PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL H. HOLLAND; MARTY D.

HUDSON; ELLIOT A. SEGAL; A. FRANK

DUNHAM, as Trustees of the UNITED

MINE WORKERS OF AMERICA 1992

BENEFIT PLAN,

Plaintiffs-Appellees,

v.

BIG RIVER MINERALS CORPORATION;

BIG RIVER COAL CORPORATION; PEA

RIDGE IRON ORE COMPANY,

INCORPORATED; OXIDE SERVICES

CORPORATION; CASTLE ROCK MINING

COMPANY; CASTLE ROCK COAL

CORPORATION; LONG BRANCH ENERGY

CORPORATION; PINNACLE ROCK COAL

No. 98-2353

CORPORATION; PANTHER BRANCH

COAL COMPANY, d/b/a Long Branch

Energy; BIRCHFIELD MINING,

INCORPORATED; DAVIDSON MINING,

INCORPORATED; M.A.E.-WEST,

INCORPORATED,

Defendants-Appellants,

v.

MICHAEL H. HOLLAND; MICHAEL O.

MCKOWN; DONALD E. PIERCE, JR.;

ELLIOT A. SEGAL, Trustees of the

United Mine Workers of America

1993 Benefit Plan,

Third Party DefendantsAppellees.
Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

Dennis Raymond Knapp, Senior District Judge.

(CA-97-138-2)

Argued: April 7, 1999

Decided: June 23, 1999

Before WIDENER, MURNAGHAN, and WILKINS, Circuit Judges.

_________________________________________________________________

Affirmed in part and reversed in part by published opinion. Judge

Wilkins wrote the opinion, in which Judge Widener and Judge

Murnaghan joined.

_________________________________________________________________

COUNSEL

ARGUED: Charles Leslie Woody, SPILMAN, THOMAS & BATTLE, P.L.L.C., Charleston, West Virginia; David J. Laurent, POLITO

& SMOCK, P.C., Pittsburgh, Pennsylvania, for Appellants. Marilyn

Louise Baker, MOONEY, GREEN, BAKER, GIBSON & SAINDON, P.C., Washington, D.C., for Appellees. ON BRIEF: Elizabeth

A. Saindon, Joseph R. House, MOONEY, GREEN, BAKER, GIBSON & SAINDON, P.C., Washington, D.C.; Peter Buscemi, MORGAN, LEWIS & BOCKIUS, L.L.P., Washington, D.C.; David W.

Allen, Brian H. Benjet, Office of the General Counsel, UMWA

HEALTH AND RETIREMENT FUNDS, Washington, D.C., for

Appellees.

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

The Trustees of the United Mine Workers of America 1992 Benefit

 2
Plan (the "Trustees") brought this action against Coal Companies1

under the Coal Industry Retiree Health Benefit Act of 1992 (the Coal

Act), see 26 U.S.C.A. §§ 9701-22 (West Supp. 1999), claiming that

they were liable for the health benefits of 11 former miners who

retired due to disabilities as well as the health benefits of their dependents. The district court granted summary judgment in favor of the

Trustees. The court subsequently entered a judgment directing Coal

Companies to fund the health benefits in the future and to reimburse

the Trustees for health benefits previously provided by the 1992

UMWA Benefit Plan, awarding attorney's fees to the Trustees, and

imposing an increased prefunding requirement on Coal Companies.

Thereafter, the district court denied a motion by Defendants Pea

Ridge Iron Ore Company, Inc. (Pea Ridge) and Oxide Services Corporation (Oxide) for reconsideration, see Fed. R. Civ. P. 59, which

relied on Eastern Enterprises v. Apfel, 118 S. Ct. 2131 (1998), to

argue that 26 U.S.C.A. § 9712(d)(4) of the Coal Act was unconstitutional under the Fifth Amendment as applied to them. Because we

conclude that the district court correctly determined that the disabled

retirees are eligible beneficiaries under the Coal Act, that Pea Ridge

and Oxide waived their constitutional challenge to the Coal Act, and

that the award of attorney's fees was appropriate, we affirm the rulings of the district court on these issues. However, we hold that the

district court erred in imposing the increased prefunding requirement.

We therefore vacate that portion of the judgment.

_________________________________________________________________

1 We refer to Defendants collectively as "Coal Companies." There are

two groups of Coal Companies involved as defendants. The first group--

Birchfield Mining, Inc., Davidson Mining, Inc., and M.A.E.-West, Inc.--

were signatories to collective bargaining agreements providing health

benefits for the retired miners at issue. The remaining Coal Companies--

Big River Minerals Corporation, Big River Coal Corporation, Pea Ridge

Iron Ore Company, Inc., Oxide Services Corporation, Castle Rock Mining Company, Castle Rock Coal Corporation, Long Branch Energy Corporation, Pinnacle Rock Coal Corporation, and Panther Branch Coal

Company--are related to the signatory companies and thus are jointly

and severally liable for any amounts required to be paid by the signatory

company under the Coal Act. See 26 U.S.C.A.§ 9712(d)(4) (West Supp.

1999).

 3
I.

The issue of health care benefits for retired coal industry workers

and their dependents has a protracted history. See generally Eastern

Enters., 118 S. Ct. at 2137-42 (plurality opinion) (discussing history

leading to the enactment of the Coal Act); id. at 2165-66 (Breyer, J.,

dissenting) (same); Holland v. Keenan Trucking Co., 102 F.3d 736,

738-39 (4th Cir. 1996) (same). Disputes concerning health care for

miners date back to the time early in this century when such care was

funded with a prepayment plan through payroll deductions and was

supplied by company doctors. In the 1930s and 1940s the United

Mine Workers of America (UMWA) and coal industry employers

sought changes in the method of providing essential services to miners, and from the late 1940s through the early 1970s pension and

medical benefits were provided by several UMWA funds created

under a series of National Bituminous Coal Wage Agreements

(NBCWAs), including a 1950 and a 1974 UMWA Benefit Plan. The

funding for these benefits was supplied in part by a royalty on each

ton of coal mined and by payroll deductions. As benefits improved

under UMWA plans and the number of beneficiaries increased, other

factors such as a decrease in the amount of coal produced and a rapid

increase in health care costs conspired to produce financial problems

for the funds. In response to these financial pressures, the 1978

NBCWA allocated to signatory employers responsibility for the

health care costs of their active and retired miners. The 1974 UMWA

Benefit Plan remained in place, but was responsible for providing

benefits only to "orphaned" retired miners--those whose former

employers were no longer in business. Additionally, signatory operators under the 1978 NBCWA became liable for defined benefits to

miners rather than merely for specified contributions of royalties.

Despite this restructuring, the benefit plans continued to suffer

financially, and by the late 1980s they were facing insolvency. Unrest

concerning this situation led to an 11-month strike beginning in 1989

by mine workers against the Pittston Coal Company, which ended

only after the Secretary of Labor intervened and negotiated a settlement. Thereafter, the Secretary established the Advisory Commission

on United Mine Workers of America Retiree Health Benefits (the

"Coal Commission"), a bipartisan commission formed to assess the

financial outlook of the UMWA health benefit plans and to devise

 4
possible plans to guarantee their long-term viability. The Coal Commission concluded that retired miners were entitled to the health benefits that had been promised them and that such commitments must be

honored; that a statutory obligation to fund the benefits should be

imposed on current and former signatories to NBCWAs; and that

some means of funding benefits for orphaned miners must be developed. After conducting hearings on the Coal Commission's recommendations, Congress enacted the Coal Act. Congress found:

[I]n order to secure the stability of interstate commerce, 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 benefits to such retirees.

26 U.S.C.A. § 9701 note.

Toward these goals, the Coal Act legislated three significant

changes in health benefits for retired coal workers. First, it consolidated the 1950 and 1974 UMWA Benefit Plans into the United Mine

Workers of America Combined Benefit Fund (the "Combined Fund").

See 26 U.S.C.A. § 9702(a)(2). The Combined Fund provides health

and death benefits to coal industry retirees who, as of July 20, 1992,

were eligible to receive and were receiving benefits from the 1950 or

1974 UMWA Benefit Plans and to those receiving or eligible to

receive such benefits as of such date by virtue of a relationship to

such a retiree. See 26 U.S.C.A. § 9703. Second, the Coal Act mandated the continuance of individual employer plans maintained by

signatories to the 1978 (and subsequent) NBCWAs; these plans provide health coverage for retirees who were receiving or were eligible

to receive retiree benefits as of February 1, 1993 and retired on or

before September 30, 1994 and their survivors and dependents. See 26

U.S.C.A. § 9711(a)-(b). Third, the Coal Act established the 1992

UMWA Benefit Plan to provide health benefits to retirees who were

eligible for but not receiving benefits under the 1950 or 1974 UMWA

Benefit Plans and to retirees who, although eligible for coverage

under § 9711(b), are not receiving benefits from an individual

employer plan. See 26 U.S.C.A. § 9712. Benefits paid by the 1992

UMWA Benefit Plan are funded through premiums paid by the "1988

 5
last signatory operators." Id. § 9712(d)(1). The term "1988 last signatory operator," generally speaking, refers to a coal operator who

signed the 1988 NBCWA and was the most recent coal industry

employer of a coal industry retiree. 26 U.S.C.A.§§ 9701(c)(1), (3),

(4), 9712(d)(6). Each affected coal operator is required to pay annual

and monthly premiums to the 1992 UMWA Benefit Plan and to provide security for the projected cost of covering eligible beneficiaries.

See 26 U.S.C.A. § 9712(d)(1).

In order to ensure that coal operators would not be able to avoid

their obligations to the 1992 UMWA Benefit Plan, Congress provided

that "any related person" to an operator obligated to make payments

to the 1992 UMWA Benefit Plan would be jointly and severally liable

for those obligations. 26 U.S.C.A. § 9712(d)(4). The term "related

person" is defined broadly to include a coal operator's individual partners and corporate affiliates and other trades or businesses controlled

by a coal operator's principal shareholder or corporate parent. 26

U.S.C.A. § 9701(c)(2); see also 26 U.S.C.A. §§ 52, 1563(a) (West

Supp. 1999).

Section 9712(b) establishes the coverage requirements for the 1992

UMWA Benefit Plan. It provides in pertinent part:

Eligible beneficiary.--For purposes of this section, the term

"eligible beneficiary" means an individual who--

 (A) but for the enactment of this chapter, would

be eligible to receive benefits from the 1950

UMWA Benefit Plan or the 1974 UMWA Benefit

Plan, based upon age and service earned as of February 1, 1993; or

 (B) with respect to whom coverage is required

to be provided under section 9711, but who does

not receive such coverage from the applicable last

signatory operator or any related person,

and any individual who is eligible for benefits by reason of

a relationship to an individual described in subparagraph (A)

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or (B). In no event shall the 1992 UMWA Benefit Plan provide health benefits coverage to any eligible beneficiary

who is a coal industry retiree who retired from the coal

industry after September 30, 1994, or any beneficiary of

such individual.

26 U.S.C.A. § 9712(b)(2). Section 9711(b) in turn provides in pertinent part:

The last signatory operator of any individual who, as of February 1, 1993, is not receiving retiree health benefits under

the individual employer plan maintained by the last signatory operator pursuant to a 1978 or subsequent coal wage

agreement, but has met the age and service requirements for

eligibility to receive benefits under such plan as of such

date, shall, at such time as such individual becomes eligible

to receive benefits under such plan, provide health benefits

coverage to such individual and the individual's eligible

beneficiaries which is described in paragraph (2). This paragraph shall not apply to any individual who retired from the

coal industry after September 30, 1994, or any eligible beneficiary of such individual.

26 U.S.C.A. § 9711(b)(1).

The Trustees brought this action claiming that Coal Companies are

liable to fund health benefits under § 9711 or§ 9712 for a group of

11 miners, who retired due to disabilities, and their dependents. Coal

Companies, on the other hand, asserted that miners who have retired

due to a disability are not individuals who have"met the age and service requirements for eligibility to receive" retirement benefits under

an individual employer plan maintained by the last signatory operator

of a 1978 or subsequent NBCWA, 26 U.S.C.A. § 9711(b)(1), and do

not fit the definition of an "eligible beneficiary" because their eligibility to receive benefits from the 1950 or 1974 UMWA Benefit Plan is

not "based upon age and service" requirements, 26 U.S.C.A.

§ 9712(b)(2). Alternatively, Coal Companies maintained that even

assuming the 11 miners in question met the age and service requirements, they nevertheless were not entitled to benefits because they did

 7
not apply for retirement benefits prior to September 30, 1994 and thus

had not retired by that date.

II.

A.

The first question presented is whether Coal Companies are liable

under § 9711(b)(1) and § 9712(b)(2) for health benefits of coal workers who meet the eligibility requirements for benefits under individual

employer plans created pursuant to 1978 or subsequent NBCWAs or

the 1950 or 1974 UMWA Benefit Plans only by reason of their disability. Coal Companies contend that disability retirees are not covered because they neither (1) qualify as individuals who are eligible

to receive benefits under 1978 or subsequent NBCWA agreements

because they "met the age and service requirements for eligibility to

receive benefits under such plan," 26 U.S.C.A.§ 9711(b)(1), nor (2)

satisfy the definition of "[e]ligible beneficiar[ies]" in that they did not

become eligible for benefits "based upon age and service earned as

of February 1, 1993," 26 U.S.C.A. § 9712(b)(2)(A).

Statutory interpretation necessarily begins with an analysis of the

language of the statute. See Landreth Timber Co. v. Landreth, 471

U.S. 681, 685 (1985). And, in analyzing the meaning of a statute, we

must first "determine whether the language at issue has a plain and

unambiguous meaning." Robinson v. Shell Oil Co., 519 U.S. 337, 340

(1997). Our determination of whether a statute is ambiguous is guided

"by reference to the language itself, the specific context in which that

language is used, and the broader context of the statute as a whole."

Id. at 341. If the language is plain and "the statutory scheme is coherent and consistent," we need not inquire further. United States v. Ron

Pair Enters., Inc., 489 U.S. 235, 240-41 (1989)."[T]he sole function

of the courts is to enforce [the statute] according to its terms."

Caminetti v. United States, 242 U.S. 470, 485 (1917).2 If the statutory

_________________________________________________________________

2 Therefore, courts should venture beyond the plain meaning of the statute only in those rare instances in which there is"a clearly expressed legislative intent to the contrary," Russello v. United States, 464 U.S. 16, 20

(1983) (internal quotation marks omitted), in which a literal application

of the statute would thwart its obvious purpose, see Griffin v. Oceanic

Contractors, Inc., 458 U.S. 564, 571 (1982), or in which a literal application of the statute would produce an absurd result, see United States v.

American Trucking Ass'ns, 310 U.S. 534, 543 (1940).

 8
language is ambiguous, we "look beyond the language of the statute

to the legislative history for guidance." Stiltner v.Beretta U.S.A.

Corp., 74 F.3d 1473, 1482 (4th Cir. 1996) (en banc). If congressional

intent is not apparent from an examination of "the legislative history,

we apply the traditional tools of statutory construction." Id.

Coal Companies first maintain that disability retirees satisfy the

requirements of neither § 9711(b)(1) nor § 9712(b)(2) because these

statutes require eligibility for benefits to be based upon "age and service" earned rather than a disability. In support of this contention,

Coal Companies argue that § 9711(b)(1) applies only to individuals

who are eligible for benefits under an individual employer plan created by a 1978 or subsequent NBCWA when those individuals have

"met the age and service requirements for eligibility." Further, Coal

Companies assert that the statutory definition of an"eligible beneficiary" in § 9712(b)(2) requires that a retiree's eligibility to receive

benefits from the 1950 or 1974 UMWA Benefit Plans be"based

upon" his having satisfied age and service requirements. The Trustees, on the other hand, assert that Coal Companies' reading of the

statutes is too strict. The Trustees contend that the references to age

and service earned as of February 1, 1993 in § 9711(b)(1) and

§ 9712(b)(2) were meant to establish only the date after which retirees

would not qualify for Coal Act benefits. The reference to age and service requirements does not disqualify disabled retirees, according to

the Trustees, because retirees who were disabled prior to February 1,

1993 met all age and service requirements that applied to them, i.e.,

none.

In our view, the statutory language is reasonably susceptible to

either of these two interpretations. See Robinson, 519 U.S. at 342

(holding statute is ambiguous where it "could just as easily be read

to" have one meaning as another); Adler v. Commissioner, 86 F.3d

378, 380 (4th Cir. 1996) (holding statute ambiguous because it was

reasonably susceptible to multiple meanings). And, having determined that these provisions are ambiguous, we look to the purpose of

the Coal Act, as revealed in the legislative history, to resolve their

meaning. See id. at 380-81 (explaining "that we best implement the

intent of Congress by construing the statute in a way that gives effect

to its purpose"); Andrews v. Riggs Nat'l Bank of Washington, D.C. (In

re Andrews), 80 F.3d 906, 909 (4th Cir. 1996) (recognizing that if

 9
statutory language is ambiguous, this court will"give it the meaning

most consistent with the statute's purpose"). The historical background leading to the enactment of the Coal Act makes clear that

Congress intended to provide coal industry retirees with the lifetime

benefits they had been promised. Since coal workers had been promised health benefits in the event of their retirement, whether that

retirement resulted from a disability or was based solely on their satisfaction of age and service requirements, we conclude that Congress

intended that coal industry workers who retired as a result of a disability would be eligible for benefits under § 9711(b)(1) and

§ 9712(b)(2). See Eastern Enters., 118 S. Ct. at 2140-42 (plurality

opinion) (discussing legislative history); id. at 2166 (Breyer, J., dissenting) (same).

B.

Coal Companies contend alternatively that even if disability retirees may be eligible for benefits under § 9711(b)(1) and § 9712(b)(2),

those provisions limit benefits to coal workers who actually filed an

application for pension benefits by September 30, 1994. See 26

U.S.C.A. § 9711(b)(1) ("This paragraph shall not apply to any individual who retired from the coal industry after September 30, 1994,

or any eligible beneficiary of such an individual."); 26 U.S.C.A.

§ 9712(b)(2) ("In no event shall the 1992 UMWA Benefit Plan provide health benefits coverage to any eligible beneficiary who is a coal

industry retiree who retired from the coal industry after September 30,

1994, or any beneficiary of such individual"). Since the 11 miners at

issue here did not file an application for pension benefits before September 30, 1994, Coal Companies argue, the miners are not entitled

to benefits. We disagree.

The plain meaning of the word "retired" is"withdrawn from or no

longer occupied with one's business or profession." The Random

House College Dictionary 1127 (rev. ed. 1980). The plain meaning

of the word "retired," therefore, does not encompass only those individuals who receive, or have applied for, pension benefits. Thus, we

reject Coal Companies' argument that only those individuals who

filed applications for retirement benefits as of September 30, 1994 are

eligible for coverage under § 9711(b)(1) and§ 9712(b)(2).

 10
C.

In sum, we find § 9711(b)(1) and § 9712(b)(2) to be ambiguous

and construe them to have a meaning consistent with the purpose of

the Coal Act--to provide lifetime health benefits for retiring miners

who had been promised such benefits under the prior labor agreements. Therefore, we conclude that disabled retirees are included

among the individuals covered under § 9711(b)(1) and § 9712(b)(2).

In addition, we hold that not only those individuals who have filed

applications for retirement benefits by September 30, 1994 are eligible for coverage under § 9711(b)(1) and § 9712(b)(2).

III.

Pea Ridge and Oxide, two "related" coal companies--i.e., ones that

were not signatories to a prior agreement establishing a benefit plan

but that are members of the control group of a signatory company--

claim that holding them responsible for contributions to the 1992

UMWA Benefit Plan constitutes a violation of due process and a taking in violation of the Fifth Amendment because they never employed

covered miners and were not within the control group when the miners were employed.

As a threshold matter, we must determine whether this issue is

properly before the court. Generally, issues that were not raised in the

district court will not be addressed on appeal. See Singleton v. Wulff,

428 U.S. 106, 120 (1976); Muth v. United States , 1 F.3d 246, 250 (4th

Cir. 1993) (explaining that issues not raised in district court will not

be considered on appeal unless the "refusal to consider the newlyraised issue would be plain error or would result in a fundamental

miscarriage of justice"); United States v. One 1971 Mercedes Benz 2-

Door Coupe, 542 F.2d 912, 915 (4th Cir. 1976) (explaining that the

failure to raise and preserve issue in district court waives consideration of that issue on appeal absent exceptional circumstances); see

also United States v. Dickerson, 166 F.3d at 667, 683 (4th Cir. 1999)

(recognizing that this court may address issue not raised below in

exceptional circumstances). And, an issue presented for the first time

in a motion pursuant to Federal Rule of Civil Procedure 59(e) generally is not timely raised; accordingly, such an issue is not preserved

for appellate review unless the district court exercises its discretion to

 11
excuse the party's lack of timeliness and consider the issue. See Quest

Med., Inc. v. Apprill, 90 F.3d 1080, 1087 (5th Cir. 1996) (noting that

although courts generally look with disfavor on arguments presented

for first time post-trial, district court possesses the discretion to entertain such arguments and if it excuses the default and addresses the

merits, the issue is properly preserved for appellate review); see also

Pittston Co. Ultramar Am. Ltd. v. Allianz Ins. Co. , 124 F.3d 508, 519

n.12 (3d Cir. 1997) (declining to consider on appeal issue raised for

first time in party's Rule 59(e) motion); Jorge Rivera Surillo & Co.

v. Falconer Glass Indus., 37 F.3d 25, 29 (1st Cir. 1994) (dismissing

arguments raised for first time in Rule 59(e) motion and not addressed

on merits by district court as not properly before the appellate court);

Havoco of Am., Ltd. v. Sumitomo Corp. of Am., 971 F.2d 1332, 1336

(7th Cir. 1992) (stating that arguments that could and should have

been made prior to judgment may not be raised for first time in Rule

59(e) motion); cf. 389 Orange St. Partners v. Arnold, 170 F.3d 1200,

1207 (9th Cir. 1999) (explaining that a district court does not abuse

its discretion in "declining to address an issue raised for the first time

in a motion for reconsideration"). But cf. Lawson v. Singletary, 85

F.3d 502, 507 (11th Cir. 1996) (per curiam) (concluding that district

court abused its discretion in failing to consider issue raised for first

time in Rule 59(e) motion).

Pea Ridge and Oxide recognize that they failed to raise their constitutional arguments until their Rule 59(e) motion for reconsideration

following the final decision in district court. Nevertheless, they assert

that their failure to pursue the issue timely does not constitute a

waiver of the constitutional argument because they satisfy an exception to the general rule of waiver. Such an exception exists, they correctly explain, when there has been an intervening change in the law

recognizing an issue that was not previously available. See Curtis

Publ'g Co. v. Butts, 388 U.S. 130, 142-45 (1967) (plurality opinion);

Holzsager v. Valley Hosp., 646 F.2d 792, 796 (2d Cir. 1981); see also

Pacific Ins. Co. v. American Nat'l Fire Ins. Co., 148 F.3d 396, 403

(4th Cir. 1998) (explaining that although a Rule 59(e) motion may be

granted based on, inter alia, "an intervening change in controlling

law," such "motions may not be used ... to raise arguments which

could have been raised prior to the issuance of the judgment ... [or]

to argue a case under a novel legal theory that the party had the ability

to address in the first instance"), cert. denied, 119 S. Ct. 869 (1999).

 12
The intervening law exception to the general rule that the failure to

raise an issue timely in the district court waives review of that issue

on appeal applies when "there was strong precedent" prior to the

change, Curtis Publ'g Co., 388 U.S. at 143 (plurality opinion), such

that the failure to raise the issue was not unreasonable and the opposing party was not prejudiced by the failure to raise the issue sooner,

id. at 145. Pea Ridge and Oxide maintain that prior to the Supreme

Court decision in Eastern Enterprises v. Apfel , 118 S. Ct. 2131

(1998), this court had rejected constitutional challenges to the Coal

Act and that Eastern Enterprises changed the law, permitting them to

raise the constitutional issue at this juncture. We disagree.

First, Eastern Enterprises cannot be viewed as effecting a change

in the law of Fifth Amendment takings jurisprudence sufficient to

excuse the failure to raise a takings challenge earlier. Eastern

Enterprises, decided by a 4-1-4 vote, involved a challenge to the constitutionality of 26 U.S.C.A. § 9706, a provision of the Coal Act different from the one at issue here; that provision imposed retroactive

liability for funding the Combined Fund on pre-1978 NBCWA signatories. Four Justices concluded that § 9706 effected an unconstitutional taking. See id. at 2146-53. The remaining five justices rejected

the conclusion that an unconstitutional taking was effected, reasoning

that the constitutionality of the financial burden on the company

imposed by the Coal Act must be considered as a question of substantive due process rather than as a takings question because no identifiable property interest was infringed by the legislation. See id. at 2154-

58 (Kennedy, J., concurring in the judgment and dissenting in part);

id. at 2161-63 (Breyer, J., dissenting). Consequently, to the extent

Eastern Enterprises worked any change with respect to takings jurisprudence, that change was not favorable to Pea Ridge and Oxide's

position and therefore does not excuse their failure to raise their takings claim in a timely fashion.

Second, no strong precedent prevented Pea Ridge and Oxide from

raising the due process issue earlier. In Holland, we rejected a due

process challenge to the 1992 UMWA Benefit Plan, ruling that Congress did not act arbitrarily in concluding that signatories to

NBCWAs promising lifetime health benefits should be required to

fund those benefits. See Holland, 102 F.3d at 740-42. However, we

did not address any separate argument related to liability of members

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of a control group of such signatories, and that issue remained an

open question. Furthermore, Eastern Enterprises did not address

whether the Coal Act violated the due process rights of members of

a control group of signatories to NBCWAs promising lifetime health

benefits for retired miners. Rather, Eastern Enterprises can only be

viewed as rendering a decision that Congress acted arbitrarily in

imposing retroactive liability on a signatory to NBCWAs in existence

prior to those that promised lifetime health benefits to retired miners

when that signatory made no promise of lifetime benefits, did not

contribute to the problem that caused the funding shortfall for the

promised lifetime benefits or to the need for such benefits, and was

not put on notice by any governmental action during the relevant time

period that it might be subjected to later liability. See Eastern Enters.,

118 S. Ct. at 2151-53 (plurality opinion); id. at 2159-60 (Kennedy, J.,

concurring in the judgment and dissenting in part). The position of

members of a control group upon whom liability is imposed only by

virtue of that association is different from that of the NBCWA signatory in Eastern Enterprises. And, the considerations bearing upon

whether Congress acted rationally in imposing retroactive liability on

the NBCWA signatory in Eastern Enterprises are different than those

relating to the rationality of imposing liability on members of a control group of a 1978 or subsequent benefit plan signatory, although

admittedly some of the same arguments can be made with respect to

both issues.

Thus, we conclude that Eastern Enterprises did not constitute a

change in the law permitting Pea Ridge and Oxide to raise their constitutional arguments for the first time in a Rule 59(e) motion. As

such, those constitutional issues are not properly preserved for our

review.3

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3 Although the district court ruled that the constitutional claims raised

by Pea Ridge and Oxide in their Rule 59(e) motion lacked merit, it did

so only as an alternative holding to its principal conclusion that the constitutional issues were not properly before the court because they were

not timely raised. The district court, therefore, did not excuse the default.

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IV.

The only remaining question is whether the district court erred in

imposing an "additional prefunding premium" on Coal Companies as

a result of its finding that they were liable for the benefits of the disabled miners and their dependents as claimed by Trustees. In the section of the Coal Act dealing with the guarantee of benefits, Congress

directed that the contribution requirement for the plan include:

the provision of security (in the form of a bond, letter of

credit or cash escrow) in an amount equal to a portion of the

projected future cost to the 1992 UMWA Benefit Plan of

providing health benefits for eligible and potentially eligible

beneficiaries attributable to the 1988 last signatory operator.

If a 1988 last signatory operator is unable to provide the

security required, the 1992 UMWA Benefit Plan shall

require the operator to pay an annual prefunding premium

that is greater than the premium otherwise applicable.

26 U.S.C.A. § 9712(d)(1)(C) (emphasis added). The 1992 UMWA

Benefit Plan formed by the Trustees established an additional prefunding premium of at least five times the annual funding premium.

And, the district court imposed an additional prefunding premium of

ten times the annual funding premium on the coal companies here.

The language of the statute states that the prefunding provision is to

be applied when a company is "unable" to provide the security. Id.

The provision does not speak to the situation, like the one at issue

here, when absent any showing that a company was unable to post the

security, it declined to do so because it did not believe that it was liable. The plain language of the provision, therefore, demonstrates that

an increased funding obligation is not applicable in the present situation.

V.

Congress intended through the Coal Act to ensure promised lifetime health benefits to coal industry retirees; therefore, we construe

§ 9711(b)(1) and § 9712(b)(2) to cover disabled retirees who retired

before September 30, 1994 and their beneficiaries and affirm the

judgment of the district court imposing liability and awarding attor-

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ney's fees.4 The additional prefunding premium imposed by the district court, however, was erroneous because there was no showing

that the companies were "unable" to provide the appropriate security

--only that they did not provide it. Thus, we affirm in part and

reverse in part.

AFFIRMED IN PART; REVERSED IN PART

_________________________________________________________________

4 Coal Companies' only challenge to the award of attorney's fees rested

on their argument that the district court incorrectly decided that disabled

retirees were included as eligible beneficiaries. Having concluded that

the district court did not err in this regard, we affirm the award of attorney's fees.

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