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. e du/thir dc ir c uit_1999/128Filed May 14, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-3451

ANKER ENERGY CORPORATION, AND KING KNOB COAL COMPANY, INC.,

Appellants

v.

CONSOLIDATION COAL COMPANY; UNITED MINE WORKERS OF AMERICA COMBINED BENEFIT FUND; MARTY D. HUDSON, TRUSTEE; MICHAEL H. HOLLAND, TRUSTEE; THOMAS O.S. RAND, TRUSTEE; ELLIOTT A. SEGAL, TRUSTEE; CARLTON R. SICKLES, TRUSTEE; GAIL R. WILENSKY, TRUSTEE; WILLIAM P. HOBGOOD, TRUSTEE; KENNETH S. APFEL, COMMISSIONER OF THE

SOCIAL SECURITY ADMINISTRATION*

On Appeal from the United States District Court for the Western District of Pennsylvania District Judge: Honorable William L. Standish (D.C. Civ. No. 96-01938)

Argued March 25, 1999

BEFORE: GREENBERG, ROTH, and ROSENN, Circuit Judges

(Filed: May 14, 1999)

___________________________________________________ ______________

*Kenneth F. Apfel is substituted as a defendant for Shirley Sears Chater as Commissioner, pursuant to Fed. R. Civ. P. 25(d) (i) and Fed. R. App. P. 43(c).Paul A. Manion (argued)

Robert D. Finkel Manion McDonough & Lucas 600 Grant Street, Suite 882 Pittsburgh, PA 15219

Charles L. Woody

Paula Durst Gillis Spilman Thomas & Battle

P.O. Box 273 Charleston, WV 25321-0273

James A. Walls

General Counsel Anker Energy Corporation 2708 Cranberry Square Morgantown, WV 26505

Attorneys for Appellants

Edwin J. Strassburger (argued) David A. Strassburger Strassburger McKenna Gutnick

& Potter 322 Boulevard of the Allies,

Suite 700 Pittsburgh, PA 15222

Robert M. Vukas

General Counsel Consol, Inc.

Consol Plaza 1800 Washington Road Pittsburgh, PA 15241-1421

Attorneys for Appellee Consolidation Coal Company

Peter Buscemi (argued) Morgan, Lewis & Bockius 1800 M Street, N.W. Washington, DC 20036

2John R. Mooney

Elizabeth A. Saindon Mark J. Murphy Mooney, Green, Baker, Gibson,

and Saindon 700 14th Street, N.W., Suite 1100 Washington, DC 20005

David W. Allen Christopher Clarke

Office of the General Counsel

UMWA Health and Retirement

Funds 4455 Connecticut Avenue, N.W. Washington, DC 20008

Attorneys for Appellees

UMWA Combined Benefit Fund and

Its Trustees

Frank W. Hunger Assistant Attorney General Harry Litman United States Attorney Douglas N. Letter Edward R. Cohen (argued) Attorneys, Appellate Staff Civil Division, Room 9014 U.S. Department of Justice 601 D Street, N.W. Washington, DC 20530

Frieda S. Colfelt Department of Health and Human

Services

Office of General Counsel 6401 Security Boulevard Altmeyer Building Baltimore, MD 21235

Attorneys for Appellee Commissioner of Social Security

3OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

In 1992, Congress enacted the Coal Industry Retiree Health Benefits Act ("Coal Act"), 26 U.S.C.S 9701-9 722, to ensure that retired coal miners and their dependent s would

continue to receive the health and death benefits t hey had been receiving since the 1940s pursuant to a series of collective bargaining agreements. By the late 1980s

, problems had arisen that caused serious under-fundi ng to the two benefit plans funding the miners' benefits. Fearing

that the miners and their families would be left wi th no health or death benefits, Congress stepped in and p assed the Coal Act, which provided a new funding mechanis m under which the Commissioner of Social Security ("Commissioner") would assign miners to a coal indu stry employer based on the recency and longevity of a mi ner's employment. That employer then would be responsible for providing the funds for those miners' benefits.

The Coal Act has led to a flood of litigation chall enging the Commissioner's assignments of liability under t he Act, as well as Takings and Due Process challenges to th e constitutional validity of the Act's imposition of retroactive liability. Following this legal trend, Anker Energy Corp. ("Anker") filed this action in the United States Di strict Court for the Western District of Pennsylvania seeking de claratory and injunctive relief that the Commissioner imprope rly assigned it responsibility for funding certain mine rs' benefits and that these assignments violated the Ta kings

and Due Process Clauses of the Fifth Amendment to t he

United States Constitution. Anker also asserted tha t appellee Consolidation Coal Co. ("Consol") had agre ed to assume liability for any payments due for miners' b enefits and to reimburse Anker for any such payments Anker made, and thus was liable to it for the monies attr ibutable to the assignments.

4The district court dismissed all of these claims at the

pleadings and summary judgment stages of litigation . First, the court granted Consol's motion for judgment on t he pleadings pursuant to Fed. R. Civ. P. 12(c) on Anke r's claims that the Commissioner should have assigned t he miners to Consol, and that Consol had agreed to ind emnify Anker for any liability it incurred for the payment of miners' benefits. See Anker Energy Corp. v. Consolidation C oal Co., Civ. No. 96-1938 (W.D. Pa. July 25, 1997) (Anker I)

. Subsequently, the district court upheld the constit utionality of the application of the Coal Act to Anker on a mo tion for summary judgment. See Anker Energy Corp. v. Consolidation Coal Co., Civ. No. 96-1938 (W.D. Pa. Mar. 11, 1998) (Anker II). Finally, inasmuch as it had affir med the imposition of liability against Anker and had deter mined that Anker was delinquent in its payments under the Act, the district court entered a judgment of $1,180,489 .06 against Anker for annual premiums, interest, liquid ated damages, attorney's fees, and costs. See Anker Ener gy Corp. v. Consolidation Coal Co., Civ. No. 96-1938 (W.D. P a. July 21, 1998) (Anker III). This appeal followed.

II. FACTUAL AND PROCEDURAL HISTORY

A. Factual History

The courts have well-chronicled the history of the coal industry's struggles to provide retirement and heal th benefits to miners. See, e.g., Unity Real Estate Co . v. Hudson, ___ F.3d ___, 1999 WL 167765, at *2-*4 (3d Cir. Mar. 29, 1999); Eastern Enters. v. Apfel, 524 U.S. 498, ___, 118 S.Ct. 2131, 2137-42 (1998) (plurality opinion). Therefore, we only briefly will summarize this chro nology and outline the parties' roles within that larger s tory.

In 1947, the United Mine Workers of America ("UMWA" ) and the Bituminous Coal Operators' Association ("BC OA") agreed upon the first of a series of National Bitum inous Wage Agreements ("NBCWA" or "wage agreement"), whic h specified the terms and conditions of employment an d provided health and pension benefits for miners. Th e 1947

NBCWA established the United Mine Workers of Americ a Welfare and Retirement Fund, which used the proceed s of

5a royalty on coal production to provide pension and medical

benefits for miners and their families. The 1947 NB CWA did not specify the benefits to which miners and their families were entitled, instead leaving this task to three t rustees in charge of the Fund. In 1950 the union and the indus try association agreed upon a new NBCWA that created a new Fund financed by a per ton levy on coal mined by si gnatory operators. Like the 1947 Fund, the 1950 version did not promise specific benefits, and the benefits were al ways subject to cancellation or change.

This system did not change significantly until 1974 when, to comply with the newly enacted ERISA, the U MWA and the BCOA negotiated a new wage agreement that created four trusts funded by royalties on coal pro duction and premiums based on hours worked by miners. Under the new agreement, the 1950 Benefit Plan covered mi ners who retired before January 1, 1976, and their depen dents,

while the 1974 Benefit Plan covered miners who reti red after 1975 and their dependents. Both Plans provide d nonpension benefits, including medical benefits.

The 1974 NBCWA explained that it was amending the previous system to provide health benefits for reti red miners "for life," and to their widows until death or remarriage. Because of this broadened coverage the number of eligible benefit recipients increased dramatical ly, and the Plans began losing money.

In response, the 1978 NBCWA assigned responsibility to signatory employers for the health care of their ow n active and retired employees. The 1978 agreement also rest ricted the 1974 Plan so that it would provide health benef its only for "orphaned" retirees, those whose last employer had gone out of business or otherwise ceased contributing to the Plans. To ensure the Plans' solvency, the 1978 NBCW A included a "guarantee" clause that obligated signat ories to

make sufficient contributions to maintain benefits during that agreement, and the union and operators amended the Plans to include "evergreen clauses" that required signatories to contribute to the Plans if they rema ined in the coal business even if they never signed another wage agreement.

6Despite the 1978 NBCWA and subsequent attempts to

improve the Plans, they continued to lose money bec ause of the increase in beneficiaries, the escalating costs of health care, and the flood of signatory companies abandoni ng the Plans. In 1992 Congress responded by passing the Co al Act. The Act merged the 1950 and 1974 Benefit Plans into a new multi-employer plan called the United Mine Wo rkers of America Combined Benefit Fund ("Combined Fund"). The Combined Fund provides "substantially the same" hea lth benefits to retirees and their dependents that the 1950 and 1974 Plans provided. 26 U.S.C. S 9703(b)(1), (f). H owever, Congress altered the funding mechanism, an action t hat has led to the overflow of litigation.

The Act finances the Combined Fund with annual premiums assessed against signatory operators, whic h are companies that were or are signatories to a "coal w age agreement." 26 U.S.C. S 9701(c)(1). The Act defines a "coal wage agreement" as an NBCWA, or "any other agreemen t entered into between an employer in the coal indust ry and the United Mine Workers of America that required" t he provision of health benefits to its retirees or con tributions to the 1950, 1974 or any prior Benefit Plan. 26 U.S .C. S 9701(b)(1)(A), (B). Any signatory operator who "c onducts or derives revenue from any business activity, whet her or not in the coal industry," may be required to contr ibute to the Combined Fund. 26 U.S.C. SS 9701(c)(7), 9706(a)

. Where a signatory operator is no longer involved in any business activity, premiums may be assessed against "related person[s]" including "successors in intere st and businesses or corporations under common control." E astern Enters., 524 U.S. at ___, 118 S.Ct. at 2142 (discus sing 26 U.S.C. SS 9701(c)(2)(A), 9706(a)).

The Commissioner of Social Security assigns retiree s to particular signatory operators, and calculates prem iums according to these assignments based on the followi ng formula:

(a) In general. -- For purposes of this chap ter, the Commissioner of Social Security shall . . . assign each coal industry retiree who is an eligible ben eficiary to a signatory operator which (or any related per son with

7respect 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 u nder paragraph (1), to the signatory operator whi ch --

(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 un der paragraph (1) or (2), to the signatory opera tor which employed the coal industry retiree in the co al industry for a longer period of time than an y other signatory operator prior to the effective da te of the 1978 coal wage agreement.

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

The surge of litigation attacking the Coal Act bega n shortly after the Commissioner began assigning reti rees to signatory operators. In Lindsey Coal Mining Co. v. Chater, 90 F.3d 688 (3d Cir. 1996), we held the Act constit utional as applied to a coal company to which the Commissio ner had assigned retirees through section 9706(a)(3) co ncerning those signatory operators who had not signed the 19 78 agreement. See id. at 695. However, the Supreme Cou rt's decision in Eastern Enterprises, 524 U.S. 498, 118 S.Ct. 2131, calls the continuing vitality of Lindsey Coal Mining into question, as the Court found the Act unconstit utional as applied to a coal company that had ceased mining in 1965 and never signed the 1974 or subsequent wage

8agreements. Id. at 2153 (plurality opinion); id. at 2154

(Kennedy, J., concurring in judgment).

We recently have had the opportunity to apply the fragmented Eastern Enterprises decision to facts si milar to those here. In Unity Real Estate, 1999 WL 167765, w e upheld the Commissioner's assessment of liability a gainst two companies that had signed the 1974 and 1978 wag e agreements and later NBCWAs as constitutional in th e face of takings and due process challenges. Id. at *25, *29.

B. Procedural History

The seeds of discontent that led to this suit were sown on March 30, 1994, when the Commissioner informed Anke r that she was assigning it liability for certain ret ired miners, surviving spouses and dependents, and several orpha ned miners due to its relationship with King Knob Coal Co. ("King Knob") which no longer was in business. From 1967 until 1982, Consol had contracted with King Knob fo r it to extract coal on certain of Consol's properties. As part of these contracts, King Knob agreed that "its employe es shall

be members of the United Mine Workers of America an d it shall be a signatory to the then current National Bituminous Coal Wage Agreement." App. at 75.

To achieve this end, King Knob signed "me too" agreements during the 1970s and 1980s, the last in 1984. See app. at 8. Anker characterizes a "me too" agree ment as an agreement between an employer who was not a memb er of the BCOA nor an NBCWA signatory yet who agreed b y separate instrument with the UMWA to "be bound by t he terms of the NBCWAs." App. at 8.

An affiliate of Anker acquired King Knob in 1975. T he parties' relationship continued uneventfully until Consol canceled its contracts with King Knob following whi ch they entered into a settlement agreement on July 23, 198 2. Paragraph 4(b) of the settlement required Consol to

promptly reimburse King Knob for all subsequ ent payments due to the UMWA Fund or any success or fund attributable to (i) tonnage of coal pro duced under the contracts, (ii) hours worked at the mine operated

under the Robinson Run contract on or before August

931, 1982, and (iii) hours worked at the mine s operated

under the Booth contract on or before June 3 0, 1982.

App. at 17, 97.

In 1994 and 1995, the Commissioner informed Anker that it was a related person to King Knob and was b eing assigned liability for a number of beneficiaries un der the Coal Act. Arguing that Consol was the proper signat ory operator responsible for some of these retirees und er the Act as they worked at Consol's properties and Conso l was responsible for them, Anker protested this assignme nt. The Commissioner responded that Anker's liability was b ased upon the fact that King Knob (not Consol) was the s ignatory employer of the eligible retirees. Moreover, the

Commissioner determined that she was not authorized to assign Anker's premiums to Consol despite the parti es' possible contractual agreement for reimbursement of future benefits because the Social Security Administration "is not bound by any private agreements made between companies, nor does the Coal Act allow for pro-rati on of premium payments between companies." App. at 33.

Anker and King Knob responded by filing this action seeking declaratory and injunctive relief that Cons ol is liable for any premiums due the Combined Fund, and that the Commissioner's assessment of liability to the C ombined

Fund under the Coal Act violates the Due Process an d Takings Clauses of the Fifth Amendment to the Unite d

States Constitution. As a matter of convenience we usually refer to Anker alone as the plaintiff and appellant . Besides Consol, Anker named the UMWA Combined Fund, its

Trustees and the Commissioner as defendants.

In an unpublished disposition, the district court g ranted Consol's motion for judgment on the pleadings pursu ant to Fed. R. Civ. P. 12(c) as to Counts One and Two of A nker's complaint. Anker I at 2. In Count One, Anker allege d that Consol had agreed with King Knob and the UMWA that it would pay the premiums owed to the 1950 and 1974 Pl ans based upon the amount of coal produced and the hour s worked by King Knob's employees. Id. at 13. Anker contended that because of these agreements, Consol became the signatory operator responsible for King Knob's

10employees' benefits under the 1950 and 1974 Plans, and

thus was the proper party to which the Commissioner should assign King Knob's retirees. Id. at 14.

The district court held that Anker could not suppor t this claim and granted Consol judgment as a matter of la w on Count One. Id. The court recognized that "it is und isputed that King Knob was a signatory to one or more coal wage agreements covering its employees at Consol's Booth and Robinson Run properties, and that Anker is a `relat ed person' to King Knob as defined in the Coal Act." I d. at 15. King Knob was also clearly the employer of the mine rs. Id. at 20. Thus, the Commissioner's assignment of beneficiaries and liability under the Act to Anker as a related person to King Knob was correct. Id. at 21. Moreover, the court refuted Anker's argument that C onsol had agreed in 1982 to be responsible for any future contributions owed to a subsequent benefit plan, an d agreed with the Commissioner that the Coal Act does not allow for the assessment of liability based upon pr ivate

contracts. Id. at 15-16.

The court also granted Consol's motion for judgment on the pleadings on Count Two, which alleged that purs uant to their settlement agreement Consol was liable to Anker for all premiums for which Anker is responsible under t he Act. Id. at 21. The court rejected Anker's argument that paragraph 4(b) of the settlement agreement bound Co nsol to reimburse King Knob, and thus Anker, for its lia bility under the Coal Act, reasoning that premiums under t he Act

are not

`attributable to' the tonnage of coal produc ed and the

number of hours worked under the contract mi ning agreements, and the Combined Fund is not a successor fund which requires premium paymen ts based on the tonnage of coal produced or the number of hours worked by a signatory operator's em ployees. Rather, under the Coal Act, health benefits are funded by the imposition of what is, in essence, a tax.

Id. at 22-23. Finally, the court relied upon Carbon Fuel Co. v. USX Corp., 100 F.3d 1124 (4th Cir. 1996), when i t held

that even if Anker was entitled to reimbursement un der its

11contract with Consol, Consol still would be entitle d to

judgment as a matter of law because "the Coal Act abrogated pre-act contracts reallocating mining com panies' obligations to pre-Act benefit plans." Id. at 24 n. 17. Next the district court upheld the constitutionality of the application of the Coal Act to Anker in a second unpublished decision, and, relying upon our holding in Lindsey Coal Mining, 90 F.3d 688, granted summary judgment in favor of the Combined Fund, its Trustee s, and the Commissioner on Count Three which sought a find ing of unconstitutionality. Anker II at 6.

Finally, on July 21, 1998, the district court grant ed summary judgment on the Combined Fund's counterclai m for entry of a judgment against Anker and King Knob for annual premiums, interest, liquidated damages, atto rney's fees, and costs. Anker III at 10-11. Anker did not contest the assessment of annual premiums. Id. at 6 n.3. Considering this fact and Congress's clear intent t o provide for liquidated damages, interest, attorney's fees, and costs if an employer fails to make timely payments, the c ourt entered judgment for $1,180,489.06 against Anker an d King Knob in a third unpublished disposition. Id. a t 11. Anker and King Knob then appealed.

III. DISCUSSION

Anker argues that the Coal Act is unconstitutional as applied to it according to the Supreme Court's deci sion in Eastern Enterprises, 524 U.S. 498, 118 S.Ct. 2131. Appellants' Brief at 19-26. Alternatively, Anker ur ges us to reverse the district court's grant of judgment on t he pleadings against it on Counts One and Two of its complaint. Id. at 26-37. Anker repeats its position concerning Count One that the Commissioner should h ave assigned the miners at issue to Consol. As to Count Two, Anker contends that the district court erroneously found paragraph 4(b) of the settlement agreement between King Knob and Consol clear and unambiguous. Consequently

, Anker believes that the district court erred in not considering its parol evidence, and that under our precedent, parol evidence is essential to interpret ing the parties' intent correctly. Moreover, Anker argues t hat the

12district court's interpretation of paragraph 4(b) o f the

settlement agreement was simply wrong. Id. at 28-37

. Finally, Anker contests the district court's awardi ng the Combined Fund interest, liquidated damages, attorne y's fees, and costs, arguing that the Act does not prov ide for

the assessment of these items. Id. at 37-48.

We will affirm the district court's decisions regar ding the constitutionality of the Act, the correctness of th e Commissioner's assignments, and the award of intere st, liquidated damages, fees and costs against Anker. H owever, we will reverse the court's order granting judgment on the pleadings on Count Two, Anker's contract claim for reimbursement from Consol, and will remand to the d istrict court for further proceedings on that count.1

A. Standard of Review

In reviewing the district court's order, we examine the

Commissioner's action under the same standard of re view properly applied by the district court. See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1 598, 1607 (1985). Thus, we review the Commissioner's dec ision as a final agency action brought under the Administ rative Procedure Act. See Lindsey Coal Mining, 90 F.3d at 691; 5 U.S.C. S 704. Accordingly, the issue is whether the administrative determination was "arbitrary, capric ious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. S 706(2)(A).2 See C.K. v. New Jersey Dep't of Health and Human Servs., 92 F.3d 172, 182 (3d Cir. 1996).

___________________________________________________ ______________

1. The district court had federal question jurisdic tion pursuant to 28

U.S.C. S 1331 because the case arises under the Con stitution of the United States and the Coal Industry Retiree Health Benefits Act of 1992, 26 U.S.C. S 9701-9722, and had supplemental jurisdi ction over Anker's breach of contract claim pursuant to 28 U.S.C. S 13 67. We have jurisdiction pursuant to 28 U.S.C. S 1291.

2. The district court appears to have reviewed the Commissioner's decision de novo, as was also the case in Lindsey C oal Mining, 90 F.3d at 691 n.3. However, as we noted there, inasmuch as we "come to the same decision as the district court in affirming th e Commissioner's decision, any application of a different standard o f review on its part

was harmless." Id.

13We review the district court's decision as to the

constitutionality of the Coal Act as applied to Ank er de novo. See Dyszel v. Marks, 6 F.3d 116, 123 (3d Cir. 1993). Similarly, our review of the district court's grant ing of judgment on the pleadings and summary judgment wher e the district court was not reviewing the Commission er's decisions is plenary. See Smith v. National Collegi ate Athletic Ass'n, 139 F.3d 180, 183 (3d Cir. 1998), r ev'd on other grounds, 119 S.Ct. 924 (1999); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2 d 1224, 1230 (3d Cir. 1993).

B. Takings and Due Process Challenges

Our discussion of Anker's constitutional challenge begins with Eastern Enterprises, 524 U.S. 498, 118 S.Ct. 2 131, where a fragmented Supreme Court considered the constitutionality of the Coal Act as applied to a c ompany whose coal operations had ceased in 1965. Id. at __ _, 118 S.Ct. at 2143. A majority of the Court struck down the law as applied to Eastern Enterprises by relying on two distinct theories. The four-justice plurality held that appl ication of the Coal Act to Eastern Enterprises violated the Fi fth Amendment as an unconstitutional taking. Id. at ___ , 118 S.Ct. at 2149. Justice Kennedy, who provided thefif th vote striking down the application of the Act, disagreed with the plurality's takings reasoning, but found that the A ct's retroactivity violated due process. Id. at ___, 118 S.Ct. at 2154 (Kennedy, J., concurring in judgment and disse nting in part). The four dissenting justices agreed with Justice Kennedy that application of the statute did not vio late the Takings Clause, yet disagreed with his opinion that the Act violated due process. Id. at ___, 118 S.Ct. at 2161 (Breyer, J., dissenting).

To consider Anker's takings and due process claims, we first must decide what, if any, holding in Eastern Enterprises binds our decision. "When a fragmented Court decides a case and no single rationale explaining t he result enjoys the assent of five Justices, `the holding of the Court may be viewed as that position taken by those Membe rs who concurred in the judgment on the narrowest grounds.' " Marks v. United States, 430 U.S. 188, 1 93, 97 S.Ct. 990, 993 (1977) (quoting Gregg v. Georgia, 42 8 U.S.

14153, 169 n.15, 96 S.Ct. 2909, 2923 n.15 (1976)). Ho wever,

as we recognized in Rappa v. New Castle County , 18 F.3d 1043 (3d Cir. 1994), and reaffirmed in Unity Real E state, 1999 WL 167765, at *9, the Marks rule is applicable only where "one opinion can be meaningfully regarded as `narrower' than another" and can "represent a commo n denominator of the Court's reasoning." Rappa, 18 F. 3d at 1057 (quoting King v. Palmer, 950 F.2d 771, 781 (D. C. Cir. 1991) (en banc)). Thus, in cases where approaches d iffer, no particular standard is binding on an inferior co urt because none has received the support of a majority of the Supreme Court. Id. at 1058.

As to the immediate situation, we recognized in Uni ty Real Estate that "Justice Kennedy's substantive due process reasoning is not a `narrower' ground that w e might take to constitute the controlling holding." 1999 W L 167765, at *9. In such a case, then, the only bindi ng aspect of a splintered decision is its specific result, in Eastern Enterprises the Court's "holding the Coal Act unconstitutional as applied to Eastern Enterprises. " Association of Bituminous Contractors, Inc. v. Apfe l, 156 F.3d 1246, 1255 (D.C. Cir. 1998). Eastern Enterpris es requires a finding that the Coal Act is unconstitut ional as applied to Anker, then, only if Anker "stand[s] in a substantially identical position to Eastern Enterpr ises with respect to both the plurality and Justice Kennedy's concurrence." Unity Real Estate, 1999 WL 167765, at *9.3

___________________________________________________ ______________

3. We also recognized in Unity Real Estate that in light of Eastern Enterprises' concurrence and dissent, we are "bound to follow the fivefour vote against the takings claim. . . ." Unity R eal Estate, 1999 WL 167765, at *9. See Eastern Enters., 524 U.S. at ___ , 118 S.Ct. 2156 (Kennedy, J., concurring) ("The Coal Act neither ta rgets a specific property interest nor depends upon any particular p roperty for the operation of its statutory mechanisms."); id. at _ __, 118 S.Ct. at 2161 (Breyer, J., dissenting) ("The `private property' u pon which the Clause traditionally has focused is a specific interest in physical or

intellectual property."); also Association of Bituminous Contrac tors, 156 F.3d at 1254 n.5 ("The only conceivable change in takings jurisp rudence brought about by Eastern Enterprises is that thefive dissen ting justices . . . apparently believe that the imposition of liability alone is not a taking

of property under the Fifth Amendment.").

15Applying Eastern Enterprises in accordance with the

foregoing methodology is not difficult inasmuch as its plurality and concurrence both found significant th e fact that Eastern Enterprises was not a signatory to eit her the 1974 or 1978 NBCWAs, and thus it did not contemplat e either being responsible for or contributing to the miners' expectation of lifetime benefits. The plurality rec ognized that while the takings inquiry is "essentially ad h oc and fact intensive" the Court, in prior decisions, had identified three factors that are particularly significant: " `the economic impact of the regulation, its interference with reasonable investment backed expectations, and the character of the governmental action.' " 524 U.S. a t ___, 118 S.Ct. at 2146 (quoting Kaiser Aetna v. United State s, 444 U.S. 164, 175, 100 S.Ct. 383, 390 (1979)). The plur ality then summarized its takings case law as follows:

Our opinions . . . make clear that Congress has considerable leeway to fashion economic legi slation, including the power to affect contractual co mmitments between private parties. Congress also may i mpose retroactive liability to some degree particu larly where it is `confined to short and limited periods re quired by the practicalities of producing national legisla tion.' Our decisions, however, have left open the possi bility that legislation might be unconstitutional if it imposes severe retroactive liability on a limited class of parties that could not have anticipated the liability, an d the extent of that liability is substantially disproportio nate to the parties' experience.

Id. at ___, 118 S.Ct. at 2149 (quoting Pension Bene fit Guar. Corp. v. R.A. Gray & Co., 476 U.S. 717, 731, 104 S. Ct. 2709, 2719 (1984)) (internal quotation marks omitte d) (emphasis added) (citation omitted).

Applying these precepts, the plurality held that th e Coal Act placed a "considerable financial burden" upon E astern Enterprises, which was liable for between $50 and $ 100 million in cumulative payments. Id. at ___,118 S.Ct . at 2149. The plurality acknowledged that this type off inancial burden was not a per se taking -- "a permanent phys ical occupation of . . . property" -- yet noted that the Court's decisions upholding the Multiemployer Pension

16Amendments Act of 1980 to supplement ERISA suggeste d

that "an employer's statutory liability for multiem ployer plan benefits should reflect some `proportion[ality ] to its experience with the plan.' " Id. at ___, 118 S.Ct. at 2149 (quoting Concrete Pipe & Prods. of Cal., Inc. v. Co nstruction Laborers Pension Trust for S. Cal., 508 U.S. 602, 6 45, 113 S.Ct. 2264, 2291 (1993)). The plurality found this proportionality lacking because "while Eastern cont ributed to the 1947 and 1950 W&R Funds, it ceased its coal mining operations in 1965 and neither participated in nego tiations nor agreed to make contributions in connection with the Benefit Plans under the 1974, 1978, or subsequent NBCWA's." Id. at ___, 118 S.Ct. at 2150 (emphasis a dded). This was significant because the 1974 and subsequen t agreements "first suggest[ed] an industry commitmen t to the funding of lifetime health benefits for both re tirees and their family members." Id. at ___, 118 S.Ct. at 215 0. Thus, because Eastern Enterprises never had contemplated liability nor contributed to the miners' expectatio n of lifetime benefits, the plurality held that "the cor relation between Eastern and its liability to the Combined F und is tenuous, and the amount assessed against Eastern
resembles a calculation `made in a vacuum.' " Id. a t ___, 118 S.Ct. at 2150 (quoting Connolly v. Pension Bene fit Guar. Corp., 475 U.S. 211, 225, 106 S.Ct. 1018, 102 6 (1986)).

The plurality also found the lack of proportionalit y significant in its analysis of whether the Coal Act substantially interfered with Eastern Enterprises' reasonable investment backed expectations, and whet her the nature of the governmental action was unusual. The plurality found that the Act's "substantial and par ticularly far reaching" retroactive effect interfered with Ea stern Enterprises' reasonable investment backed expectati ons. Id. at ___, 118 S.Ct. at 2152. It noted that inasmuch a s an employer in the coal industry could not have contem plated that it was promising lifetime benefits until 1974 when ERISA forced revisions to the 1950 Fund, the Coal A ct's "scheme for allocation of Combined Fund premiums is not calibrated either to Eastern's past actions or to a ny agreement--implicit or otherwise--by the company." Id. at ___, 118 S.Ct. at 2152. Likewise, the plurality rea soned that

17the governmental action was highly unusual and impl icated

fundamental principles of fairness because it "sing le[d] out certain employers to bear a burden that is substant ial in amount, based on the employers' conduct far in the past, and unrelated to any commitment that the employers made or to any injury they caused. . . ." Id. at ___, 11 8 S.Ct. at 2153 (emphasis added). Therefore, each factor sugge sting that the application of the Coal Act was an unconst itutional taking depended upon the fact that Eastern Enterpri ses had left the coal industry in 1965 and had not agre ed to the 1974, 1978, or subsequent wage agreements.

Justice Kennedy, in finding the Coal Act's applicat ion to Eastern Enterprises violated substantive due proces s, also relied upon the fact that Eastern Enterprises had n ot signed the 1974 or following agreements. Justice Ke nnedy held that "[a]ccepted principles forbidding retroac tive legislation" dictated that the application of the A ct to Eastern Enterprises violates the Due Process Clause . Id. at ___, 118 S.Ct. at 2158 (Kennedy, J., concurring in judgment and dissenting in part). Applying an "arbi trary and irrational" standard of review, Justice Kennedy pointed out that the assessment of liability against Easter n Enterprises bore no legitimate relation to the gove rnment's asserted interest in holding responsible those coal companies that created an expectation of lifetime b enefits and then abandoned the industry to avoid this

commitment:

As the plurality opinion discusses in detail , the expectation was created by promises and agre ements made long after Eastern left the coal busine ss. Eastern was not responsible for the resulting chaos in the funding mechanism caused by other coal compa nies leaving the framework of the National Bitumi nous Wage Agreement. This case is far outside the bounds of retroactivity permissible under our law.

Id. at ___, 118 S.Ct. at 2159 (citation omitted) (K ennedy, J., concurring in judgment and dissenting in part).

Thus, analysis of the decisions in Eastern Enterpri ses leads us to the conclusion that a majority of the C ourt would find the Act unconstitutional when applied to an

18employer that did not agree to the 1974 or subseque nt

NBCWAs, while application of the Act to a signatory to the 1974 or a subsequent wage agreement would be an ent irely

different matter.

We believe the fact that Anker was a signatory to"m e too" agreements from the 1970s until 1984 factually distinguishes Anker's situation from that of Easter n Enterprises and compels a finding that the Act is constitutional in this instance.4 This was, in fact , the Court of Appeals for the District of Columbia Circuit's r easoning in Association of Bituminous Contractors, 156 F.3d 1246, in upholding the application of the Act to operators s imilarly situated to plaintiffs here. Faced with signatory o perators of the 1974 and subsequent agreements by incorporation by reference in related agreements, the court noted th at "the crucial fact upon which the Eastern Enterprises plu rality and Justice Kennedy relied in concluding that Easte rn's Coal Act liability was disproportionate to its past conduct and thus unfairly retroactive--namely, Eastern's de parture from the coal industry in 1965--is absent in this c ase." Id. at 1256. The court continued: "The clear implicatio n of each opinion in Eastern Enterprises is that employe r participation in the 1974 and 1978 agreements repre sents a sufficient amount of past conduct to justify the retroactive imposition of Coal Act liability (for t he dissenting justices, of course, such participation is not even necessary)." Id. at 1257. See also Unity Real Estat e, 1999 WL 167765, at *29 (Aldisert, J., concurring) ("The decisive material facts in Eastern Enterprises are that the company

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4. The difference between a member of the BCOA and a "me too" signatory to a NBCWA is of no consequence to this c ase despite Anker's contrary assertions. See, e.g., Connors v. Link Coa l Co., 970 F.2d 902, 903 (D.C. Cir. 1992) (" `Me too' agreements have te rms identical to the terms of the national agreement, and thus there is no distinction among them concerning employers' contractual rights and o bligations."); Arizona Laborers, Teamster and Cement Masons Trust Fund v. Conquer Cartage Co., 753 F.2d 1512, 1518 (9th Cir. 1985) (defining a "me too" agreement as an agreement by which a smaller employer can obt ain all the benefits of the master collective bargaining agreement witho ut joining the industry association and incurring the costs of par ticipating in industry negotiations or negotiating independently with the union).

19(1) left the coal industry in 1965 and (2) was neve r a party

to the 1974 and later Wage Agreements that first su ggested

the commitment to lifetime benefits for retirees an d family members."). Thus, it appears that this case falls o utside the specific holding of Eastern Enterprises, and we the refore find the Coal Act's application to Anker constituti onal.

However, our opinion in Unity Real Estate directs u s to apply an additional level of due process analysis d esigned to measure "the extent of the gap between the coal companies' contractual promises to the Funds and th e requirements of the Coal Act." Id. at *10. We noted there that the proper standard of review for a due proces s analysis is whether Congress's action was arbitrary or irrational. Id. We concluded that Congress's determ ination that the coal industry acted in a way that created the miners' reasonable expectation of lifetime benefits , and that its finding that the coal companies were the most responsible parties for the deterioration of the Be nefit Plans were "reasonable evaluations of the problem." Id. a t *20.

We then held that the Act's retroactivity did not r ender it irrational in violation of due process. Id. We reco gnized that the "heart of retroactivity analysis is an evaluati on of the extent of the burden imposed by a retroactive law i n relation to the burdened parties' prior acts" and a nnounced that "[w]here Congress acts reasonably to redress a n injury caused or to enforce an expectation created by a pa rty, it can do so retroactively." Id. at *20-*21.

In the first step of a retroactivity analysis, we m easured the length of time of the retroactivity from the da te the coal company's contractual obligations ceased to the pas sing of the Act, and held that Unity Real Estate's 11 years was not so extensive as to violate Justice Kennedy's standa rd, although we admitted that it was a "close case." Id . at *21. We, however, recognized that the burden the Coal Ac t imposes upon parties assessed liability is substant ial. Id. at *22. Finally, turning to the proportionality issue, we found that the Coal Act imposes a burden justified by bot h the industry's conduct that created reasonable expectat ions of lifetime benefits -- creating a benefit fund legall y obligated to pay out more funds than the operators were requi red to provide -- and conduct that created the problem of under

20funding -- the same initial flaws in the funding me chanism

compounded by the mass exodus of operators from the industry to avoid making further contributions to t he funds. Id. at *25. This analysis led us to conclude that the

Coal Act did not violate the Due Process Clause bec ause Congress was entitled to redress the problems cause d by "the companies' actions, through the BCOA through w hich negotiations with the unions were conducted, [which ] created reasonable expectations about benefits and established a funding structure vulnerable to `dump ing' retirees when companies left the industry." Id.

Applying Unity Real Estate's retroactivity analysis compels us to reach a similar conclusion here. The length of time since King Knob last agreed in a "me too" c ontract to abide by an NBCWA was eight years, and the lengt h of time since King Knob agreed to an NBCWA in a contra ct with Consol was 11 years before Congress passed the Coal Act. We found 11 years to be acceptable, although a "close case," in Unity Real Estate. Id. at *21. Moreover, our proportionality analysis in Unity Real Estate appli es full force here because King Knob was a signatory to the 1978 and subsequent NBCWAs, and thus bears the same responsibility as the plaintiffs in Unity Real Esta te for creating the reasonable expectations and the proble m of under-funding that the Coal Act redresses. Id. at *25.

While some language in Unity Real Estate suggests t hat we rested our holding on the operators' membership in the BCOA which had negotiated the agreements that creat ed the miners' expectation of benefits, id. at *16-*18 , we will not read this language to allow "me too" signatures to avoid the application of the Act. King Knob agreed to abi de by those same NBCWAs that the plaintiffs in Unity Real Estate negotiated.5 Similarly, Anker's argument that its l iability fails Unity Real Estate's proportionality test sinc e King Knob was "never" responsible for contributing to th e benefit

funds misses the mark. Anker fails to realize that while Consol may have agreed to assume King Knob's paymen ts to the benefit funds in its contract-mining agreeme nts

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5. One of the plaintiffs in Unity Real Estate, was a "me too" signatory to the 1984 NBCWA after dropping out of the BCOA. Id. at *4.

21spanning 1967 to 1982, King Knob, as a "me too" sig natory

to the NBCWAs was responsible in the first instance for the provision of these payments. King Knob's ability to have Consol assume this obligation is simply irrelevent to the fact that by agreeing to the NBCWAs King Knob was a party to the agreements that created the miners' expectat ion of lifetime benefits. King Knob benefitted as much as Consol from having the NBCWAs as those agreements kept a consistent work force in place in part by promising the provision of health and death benefits for the rest of the

miners' lives.

Overall, inasmuch as nothing germane to our holding in Unity Real Estate distinguishes Anker from the plai ntiffs in Unity Real Estate, application of that case's due p rocess analysis leads us once again to conclude that the A ct does not violate constitutional norms, this time as appl ied to the Anker. Thus, we find the Act constitutional as appl ied to

Anker because of the factual distinction that makes Eastern Enterprises inapplicable, and because the case fall s squarely under our analysis and holding in Unity Re al

Estate.

C. The Commissioner's Assignment of Beneficiaries t o Anker

In reviewing the Commissioner's decision to assign beneficiaries to Anker, we decide whether her actio n was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. S 706(2)(A). The Commissioner rejected Anker's arguments that Consol was the entity responsible for providing the miners' be nefits. Anker had argued to the Social Security Administrat ion

that assignments made [because of Anker's af filiation with King Knob] should be reassigned to Cons olidation Coal Co. because King Knob operated as an independent contractor mining lands owned or leased by Consol with no ownership rights in the mi nerals; that amounts paid by Consol to the UMWA plan s were not deducted or credited against the amounts paid to King Knob for the mined coal; that upon term ination of the agreement in 1982 Consol accepted respon sibility for current and subsequent payments to the U MWA

22Welfare and Retirement Fund or any successor fund

based on hours worked prior to the summer of 1982; [and] that for miners employed by King Knob after 1982, responsibility should be pro-rated. .

. .

App. at 33. The Commissioner instead determined tha t

Under the Coal Act, ownership of a mine is i mmaterial to assignment decisions. Assignments are mad e solely on the basis of the signatory employer who e mployed the eligible retiree. In the case involving King Knob, an affiliate of Anker Energy, the signatory tha t employed the retirees was King Knob, not Consol. Also , for Coal Act purposes, SSA is not bound by any privat e agreements made between companies, nor does the Coal Act allow for pro-ration of premium pay ments between companies. In light of the foregoing , no assignments that were made to Anker on the b asis of its relationship to King Knob Coal can be re assigned to

Consol.

App. at 33. We will affirm the district court's gra nt of judgment on the pleadings on Count One upholding th e Commissioner's assignment of beneficiaries to Anker

, because we find that her decision was not "arbitrar y, capricious, an abuse of discretion, or otherwise no t in accordance with law." 5 U.S.C. S 706(2)(A).

Anker contends that King Knob was merely the "nomin al" employer of the miners, while Consol was a signator y operator in its own right under the Act that had re ceived

"the entire economic benefit which those miners cre ated," and was "the entity which had responsibility for al l payments required to be made to the UMWA Benefit Funds." Appellants' Brief at 26. We find these cont entions

to be without merit.

The Coal Act directs the Commissioner to assign eac h eligible beneficiary to a "signatory operator" who employed the beneficiary. 26 U.S.C. S 9706(a). Section 9706( a) also attempts to ensure that the specific assignment of a beneficiary is to the most recent and significant e mployer still in business. The Act defines a "signatory ope rator" as "a person which is or was a signatory to a coal wag e agreement." 26 U.S.C. S 9701(c)(1). The term "coal wage

23agreement" includes "the National Bituminous Coal W age

Agreement," as well as "any other agreement entered into between an employer in the coal industry and the Un ited Mine Workers of America that required . . . the pro vision of health benefits to retirees of such employer . . . or contributions to the 1950 UMWA Benefit Plan or the 1974 UMWA Benefit Plan, or any predecessor thereof." 26 U.S.C. S 9701(b)(1). Finally, the Act provides that "emplo yment of a coal industry retiree in the coal industry by a s ignatory operator shall be treated as employment by any rela ted persons to such operator." 26 U.S.C. S 9706(b)(1)(A ).

Applying these terms here, we uphold the Commissioner's conclusion that Anker is a related p erson to King Knob who was responsible for the provision of health benefits to the 1950 or 1974 Plans. First, K ing Knob was clearly a signatory operator under the Act. Ank er admits that King Knob was a "me too" signatory to t he 1974, 1978, 1981 and 1984 NBCWAs. App. at 8. Althou gh it did not negotiate these agreements, as a "me too " signatory King Knob agreed to each of these NBCWAs, and agreed to contribute to the benefit funds. As such, King

Knob falls under the Act. 26 U.S.C. S 9701.

Moreover, Anker does not contest the Commissioner's determination that it is a "related person" to King Knob under the Act, and we find that King Knob was witho ut question the miners' employer. See Appellants' Brie f at 26. Anker's pleadings and the record reveal as much. As an independent contractor, King Knob agreed in its con tracts
with Consol that

all parties working for it in connection wit h the undertaking covered by this Agreement shall be its employees subject only to its orders and sup ervision. . . . Neither Consol nor any of its agents, servants or employees shall have the right to direct, su pervise or

control the manner or method in which the wo rk is to be performed.

App. at 66. Anker confuses the matter by stating th at King Knob was only the miners' "nominal" employer, and t hat

Consol had received the entire "economic benefit" f rom the

miners' efforts. The Act does not mention the term

24"nominal" employer, nor does the term have any

independent meaning in the context here. Likewise, the Act does not assess premiums based upon who received th e "economic benefit" of the miners' work. Moreover, w e do not accept the accuracy of Anker's denial that King Kno b benefitted economically from its employees' mining efforts. After all, Consol was paying King Knob for its serv ices.

Furthermore, we find Anker's argument unpersuasive that King Knob was not the correct signatory employ er because it never had made contributions to the bene fit fund inasmuch as Consol always paid King Knob's premiums according to their mining agreements. As a "me too" signatory to the 1974, 1978, 1981 and 1984 NBCWAs, King Knob was responsible for making payments for its employees to the benefit funds. Even though Consol apparently relieved King Knob of this responsibilit y by making all of its payments to the funds, such a con tractual agreement does not lead us to conclude that King Kn ob was not a signatory operator responsible for making pay ments to the funds. Thus, we cannot say that the Commissi oner's assignment of beneficiaries to Anker is "arbitrary, capricious, an abuse of discretion, or otherwise no t in accordance with law." 5 U.S.C. S 706(2)(A).

D. Contract for Reimbursement

In granting Consol's motion for judgment on the pleadings on Count Two the district court relied up on contract and statutory interpretation in holding th at Consol is not liable to reimburse Anker for payments made to the Combined Fund for the eligible retirees who worked for King Knob pursuant to its mining contracts with Con sol. First, the court held that the language in the sett lement agreement6 was clear and unambiguous. Anker I at 22

.

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6. Once again, the pertinent portion of the settlem ent agreement states:

(b) Consol shall promptly reimburse King Kn ob for all subsequent payments due to the UMWA Fund or any success or fund attributable to (i) tonnage of coal produced under the Contracts, (ii) hours worked at the mine operated under the Robinson Run Contract on or before August 31, 1982, and ( iii) hours worked at

the mines operated under the Booth Contract on o r before June 30,

1982.

App. at 17, 97.

25Next, the court determined that inasmuch as the con tract

provides for reimbursement "attributable to" either the tonnage of coal produced or the hours miners worked for King Knob under the contracts with Consol, King Kno b was entitled to reimbursement only if the premiums Anke r paid

to the Combined Fund were "attributable to" either factor. Id. Because the Coal Act funds health benefits, acc ording to the district court, "by the imposition of what is, in essence, a tax," it held that Consol was not obligated to re imburse Anker for its payments. Id. at 23. The court also h eld that even if Consol was contractually responsible for reimbursing Anker, Anker still could not maintain i ts action against Consol because the Coal Act "abrogated pre- act contracts reallocating mining companies' obligation s to preAct benefit plans." Id. at 24 n.17. We will reverse the district court's order granting judgment on the ple adings in

favor of Consol on Count Two for reimbursement beca use we reject the district court's conclusions with res pect to the

count.

1. Contractual liability

Anker urges us to reverse based upon the district c ourt's refusal to consider extrinsic evidence in light of its holding the contractual language clear and unambiguous. Appellants' Brief at 28. Under Pennsylvania law, wh ich is applicable here, a court can consider parol evidenc e only if the contractual language is ambiguous. See Alleghen y Int'l, Inc. v. Allegheny Ludlum Steel Corp., 40 F.3d 1416, 1427-28 (3d Cir. 1994); Langer v. Monarch Life Ins. Co., 87 9 F.2d 78, 81 n.8 (3d Cir. 1989).

We hold that the district court erred in deciding t hat paragraph 4(b) of the settlement agreement is clear and unambiguous. The provision states that Consol will reimburse King Knob for "all subsequent payments" d ue to the then-current "UMWA Fund" or "any successor fund ." These payments must be "attributable to" either ton nage of

coal or hours worked under the contracts. Inasmuch as the Coal Act does not assign liability based upon the a mount of coal mined or hours worked by miners, the court gra nted Consol's motion for judgment on the pleadings.

26In so doing, the court failed to acknowledge that " tonnage

of coal" and "hours worked" were the methods used t o determine an employer's premiums for the 1950 and 1 974 Funds. By placing this language in the agreement, t he parties could have been agreeing, as Anker contends , that Consol would be responsible for any payments owed t o these Funds or any successor fund arising from the work performed pursuant to the mining contracts. The dis trict court, then, failed to read the mention of "tonnage of coal" and "hours worked" consistently with industry usage

.

In fact, reading the provision to bind Consol to re imburse King Knob for any future benefit payments related t o the work completed under the contracts would be consist ent with the parties' inclusion of the term "successor fund" in the agreement. As Anker pointed out in its brief, i nasmuch

as there was no "successor fund" to the UMWA Fund a t the time of the settlement agreement, inclusion of this term signifies that the parties were contemplating possi ble responsibility for payment of future benefits to a future fund. Appellants' Brief at 33. Otherwise, inclusion of this language in the contract makes no sense.

The district court also incorrectly interpreted the contract
to bar reimbursement because the Coal Act does not assess premiums based upon the tonnage of coal and hours worked. While the Coal Act does not determine speci fically the premiums due based upon coal tonnage and hours worked, the Act is concerned with operators who had

contributed to the 1950 and 1974 Plans which were f unded based on coal tonnage and hours worked. The Combine d Fund, by its very terms, is a successor plan, born on February 1, 1993, when the Act mandated that "the s ettlors

of the 1950 UMWA Benefit Plan and the 1974 UMWA Benefit Plan shall cause such plans to be merged in to the Combined Fund. . . ." 26 U.S.C. S 9702(a)(2). By concentrating on the method of funding and ignoring the industry significance of coal tonnage and hours wor ked, the district court incorrectly held that, as a matter o f law, Consol was not liable to Anker for payments made fo r King Knob's employees under its contracts with Consol. W hile we do not take a position as to Anker's ultimate succe ss in proving that Consol is in fact liable to it for the premiums

27for the miners assigned to it under the Act, we con clude

that the district court's disposing of the issue on the pleadings was premature, and that further proceedin gs with respect to it are necessary.7

2. Abrogation of contractual agreements

The district court followed the decision of a divid ed panel of the Court of Appeals for the Fourth Circuit in C arbon Fuel Co. v. USX Corp., 100 F.3d 1124 (4th Cir. 1996 ), when it held that the Coal Act abrogates private contrac ts for

indemnification or reimbursement. Anker I at 24 n.1 7. However, considering the Supreme Court's statements in Eastern Enterprises concerning the language of the Act, we will not follow Carbon Fuel. Instead, we hold that the Coal Act does not prohibit indemnification or reimbursem ent pursuant to previous contractual arrangements.

The Eastern Enterprises plurality stated that "the Act preserves Eastern's right to pursue indemnification ," although it does not grant any new rights, includin g a right to reimbursement. 524 U.S. at ___, 118 S.Ct. at 215 0. The Court was referring to 26 U.S.C. S 9706(f)(6) which states: "Nothing in this section shall preclude the right o f any person to bring a separate civil action against ano ther person for responsibility for assigned premiums, notwithstanding any prior decision by the Commissio ner."

In so stating, the Supreme Court (implicitly) disag reed with Carbon Fuel, 100 F.3d 1124, where the court of appeals interpreted the Act to prohibit suits for indemnification or reimbursement based upon prior p rivate contracts. Id. at 1133. The court of appeals relied on section 9708, which states that "[a]ll liability fo r contributions to the Combined Fund that arises on o r after February 1, 1993, shall be determined exclusively u nder this chapter. . . ." The court also found persuasiv e excerpts from the legislative history stating that Congress "expressly

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7. Consol points out that King Knob retained certai n employees after its agreements with it were terminated. At this time we do not deal with the significance of this fact which was not material to the district court's disposition of the reimbursement claim. Of course, paragraph 4(b) of the settlement agreement has temporal limits.

28intended to `reach back' and impose obligations on

signatories to the NBCWAs notwithstanding that many companies had `bargained out of their funding obligations.' " Carbon Fuel, 100 F.3d at 1129 (quot ing 138 Cong. Rec. S17566-01, S17603). Despite the fact tha t no language in the Act limits the scope of section 970 6(f)(6), the court of appeals interpreted its preservation o f private actions to apply only to "post-Act private agreemen ts and

contracts." Id. at 1134.

We cannot accept this reasoning. As the concurrence in Carbon Fuel pointed out, section 9708's statement t hat all liability will be determined under the Act does not abrogate a private party's liability to another private part y for indemnification. Id. at 1140 (Williams, J., concurr ing in judgment). Instead, this provision provides that"[a ]n operator assigned Coal Act liability by the Commiss ioner is primarily liable and must pay into the Combined Fun d, regardless of the operator's private, pre-Act contr actual rights." Id. Section 9706(f)(6), then, does not pro vide for the reassignment of primary liability for a signatory o perator, but instead "preserves the right of private civil a ction for determining responsibility for assigned premiums as between contracting parties." Id. at 1141.

We agree with this reading of the Act.8 Section 97 06(f)(6) explicitly preserves a person's right "to bring a s eparate civil action against another person for responsibility fo r assigned premiums. . . ." This provision does not limit itse lf to postAct contracts, and without an explicit congressiona l statement otherwise, we will not construe the Act t o contravene the seemingly unambiguous Congressional desire to allow for private actions between parties for

reimbursement or indemnification.

Moreover, we believe that our reading of the Act is , in fact, consistent with the legislative history upon which the majority in Carbon Fuel relies. While Congress no d oubt wanted to "reach back" and ensure that companies co uld

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8. Even if our reading of section 9706(f)(6) is inc orrect, we believe that

we would need a clearer expression of Congress's inten t for us to agree with Carbon Fuel that the Coal Act abrogates an entire c lass of private

contracts.

29not contract out of their obligations to the Funds, the Coal

Act solves this problem by making the signatory com panies responsible in the first instance for premiums. Onc e the Commissioner correctly assigns retirees to an opera tor, liability to the Funds is guaranteed. Allowing for indemnification between private parties if a previo us contractual agreement so provides in no way frustra tes this goal. Indeed, it may further the goal by providing for an additional entity to be liable, albeit on a contrac tual basis, for the payments due the Fund.

We believe the correct reading of congressional int ent is that Congress desired the Act to be remedial -- tha t Congress wanted to ensure that miners would receive the benefits the industry promised and placed liability on the parties responsible for creating the problem in the first place. Whether these parties had contracted with ot her private organizations for indemnification in case o f future liability is irrelevant. In fact, allowing for inde mnification could provide for more complete funding inasmuch as small independent contractors such as King Knob are proba bly more likely to have gone out of business or to have insufficient funds to pay the sometimes substantial premiums than companies similar to Consol that owne d

and leased the mines.

Thus, we will reverse the district court's order gr anting Consol's motion for judgment on the pleadings on Co unt
Two for indemnification and remand the count to the district court for further proceedings. The court e rroneously found the contractual language clear and unambiguou s, and erroneously interpreted the Coal Act to prohibi t suits for indemnification or reimbursement based upon pri or contractual arrangements.

E. Interest, liquidated damages, attorney's fees an d

costs

Finally, Anker contests the district court's assess ment of interest, liquidated damages, fees and costs for it s failure to provide the premiums timely by arguing that the Act does not provide for the assessment of these costs. Appe llants' Brief at 38. We, however, will affirm the district court's judgment against Anker for these amounts. Anker mis reads

30the Coal Act, as it incorporates the assessment of

liquidated damages and fees available in ERISA. See Holland v. Keenan Trucking Co., 102 F.3d 736, 739 ( 4th Cir. 1996) (affirming without comment the district court's order awarding liquidated damages, interest, fees a nd costs under the Coal Act); Holland v. Robert Coal Co., 98 6 F. Supp. 621, 633 (D.D.C. 1997) (granting Combined Fun d's motion for summary judgment assessing liquidated damages, interest, fees and costs), aff'd, 1998 WL 794832 (D.C. Cir. Oct. 16, 1998); Holland v. High-Tech Col lieries, Inc., 911 F. Supp. 1021, 1031-32 (N.D.W. Va. 1996) (same); Holland v. Double G Coal Co., 898 F. Supp. 351, 356 (S.D.W. Va. 1995) (same).

Section 9721 of the Coal Act states that "[t]he pro visions of section 4301 of [ERISA] shall apply to any claim arising out of an obligation to pay any amount required to be paid by [the Coal Act] in the same manner as any claim a rising out of an obligation to pay withdrawal liability un der [ERISA]." 26 U.S.C. S 9721. Section 4301(b) of ERIS A provides that the failure of an employer to make a timely withdrawal liability payment should be treated in t he same manner as delinquent contributions. 29 U.S.C. S 145 1(b). Finally, section 502 of ERISA requires a district c ourt to award interest, liquidated damages, and reasonable attorneys' fees and costs when a plan successfully enforces a demand for delinquent payments. 29 U.S.C. S 1132( g)(2).9

Applying this statutory scheme to Anker, the distri ct court correctly determined that Anker had not made contributions, and thus ERISA's enforcement provisi ons concerning delinquent contributions mandated the assessment of the proper fees. Anker III at 10. We find this decision clearly correct and uphold the judgment ag ainst

Anker.10

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9. We have held that interest, liquidated damages, fees and costs are mandatory charges in withdrawal liability cases und er ERISA. See United Retail & Wholesale Employees Teamsters Union Local No. 115 Pension Plan v. Yahn & McDonnell, Inc., 787 F.2d 128, 134-3 5 (3d Cir. 1986); see also Huber v. Casablanca Indus., Inc., 916 F.2d 85, 191 n.34 (3d Cir. 1990).

10. As the district court noted, Anker's reliance o n Laborers Health and Welfare Trust Fund for N. Cal. v. Advanced Lightwei ght Concrete Co., 484 U.S. 539, 108 S.Ct. 830 (1988), is sorely misplaced in light of the fact that, unlike the NLRA which was involved there, the Coal Act specifically incorporates ERISA's enforcement provisions. Anker III at 9-10.

31IV. CONCLUSION

For the foregoing reasons, we will affirm the distr ict court's order granting judgment on the pleadings on

Anker's claim on Count One that the Commissioner's assignment was erroneous, and will affirm the distr ict court's order granting summary judgment on the constitutionality of the Act as applied to Anker an d King Knob on Count Three as well as its award of liquida ted damages, interest, fees and costs on the countercla im. However, we will reverse the district court's order granting judgment on the pleadings on Anker's contractual cl aim for

reimbursement on Count Two and will remand the case to the district court for further proceedings on that count consistent with this opinion. The parties will bear their own costs on this appeal.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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