 
court of the United States, upon the filing of an 
appropriate pleading, may declare the rights and other 
legal relations of any interested party seeking such 
declaration” unless the action seeks a declaration of 
rights or legal relations “with respect to Federal taxes.” 
28 U.S.C.A. § 2201(a) (emphasis added). Even 
“[t]hough the Anti-Injunction Act concerns federal 
courts’ subject matter jurisdiction and the tax-exclu- 
sion provision of the Declaratory Judgment Act con- 
cerns the issuance of a particular remedy, the two 
statutory texts are, in underlying intent and practical 
effect, coextensive.” UMWA 1992 Benefit Plan v. 
Leckie Smokeless Coal Co. (In re Leckie Smokeless 
Coal Co.), 99 F.3d 573, 583 (4th Cir. 1996). 

In Leckie, we concluded that, for purposes of the 
Anti-Injunction Act and the tax-exclusion provision of 
the Declaratory Judgment Act, Coal Act premiums are 
taxes. See Leckie, 99 F.3d at 583; see also Pittston, 199 
F.3d at 702. Thus, any action that can be construed as 

16a 

having “the purpose of restraining the assessment or 
collection” of Coal Act premiums, i.e., taxes, potentially 
strips us of jurisdiction under the Anti-Injunction Act 
and runs afoul of the tax-exclusion provision of the 
Declaratory Judgment Act. 

However, “the Anti-Injunction Act ‘was not intended 
to bar an action where . . . Congress has not provided 
the plaintiff with an alternative legal way to challenge 
the validity of a tax.’ ” Leckie, 99 F.3d at 584 (ellipsis in 
original) (quoting South Carolina v. Regan, 465 U.S. 
367, 370-71, 104 S. Ct. 1107, 79 L.Ed.2d 372 (1984)). 
Leckie involved an effort by bankrupt coal operators to 
secure a declaration from the bankruptcy court that the 
purchasers of their assets would not be liable for Coal 
Act premiums as successors in interest to the bankrupt 
coal operators. We concluded that the bankrupt coal 
operators “[did] not have any ‘alternative legal way’ to 
challenge the imposition of Coal Act successor liability 
on the purchasers of their assets.” Id. The Leckie 
operators “need[ed] to know whether they [could] sell 
their assets free and clear of liability for their Coal Act 
premiums,” id., that is, they were challenging Coal Act 
premiums on potential purchasers, not their own Coal 
Act liability. The Anti-Injunction Act and the Declara- 
tory Judgment Act therefore did not preclude the 
Leckie court from considering the merits because “the 
Coal Act [does not] provide any means by which a coal 
operator can challenge the imposition of successor 
liability on a third party.” Id. 

In Pittston, we considered whether it was proper for 
coal operators to assert a constitutional challenge to 
premiums they were required to pay under the Coal 
Act via a tax refund action against the United States. 

17a 

See Pittston, 199 F.3d at 699. Rejecting the idea that 
the Coal Act provides the exclusive procedure by which 
a coal operator can obtain a refund of premiums paid on 
behalf of an incorrectly assigned retiree, we held that “a 
tax refund action is an appropriate vehicle for Pittston 
to use to seek recovery of . . . Coal Act premiums.” 
Pittston, 199 F.3d at 704. In doing so, we underscored 
our holding in Leckie that Coal Act premiums are taxes. 
Id. at 702. The coal operators in Pittston, however, 
sought no injunctive or declaratory relief; they simply 
sought a refund of their Coal Act premiums. 

B. 

Jericol’s action against the Commissioner includes a 
request for both declaratory and injunctive relief. The 
complaint seeks an order (1) declaring “that neither 
Jericol nor Sigmon is a successor in interest to Shackle- 
ford within the meaning of 26 U.S.C. § 9701(c)(2)(A),” 
J.A. 13, (2) “enjoin[ing] the Commissioner from assign- 
ing any Shackleford retirees to [Jericol] in the future,” 
J.A. 14, and (3) “direct[ing] the Commissioner to 
(i) withdraw the assignment of Shackleford’s retirees to 
Jericol, and (ii) inform the Combined Fund that such 
assignments have been withdrawn,” J.A. 13. In its 
complaint, Jericol asserted that three specific statutory 
bases vested the district court with subject matter 
jurisdiction: the Declaratory Judgment Act; the 
Administrative Procedures Act (“APA”); see 5 U.S.C.A. 
§ 704 (West 1996); and sections 9706 and 9721 of the 
Coal Act. Jericol has not paid the Coal Act premiums 
on behalf of the retirees whom Jericol claims were 
improperly assigned to it. 

The Commissioner contends that the Anti-Injunction 
Act and the Declaratory Judgment Act deprived the 

18a 

district court of authority to consider Jericol’s action. 
According to the Commissioner, the relief that Jericol 
seeks—an order requiring the Commissioner to with- 
draw assignments made to Jericol—would have the 
eventual effect of preventing the collection of Coal Act 
taxes because “[i]t is . . . the Comissioner’s assign- 
ment of a beneficiary to an operator that gives rise to 
that operator’s liability for premiums under the [Coal] 
Act.” Supplemental Brief of Appellant at 5. The 
Commissioner contends that, even if Jericol’s action 
does not directly impede the collection or assessment of 
taxes, this action is aimed at restraining a preliminary 
step to the actual collection of Coal Act premiums and 
thus falls within the purview of the Anti-Injunction 
Act. See Bob Jones, 416 U.S. at 731-32, 94 S. Ct. 2038; 
Clark v. United States (In re Heritage Church & 
Missionary Fellowship), 851 F.2d 104, 105 (4th Cir. 
1988) (per curiam). And, argues the Commissioner, 
unlike the coal operators in Leckie, Jericol has several 
alternative means of challenging the assignment of the 
retirees, depriving the district court of subject matter 
jurisdiction. See Leckie, 99 F.3d at 584. Having care- 
fully considered the supplemental briefs of the parties 
and the Amicus Curiae, we conclude that neither 
Leckie nor Pittston precluded the district court from 
exercising jurisdiction. 

The Coal Act itself provides a specific scheme for coal 
operators such as Jericol to challenge the assignment of 
retirees by the Commissioner under section 9706. 
Section 9706(f ) prescribes a procedure for obtaining 
administrative review of beneficiary assignments by 
the Commissioner and contemplates that the adminis- 
trative procedure will be subject to judicial review. 
First, an assigned operator that is dissatisfied with an 

19a 

assignment may “request from the Commissioner . . . 
detailed information as to the work history of the 
beneficiary and the basis of the assignment.” 26 
U.S.C.A. § 9706(f )(1). If an examination of this material 
does not persuade the assigned operator that the 
assignment was appropriate, the operator may then 
request review of the assignment by the Commissioner 
who “shall conduct such review if . . . the operator 
provided evidence with the request constituting a 
prima facie case of error.” 26 U.S.C.A. § 9706(f)(2). 
Regardless of whether the Commissioner ultimately 
determines that the assignment was or was not in error 
—or that assigned operator did or did not present a 
prima facie case of error—the “determination by the 
Commissioner . . . under paragraph (2) or (3) shall be 
final.” 26 U.S.C.A. § 9706(f )(4). The final decision of 
the Commissioner is subject to review “by a court 
under this subsection.” 26 U.S.C.A. § 9706(f )(5). As a 
final agency decision, the review process is governed by 
the APA. See 5 U.S.C.A. § 704; Dixie Fuel Co. v. Com- 
missioner of Social Security, 171 F.3d 1052, 1057-58 
(6th Cir. 1999) (applying APA review to Commis- 
sioner’s assignment of beneficiaries in an action for 
injunctive relief ); Lindsey Coal Min. Co. v. Chater, 90 
F.3d 688, 691 (3rd Cir. 1996) (applying APA review to 
Commissioner’s assignment of beneficiaries in an action 
seeking declaratory relief ). Of course, the APA is not 
an independent grant of subject matter jurisdiction to 
the federal courts. See Califano v. Sanders, 430 U.S. 
99, 107, 97 S. Ct. 980, 51 L.Ed.2d 192 (1977). Rather, 28 
U.S.C.A. § 1331 serves as the jurisdictional basis for 
federal courts “to review agency action.” Id. at 105, 97 
S. Ct. 980. The Coal Act clearly anticipates that this 
review scheme will apply to the Commissioner’s assign- 
ment of beneficiaries and that, accordingly, a district 

20a 

court will have the power to review such assignment 
and issue appropriate relief. 

Here, unlike Leckie, the assigned operator is simply 
following a procedure mapped out in the Coal Act 
specifically for this situation. See Leckie, 99 F.3d at 584. 
The coal companies in Leckie were not seeking review 
of the Commissioner’s assignments, as specifically 
permitted in the statute; rather, they were seeking a 
declaration with respect to Coal Act liabilities of a third 
party, a question for which there was no adequate 
remedy under the Coal Act or outside of it. (For 
example, the Leckie coal operators could not seek relief 
under 26 U.S.C.A. § 7422.) See id. (noting that “the 
Coal Act itself [does not] provide any means by which a 
coal operator can challenge the imposition of successor 
liability on a third party”). 

This distinction is pivotal. “It is a basic principle of 
statutory construction that when two statutes are in 
conflict, a specific statute closely applicable to the sub- 
stance of the controversy at hand controls over a more 
generalized provision.” Farmer v. Employment Sec. 
Comm’n of North Carolina, 4 F.3d 1274, 1284 (4th Cir. 
1993). Thus, “[w]here there is no clear intention other- 
wise, a specific statute will not be controlled or nullified 
by a general one, regardless of the priority of enact- 
ment.” Radzanower v. Touche Ross & Co., 426 U.S. 
148, 153, 96 S. Ct. 1989, 48 L.Ed.2d 540 (1976) (internal 
quotation marks omitted). Congress has expressly 
provided a method for coal operators to obtain review 
of the assignment of beneficiaries under section 9706(a). 
Because the Coal Act specifically addresses this issue, 
we conclude that the Coal Act, not the more general 
Anti-Injunction Act, controls the jurisdictional analysis. 

21a 

Nevertheless, the Commissioner contends that the 
language of section 9706(f )(5) supports the argument 
that the Anti-Injunction Act applies because section 
9706 creates, if anything, only a “post-payment rem- 
edy.” Section 9706(f )(5) provides that “[a]n assigned 
operator shall pay the premiums under section 9704 
pending review by the Commissioner of Social Security 
or by a court under this subsection.” The Commis- 
sioner submits that this language is more consistent 
with a tax refund action than with an action for 
injunctive or declaratory relief, and supports the policy 
of the Anti-Injunction Act to facilitate the collection of 
tax revenue. At bottom, the Commissioner is arguing 
that the phrase “pending review” created a jurisdic- 
tional barrier for the district court. 

We are not convinced. First, the language of the 
statute does not indicate or imply that the district court 
is deprived of jurisdiction to review the Commissioner’s 
assignments unless the assigned premiums have first 
been paid. And, we do not perceive section 9706(f )(5) to 
preclude the possibility of declaratory or injunctive 
relief. Indeed, Jericol could seek precisely the same 
type of relief it now seeks whether or not it paid its 
premiums pending review. Second, the structure of 
section 9706(f ) suggests otherwise. The requirement 
that the assigned operators pay their premiums “pend- 
ing review . . . by a court” applies just as forcefully 
“pending review by the Commissioner of Social 
Security.” But, the statute makes clear that this is not 
a prerequisite to review by the Commissioner who 
“shall conduct such review if the Commissioner finds 

. . . a prima facie case of error.” 26 U.S.C.A. 
§ 9706(f )(2) (emphasis added). Nothing in the language 
of the statute indicates that Congress meant for the 

22a 

phrase “pending review” to apply differently to review 
by a court. Third, the Coal Act provides an incentive to 
make timely premium payments to the Combined Fund 
in that it imposes penalties for failure to do so. See 26 
U.S.C.A. § 9707. Consequently, the requirement that 
assigned operators pay their premiums pending review 
is not a hollow provision. 

We likewise believe that Pittston is a different case 
from the one before us and does not curtail the juris- 
diction of a district court in an action simply challenging 
the Commissioner’s assignment of beneficiaries under 
section 9706(a). We say this primarily because we were 
not required in Pittston to address the applicability of 
the Anti-Injunction Act or the tax-exclusion provision 
of the Declaratory Judgment Act. Pittston held that a 
tax refund action was “an appropriate vehicle” for a 
coal operator that was seeking the repayment of Coal 
Act premiums based on its contentions that (1) the Coal 
Act violated a number of constitutional principles as 
applied; and (2) the premiums had been improperly 
calculated. See Pittston, 199 F.3d at 699. Thus, nothing 
in Pittston precludes the exercise of jurisdiction in an 
action like this one.3 

3 Moreover, we note that the premium miscalculation claim in 
Pittston does not appear to be a claim that even fits under section 
9706(f ). 

The review procedures set forth in section 9706(f ) are 

confined specifically to the assignment of Coal Act beneficiaries to 
signatory operators or their “related persons.” See 26 U.S.C.A. 
§ 9706(f)(2) (“An assigned operator may . . . request review of 
the assignment.”). Section 9706(f ) does not, however, provide re- 
view for an improperly calculated premium; thus, the proper 
recourse for a miscalculation claim would be, as we explained in 
Pittston, through either a tax refund action or through additional 

23a 

Under the circumstances of this case, we find that 
the exercise of jurisdiction is appropriate.4 

III. 

Having concluded that the district court had subject 
matter jurisdiction, we now turn to the merits. The 
Commissioner advances a two-fold argument. First, he 
contends that the district court misread the statute and 
that, in fact, a straight reading of the final paragraph of 
section 9701(c)(2)(A) shows that a successor in interest 
to a signatory operator qualifies as a related person, 
which would permit the assignment of the retirees and 
beneficiaries to Jericol. Second, the Commissioner 
argues that if the district court’s reading of the statu- 
tory text is correct, it is a reading that produces 
inexplicable, anomalous results that are clearly at odds 
with congressional intent. In support of this second 
argument, the Commissioner urges us to follow R.G. 
Johnson Co. v. Apfel, 172 F.3d 890, 894-96 (D.C. Cir. 
1999), a split-panel decision of the District of Columbia 
Circuit Court of Appeals sanctioning just such an 
approach.5 

overpayment remedies provided under the Coal Act or ERISA. 

See Pittston, 199 F.3d at 703-04. 

4 Our conclusion is consistent with Eastern Enterprises, which 
affirmed the exercise of jurisdiction over an action for declaratory 
and injunctive relief, although the Court did not expressly consider 
the same jurisdictional issue we consider here. See Eastern Enter- 
prises, 524 U.S. at 519- 22, 118 S. Ct. 2131. 

5 In order to resolve the issue presented to us, we need not 
address Jericol’s argument to the extent it suggests that under the 
Coal Act, the terms “successor” and “successor in interest” are dis- 
tinct, see Leckie, 99 F.3d at 585 n.15, and that Jericol does not 
qualify as a “successor in interest” to Shackleford. Like the dis- 
trict court, we leave these questions for another day, and we will 

24a 

A. 

We cannot agree with the Commissioner that a suc- 
cessor in interest to a signatory operator falls within 
the Coal Act’s definition of “related person.” Section 
9701(c)(2)(A) establishes three categories of persons 
that qualify as “related persons” to signatory operators: 
(1) “member[s] of the controlled group of corporations 

. . . which includes such signatory operator[s],” 26 
U.S.C.A. § 9701(c)(2)(A)(i); (2) “trade[s] or business[es]” 
that are “under common control” with the signatory op- 
erator, see 26 U.S.C.A. § 9701(c)(2)(A)(ii); and (3) cer- 
tain persons having a partnership interest or engaged 
in a joint venture with a signatory operator, see 26 
U.S.C.A. § 9701(c)(2)(A)(iii). The ultimate paragraph of 
section 9701(c)(2)(A) provides that “[a] related person 
shall also include a successor in interest of any person 
described in clause (i), (ii), or (iii).” 26 U.S.C.A. 
§ 9701(c)(2)(A) (emphasis added). 

Jericol does not qualify as a “related person” to 
Shackleford under clauses (i), (ii) or (iii) of section 
9701(c)(2)(A), and the Commissioner does not suggest 
as much. Rather, he hangs his hat on the last para- 
graph, contending that “any person described in clause 
(i), (ii), or (iii)” includes signatory operators because the 
term “signatory operator” appears in each of the three 
clauses. Such a reading of the text, however, would 
require us to completely ignore the statutory context 
and read the phrase “signatory operator” in a vacuum. 
The final paragraph of section 9701(c)(2)(A) plainly says 
“successor in interest of any person described in clause 

simply assume, for analytical purposes, that Jericol is indeed a 
successor in interest to Shackleford, whatever the precise nuances 
of that term. 

25a 

(i), (ii), or (iii).” Thus, to be a “related person” under 
the statute, Jericol must be a successor in interest to a 
person who is described by clause (i), (ii), or (iii). 
Shackleford, a signatory operator to whom Jericol suc- 
ceeded in interest (according to the Commissioner’s 
argument), is not described in any of these three 
predicate clauses. The text makes this self-evident by 
explaining that a person described in clause (i), (ii), or 
(iii) “shall be considered to be a related person to a 
signatory operator.” 26 U.S.C.A. § 9701(c)(2)(A) (em- 
phasis added). The statutory definition of “related 
person” obviously turns on the relationship a person or 
company has to a signatory operator. Each clause 
describes persons who are connected to a signatory 
operator in a way that justifies “related person” status. 
The inclusion of the term “signatory operator” in each 
clause just explains the connection. As the court 
observed in R.G. Johnson, to read this subsection as the 
Commissioner suggests would produce a nonsensical 
definition of “related person”: 

Because the persons described in those clauses are 
described in terms of their relationship to the 
signatory operator, it would seem evident that they 
cannot include the signatory itself. To suggest 
otherwise is tantamount to saying “I am related to 
me.” . . . [T]he Commissioner cannot overcome the 
fact that in order to be deemed a related person, a 
successor in interest must be one to a person 
described in those clauses. 

R.G. Johnson, 172 F.3d at 894 (emphasis in original). 

26a 

Like the Commissioner, the Trustees of the UMWA 
Combined Benefit Fund, as Amici Curiae, advance an 
argument that is based on a somewhat circular inter- 
pretation of the text: that “signatory operator” is nec- 
essarily described in clause (i) because, by definition, it 
is a member of a group “which includes such signatory 
operator.” This is simply another version of the Com- 
missioner’s argument, and it suffers from the same 
contextual infirmity. 

We are confident the Coal Act excludes a successor in 
interest to a signatory operator from the definition of 
“related person.” The text makes this clear and unam- 
biguous. Thus, we need not defer to the interpretation 
of the Social Security Administration. See Chevron, 467 
U.S. at 842-43, 104 S. Ct. 2778. 

B. 

1. 

If we apply the statute the way Congress has written 
it, the Commissioner fears that we will nevertheless do 
violence to what Congress probably intended and that 
our reading of the statute will lead to anomalous ends. 
If a literal reading of a statute produces an outcome 
that is “demonstrably at odds” with clearly expressed 
congressional intent to the contrary, United States v. 
Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S. Ct. 
1026, 103 L.Ed.2d 290 (1989), or results in an outcome 
that can truly be characterized as absurd, i.e., that is 
“ ‘so gross as to shock the general moral or common 
sense,’ ” Maryland State Dep’t of Educ. v. United States 
Dep’t of Veterans Affairs, 98 F.3d 165, 169 (4th Cir. 
1996) (quoting Crooks v. Harrelson, 282 U.S. 55, 59-60, 
51 S. Ct. 49, 75 L.Ed. 156 (1930)), then we can look 

27a 

beyond an unambiguous statute and consult legislative 
history to divine its meaning. But, such instances are, 
and should be, exceptionally rare. See TVA v. Hill, 437 
U.S. 153, 187 n. 33, 98 S. Ct. 2279, 57 L.Ed.2d 117 (1978). 
The intent of Congress as a whole is more apparent 
from the words of the statute itself than from a patch- 
work record of statements inserted by individual legis- 
lators and proposals that may never have been adopted 
by a committee, much less an entire legislative body—a 
truth which gives rise to “the strong presumption that 
Congress expresses its intent through the language it 
chooses.” INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n. 
12, 107 S. Ct. 1207, 94 L.Ed.2d 434 (1987). Therefore, 
when the terms of a statute are clear and unambiguous, 
our inquiry ends and we should stick to our duty of 
enforcing the terms of the statute as Congress has 
drafted it. See Caminetti v. United States, 242 U.S. 470, 
485, 37 S. Ct. 192, 61 L.Ed. 442 (1917) (“[T]he sole func- 
tion of the courts is to enforce [the statute] according to 
its terms.”). This principle applies, too, in the face of an 
agency’s construction of the statute that it administers. 
See Chevron, 467 U.S. at 842-43, 104 S. Ct. 2778 (“If the 
intent of Congress is clear, that is the end of the matter; 
for the court, as well as the agency, must give effect to 
the unambiguously expressed intent of Congress.”). As 
a result, we are more than a little hesitant to abandon 
the presumption that Congress meant what it said, or 
did not say, when the words of a statute are plain, as 
they are here. 

Pressing his argument that our reading of the statute 
contravenes congressional intent, the Commissioner 
points first to the congressional findings and declara- 
tion of policy prefacing the Coal Act. See Pub. L. No. 
102-486, § 19142, 106 Stat. 3036, 3037 (1992). In light of 

28a 

the troubled history that for decades dogged the 
system of multi-employer benefit plans for coal miners, 
Congress determined that “it is necessary to modify the 
current private health care benefit plan structure for 
retirees in the coal industry to identify persons most 
responsible for plan liabilities in order to stabilize plan 
funding and allow for the provision of health care bene- 
fits to such retirees.” Pub. L. No. 102-486, § 19142(a)(2), 
106 Stat. 3036, 3037 (1992) (emphasis added). Accord- 
ing to the Commissioner, our reading of the definition of 
“related person” produces results that are at cross- 
purposes with the explicit congressional pronounce- 
ment that it intended “to identify persons most respon- 
sible for plan liabilities.” Specifically, he questions the 
logic of imposing, as section 9701(c)(A)(2) clearly does, 
“related person” liability upon a successor in interest to 
a “related person” but not upon a successor in interest 
to the signatory operator itself. The Commissioner 
argues that there cannot be a more responsible person 
for Combined Fund liabilities than Jericol, a company 
that took over Shackleford’s mining operation, used its 
name for a period of time, and agreed to assume Shack- 
leford’s responsibilities under its collective bargaining 
agreement with the UMWA. Apparently the only 
other circuit court of appeals to have considered this 
issue held, in a split panel decision, that such a result 
ran contrary to the general purpose of the Coal Act, 
reasoning that there was simply no good reason for 
such an odd result. See R.G. Johnson, 172 F.3d at 895. 

We are not convinced, however, that the literal 
language of section 9701(c)(2)(A) is contrary to clearly 
expressed congressional intent. First, the general and 
somewhat vague statement of congressional findings in 
the preamble to the Coal Act does not impress us as the 

29a 

kind of pellucid expression of legislative intent that 
would displace a specific textual provision that is clear 
and unambiguous. And, even if it were, we do not 
automatically agree with the Commissioner’s apparent 
assumption that an asset purchaser like Jericol is 
obviously the “most responsible” person where these 
miners are concerned. After all, Jericol never actually 
employed any of the miners at issue; it is certainly not 
an absurd notion to think that a company which was 
under common financial control with Shackleford dur- 
ing the miners’ employment (and therefore a “related 
person”), or a successor in interest to such a company, 
could be considered the “most responsible” person for 
Combined Fund purposes. As Jericol has suggested, 
the benefits conferred by the retired miners in this case 
ran to Shackleford and those in financial partnership 
with it. To the extent that the retired Shackleford 
miners conferred a benefit on Jericol, such as improving 
the physical assets of the operation or advancing the 
goodwill of the company through their hard work, 
Jericol presumably paid fair market value for these 
benefits under the terms of the asset purchase. 

The Commissioner’s position is not strengthened by 
the legislative history to which he and the Amici point 
us. First, they offer a statement made during the floor 
debate by one of the sponsors of the Coal Act which in- 
terpreted the definition of “signatory operator” under 
section 9701(c)(1) to include a successor in interest to 
the signatory operator. See 138 Cong. Rec. S17566-01, 
17634 (daily ed. Oct. 8, 1992) (statement of Sen. Rocke- 
feller). If we were presented with an ambiguous stat- 
ute, such commentary might conceivably provide some 
interpretive guidance; however, even then such com- 
ments would be of limited use since they are directed at 

30a 

the definition of “signatory operator” as opposed to 
“related person.” But we have been asked to consider a 
statute that does not need interpretation. The statute 
simply does not encompass a successor in interest to a 
signatory operator. Moreover, a brief comment from 
the floor by a single legislator, albeit one of the Act’s 
sponsors, is not conclusive evidence of what the entire 
legislative body believes. See United States Dep’t of 
State v. Washington Post Co., 456 U.S. 595, 600, 102 
S. Ct. 1957, 72 L.Ed.2d 358 (1982) (“Passing references 
and isolated phrases are not controlling when analyzing 
a legislative history.”). 

Second, the Commissioner offers portions of a docu- 
ment from the Congressional Record in an attempt to 
establish clear legislative intent to the contrary. Spe- 
cifically, he points to a technical explanation of the Coal 
Act inserted into the Congressional Record by Senator 
Wallop which maintains that a “related person” in- 
cludes “in specific instances successors to the collective 
bargaining agreement obligations of a signatory 
operator.” 138 Cong. Rec. S17566-01, S17604 (daily ed. 
Oct. 8, 1992).6 We refuse to displace a clear statutory 
provision which was passed by both houses of Congress 
and signed into law by the President with an explana- 
tion proffered by a single member of Congress. While 
worthy of consideration, it is simply not the sort of 
conclusive legislative history that would trump con- 
trary language in the statute. See Garcia v. United 
States, 469 U.S. 70, 76-77, 105 S. Ct. 479, 83 L.Ed.2d 472 

6 The parties refer to this material as a proposed conference 
report. We agree that this material was never adopted by the 
Conference Committee, but prefer to describe the material as did 
the Senator who introduced it into the Congressional Record—as a 
technical explanation. 

31a 

(1984) (preferring legislative history that reflects the 
collective understanding of a committee to the views of 
an individual legislator). We have found nothing in the 
Conference Report itself to suggest that other 
members of Congress signed on to this interpretation of 
the statute. See H.R. Conf. Rep. No. 102-1018 (1992). 
And, R.G. Johnson supports us on this score as well, 
observing that the relevant legislative history is 
inconclusive. See R.G. Johnson, 172 F.3d at 894. 

We are satisfied that the legislative history on this 
point should not displace the language of the statute as 
a tool for determining congressional intent, especially 
when Congress included elsewhere in the statute lan- 
guage that the Commissioner wants us to read into the 
definition of “related person.” For purposes of the 
UMWA 1992 Benefit Plan and the individual employer 
plans which the Coal Act kept in place, Congress 
specifically defined the term “last signatory operator” 
to include “a successor in interest of such operator.” 
26 U.S.C.A. § 9711(g)(1). Congress could easily have in- 
cluded this phrase in the final paragraph of section 
9701(c)(2)(A). It did not do so, however, and we think 
this suggests that Congress acted intentionally when it 
omitted a successor in interest to a signatory operator 
from the definition of “related person.” See Russello v. 
United States, 464 U.S. 16, 23, 104 S. Ct. 296, 78 
L.Ed.2d 17 (1983) (“ ‘[W]here Congress includes par- 
ticular language in one section of a statute but omits it 
in another . . . it is generally presumed that Congress 
acts intentionally and purposely in the disparate inclu- 
sion or exclusion.’ ”). 

Accordingly, we decline to defer to the legislative 
history in the face of clear statutory language. 

32a 

2. 

Finally, the Commissioner argues that we cannot 
follow the statute as it is written because the way Con- 
gress has drafted the “related person” definition be- 
gets, under the right set of circumstances, some fairly 
odd results. For instance, why would Congress allow a 
company that has literally taken over the coal mining 
production of a defunct signatory operator (assuming 
such a company is a successor in interest) to escape 
liability, but pin financial responsibility on a successor 
in interest to a company that was unrelated to the coal 
industry—say, a trucking company—merely because 
the trucking company and the signatory coal operator 
were under common financial control prior to the 
passage of the Coal Act? In light of the statutory 
purpose, says the Commissioner, it would have been 
wiser to make it the other way around. 

We are not persuaded that there is no logic to 
shielding successors in interest to signatory operators 
from liability but not successors in interest to “related 
persons.” Jericol submits, as did Judge Randolph in his 
dissent to R.G. Johnson, that such a provision (making 
successors in interest to “related persons” liable instead 
of successors in interest to signatory operators) pro- 
motes the sale of coal companies: 

Without the exemption, prospective purchasers 
can never be sure of their risks. Their liability 
would depend on whether, sometime in the future, 
the seller—that is, the signatory operator—ceases 
to “remain[ ] in business,” a matter wholly outside 
their control. 

33a 

R.G. Johnson, 172 F.3d at 896 (Randolph, J., dis- 
senting). And, indeed, such an idea makes sense in 
view of the historical backdrop and legislative history, 
which suggest that perhaps Congress had good reason 
after all to pass section 9701(c)(2)(A) in its current 
version, the Commissioner’s argument to the contrary 
notwithstanding. As observed in the Coal Commis- 
sion’s report to Congress, over half of the pre-Coal Act 
beneficiaries were “orphans” who were drawing bene- 
fits from a pot jointly funded by coal operators. See 
Secretary of Labor’s Advisory Commission on United 
Mine Workers of America Retiree Health Benefits, 
Coal Commission Report, Executive Summary VII 
(1990) (Coal Commission Report). A major complaint 
lodged by the coal operators was that they were being 
required to pay benefits for retired miners who never 
worked for them or maintained any other relationship 
with them. See 138 Cong. Rec. S17566-01, S17607 (“The 
coal companies that are still fully signatory to the 
bargaining agreement have complained that for every 
dollar they have been paying into the UMWA 1950 and 
1974 Health Benefit Funds for their own retirees and 
dependents, they pay an additional three dollars on 
behalf of ‘orphans’ of other companies.”). Imposing 
liability under the Combined Fund upon successors in 
interest to signatory operators would produce the same 
results because operators that did not receive the 
benefit of the retired miners’ employment would never- 
theless be responsible for them under the Combined 
Fund. In fact, such a requirement would arguably have 
put coal operators who purchased another operator’s 
assets in a worse position since under the Act they are 
solely responsible for their assigned retirees. Jericol 
suggests that in an industry where buying and selling 
coal mining assets is commonplace, such a provision 

34a 

would present a significant impediment to the coal com- 
panies’ support for the Coal Act, which, in turn, would 
supply Congress with a motive for omitting the provi- 
sion. Indeed, the scheme for assigning retirees to coal 
operators was a point of contention throughout the leg- 
islative process. See 138 Cong. Rec. S18250-02, S18250 
(daily ed. Oct. 8, 1992) (statement of Sen. Glenn) (“[T]he 
coal industry retiree health benefits package before us 
today has been among the most contentious matters 
facing legislators this year.”). 

Clearly, the explanation Jericol offers is not indis- 
putably evident from extra-textual sources; however, it 
is certainly plausible, and that is all we need to reject 
the assertion that the Coal Act’s definition of “related 
person” is, on its face, absurd. And, we recognize that 
there is a counterpoint to the idea that Congress may 
have been trying to foster the sale or transfer of coal 
companies—that if this were truly a congressional aim, 
Congress would also have exempted a successor in in- 
terest to a “related person” when the “related person” 
is a company involved in the coal industry, rather than 
a trucking company or some other company that is not 
tethered to the coal industry. See R.G. Johnson, 172 
F.3d at 895. But, even if this is true—if the literal text 
of the statute produces a result that is, arguably, some- 
what anomalous—we are not simply free to ignore 
unambiguous language because we can imagine a pref- 
erable version. See United States v. Sheek, 990 F.2d 
150, 153 (4th Cir. 1993) (“Even if the result appears to 
be anomalous or absurd in a particular case, the court 
may not disregard unambiguous language.”). Perhaps 
it would be good policy to exempt successors in interest 
to “related persons” in the coal industry. As Judge 
Randolph observed, however, “Congress rarely has to 

35a 

go as far as its logic would take it.” R.G. Johnson, 172 
F.3d at 896. For us to read into the statute language 
that is simply not there would require us to believe that 
the text as Congress drafted it produced an absurdity 
“ ‘so gross as to shock the general moral or common 
sense.’ ” 

Maryland State Dep’t of Educ., 98 F.3d at 169 
(quoting Crooks, 282 U.S. at 59-60, 51 S. Ct. 49). We 
see nothing in section 9701(c)(2)(A) to convince us that 
this is one of those rare instances in which we should 
stray from the words of the statute itself. 

What we are being asked to do is improve the statute 
—to amend it, really. The Commissioner’s reading of 
the statute may be appealing in terms of its logic, but 
we cannot adopt it as our own without trespassing on a 
function reserved for the legislative branch: 

[I]f Congress did not say what may appear more 
reasonable, and said something else, a court may not 
step in and perform a congressional, i.e., legislative, 
act. 

. . . We must interpret statutes as written, not as 
we may wish for them to be written. Congress’ role 
is to enact statutes; the judiciary’s to interpret those 
statutes as written. 

United States v. Childress, 104 F.3d 47, 53 (4th Cir. 
1996).7 Because our job is to determine the meaning of 

7 We also decline the invitation of the Amici to use our inter- 
pretations of the Comprehensive Environmental Response, Com- 
pensation, and Liability Act (CERCLA), see 42 U.S.C.A. § 9601 
(West 1995 & Supp. 1998), as an interpretive guide to section 
9701(c)(2)(A) of the Coal Act. See United States v. Carolina 
Transformer Co., 978 F.2d 832, 837-38 (4th Cir. 1992) (adopting 
successor liability under CERCLA). Since the meaning of the text 

36a 

the statute passed by Congress, not whether wisdom or 
logic suggests that Congress could have done better, 
we conclude that section 9701(c)(2)(A) does not affix 
“related person” liability upon a successor in interest to 
a signatory operator. 

IV. 

For the foregoing reasons, the decision of the district 
court is affirmed. 

AFFIRMED. 

here is self-explanatory, there is no need for us to make a dubious 
attempt at determining whether the apparent intent of one Con- 
gress in enacting a statute is at all useful for discovering the intent 
of another Congress in enacting a separate, unrelated statute. 

37a 

MURNAGHAN, Circuit Judge, dissenting: 

Because the majority’s adherence to the literal lan- 
guage of the Coal Act’s definition of “related persons” 
produces a result demonstrably at odds with the 
intentions of its drafters, I respectfully dissent. 

I. 

The crisis in the coal industry that preceded the 
passage of the Coal Act resulted from the financial 
instability of the 1950 and 1974 Benefit Plans. In the 
1978 Coal Wage Agreement, individual signatory op- 
erators assumed responsibility for providing health 
benefits for their post-1975 retirees and active workers. 
The 1978 Agreement retained the 1974 Benefit Plan as 
an “orphan” plan to provide health benefits for post- 
1975 retirees whose last employer had gone out of 
business. The 1950 Benefit Plan was also retained to 
provide benefits for miners who had retired before 1976 
and their dependents. See Eastern Enters. v. Apfel, 524 
U.S. 498, 510, 118 S. Ct. 2131, 141 L.Ed.2d 451 (1998). 

The 1978 Agreement did not work because several 
signatories left the mining business, “dumping” their 
retirees on the 1950 and 1974 Benefit Plans. The 
signatories that remained had to shoulder the burden of 
paying for the growing number of orphaned retirees, 
while at the same time paying for the health care of 
their own retirees. The rising costs of providing for 
orphaned retirees caused more signatories to leave the 
coal mining business, exacerbating the crisis. The coal 
industry thus was caught in a vicious circle that 
threatened to deprive more than 100,000 retired coal 
miners and their dependents of their promised lifetime 
health benefits. See id. at 511, 118 S. Ct. 2131. 

38a 

Congress responded to the crisis by enacting the 
Coal Act in 1992. Congress wanted to avoid the prob- 
lems that plagued the coal industry in the 1980s—too 
many unallocated retirees supported by signatory op- 
erators that did not have any connection to the retirees. 
The Act therefore assigned liability for retiree health 
benefits to “related persons” to signatory operators as 
well as to the signatory operators themselves. See 26 
U.S.C. § 9706(a). As a result, if a signatory operator 
went out of business, a “related person” would be on 
the hook for the signatory operator’s retirees. Only 
when the Commissioner could not locate a “related per- 
son” still “in business” would the rest of the coal indus- 
try have to support an “orphaned” retiree. See 26 
U.S.C. § 9704(a)(3), (d), § 9706(a). 

The Coal Act defines related persons in 
§ 9701(c)(2)(A), which provides: 

(2) Related persons.— 

(A) In general.—A person shall be considered to 
be a related person to a signatory operator if that 
person is— 

(i) A member of the controlled group of 
corporations (within the meaning of section 
52(a)) which includes such signatory operator; 

(ii) a trade or business which is under com- 
mon control (as determined under section 
52(b)) with such signatory operator; or 

(iii) any other person who is identified as 
having a partnership interest or joint venture 
with a signatory operator in a business within 

39a 

the coal industry, but only if such business 
employed eligible beneficiaries, except that 
this clause shall not apply to a person whose 
only interest is as a limited partner. 

A related person shall also include a successor in 
interest of any person described in clause (i), (ii), or 
(iii). 

26 U.S.C. § 9701(c)(2)(A) (emphasis added). The issue 
in the instant case is whether the definition of “related 
persons” includes successors in interest to signatory 
operators.1 

II. 

I agree with the majority’s conclusion that a literal 
reading of § 9701(c)(2)(A) unambiguously excludes suc- 
cessors in interest to signatory operators. I therefore 
would not defer to the Commissioner’s strained inter- 
pretation of the definition. I would nevertheless 
construe § 9701(c)(2)(A) to include successors in inter- 
est to signatory operators because I agree with the 
D.C. Circuit that the instant case is one of those “rare 
cases in which the literal application of a statute will 
produce a result demonstrably at odds with the 
intentions of its drafters.” R.G. Johnson Co. v. Apfel, 
172 F.3d 890, 895 (D.C. Cir. 1999) (quoting United 

1 For purposes of my analysis, and in response to the majority’s 
reasoning, I assume Jericol qualifies as a successor in interest to 
Shackleford. I would not reach this issue on appeal, however, be- 
cause the district court has not ruled on the issue. See R.G. 
Johnson Co. v. Apfel, 172 F.3d 890, 895 (D.C. Cir. 1999) (refusing to 
consider whether a coal company qualified as a “successor in inter- 
est” to a signatory operator because the district court had not 
ruled on the issue). 

40a 

States v. Ron Pair Enters., 489 U.S. 235, 242, 109 S. Ct. 
1026, 103 L.Ed.2d 290 (1989)). 

A literal interpretation of the definition of “related 
persons” causes a result that directly conflicts with 
Congress’s stated purpose in enacting the Coal Act. 
Congress declared that its purpose in enacting the Act 
was “to identify persons most responsible for plan 
liabilities in order to stabilize plan funding and allow for 
the provision of health care benefits to such retirees.” 
Pub. L. No. 102-486, § 19142(a)(2), 106 Stat. 3037 (codi- 
fied at note following 26 U.S.C. § 9701). Outside of the 
signatory operators, no entities are “more responsible” 
for plan liabilities than successors in interest to signa- 
tory operators. Here, for example, Jericol took over 
Shackleford’s mining operations, employed many of its 
workers, and assumed its duties under the collective 
bargaining agreement with the UMWA. In addition, 
the asset purchase agreement between Shackleford and 
Jericol2 included a clause allowing Jericol to use 
Shackleford’s well-known corporate name. Jericol thus 
benefitted from the goodwill created, at least in part, 
from the work of the retirees that Jericol now attempts 
to dump on the rest of the coal industry. 

A literal interpretation of the definition of “related 
persons,” however, would turn Congress’s stated pur- 
pose on its head: entities with only a tenuous connection 
to the retired coal miners would be jointly and severally 
liable for Fund benefits while direct successors to the 
signatory operators who employed the miners are 
excluded from liability. For example, under a literal 
interpretation of § 9701(c)(2)(A), a thrice-removed suc- 

2 Jericol was then known as Irdell Mining, Inc. 

41a 

cessor in interest to a food distributor under common 
control with a signatory coal mine operator would be 
liable for the health benefits of a signatory’s retired coal 
miners, while a company like Jericol, a coal mining 
direct successor in interest to a signatory operator, 
would be excluded from liability. Congress could not 
have intended such an anomalous result. 

My conclusion is in accord with the only other circuit 
to consider this issue. In R.G. Johnson, the D.C. 
Circuit stated that 

[i]n light of [the purpose of the Act] and the broad 
reach of the provisions imposing liability on related 
persons, we can think of no reason why Congress 
would have intended to impose liability for the 
beneficiaries on, for example, a successor in interest 
to a Coca-Cola bottling company under common 
control with a signatory coal mine operator while 
exempting a coal-mining successor in interest to 
that operator. 

Id. at 895. The court therefore held that it would con- 
strue § 9701(c)(2)(A) to include successors in interest to 
signatory operators. See id. 

In the instant case, the majority recognizes that a 
literal interpretation of “related persons” causes a 
result “that is, arguably, somewhat anomalous.” Maj. 
op. at [35a]. However, seizing on the theory advanced 
in Judge Randolph’s dissent in R.G. Johnson, the ma- 
jority attempts to explain the anomalies by speculating 
that Congress may have intended to exclude successors 
in interest to signatory operators from liability to 
promote the sale of coal companies. 

42a 

I disagree with the majority’s theory because it 
presumes that Congress intended to promote the exact 
practice that necessitated legislative action in the first 
place. The widespread dumping of retirees by signa- 
tory operators leaving the coal industry was the princi- 
pal cause of the coal industry’s crisis. The remaining 
signatory operators were forced to shoulder the burden 
of paying for more orphaned retirees, thereby encour- 
aging more signatories to leave the industry. In light of 
this history, it is unimaginable that Congress could 
have intended to promote the sale of coal companies to 
successors who would not be liable for Fund benefits. 

Furthermore, excluding successors in interest from 
liability for retiree benefits does more than promote the 
sale of coal companies; it actively encourages the sale of 
coal companies. Under the majority’s interpretation of 
the Act, coal companies are worth more to successors 
than they are to signatory operators. For instance, 
Jericol can avoid $237,000 in yearly contributions to 
retirees if successors are not liable under the Act. 
Other coal companies undoubtedly have significantly 
higher contributions under the Act.3 A successor who 
can avoid these costs will be willing to pay more for a 
coal company than the value of the company as an 
ongoing entity, because the successor could avoid a 
major liability of the company. 

Profit-seeking signatory operators therefore will 
maximize shareholder value by selling their assets to a 
successor, distributing the proceeds to shareholders, 

3 For instance, a signatory operator who has been in the indu- 
try since the 1960s would be liable for the health benefits for thirty 
years of retirees. Under the majority’s analysis, a successor to this 
company would be liable for none of these benefits. 

43a 

and then dissolving. The remaining signatory opera- 
tors will have to shoulder the burden of paying for the 
retirees of signatories who leave the business, further 
raising their costs of doing business; the additional 
costs will, in turn, encourage more signatories to sell 
their assets to successors. The ultimate result would be 
the same dwindling funding base that Congress in- 
tended to rectify by passing the Act. The majority’s 
theory thus suggests that Congress intended to cure 
the crisis in the coal industry by infecting it with part of 
the disease.4 

Finally, the majority offers no explanation for why 
Congress was concerned with promoting the sale of coal 
companies, but was not concerned with promoting the 
sale of companies related to a signatory operator. 
Instead, the majority baldly states that “Congress 
rarely has to go as far as its logic would take it.” Maj. 
op. at [35a]. However, as is evident from my previous 
analysis, it was clearly illogical for Congress to exclude 
successors in interest to signatory operators from 
liability in the first place. Thus, to accept the majority’s 
theory, one must believe that Congress was incon- 
sistently illogical. 

4 Some might suggest that coal companies are unlikely to 
attempt to profit from such a “loophole” in the Coal Act; however, 
this suggestion ignores the fact that coal companies have a long 
history of using the tools of successorship to maximize shareholder 
profits at the expense of workers and retirees. See generally 
Grant Crandall et al., Hiding Behind the Corporate Veil: Employer 
Abuse of the Corporate Form to Avoid or Deny Workers’ Collec- 
tively Bargained and Statutory Rights, 100 W. Va. L. Rev. 537 
(1998). 

44a 

III. 

The majority is rightfully cautious about judicially 
“rewriting” an unambiguous statute. Nevertheless, our 
duty is to give effect to the intent of Congress. Con- 
gress’s intent is usually expressed in the plain meaning 
of a statute, but that is not always the case. The 
Supreme Court has stated that 

[l]ooking beyond the naked text for guidance is per- 
fectly proper when the result it apparently decrees 
is difficult to fathom or where it seems inconsistent 
with Congress’ intention, since the plain-meaning 
rule is “rather an axiom of experience than a rule of 
law, and does not preclude consideration of per- 
suasive evidence if it exists.” 

Public Citizen v. United States Dep’t of Justice, 491 
U.S. 440, 455, 109 S. Ct. 2558, 105 L.Ed.2d 377 (1989) 
(quoting Boston Sand & Gravel Co. v. United States, 
278 U.S. 41, 48, 49 S. Ct. 52, 73 L.Ed. 170 (1928)). Ex- 
cluding successors in interest to signatory operators 
from liability for Fund benefits is plainly inconsistent 
with Congress’s intent in enacting the Coal Act. I 
therefore would construe § 9701(c)(2)(A) as allowing the 
assignment of Fund beneficiaries to successors in inter- 
est to signatory operators. Accordingly, I dissent. 

45a 

APPENDIX B 

Coal Act Review Decision 

Company Name: Jericol Mining, Incorporated 

Company EIN: 61-0844927 

Facts: Three PSCs assigned miners to Jericol Mining, 
Inc., EIN: 61-0844927. The operator’s representative 
timely requested review of the assignment, alleging 
that the assignments were erroneous because Jericol 
Mining, Inc. is not the successor in interest of 
Shackleford Coal Co., Inc. The representative also 
requested an extension of 90 days in which to submit 
evidence to support the allegation. 

The representative submitted additional evidence by 
letter dated June 9, 1994. The evidence consists of a 
copy of the contract wherein Irdell Mining, Inc. and 
Dale Company purchased the assets of Shackleford 
Coal Co., Inc. in 1973. The representative advises that 
Irdell Mining, Inc. for a period of time took the name 
Shackleford Coal Company, and later took the name 
Jericol Mining, Inc. The representative also stated that 
the partial purchase of assets by Irdell Mining and 
other terms of the contract establishes that Jericol 
Mining is not the successor in interest of Shackleford 
Coal. 

The assignment of miners to Jericol Mining will depend 
on whether the purchase of Shackleford Coal was under 
conditions which will provide Jericol with the status of 
“successor” of Shackleford. Basically, when a business 
transfer is made to another owner who continues the 

46a 

former owner’s operation with little or no interruption 
or change, the new owner is a successor. 

The elements that tend to support a finding that a 
business transfer was to a successor are: (1) employees 
of the former owner continue to work for the new 
owner with little or no interruption after the transfer; 
(2) the former owner transferred the business trade 
name to the new owner; (3) the former owner agrees 
not to compete with the new owner’s business, or not to 
compete in the same geographical area; (4) the transfer 
includes sale of “good will,” or the turning over of 
customer records, business records, contracts, leases, 
and the like; and (5) the prior owner agrees to work for 
the new owner as a consultant or employee. This list is 
not complete nor conclusive, and not all aspects must be 
present to establish that the transfer was to a 
successor. 

The sales contract submitted by Jericol Mining’s rep- 
resentative shows that Shackleford Coal sold its assets 
to Irdell Mining and Dale Company. The agreement 
was signed on behalf of Irdell Mining by James A. 
Sigmon, President, and on behalf of Dale by James A. 
Sigmon, General Partner. Since both purchasing com- 
panies are apparently owned by the same individuals, 
they can be considered to be the same company for 
assignment purposes under the Coal Act. The contract 
also requires Shackleford Coal to maintain the goodwill 
of its customers, provides that Irdell Mining will use 
the name of Shackleford, provides that Irdell Mining 
accept all outstanding contracts and agreements, and 
provides that non-compete agreements must be signed 
by all parties and submitted at the time of closing. 

47a 

The records of the SSA (AEQY) shows that EIN 61- 
0844927 was issued in July 1973 to a company doing 
business as Shackleford Coal Company. The Form SS-4 
shows that the reason for applying for the assignment 
of an EIN was: “Purchased going business.” The 
AEQY also shows the company assigned this EIN later 
changed its name to Jericol Mining Incorporated. 

The evidence clearly establishes that Jericol Mining, 
Inc. must be considered the successor in interest of 
Shackleford Coal Co., Inc. The sales agreement con- 
tains many of the criteria used to establish that the 
transfer of the business was to a successor, and the 
records of the SSA establish that the company now 
doing business as Jericol Mining, Inc. formally acknowl- 
edged the purchase of Shackleford Coal Co. and 
conducted business under the same name in 1973. 

Decision: Jericol Mining, Inc., EIN 61-0844927, is the 
successor in interest of Shackleford Coal Company, 
Inc., as defined in the Coal Act. Accordingly, Jericol 
Mining is the appropriate assignment company for 
miners whose assignment is based on employment by 
Shackleford Coal. 

/s/ JAMES M. SMALL 

JAMES M. SMALL 
Southeastern Program 

Service Center 
8/23/94 

48a 

Social Security Administration 

Important Information 

Southeastern Program Service 

Center 
P.O. Box 10728 
Birmingham, AL 35202 
August 30, 1994 

EIN: 61-0844927 

JERICOL MINING, INC 
C/O MCBRAYER, MCGINNIS, LESLIE 
& KIRKLAND 
ATTORNEYS AT LAW 
P O BOX 1100 
FRANKFORT, KY 40602-1100 

We are writing to you about the miners assigned to you 
under the Coal Industry Retiree Health Benefit Act of 
1992. Under this law, we assigned you responsibility 
for the payment of health and death benefit premiums 
for certain retired miners and their relatives who qual- 
ify. As you requested, we have reviewed the assign- 
ments. 

What You Told Us 

You told us that you are not the successor in interest to 
Shackleford Coal Company. 

What We Have Decided 

We had someone who did not make the assignments 
perform the review. Based on that review, we have 
determined that you are the successor in interest of 
Shackleford Coal Co. as defined in the Coal Act. The 

49a 

sales contract you submitted shows that Irdell Mining 
purchased the assets of Shackleford Coal, that 
Shackleford Coal was required to maintain the goodwill 
of its customers, allowed Irdell to use the name of 
Shackleford after the purchase, transferred responsibil- 
ity for all outstanding contracts and agreements, and 
required that non-compete agreements be signed and 
submitted at the time of closing. You have also advised 
us that Irdell did conduct business under the Shackle- 
ford name and subsequently changed the company’s 
name to Jericol Mining. Therefore, you are still 
responsible for the health and death benefit premiums 
of the beneficiaries named on the enclosed list. 

Enclosure(s): 
Explanation of Review Decision 

This decision does not pertain to other beneficiaries 
listed in any other notice of assignment that you may 
have received from another SSA office. 

This decision is final. Under the Coal Industry Retiree 
Health Benefit Act of 1992 and our regulations, we 
cannot offer any hearing or other appeal of the decision, 
nor can we review this decision again unless, within 12 
months of the notice of assignment, we decide the 
assignment reflects an error on the face of our records 
or was based on fraud. 

If You Have Any Questions 

If you have any questions about the decision explained 
in this letter, please call us at (205) 801-2600. If you do 
call, please have this letter with you. It will help us 
answer your questions. You can also write to us at the 
address shown at the top of this letter. 

50a 

If you have any other questions, you should contact the 
UMWA Combined Benefit Fund at the address below: 

UMWA Combined Benefit Fund 
4455 Connecticut Avenue, N.W. 
Washington, D.C. 20008 
(202) 895-3700 

/s/ CAROLYN W. NEYMAN 

CAROLYN W. NEYMAN 
Assistant Regional 

Commissioner 
Processing Center Operations 

51a 

Explanation of Review Decision 

Below we identify the miners and any eligible relatives 
whom we previously assigned to you. We also show the 
reason we have decided that you are still responsible 
for the coal industry health and death benefit premiums 
for the individuals. 

A review of the earnings records shows that the miners 
listed below worked for you for the periods shown. In 
addition, the UMWA Combined Benefit Fund records 
show that you were a signatory to an UMWA agree- 
ment for the period shown below. Based on this, we 
determined that you were a signatory to an UMWA 
agreement, and the signatory operator, still in business, 
to employ the miner in the coal industry under an 
agreement for the longest period of time before 1978. 
After working for you, the miner did not work for any 
other coal industry employer. 

(* denotes miner) 

Beneficiary SSN 
Date(s) 
Miner 
Employed 
by Operator 

Signatory 
Dates 

*Wheeler E Fleenor [REDACTED] 09/64-12/68 

06/69 
10/10/63- 

12/06/77 

Magdalene Fleenor [REDACTED] 

*Clarence Kelly 

Juanita Kelly 

[REDACTED] 12/65-06/73 10/10/63- 

12/06/77 

*G L Long 

Georgia Long 

Shawn D Long 

Brannon D Long 

[REDACTED] 

06/64-06/73 10/10/63- 
12/06/77 

*Lester Thomas 

Sarah Thomas 

[REDACTED] 12/63-06/66 10/10/63- 
12/06/77 

52a 

Social Security Administration 

Important Information 

Northeastern Program 

Service Center 
P.O. Box 6300 
Jamaica, N.Y. 11431 

Date: September 8, 1994 

EIN: 61-0844927 

McBrayer, McGinnis, Leslie & Kirkland 
Attn: Christopher M. Hill 
P.O. Box 1100 
Frankfort, KY 40602-1100 

We are writing to you about the miners assigned to 
Jericol Mining, Inc. under the Coal Industry Retiree 
Health Benefit Act of 1992. Under this law, we 
assigned Jericol Mining, Inc. responsibility for the 
payment of health and death benefit premiums for 
certain retired miners and any relatives who qualify. 
As you requested, we have reviewed the assignment(s). 

What You Told Us 

You told us that Jericol Mining, Inc. should not be 
assigned miners that worked for the Shackleford Coal 
Company because the two companies are not related. 

What We Have Decided 

We had someone who did not make the assignments 
perform the review. Based on that review, we have 
determined Jericol Mining, Inc. is still responsible for 
the health and death benefit premiums of some, but not 
all, of the beneficiaries named in the letter we sent to 

53a 

you on 09/28/93. While Jericol Mining, Inc. did not 
purchase the entire assets of the Shackleford Coal 
Company, they adopted use of the Shackleford name 
and continued operations under Shackleford’s United 
Mine Workers Of America (UMWA) agreement. 
Therefore Jericol Mining, Inc. is the successor to 
Shackleford Coal Company. Enclosed is a list of the 
beneficiary(ies) for whom Jericol Mining, Inc. is still 
responsible, and a list of the beneficiary(ies) for whom 
they are not responsible. 

This decision does not pertain to any beneficiary(ies) 
listed in other letter(s) of assignment received from 
another SSA office. 

We will notify the United Mine Workers of America 
Combined Benefit Fund about this change. 

This decision is final. Under the Coal Industry Retiree 
Health Benefit Act of 1992 and our regulations, we 
cannot offer any hearing or other appeal of the decision, 
nor can we review this decision again unless, within 12 
months of the notice of assignment, we decide the 
assignment reflects an error on the face of our records 
or was based on fraud. 

Enclosure(s): 
Explanation of Review Decision 

If You Have Any Questions 

If you have any questions about the decision explained 
in this letter, please call us at 718-557-5505. If you do 
call please have this letter with you. It will help us 
answer your questions. You can also write to us at the 
address shown at the top of this letter. 

54a 

If you have any other questions, you should contact the 
United Mine Workers of America (UMWA) Combined 
Benefit Fund at the address below: 

UMWA Combined Benefit Fund 
4455 Connecticut Ave. N. W. 
Washington, D.C. 20008 
(302) 895-3700 

Anne Jacobosky 
Assistant Regional Commissioner 
Processing Center Operations 

cc: 
UMWA Combined Benefit Fund 

55a 

Explanation of Review Decision 

Below we identify the miner(s) and any eligible 
relatives that we previously assigned to Jericol Mining, 
Inc. We also show the reason we have decided that 
Jericol Mining, Inc. is still responsible for the coal 
industry health and death benefit premiums for the 
individual(s). 

A review of the earnings record(s) shows that the 
miner(s) listed below worked for Shackleford Coal 
Company. The UMWA Combined Benefit Fund 
records show that Shackleford Coal Company is related 
to Jericol Mining, Inc., and that Shackleford Coal Com- 
pany was a signatory to an UMWA agreement for the 
period(s) shown below. 

Under the rules for how we assign premium 
responsibility, Shackleford Coal Company would have 
been the responsible operator because it employed the 
miner in the coal industry under an UMWA agreement, 
and employed the miner under an UMWA agreement 
for the longest period of time before 1978. However, as 
a related company, Jericol Mining, Inc. is responsible 
for the miner(s) and any eligible relatives named below. 

56a 

Asterisk (*) denotes miner. 

Miner SSN 

Date(s) 
Miner Em- 
ployed by 
Signatory 

Operator 
Signatory 
Date(s) 

*Mink, William R. 

Mink, Lorene 

[REDACTED] 12/63-06/73 10/10/63- 

12/06/77 

*Thornbury, Sherman K. [REDACTED] 

3/66-9/70, 

6/71 

*McCrary, Gillis 

McCrary, Ruby 

[REDACTED] 12/63-06/73 

57a 

Coal Act Review Decision 

Company Name: 
Jericol Mining, Inc. 

Address: RT 1, Box 1000 

Cumberland Gap, TN 37724-9801 

EIN: 61-0844927 

Nature of Protest: 

The miner, Gillis McCrary ([REDACTED]), was as- 
signed to Jericol Mining, Inc. based upon work for 
Jericol Mining, Inc. and its related company, Shackle- 
ford Coal Co., Inc. from 12/63 through 12/77 covered 
under an agreement. Jericol protested the assign- 
ment asserting that it was not related to Shackleford. 

Evidence Reviewed: 

Letter from company, Hot List, Pre-’78 List, ERQY, 
Miners’ E/R, UMWA Records. 

Rationale: 

While Jericol admits purchasing part of Shackleford’s 
assets in 1973, the company maintains it was not a 
successor in interest. However Jericol adopted use 
of the Shackleford name, continued to operate under 
Shackleford’s UMWA agreement and otherwise 
acted as its successor. Therefore Jericol is Shackle- 
ford’s successor. Work for related companies is 
combined in calculating liability assignment. Shackle- 
ford/Jericol was the last coal company to employ the 
miner and did so for a total of 141 months, by far the 
longest employment by a coal company. Therefore 

58a 

the decision to assign the miner under category three 
was correct. 

Determination: 

The decision to assign Gillis McCrary ([REDACTED]) 
to Jericol Mining Inc. is affirmed. 

Signature: [Illegible] Title: CRTA Date: 9/9/94 

59a 

Coal Act Review Decision 

Company Name: 
Jericol Mining, Inc. 

Address: RT 1, Box 1000 

Cumberland Gap, TN 37724-9801 

EIN: 61-0844927 

Nature of Protest: 

The miner, Sherman K. Thornbury ([REDACTED]), 
was assigned to Jericol Mining, Inc. based upon work 
for its related company, Shackleford Coal Co., Inc. 
from 03/66 through 09/70 and 06/71 covered under an 
agreement. Jericol protested the assignment 
asserting that it was not related to Shackleford. 

Evidence Reviewed: 

Letter from company, Hot List, Pre-’78 List, ERQY, 
Miners’ E/R, UMWA Records. 

Rationale: 

While Jericol admits purchasing part of Shackleford’s 
assets in 1973, the company maintains it was not a 
successor in interest. However Jericol adopted use 
of the Shackleford name, continued to operate under 
Shackleford’s UMWA agreement and otherwise 
acted as its successor. Therefore Jericol is Shackle- 
ford’s successor. Shackleford was the last coal 
company to employ the miner. Since Shackleford is a 
pre-78 signatory and employed the miner for more 
than 24 months the assignment must be made under 
category three. Shackleford employed the miner 
longer than any other coal company that is still active 

60a 

or has an active related company. Therefore the 
original assessment was correct. 

Determination: 

The decision to assign Sherman K. Thornbury 
([REDACTED]) to Jericol Mining Inc. is affirmed. 

Signature: [Illegible] Title: CRTA Date: 9/9/94 

61a 

Coal Act Review Decision 

Company Name: 
Jericol Mining, Inc. 

Address: RT 1, Box 1000 

Cumberland Gap, TN 37724-9801 

EIN: 61-0844927 

Nature of Protest: 

The miner, William Mink ([REDACTED]) was as- 
signed to Jericol Mining, Inc. based upon work for its 
related company, Shackleford Coal Co., Inc. from 
12/63 through 12/73 covered under an agreement. 
Jericol protested the assignment asserting that it 
was not related to Shackleford. 

Evidence Reviewed: 

Letter from company, Hot List, Pre-’78 List, ERQY, 
Miners’ E/R, UMWA Records, 

Rationale: 

While Jericol admits purchasing part of Shackleford’s 
assets in 1973, the company maintains it was not a 
successor in interest. However Jericol adopted use 
of the Shackleford name, continued to operate under 
Shackleford’s UMWA agreement and otherwise 
acted as its successor. Therefore Jericol is Shackle- 
ford’s successor. Shackleford was the last coal 
operator, except for Jericol itself, to employ the 
miner. Since neither company is a 1978 signatory, 
the assignment must be made under category three. 
Shackleford employed the miner for 88 months, 

62a 

longer than any other coal company. Therefore the 
original assessment was correct. 

Determination: 

The decision to assign William Mink ([REDACTED]) 
to Jericol Mining Inc. is affirmed. 

Signature: [Illegible] Title: CRTA Date: 9/9/94 

63a 

APPENDIX C 

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF VIRGINIA 
BIG STONE GAP DIVISION 

CIVIL ACTION No. 96-0148-B 

SIGMON COAL COMPANY, INC. AND 

JERICOL MINING, INC., PLAINTIFFS 

v. 

KENNETH S. APFEL, COMMISSIONER OF 

SOCIAL SECURITY, ADMINISTRATION, DEFENDANT 

[Filed: Nov. 18, 1998] 

ORDER 

BY: GLEN M. WILLIAMS 

SENIOR U.S. DISTRICT JUDGE 

For the reasons stated in the memorandum opinion 
entered this day, it is hereby ORDERED that Plaintiff ’s 
Motion for Summary Judgment is GRANTED and 
Defendants’ Motion for Summary Judgment is 

DENIED. It is further ORDERED that Defendant with- 
draw the assignments challenged by Plaintiff Jericol in 
this case, and notify the Trustees of the United Mine 
Workers of America Combined Benefit Fund that such 
assignments have been withdrawn. Furthermore, 
Defendant shall be enjoined from assigning additional 
retirees of Shackleford Coal Company, Inc. (referred to 

64a 

as “Shackleford One” in the court’s opinion) to Plaintiff 
Jericol on the basis that Plaintiff is a related person to 
Shackleford Coal Company, Inc. This case shall be 
stricken from the docket of this court. 

ENTER: This 18 day of November, 1998. 

/s/ GLEN M. WILLIAMS 

GLEN M. WILLIAMS 

SENIOR UNITED STATES 

DISTRICT JUDGE 

65a 

APPENDIX D 

UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF VIRGINIA 
BIG STONE GAP DIVISION 

Civil Action No. 96-0148-B 

SIGMON COAL COMPANY, INC. AND 

JERICOL MINING, INC., PLAINTIFFS, 

v. 

KENNETH S. APFEL, COMMISSIONER OF 
SOCIAL SECURITY, DEFENDANT 

[Filed: Nov. 18, 1998] 

MEMORANDUM OPINION 

GLEN M. WILLIAMS, Senior District Judge. 

I. Introduction 

Plaintiffs filed this action June 25, 1996, alleging that 
Defendant Kenneth S. Apfel, Commissioner of Social 
Security (hereinafter, “Commissioner”),1 in the course 

1 Shirley S. Chater, then-Commissioner of Social Security, was 
named as Defendant when this case was filed. John J. Callahan 
was substituted as Defendant upon his appointment as Acting 
Commissioner of Social Security on March 1, 1997, pursuant to 42 
U.S.C. § 405(g). Kenneth S. Apfel, current Commissioner of Social 
Security, was sworn into office on September 29, 1997, and 

66a 

of assigning beneficiaries in the United Mine Workers 
of America Combined Benefit Fund (hereinafter, 
“Benefit Fund”) to responsible operators under the 
Coal Industry Retiree Health Benefit Act of 1992 (here- 
inafter, “Coal Act”),2 wrongfully assigned beneficiaries 
to Plaintiff Jericol Mining, Inc. (hereinafter, “Jericol”).3 
Discovery was had and Plaintiffs moved for summary 
judgment. Defendant opposed Plaintiffs’ Motion for 
Summary Judgment and submitted its own Motion for 
Summary Judgment. The Trustees of the Benefit Fund 
filed a brief as amicus curiae, also opposing the Plain- 
tiff ’s Motion for Summary Judgment. 

Action on the case was stayed pending the United 
States Supreme Court’s decision in Eastern Enters. v. 
Apfel, 524 U.S. 498, 118 S. Ct. 2131, 141 L.Ed.2d 451 
(1998). Thereafter, Plaintiffs filed a supplemental com- 
plaint alleging that the statute used to assign benefi- 
ciaries to responsible operators4 was unconstitutional as 
applied to them. An October 22, 1998 telephone con- 
versation between the parties, amicus curiae and the 
court confirmed that no additional filings would be 
made as to the matter of statutory interpretation and 
that the Motions were ripe for decision as to the 
statutory interpretation issue. The court exercises 
jurisdiction in this case under 28 U.S.C. § 1331, because 

thereafter was substituted as Defendant in this action, also 
pursuant to 42 U.S.C. § 405(g). 

2 26 U.S.C. § 9701, et seq. 

3 Sigmon Coal Company, Inc. joins Jericol as a plaintiff in this 
action apparently because they are related persons under the Coal 
Act, see 26 U.S.C. § 9701(c)(2), and thus jointly and severally re- 
sponsible for any amounts due from either of them. 26 U.S.C. 
§ 9704(a). 

4 26 U.S.C. § 9706(a). 

67a 

the case arises under a federal statute. Venue is proper 
under 28 U.S.C. § 1391(e). Thus, the court will now 
decide both parties’ Motions for summary judgment. 

II. Background of the Coal Act 

The Coal Act was intended to stabilize health bene- 
fits for United Mine Workers Association (hereinafter, 
“UMWA”) retirees.5 The Act contains a statutory 
scheme for determining which “signatory operator” 
from the coal business6 must pay annual premiums for 
each beneficiary in the Benefit Fund. The assignment 
statute, found at 26 U.S.C. § 9706(a), also provides that 
a “related person” to a signatory operator may be held 
accountable for premiums in cases where the signatory 
operator is no longer in business,7 but the related per- 
son continues in business. The Commissioner of Social 
Security was directed to administer this statutory 
scheme.8 

Application of the statutory scheme in 26 U.S.C. 
§ 9706(a) proceeds through three levels of priority, as 
found in the statute below: 

For purposes of this chapter, the Commissioner of 
Social Security shall, before October 1, 1993, assign 
each coal industry retiree who is an eligible benefici- 
ary to a signatory operator which (or any related 

5 524 U.S. at 514, 118 S. Ct. at 2141-42. 

6 26 U.S.C. § 9701(c)(1). 

7 “Business” is defined broadly in the Coal Act to include “con- 
duct[ing] or deriv[ing] revenue from any business activity, 
whether or not in the coal industry.” 26 U.S.C. § 9701(c)(7). 

8 Originally, the Secretary of Health and Human Services bore 
responsibility for administering the statute (Plaintiff’s Memo. at 3). 

68a 

person with respect to which) remains in business in 
the following order: (1) First, to the signatory 
operator which—(A) was a signatory to the 1978 
coal wage agreement or any subsequent coal wage 
agreement, and (B) was the most recent signatory 
operator to employ the coal industry retiree in the 
coal industry for at least 2 years. (2) Second, if the 
retiree is not assigned under paragraph (1), to the 
signatory operator which—(A) was a signatory to 
the 1978 coal wage agreement or any subsequent 
coal wage agreement, and (B) was the most recent 
signatory operator to employ the coal industry 
retiree in the coal industry. (3) Third, if the retiree 
is not assigned under paragraph (1) or (2), to the 
signatory operator which employed the coal indus- 
try retiree in the coal industry for a longer period of 
time than any other signatory operator prior to the 
effective date of the 1978 coal wage agreement. 

After this process is completed, a beneficiary may 
remain unassigned.9 In such a case, transfer payments 
from the Abandoned Mine Reclamation Fund (here- 
inafter, “AML Fund”) will be made to the Benefit Fund 
to pay the premiums of such beneficiaries. 

10 If AML 
Fund transfer payments are insufficient to pay those 
premiums, assigned operators will pay the difference on 
a pro rata basis. 

11 

III. Facts 

Plaintiff Jericol was originally formed in 1973 as 
Irdell Mining, Inc. (hereinafter, “Irdell”), by James and 

9 See 26 U.S.C. § 9704(d). 

10 26 U.S.C. § 9705(b). 

11 26 U.S.C. § 9704(a)(3) and (d). 

69a 

Charles Sigmon and Fred Langley (James Sigmon 
Affidavit at 1). Shortly after the formation of Irdell, it 
and The Dale Company purchased most of the operat- 
ing assets, coal inventory, supplies, leases and contracts 
of Shackleford Coal Company, Inc. (hereinafter, 
“Shackleford One”). The contract for sale references 
several Exhibits listing the precise asssets, leases, con- 
tracts and commitments transferred. These Exhibits 
have not been made part of the record. Although there 
was common ownership between Dale and Irdell, no 
owner of either Dale or Irdell was an owner of 
Shackleford One. Irdell changed its name, operating as 
Shackleford Coal Company (hereinafter, “Shackleford 
Two”) until 1977, when it again changed its name to 
Jericol (James Sigmon Affidavit at 2). While Shackle- 
ford One was a signatory to a coal wage agreement 
while it was in business, Shackleford Two was only 
signatory to the 1974 wage agreement. 

In late 1993, Defendant notified Plaintiff Jericol that 
Plaintiff had been assigned responsibility for the premi- 
ums of 10 UMWA retirees and 10 of their dependents. 
Ten miners or dependents were assigned on the basis 
that Jericol was a related person to Shackleford One, a 
signatory operator. This assignment was based on 26 
U.S.C. § 9706(a)(3). 

12 Jericol challenged this decision, 
which was affirmed as the Commissioner found that 
Jericol was the “successor in interest” of Shackleford 
One. Shackleford One was the entity those miners had 
actually worked for and would have been the assigned 
signatory operator had it continued in business. In 

12 This information is gleaned from the letters and attachments 
sent from the Social Security Administration to Jericol as part of 
the administrative process. 

70a 

1995, 49 additional retirees and 60 of their dependents 
were assigned to Jericol. Of these miners, 44 were 
assigned on the basis of their employment with 
Shackleford One. Jericol challenged the assignments 
which were based upon the Commissioner’s position 
that Jericol was a successor in interest to Shackleford 
One, and thus a related person responsible for premium 
payments. 

The following year, after this action was filed, 38 
additional miners, plus dependents, were assigned to 
Jericol, 34 of them based upon employment with 
Shackleford One. Again, Jericol appealed the Commis- 
sioner’s decision as it pertained to miners for whom 
liability for premiums was based upon the Defendant’s 
classification of Jericol as a related person to 
Shackleford One. No final determination was issued by 
the Commissioner as to the 1995 and 1996 challenges by 
Jericol. In 1997, eight additional miners and depend- 
ents were assigned to Jericol, with three miners being 
assigned on the basis of their prior work for Shackle- 
ford One. Jericol planned to appeal those assignments, 
but contended that it should not be required to exhaust 
its administrative remedies before seeking relief from 
this court because of the similarity of the law and facts 
underlying each assignment of Shackleford One’s 
miners to Jericol. After consideration, this court 
agrees. 

13 

13 See Sager Coal Co. v. Apfel, No. 96-1107, slip op. at 11-12 n.5 
(W.D. Penn. Jan. 12, 1998) (noting the futility of further admin- 
istrative challenges where, as here, the Commissioner is making 
repeated Coal Act assignments based upon similar facts and law). 

71a 

In all, more than 100 retired miners plus their 
numerous dependents were assigned to Jericol as part 
of Defendant’s assignment process. Of these assign- 
ments, more than 80 miners were assigned because 
Jericol was viewed as a successor in interest to 
Shackleford One. Dependents of the 80 miners thus 
assigned were also assigned to Jericol on the same 
basis. It should be clarified that Jericol does not herein 
appeal all assignments to it. Rather, this case only 
involves challenges to assignments made on the basis 
that it is responsible for premium payments on behalf of 
Shackleford One’s miners. 

IV. Legal Discussion 

(A) Summary Judgment Standard 

A party moving for summary judgment will have its 
motion granted if there is no genuine dispute as to any 
material fact, and the moving party is entitled to judg- 
ment as a matter of law. In considering a grant of sum- 
mary judgment, the court may consider the pleadings, 
depositions, answers to interrogatories, and admissions 
on file, as well as any affidavits filed with the court. 
Fed. R. Civ. P. 56(c). The court must view the evidence 
under consideration in the light most favorable to the 
non-moving party. 

14 

(B) Standard of Review of Agency Action 

A finding of an agency, such as the one represented 
by Defendant, may be set aside by this court only if the 

14 Cuddy v. Wal-Mart Super Ctr., Inc., 993 F. Supp. 962, 965 
(W.D. Va. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 
242, 255, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986)). 

72a 

finding is “arbitrary, capricious, an abuse of discretion, 
or otherwise not in accordance with law.” 5 U.S.C. 
§ 706(2)(A). Chevron, U.S.A., Inc. v. Natural Re- 
sources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 
2778, 81 L.Ed.2d 694 (1984), is the landmark case on 
review of agency decisions. It established a two-prong 
test for determining the proper amount of deference to 
be given. 

Under the Chevron test, the court must first decide 
“whether Congress has directly spoken to the precise 
question at issue.” 

15 If the statute is plain on its face, 
the court must give effect to the expressed intent of 
Congress, without consideration of the agency’s deci- 
sion. 

16 In addition to “the particular statutory language 
at issue,” the court must consider “the language and 
design of the statute as a whole.” 

17 However, if Con- 
gress has left a gap in the statute to be filled by the 
agency, the court must then determine whether the 
agency’s decision is “based on a permissible construc- 
tion of the statute.” 

18 If it is so based, then considerable 
deference must be given to the agency’s interpretation 
of the regulations it promulgates to fill that gap. 

19 

15 Chevron, 467 U.S. 837, 842, 104 S. Ct. 2778, 81 L.Ed.2d 694. 

16 Elliott v. Adm’r, Animal and Plant Health Inspection Serv., 
990 F.2d 140, 144 (4th Cir. 1993). 

17 Soc. Sec. Adm’n v. Fed. Labor Relations Auth., 956 F.2d 
1280, 1283-84 (4th Cir. 1992) (citing K Mart Corp. v. Cartier, Inc., 
486 U.S. 281, 291, 108 S. Ct. 1811, 100 L.Ed.2d 313 (1988)). 

18 Chevron, 467 U.S. at 843, 104 S. Ct. 2778. 

19 467 U.S. at 843-44, 104 S. Ct. 2778. 

73a 

(C) Legal Analysis 

The matter of whether Congress has spoken clearly 
in enacting the Coal Act has been addressed by two 
other district courts earlier this year, with both finding 
the language of the Act to be plain. 

20 At least one 
circuit court has also held that the language of the Act 
is plain. 

21 In particular, one of the district courts has so 
held with respect to 26 U.S.C. § 9701(c)(2)(A). 

22 This 
section is the statutory law governing the issue at hand, 
namely whether a successor to a defunct signatory 
operator can be held accountable as a “related person” 
to that signatory operator. 

23 This court agrees with the 
rationale and findings of the above-cited courts, and 
concludes that Congress has plainly and clearly ex- 
pressed itself in the statutory language at issue. 
Therefore, for the reasons stated below, the court must 
give effect to the expressed Congressional intent, as set 

20 See R.G. Johnson, 994 F. Supp. 10, 14 (holding that 26 U.S.C. 
§ 9701(c)(2)(A) has a plain meaning) and Sager Coal Co. v. Apfel, 
No. 96-1107, slip op. at 19 (W.D. Penn. Jan. 12, 1998) (“Section 
9706(a) of the Coal Act is unambiguous”). 

21 Eastern Enters. v. Chater, 110 F.3d 150, 155 (1st Cir. 1997) 
(“[T]he first step of the Chevron pavane is fully dispositive. Sec- 
tion 9706(a) of the Coal Act unambiguously delineates a classifica- 
tion regime.”), rev’d sub nom. on other grounds, Eastern Enters. v. 
Apfel, 524 U.S. 498, 118 S. Ct. 2131, 141 L.Ed.2d 451 (1998). 

22 R.G. Johnson, 994 F. Supp. 10. 

23 This issue is distinct from that addressed by 26 U.S.C. 
§ 9706(b)(2), which provides for liability to be transferred to a 
successor where liability has already been assigned to a signatory 
operator, when such succession occurs after the enactment date of 
the Coal Act. See R.G. Johnson Co., Inc. v. Apfel, 994 F. Supp. 10, 
14 (D.D.C. 1998). 

74a 

out in the statutory language, rather than deferring to 
the Commissioner’s decision. 

The classification regime of 26 U.S.C. § 9706(a) does 
not provide, directly or indirectly via the definition of 
related persons at 26 U.S.C. § 9701(c)(2), for liability to 
be laid at the door of successors of defunct signatory 
operators. Defendant and amicus curiae contend othe- 
wise, with the former arguing both that the language is 
broad enough and contains gaps for its regulations to 
fill (Defendant’s Memo. at 15), and that “the record 
shows that Jericol meets the statutory criteria for a 
successor company” (Id. at 13). However, there is no 
such entity as a “successor company” anywhere in the 
Coal Act. Amicus curiae states that a “ ‘successor in 
interest’ is a related person” (Amicus Memo. at 11), 
neglecting the last line and a half of the final sentence of 
26 U.S.C. § 9701(c)(2). The language urged by Defen- 
dant and amicus curiae simply was not included by 
Congress when it enacted this statute. The court is also 
aided by the rule of statutory construction that when 
“ ‘Congress includes particular language in one section 
of a statute but omits it in another section of the same 
Act, it is generally presumed that Congress acts inten- 
tionally and purposely in the disparate inclusion or 
exclusion.’ This principle obtains here . . . [as] at two 
other points the Coal Act makes explicit reference to 
successors.” 

24 

24 110 F.3d 150, 155 (citing Brown v. Gardner, 513 U.S. 115, 120, 
115 S. Ct. 552, 130 L.Ed.2d 462 (1994)), rev’d on other grounds, 524 
U.S. 498, 118 S. Ct. 2131, 141 L.Ed.2d 451. 

75a 

Defendant has imposed liability on the basis of Plain- 
tiff Jericol’s supposed status as a related person. “Re- 
lated persons” are defined in 26 U.S.C. § 9701(c)(2). 
There are four types of related persons under that 
statute, the first three set out in individual clauses and 
the last one encompassing “a successor in interest 
of any person described in clause (i), (ii), or (iii) of 
26 U.S.C. § 9701(c)(2)(A).” The text of 26 U.S.C. 
§ 9701(c)(2)(A) reads: 

A person shall be considered to be a related person 
to a signatory operator if that person is—(i) a mem- 
ber of the controlled group of corporations (within 
the meaning of section 52(a)) which includes such 
signatory operator; (ii) a trade or business which is 
under common control (as under section 52(b)) with 
such signatory operator; or (iii) any other person 
who is identified as having a partnership interest or 
joint venture with a signatory operator in a business 
within the coal industry, but only if such business 
employed eligible beneficiaries, except that this 
clause shall not apply to a person whose only inter- 
est [is] as a limited partner. A related person shall 
also include a successor in interest of any person de- 
scribed in clause (i), (ii), or (iii). 

The court finds that Congress has drafted this section 
in language which is very plain and clear. If an entity 
meets the criteria for any of these clauses, liability may 
attach. Additionally, a successor to persons described 
in the clauses may be liable. 

As in R.G. Johnson, Defendant here does not claim 
that Jericol meets any of the requirements of clauses (i), 
(ii), or (iii). Neither does it contend that Shackleford 
One met any of those requirements (Defendant’s Memo. 

76a 

at 15), other than the contention that a signatory 
operator is described in those clauses. 

25 Defendant does 
contend that the language of the final sentence of 26 
U.S.C. § 9701(c)(2) is broad enough to allow use of its 
successor policy regulations which treat Jericol as a 
related person. The court disagrees, because the plain, 
straight-forward statutory language contains no gap 
left open for filling by the Defendant’s regulations and 
policies. It clearly states that “a related person shall 
also include a successor in interest of any person de- 
scribed in clause (i), (ii), or (iii).” 

A “successor in interest” is undefined by the Coal 
Act. Despite the comprehensive briefs and arguments 
of the parties and amicus curiae on this issue, it is not 
necessary for the court to determine what the term 
means. Assuming, without deciding, that the Com- 
missioner has the authority to interpret the term and 
has reasonably done so to classify Jericol as a successor 
in interest (Defendant’s Memo. at 5), Jericol plainly did 
not succeed to the interest of “any person described in 
clause (i), (ii), or (iii)” of 26 U.S.C. § 9701(c)(2)(A). 

The court finds that a signatory operator is not 
described by any of those three clauses. The words 
“signatory operator” are used in the clauses, but so are 
the words “limited partner.” A full reading of the 
statute makes it clear that limited partners are in fact 
not to be considered related persons. There is defi- 
nitely a distinction between “describing” a person and 

25 Defendant’s Memo. at 21 (stating that “. . . the express lan- 
guage of the statute ‘reaches forward’ to impose joint and several 
liability on ‘related persons’ of responsible operators, specifically 
including the operators’ successors. . . .” [emphasis in original] ) 

and Amicus Memo. at 16. 

77a 

merely mentioning or naming them, and signatory op- 
erators are merely named and mentioned in the clauses. 
In fact, Congress demonstrated this distinction when it 
described signatory operators by defining them in 
26 U.S.C. § 9701(c)(1). 

Only through the use of its regulations is Defendant 
able to justify the assignments challenged by Plaintiffs. 
Defendant’s position thus “depends upon the addition of 
words to a statutory provision which is complete as it 
stands,” 

26 as several other courts have noted. 

27 “Adop- 
tion of [the Defendant’s view] would require amend- 
ment rather than construction of the statute, and it 
must be rejected here,” 

28 where the plain language of 
the statute clearly reflects Congressional intent. There 
is simply no room for Defendant’s successor policy 
regulations in this statute, because Congress has left no 
gaps to be filled by Defendant. Defendant’s sole re- 
sponsibility under this statute is to administer a very 
plain and simple assignment scheme, not to make 
regulations which correct perceived inequities. 

As the court has concluded above that Congress had 
a clearly expressed intent in enacting the Coal Act, this 
court is duty-bound to give effect to that intent. 
Although Defendant and amicus curiae may feel that 

26 481 U.S. 454, 463, 107 S. Ct. 1855, 95 L.Ed.2d 404. 

27 Eastern Enters., 110 F.3d 150, 155, rev’d on other grounds, 
524 U.S. 498, 118 S. Ct. 2131, 141 L.Ed.2d 451 (noting the “unam- 
biguously delineate[d] . . . classification regime” of the Coal Act’s 
assignment provisions); R.G. Johnson, 994 F. Supp. 10, 15-16; 
Sager Coal, No. 96-1107, slip op. at 21. 

28 481 U.S. 454, 463, 107 S. Ct. 1855, 95 L.Ed.2d 404. 

78a 

29 the law 
is as Congress has written it and it is not the duty of 
this court to change the words of Congress. 

V. Conclusion 

For the foregoing reasons, the court concludes that 
the statutory language clearly reflects Congressional 
intent in enacting the Coal Act and thus the application 
of any gap-filling rules by Defendant is foreclosed. 
Thus, Plaintiff ’s Motion for Summary Judgment is 

GRANTED and Defendant’s Motion for Summary Judg- 
ment is DENIED. 

The Clerk is directed to send certified copies of this 
Memorandum Opinion to all counsel of record. 

ENTER: this 18 day of November, 1998. 

/s/ GLEN M. WILLIAMS 

GLEN M. WILLIAMS 

SENIOR UNITED STATES 

DISTRICT JUDGE 

29 Amicus Memo. at 15-16 (alleging a “completely absurd result” 
is reached under the position advocated by Plaintiffs and accepted 
by this court, and terming the statutory requirement of a con- 
trolled group of corporations in § 9701(c)(2)(A)(i) a “wholly irrele- 
vant factor”) and Defendant’s Memo. at 28 (claiming that a “literal 
application of the language of the Coal Act” will produce an absurd 
result and “could result in unreasonable situations”). 

the policy underlying the Coal Act is unsound, 

79a 

APPENDIX E 

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF VIRGINIA 
BIG STONE GAP DIVISION 

Civil Case No. 96CV148-B 

SIGMON COAL COMPANY, INC.; 
JERICOL MINING, INC., PLAINTIFFS 

v. 

KENNETH S. APFEL, COMMISSIONER, 
SOCIAL SECURITY ADMINISTRATION, DEFENDANT 

[Filed: Dec. 18, 1998] 

ORDER 

Upon consideration of Memorandum of Defendant’s 
Motion for Reconsideration, Plaintiffs’ opposition 
thereto, and the entire record in this matter, it is 
hereby: 

ORDERED that Defendant’s Motion be DENIED. It is 
further ORDERED that Defendant withdraw the 
assignments challenged by Plaintiff Jericol in this case, 
and notify the Trustees of the United Mine Workers of 
America Combined Benefit Fund and Plaintiff Jericol 
within ten (10) days of the entry of this Order that such 
assignments have been withdrawn. Furthermore, 
Defendant shall be enjoined from assigning additional 

80a 

retirees of Shackleford Coal Company, Inc. (referred to 
as (“Shackelford One”) in the court’s opinion) to 
Plaintiff Jericol on the basis that Plaintiff is a related 
person to Shackleford Coal Company, Inc. This case 
shall be stricken from the docket. 

ENTERED this 18 day of December, 1998. 

/s/ GLEN M. WILLIAMS 

SENIOR UNITED STATES 

DISTRICT JUDGE 

81a 

APPENDIX F 

UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

No. 99-1219 
CA-96-148-2 

SIGMON COAL COMPANY, INCORPORATED; 
JERICOL MINING, INCORPORATED, 
PLAINTIFFS—APPELLEES 

v. 

KENNETH S. APFEL, COMMISSIONER OF 

SOCIAL SECURITY, DEFENDANT—APPELLANT 

TRUSTEES OF THE UNITED MINE WORKERS 
OF AMERICA COMBINED BENEFIT FUND, 
AMICUS CURIAE 

[Filed: November 15, 2000] 

On Petition for Rehearing and Rehearing En Banc 

Appellant filed a petition for rehearing and rehearing 
en banc. 

A member of the Court requested a poll on the 
petition for rehearing en banc. The poll failed to 
produce a majority of the judges in active service in 

82a 

favor of rehearing en banc. Judges Motz and King 
voted to rehear the case en banc, and Chief Judge 
Wilkinson, and Judges Widener, Wilkins, Niemeyer, 
Luttig, Williams and Traxler voted against rehearing 
en banc. Judge Michael was disqualified from participa- 
tion in the case. 

The Court denies the petition for rehearing and re- 
hearing en banc. 

Entered at the direction of Judge Traxler for the 
Court. 

For the Court, 

/s/ PATRICIA S. CONNOR 

PATRICIA S. CONNOR 
CLERK 

83a 

APPENDIX G 

FURNISHING EARNINGS INFORMATION 
July 1995 
_______________________________________________ 

SUPPLEMENTAL COAL ACT REVIEW 

INSTRUCTIONS #4 

July 1995 

These instructions reflect the current policy, and are to 
be used in conjunction with POMS RM T01402ff and 
Supplemental Coal Act Review Instructions #1, #2 and 
#3. 

A . DETERMINING THE ASSIGNEE WHEN THE 

SIGNATORY OPERATOR IS INACTIVE 

Coal Act assignments, whenever possible, are made 
to the signatory operator that employed the miner in 
the coal industry. However when this is not possible 
because the signatory operator is inactive, then con- 
sider the following when determining the correct as- 
signee. 

1. If the signatory operator, or its “alter ego” (see 
Section B. below) is inactive; 

Then make the assignment to the active person 
(company) related to the signatory operator that 
employed the miner in the coal industry (see Section C. 
below). 

2. If the related person (company) is inactive; 

Then make the assignment to the active “successor/ 
successor-in-interest” (“successor”) to: 

84a 

a. a related person of the signatory operator; or if 
none 

b. the signatory operator that employed the miner in 
the coal industry. 

(See Section D. below.) 

B. AN “ALTER EGO” 

An “alter ego” is created when the same person(s) 
(company) controls the assets of a company following a 
technical change of identity or structure without any 
real change in ownership or management (e.g., the 
“alter ego” is, or stands in the place of, the signatory 
operator). 

A business reorganization may have the appearance 
of creating a “successor” company when, in fact, there 
is no change in ownership. Therefore, the new company 
is merely an “alter ego” of the predecessor company. 

Examples of an “alter ego” are: 

- A sole proprietor who incorporates a business, but 
continues to control its operations. 

- A company which changes its name, but continues 
to operate as before. 

For assignment purposes under the Coal Act, treat 
an “alter ego” the same as you would treat its pre- 
decessor (e.g., as if there had been no change in 
ownership). 

85a 

C. A “RELATED PERSON” 

For purposes of the Coal Act, a “related person” 
(company) is a company that is: 

- a member of a controlled group of corporations 
which includes the signatory operator; or 

- a trade or business which is under common 
control with the signatory operator; or 

- any other person who has a partnership interest 
(other than as a limited partner) or joint venture 
with a signatory operator in a business in the coal 
industry, if that business employed eligible 
miners. 

In addition, the relationship had to have been in 
effect as of July 20, 1992 or, if earlier, the time 
immediately before the coal operator went out of 
business. 

NOTE: A related person can also include a “suc- 
cessor” to one of the above entities, or a “successor” to 
the signatory operator. 

D. A “SUCCESSOR” OR “SUCCESSOR-IN- 
INTEREST” 

Addendum to POMS RM T01402.051, and Sup- 
plemental Coal Act Review Instructions # 3, Section O. 

NOTE: This is a change-of-position on “successor 
company” policy, and is effective with decisions made 
on or after March 20, 1995. 

Although there is a provision in the Coal Act for 
assignments to “successors” and “successors-in- 

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interest” to “related persons,” the Coal Act does not 
specifically provide for assignments to “successors” or 
“successors-in-interest” to signatory operators. How- 
ever, the Coal Act does permit assignments to “succes- 
sors” and “successors-in-interest” to defunct (inactive) 
signatory operators. 

Based on the above, “successors” and “successors-in- 
interest” are another type of “related person,” and are 
to be treated as a “related person” for purposes of 
making assignments under the Coal Act. (Also see Sec- 
tion D.2. below.) 

1. A “successor” (this includes the “successor-in- 
interest”) is one who: 

- by purchase, merger, consolidation, or other 
means of transfer, acquires substantial assets 
from another; AND 

- continues running the same operation in the same 
location as the former owner with little or no 
interruption; AND 

- uses many of the same employees who worked for 
the former owner. 

NOTE: The difference between a “successor” and an 
“alter ego” is that with the former there is an actual 
change in ownership. 

2. “Successors” are the lowest priority (last resort) 
among “related persons” of a signatory. Therefore, do 
not assign miners to a “successor” if the signatory 
operator is still in any kind of business at the time the 
assignment is made, or if there is a “related person” as 
defined in Section C. above. 

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3. If the signatory is inactive, but has both a 
“successor” and a non-successor “related person” 
(company) that are still active; 

Then make the assignment(s) to the non-successor 
“related person” (company). 

E. ASSIGNING TO THE “SUCCESSOR TO THE 

SUCCESSOR” 

A “successor” to a signatory operator may also have 
a “successor.” In fact, there can be a series of such 
“successors.” 

EXAMPLE: Company A sold its mining operation to 
Company G which continues the operation at the same 
site using most of the same employees. Company G is 
the “successor” to Company A. Company G then sells 
the mining operation to Company H which continues 
the operation at the same site using most of the same 
employees. 

Based on this example, Company H is the “suc- 
cessor” to Company G’s mining operation. 

For assignment purposes (and using the above ex- 
ample), if Company A is “out of business,” but Company 
G is “in business,” then the miners who worked for 
Company A can be assigned to Company G as the “suc- 
cessor” to Company A. However, if both Company A 
and Company G are “out of business,” then the miners 
who worked for Company A can be assigned to Com- 
pany H (the “successor to the successor” of Company 
A). 

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F. ASSUMPTIONS REGARDING “SUCCESSORS” 

For assignment purposes, assume that inactive 
signatory operators do not have “successors” or 
“successors-in-interest,” absent information to the 
contrary. However, if a “successor” or “successor-in- 
interest” issue is raised, and it is pertinent to the 
reassignment/review decision, request scouting from 
OCRO (e.g., obtain microfilm of the original wage 
reports for the inactive signatory and the “successor”) 
to determine whether most of the former owner’s em- 
ployees were employed by the purchaser. 

Other evidence of “successor relationships” can be 
found in State corporation records, remarks on the 
paper pre-1978 signatory list, and records maintained 
by the Fund. 

G. EXAMPLES OF “SUCCESSOR” RELATION- 
SHIPS 

EXAMPLE 1: 
Company W sold its mining operation 

to Company X. Company X continues the mining 
operation at the same site using most of the same 
employees that Company W had used. Company W 
goes “out of business.” 

Based on this example: 

- Company X is the “successor” to Company W, and 
is assignable for any eligible miners employed by 
Company W; AND 

- Company W is not assignable under the Coal Act 
because it is “not in business.” 

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EXAMPLE 2: Company W sold its mining operation 
at Mine A to Company X. Company X continues the 
mining operation at the same site using most of the 
same employees that Company W had used. Company 
W continues mining operations at Mine B and Mine C. 

Based on this example: 

- Company X is the “successor” to Company W’s 
mining operation at Mine A; BUT 

- Company W remains assignable under the Coal 

Act because it is “in business.” 

EXAMPLE 3: Same as in Example 2, except Com- 
pany W sold its Mine B mining operation to Company Y 
and its Mine C mining operation to Company Z. Com- 
pany W then goes “out of business.” Companies X, Y 
and Z continue the mining operations at the respective 
sites, and use most of the same employees that Com- 
pany W had used. 

Based on this example: 

- Company X is the “successor” to Company W’s 
mining operations at Mine A, and is assignable for 
any eligible miners employed by Company W at 
Mine A; 

- Company Y is the “successor” to Company W’s 
mining operation at Mine B, and is assignable for 
any eligible miners employed by Company W at 
Mine B; 

- Company Z is the “successor” to Company W’s 
mining operation at Mine C and is assignable for 

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any eligible miners employed by Company W at 
Mine C; AND 

- Company W is not assignable under the Coal Act 
because it is “not in business.” 

EXAMPLE 4: Company D (a pre-78 signatory) 
reorganized and created a new company within its 
organization (Company J). Company J (a 1978 and later 
signatory) conducted mining operations at a different 
site, and hired different employees. Company D re- 
mained “in business” but sold Company J to Company T 
on January 9, 1990. Company T continued the mining 
operation at the same site using most of the same 
employees that Company J used. Company J goes “out 
of business.” 

Based on this example: 

- Company T is the “successor” to Company J, and 
is assignable under the Coal Act (priority #1) for 
those miners it and/or Company J employed; 

- Company D is assignable under the Coal Act 
(priority #3) for those miners it employed; AND 

- Company J is not assignable under the Coal Act 
because it went “out of business.” 

EXAMPLE 5: Same as Example 4, except Company 
J was sold to Company T on December 2, 1992. 

Based on this example: 

- Company D and Company J are related persons 
under the Coal Act; 

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- Company D is assignable under the Coal Act 
(priority #3) for those miners it and/or Company J 
employed; 

- Company T (the “successor” company) is not 
assignable under the Coal Act because Company 
D (the related company) is “in business;” 

- Company J is not assignable under the Coal Act 
because it went “out of business.” 

EXAMPLE 6: Company R (a pre-78 signatory) had 
both mining and non-mining operations. Company R 
reorganized all of its non-mining operations under one 
sister corporation (Company QR), and its mining 
operations under another sister corporation (Company 
SR). Thereafter, Company R ceased to exist in its 
original corporate form. Aside from this change in 
corporate structure, Company QR and Company SR 
continued to operate under the same ownership and 
management as Company R. Company SR became a 
1978 and later signatory. Both Company QR and SR 
remain “in business.” Based on this example: 

- Companies QR and Company SR did not create 
“successor” relationships to Company R; AND 

- Company R’s reorganization constitutes a con- 
tinuation of the same operations; AND 

- Both Company QR and Company SR are the 
“alter ego” of Company R. 

Therefore, covered work for Company R and Com- 
pany SR would be assigned to Company SR for pur- 
poses of making assignments under the Coal Act. 

92a 

NOTE: The non-mining operation (Company QR) is 
not considered for purposes of Coal Act assignments 
unless Company SR is “out of business” at the time an 
assignment(s) is made. 

H. PRIVATE AGREEMENTS BETWEEN SELLER 

AND BUYER 

SSA is not bound, for Coal Act assignment purposes, 
by any private agreement between the seller and the 
buyer of coal mining assets as to the reimbursements to 
be made to the seller for past liabilities. That is, if the 
buyer of the coal mining assets agrees to indemnify 
(assume responsibility for) or reimburse the seller for 
employee/retirement costs, this does not mean that the 
assignment should be made to the buyer instead of the 
seller. 

I. STATUS OF THE SELLER AFTER THE SALE 

The status of the seller after the sale of its mining 
operation/assets determines whether it is assignable 
under the Coal Act. 

1. If the seller (or a related company) remains “in 
business,” AND has the highest priority for assign- 
ment; 

Then make the assignment to the seller (or the 
related company). 

2. If the seller (and any related companies) is “out of 
business,” AND sold all of its assets to the buyer; 

Then evaluate the purchase agreement, and the 
other evidence, to determine whether the sale created a 

93a 

“successor” relationship with the buyer; AND make the 
assignment based on your determination. 

J. DETERMINING WHERE TO MAIL NEW 

NOTICES OF ASSIGNMENT 

Several assigned operators have already authorized, 
in writing, representatives to act on their behalf in 
administrative matters under the Coal Act. Based on 
these authorizations, we have mailed requested 
earnings records (and the basis for the assignments), 
Coal Act review decisions and/or correspondence to 
these authorized representatives. However, the 
authorizations already in file: 

- were received before any additional assignments 
were made; 

- are based on current reviews; and 

- pertain to the administrative review process only. 

Therefore, mail all new notices of assignment to the 
assigned operator. 

EXCEPTION: See Section J.2. below. 

* * * * * 

months of the time SSA sent the notice of assignment; 

Then reopen and reverse the decision, and use the 
language provided in Supplemental Coal Act Review 
Instructions #3, Section X, Exhibit 2, item 6. 

b. If the evidence does not clearly reflect that our 
records are in error AND the decision to reopen is 

94a 

made after 12 months of the time SSA sent the notice of 
assignment; 

Then deny the request to reopen, and affirm the de- 
cision. (Use the language provided in Supplemental 
Coal Act Review Instructions #3, Section X, Exhibit 2, 
item 6.) 

6. Assignee Alleges a “Successor Relationship” is 
Involved 

Reopen and change the assignment/review decision if 
the assignee requests a reopening based on a “successor 
relationship” as clarified in Section D above—provided 
the assignment would have been made to the 
“successor” company under this clarification. 

Also, reopen and change the assignment if you 
determine that a “successor relationship” is involved, 

AND the assignment would have been made to a 
“successor” company under this clarification. 

NOTE: A “successor relationship” includes “succes- 
sors” and “successors-in-interest.” 

M. UNDELIVERABLES 

It is SSA’s role to make assignments and review 
decisions, and to mail the appropriate notices to the 
assignees. It is the Fund’s role to bill the assignees and 
collect the premiums.