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D ock e t 97-3234,97-3236

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### R e c omme nde d C it a t ion

" U nit y R e al Es t a t e C o v

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Filed March 29, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 97-3234 and 97-3236

UNITY REAL ESTATE COMPANY, Appellant No. 97-3234

v.

MARTY D. HUDSON; MICHAEL H. HOLLAND; THOMAS O. S. RAND; ELLIOTT A. SEGAL; CARLTON R. SICKLES; GAIL R. WILENSKY; WILLIAM P. HOPGOOD; TRUSTEES

OF THE UNITED MINE WORKERS OF AMERICA COMBINED BENEFIT FUND; THOMAS F. CONNORS; ROBERTS WALLACE; TRUSTEES OF THE 1992 UNITED
MINE WORKERS OF AMERICA BENEFIT PLAN; UNITED STATES OF AMERICA (Intervenor in District Court)

LTV Corporation (LTV), NACCO Industries, Inc. (NACCO); Amicus Curiae

BARNES AND TUCKER COMPANY, Appellant No. 97-3236

v.

MARTY D. HUDSON, Trustee of the United Mine Workers
of America Combined Benefit Fund and Trustee of the 1992 United Mine Workers of America Benefit Plan; MICHAEL H. HOLLAND, Trustee of the United Mine
Workers of America Combined Benefit Fund and Truste e of the 1992 United Mine Workers of America Benefit Plan; THOMAS O. S. RAND, Trustee of the United Mine Workers of America Combined Benefit Fund; ELLIOTT A

. SEGAL, Trustee of the United Mine Workers of Americ a Combined Benefit Fund; CARLTON R. SICKLES, Trustee
of the United Mine Workers of America Combined Bene fitFund; GAIL R. WILENSKY, Trustee of the United Mine

Workers of America Combined Benefit Fund; WILLIAM P

. HOPGOOD, Trustee of the United Mine Workers of America Combined Benefit Fund; THOMAS F. CONNORS,
Trustee of the 1992 United Mine Workers of America Benefit Plan; ROBERT G. WALLACE, Trustee of the 199 2 United Mine Workers of America Benefit Plan; UNITED STATES OF AMERICA (Intervenor in the District Court )

LTV Corporation (LTV), NACCO Industries, Inc. (NACCO); Amicus Curiae

On Appeal From the United States District Court For the Western District of Pennsylvania (D.C. Civ. No. 93-cv-01802) District Judge: Honorable D. Brooks Smith

Argued: November 20, 1998

Before: BECKER, Chief Judge, ALDISERT and WEIS, Circuit Judges.

(Filed March 29, 1999)

4. Conclusion

We have evaluated the Coal Act against our traditio nal standards of proportionality and distaste for retro activity, taking into account our deference to Congress on th e evils to be addressed by the law. Ultimately, although th e issue is close, we conclude that the Coal Act is targeted to address the problem of insufficient resources in th e benefit funds and that it puts the burden on those who, in Congress's reasonable judgment, should bear it. The law's retroactivity is troubling, yet given the nature of the commitments at issue and the relationship of Coal A ct liabilities to past acts in the industry, we cannot say that the Act violates due process.

IV. Categorical Takings

Unity and B&T also maintain that the Coal Act is an unconstitutional taking as applied to them. They as k us to

46apply a categorical takings approach because, they claim,

their businesses will be entirely destroyed if they have to pay benefits under the Act. In Eastern, the argumen t that the Coal Act would drive the plaintiff out of busin ess entirely was not presented to the Court, and so the plaintiffs argue that they retain a viable takings claim.

Five Justices, however, rejected the idea that a la w that imposed only a financial burden without identifying a particular property right could ever consitute a ta king. The fact that in a particular case a financial burden m ight consume all of a particular entity's assets would n ot seem to change Justice Kennedy's analysis: "The Coal Act neither targets a specific property interest nor depends up on any particular property for the operation of its statut ory mechanisms." Eastern, 118 S. Ct. at 2156 (Kennedy, J., concurring). Similarly, the dissent would require t he governmental identification of "a specific interest in physical or intellectual property" in order tofind a compensable taking. Id. at 2161 (Breyer, J., dissen ting). The reasoning of these five Justices was that any governmental regulation that costs a business money could become a taking if the plurality's standards prevai led, and that this would be an unacceptable result. See id. at 2155 (Kennedy, J., concurring); id. at 2162 (Breyer, J., dissenting). This reasoning is unaffected by the characterization of the burden as a "total" taking because it consumes all of a particular company's resources. Moreover, even the plurality gave no indication tha t it would extend the categorical takings approach outsi de the context of regulations of real property.

Because the Eastern Court was not confronted with t his situation, however, we must set forth our reasons f or rejecting it in greater detail. To date, the catego rical approach has only been used in real property cases such as Lucas v. South Carolina, 505 U.S. 1003 (1992). In t hose cases, the concept of "total destruction" of value refers not
to the owner's total assets but to some identifiabl e property interest. Indeed, even a multi-billionaire would be eligible for an award under a categorical takings approach i f some small, distinct parcel of his holdings were condemn ed or rendered worthless through regulation. Therefore, t he "total

47destruction" language of cases concerning real prop erty

should not be mechanically applied to the situation at bar. See Branch v. United States, 69 F.3d 1571, 1576-77 (Fed. Cir. 1995) ("Because of `the State's traditionally high degree of control of commercial dealings,' the principles of takings law that apply to real property do not apply in the same manner to statutes imposing monetary liability." (q uoting Lucas, 505 U.S. at 1027)).

The Supreme Court has repeatedly rejected the argum ent
that a tax--even a tax on a small set of businesses --may violate due process or constitute a taking simply b ecause it may force some of the regulated entities out of bus iness:

The claim that a particular tax is so unreas onably high and unduly burdensome as to deny due process is both familiar and recurring, but the Court h as consistently refused either to undertake the task of passing on the "reasonableness" of a tax tha t otherwise is within the power of Congress or of state legislative authorities, or to hold that a tax is uncons titutional because it renders a business unprofitable.

. . . . The premise that a tax is invalid i f so excessive as to bring about the destruction of a parti cular business, the Court said, had been "uniforml y rejected as furnishing no juridical ground for striki ng down a taxing act." [Magano Co. v. Hamilton, 292 U. S. 40,] 47 [(1934)]. Veazie Bank v. Fenno, 8 Wall. 533, 548, 19 L.Ed. 482 (1869); McCray v. United States, 1 95 U.S. 27, 24 S.Ct. 769, 49 L.Ed. 78 (1904); and Al aska Fish Salting & By-Products Co. v. Smith, 255 U.S. 44, 41 S.Ct. 219, 65 L.Ed. 489 (1921), are to the s ame effect.

In Alaska Fish, a tax on the manufacture of certain fish products was sustained, the Court sayin g, id., at 48-49, 41 S.Ct., at 220: "Even if the tax sh ould destroy
a business it would not be made invalid or r equire compensation upon that ground alone. Those w ho enter upon a business take that risk. . . ." See also International Harvester Co. v. Wisconsin Dep t. of Taxation, 322 U.S. 435, 444, 64 S.Ct. 1060, 1065, 88 L.Ed. 1373 (1944); Child Labor Tax Case, 259 U.S. 20, 30, 42 S.Ct. 449, 66 L.Ed. 817 (1922); Brush aber v.

48Union Pacific R. Co., 240 U.S. 1, 24, 36 S.C t. 236, 244,

60 L.Ed. 493 (1916); Flint v. Stone Tracy Co ., 220 U.S. 107, 168-169, 31 S.Ct. 342, 356, 55 L.Ed. 38 9 (1911).

City of Pittsburgh v. Alco Parking Corp., 417 U.S. 369, 373- 74 (1974). We note in this regard that we, along wi th other Courts of Appeals, have held that Coal Act obligati ons are taxes. See Lindsey Coal Mining Co. v. Chater, 90 F. 3d 688, 695 (3d Cir. 1996) (finding that the Act is "essent ially a tax to continue a benefits program").

The plaintiffs respond that these taxation cases al l concerned prospective, not retrospective, liability , but that argument conflates two separate issues. The size of the liability does not depend on whether or not the obl igation is retrospective. If the argument is that the complete consumption of a company's assets is a categorical taking, retroactivity would be irrelevant; if such a law wo uld only be a categorical taking when it was retroactive, th en we are not really discussing a "categorical" taking. We th ink that retroactivity, while crucial to our due process ana lysis, is not properly considered as a part of the categorica l takings analysis.

The Court of Appeals for the Federal Circuit has al so rejected the plaintiffs' argument, with reasoning w efind persuasive:

The constitutionality of the assessment shou ld not depend on the happenstance of the financial condition
of the assessed bank at the time of the asse ssment. We are unaware of any principle of takings law under which an imposition of liability is deemed a per se taking as to any party that cannot pay it. I t would be perverse to hold that a statute resulting in a $99 million liability would be constitutional as applied to any [entity] having a net worth of more than $100 million but unconstitutional per se as to an y member having a net worth of less than $100 million . The
assessment in both cases is based on the sam e theory of liability and should meet the same consti tutional

fate.

Branch v. United States, 69 F.3d at 1577. 15 Branch

___________________________________________________ ______________

15. The plaintiffs dispute the Branch court's reaso ning by citing to
Lucas,
in which the Court wrote:

49recognizes that general regulatory laws, unlike the

particularized applications of zoning regulations t hat are the typical targets of takings challenges, usually have the kind of general applicability that mutes the concer ns behind takings jurisprudence. The broader the reach of a law, the less likely it is that a powerless segment of society is being unfairly singled out to bear a burden that society

as a whole should bear.16

As the concurrence and the dissent in Eastern sugge st, considerable practical problems would arise were we to find plaintiffs' categorical takings claim cognizable. F or example, we would have to decide at what point we could just ify granting relief on these grounds. Unity will go out of business as soon as it is ordered to pay. B&T, by c ontrast, will apparently go under in two years, when its lia bilities
under the Act consume the last of its reserves. Sho uld we wait until B&T is in the same position as Unity? Wo uld being a year away from bankruptcy be enough? Should

___________________________________________________ ______________

It is true that at least in some cases the l andowner with 95% loss will get nothing, while the landowner with t otal loss will recover

in
full. But that occasional result is no more strange than the gross disparity between the landowner whose premis es are taken for a highway (who recovers in full) and the lando wner whose property is reduced to 5% of its former value by the hig hway (who recovers nothing). Takings law is full of these "all- or-nothing" situations.

Lucas, 505 U.S. at 1019 n.8. However, Lucas is inap posite. In Lucas, there was a strip of affected beachfront land; that land was reduced to zero value by regulation; that was a taking. The Co urt did not inquire into whether the landowners had enough other resour ces to survive the reduction in value, because that was not relevant t o the test. All that was necessary was to look at the value of the affec ted land. Under the plaintiffs' interpretation, the Court should have e xamined Mr. Lucas's financial condition before and after the regulation at issue, and there would not have been a categorical taking if Mr. Luc as remained in the black. This suggests the difficulties with a taking s analysis that is unanchored to a specific property interest.

16. Breadth of application has its own dangers, how ever, and one of those dangers is that a law will have irrationally large effects on regulated businesses. Our substantive due process j urisprudence has developed to address this situation, as we discuss supra in Section III.

50B&T be required to show that there is no potential" white

knight" that might rescue it from destruction? Alte rnatively, we might reduce B&T's obligations instead of elimin ating them entirely so that it could limp along, never sh owing a profit but never going under. That would arguably b e an appropriate, constitutional remedy for the threaten ed harm, the way that transferable use credits can mitigate what would otherwise be a taking when zoning restriction s are at issue. See Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). If it is the total destruction of the business that converts the Act into a taking, then perhaps we should simply declare that part of the obligatio n that will drive B&T out of business a taking and approve the rest. Yet this would only plunge courts further int o the
intricacies of business finance.

Deciding for Unity and B&T because they will be for ced into bankruptcy by the Coal Act would open up a Pan dora's Box that would throw into question every economic regulation imaginable. Companies could adjust their accounting practices to prove that any particular r egulation would be enough to destroy them as profitable enter prises. The problem would be compounded if, as counsel for plaintiffs suggested at oral argument, we should ev aluate the financial status of an entity without looking a t its corporate relatives for takings purposes. A corpora tion subject to expensive regulation at some of its prod uction facilities could create a series of subsidiaries, e ach of which would be insolvent on its own if forced to comply w ith a particular set of regulations, and claim constituti onal protection against enforcement of the regulations, even though a different corporate configuration would re main

solvent.17

___________________________________________________ ______________

17. A supporting in terrorem argument is not diffic ult to devise. For example, an employer could resist an increase in th e minimum wage on the ground that the increased cost would drive it o ut of business. Similarly, many small-business owners find that ant i-discrimination laws generate significant expenses, and some might be fo rced out of business by compliance costs. See Mike Hudson, Jobs for Disa bled People: Handicapping Businesses, Roanoke Times & World News , July 30, 1995, at F1. While such concerns might very well prove ov erstated in most cases, courts would be forced into the dismal busin ess of economic

51A decision on these grounds would also open the doo r to

plaintiffs attempting to choose government regulati ons from which they wanted to be excused. It is notable that B&T repeatedly discusses its other expensive government imposed obligations, which involve cleaning up poll uted coal mines and paying out black lung benefits. The Coal Act alone, according to B&T's submissions, would not necessarily put B&T out of business; it is only bec ause the environmental and black lung obligations are so lar ge that this additional expense overwhelms B&T. There is no thing in B&T's constitutional argument about "total takin gs" that distinguishes its other obligations from those impo sed by the Coal Act, nor is there a conceptual reason to c onfine this definition of total takings to retroactive law s.

We decline to enter into the conceptual morass that would be engendered by the plaintiffs' total taking s theory. That a regulation will put a particular plaintiff o ut of business cannot be proof that a taking has occurred

. Instead, the size of the deprivation inflicted by a law must
be evaluated in the context of the other relevant f acts. In Connolly, the Court noted that the MPPAA "completel y deprives an employer of whatever amount of money it is obligated to pay to fulfill its statutory liability ." Connolly,
475 U.S. at 225. But this did not lead to the concl usion that there had been a taking because "[t]here is no thing to show that the withdrawal liability actually imposed on an employer will always be out of proportion to its ex perience with the plan, and the mere fact that the employer must pay money to comply with the Act is but a necessary consequence of the MPPAA's regulatory scheme." Id. at 226.

We do not gainsay that the liability imposed on Uni ty in particular is troubling. Unity's assets are tiny, a nd its Coal Act liabilities dwarf them. If we uphold the defend ants'

___________________________________________________ ______________

prediction. Every economic regulation would have to be litigated on a case-by-case basis. See Sheila A. Moloney, The Lady in Red Tape, Policy Review, Sept./Oct. 1996, at 48 (discussing various regulations that threaten the financial viability of specific busine sses, including OSHA safety regulations, FTC franchising rules, ADA acce ssibility requirements, Endangered Species Act development re strictions, and EPA Superfund clean-up costs).

52position, this small family business will be bankru pted

instantly. But the size of a liability only weighs in favor of finding a taking insofar as it is out of proportion to the legitimate obligations society may impose on indivi dual entities. And, as we have discussed in Part III, we find the proportionality test satisfied in this instance.

V. Conclusion

We hold that Congress could reasonably determine th at the plaintiffs, along with other coal operatiors in similar situations, placed the coal industry retiree benefi t funds in jeopardy after creating an expectation of lifetime benefits. Moreover, the actions that created the need for the Coal Act are not so far in the past as to make it fundamenta lly unjust to impose liability upon the plaintiffs, bec ause the burden is proportional to their contribution to the problem and the retroactivity is not too extensive. We do n ot deny that Unity, in particular, presents a sympathetic c ase. This family business has slowly decreased in size as the economic changes of the past decades have buffeted it. Yet small businesses, even businesses that have suffere d from the eroding pressures of time and economic change, cannot be immune from reasonable government regulation sim ply because that regulation has harsh effects. The Coal Act may not be an ideal law; it may not even be a wise one. But its wisdom, or lack thereof, in a particular case d oes not determine its constitutionality.

For the foregoing reasons, the judgment of the Dist rict
Court will be affirmed.

53ALDISERT, Circuit Judge, concurring:

I agree with the majority's determination that the 1992 Coal Industry Retiree Health Benefit Act, 26 U.S.C. SS 9701-9722 (1994 and Supp II) ("Coal Act"), as ap plied to Unity Real Estate Company and Barnes and Tucker Company does not violate substantive due process an d is not an unconstitutional taking. I agree also that t he retroactive scope of the Act is not beyond appropri ate legislative power.

Although Appellants vigorously contend that their c ases are analogous to Eastern Enterprises v. Apfel, 118 S. Ct. 2131 (1998), their analogical argument fails becaus e the
decisive material facts of the cases bear no simila rity. The decisive material facts in Eastern Enterprises are that the company (1) left the coal industry in 1965 and (2) was never a party to the 1974 and later Wage Agreements that first suggested the commitment to lifetime benefits for retirees and family members. See Eastern Enterprise s, 118 S. Ct. at 2150 (plurality opinion). Unlike the form er coal operator in Eastern Enterprises, Appellants remaine d in the coal industry until 1981 and 1984 respectively, and participated in negotiations for the 1974 and later Wage Agreements. As emphasized in Eastern Enterprises, " It is the 1974, 1978 and subsequent agreements that first suggest an industry commitment to the funding of li fetime health benefits for both retirees and their family members." Id. Appellants' act of signing the 1974 and subsequ ent National Bituminous Coal Wage Agreements (NBCWA or "Wage Agreement") precludes the rote application of Eastern Enterprises to these cases.

I.

On the due process question of "promises" and "representations" made to the miners, I would susta in the constitutionality of the Act as applied to the Appe llants for one reason only: The evidence before Congress provi ded a rational basis to believe that a promise of lifetim e benefits had been made. Congress relied on the Coal Commissi on Report, its appendices and the Commissioners' testi mony at the Senate hearing. For example, the Coal Commissio n Report stated:

54The Commission firmly believes that retired miners are

entitled to the health care benefits that we re promised and guaranteed them and that such commitment s must be honored. . . .

Retired coal miners have legitimate expectat ions of health care benefits for life; that was the promise they received during their working lives and that is how they planned their retirement years. That co mmitment

should be honored.

See Supp. App. at 350, 360 (Secretary of Labor's Ad visory
Commission on United Mine Workers of America Retire e Health Benefits, Coal Commission Report (1990)). Th ese were important findings that were accepted by Congr ess.

Whether the Commission Report accurately portrayed the state of affairs in the coal mining industry at the time the 1974 Wage Agreement was negotiated and signed is la rgely irrelevant to what should be our analysis of the Co al Act's constitutionality. In considering the question of w ho promised what to whom, I do not believe that it is appropriate for any reviewing court to review de no vo the history of the agreements or to parse their languag e.

I say this because, to paraphrase Holmes, "That's n ot our job."1 Once we get beyond that portion of the Due P rocess or Takings Clause analysis relating to the Coal Act 's financial effect on the Appellants, we must address whether there was deprivation of property without due proce ss of law on the theory that the Appellants never promise d any benefits beyond the lifetime of the Wage Agreements . Our job is not to examine the materials and to make an independent determination of this issue, a sort of ersatz fact-finding by either a federal trial or appellate court.

___________________________________________________ ______________

1. Learned Hand once reminisced: "I remember once I was with [Holmes]; it was a Saturday when the Court was to confer. It was before we had a motor car, and we jogged along in an old coup). W hen we got to the Capitol, I wanted to provoke a response, so as he w alked off, I said to him: `Well, sir, goodbye. Do justice!' . . . He rep lied: `That is not my job. My job is to play the game according to the rules.' " Learned Hand, Continuing Legal Education for Professional Compete nce and Responsibility, Report on the Arden House Conferenc e, at 116-123 (1958).

55On this issue, as I see it, our job is merely to de termine

whether substantial evidence was presented before Congress on this issue. And I conclude that there w as. The Coal Commission Report and other testimony before t he Senate Committee informed Congress that "[r]etired coal miners have legitimate expectations of health care benefits for life; that was the promise they received during their working lives and that is how they planned their re tirement years. That commitment should be honored." Supp. Ap p. at 360 (Secretary of Labor's Advisory Commission on Un ited Mine Workers of America Retiree Health Benefits, Co al Commission Report (1990)). This determination serve s as the rational basis for the legislation.

Our sole obligation is "to assure that, in formulat ing its judgments, Congress has drawn reasonable inferences based on substantial evidence." Turner Broadcasting Sys. Inc. v. Federal Communications Comm'n, 520 U.S. 180 , 195 (1997) (internal quotations omitted). Substantial e vidence "does not mean a large or considerable amount of ev idence,
but rather `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Pierce v. Underwood, 487 U.S. 552, 565 (1988) (quoting
Consolidated Edison Co. v. National Labor Relations Bd., 305 U.S. 197, 229 (1938)). "We owe Congress'finding s deference in part because the institution is far be tter equipped than the judiciary to amass and evaluate t he vast amounts of data bearing upon legislative questions. " Turner, 520 U.S. at 195 (internal quotations omitte d). On the basis of the record before Congress, I would co nclude that there was substantial evidence to provide Cong ress with a rational basis for believing that the Coal A ct was consistent with promises that had been made by coal operators to their former employees.

II.

Important prudential considerations undergird the Court's limitations on the judicial role. In the ca se at bar, reasonable persons can differ in evaluating the his tory of the critical Wage Agreements and interpreting its provisions. For example, although the majority has made a thorough and scholarly analysis of these circumstan ces, my

56own conclusions would be somewhat different. I woul d not

rely on promises and representations made apparentl y dehors the explicit language of the Wage Agreements

.

Critical to me is that the Wage Agreements expressl y limited all of the promised retiree health benefits to the term of each agreement. Miners who retired after 19 75, but whose former employers were no longer in the coal m ining business, were promised benefits through the United Mine Workers of America 1974 Benefit Plan and Trust ("19 74 Plan"). See Eastern Enterprises, 118 S. Ct. at 2139 -2140. Article XX(c)(3)(ii) of the NBCWA stated that the p urpose of the 1974 Plan was to provide employee health benefi ts only "during the term of this Agreement." Similarly, Art icle II of the 1974 Plan expressly stated that if the plan ass ets were to "become insufficient" to continue providing bene fits after the NBCWA had expired, "the benefits may be suspend ed or reduced to amounts which, in the judgment of the Trustees, can be paid from the net assets." The NBC WA contained a "General Description" of all promised b enefits that expressly stated that health benefits were"gua ranteed" at fixed levels only "during the term of this Agree ment." Similar provisions are found or incorporated in oth er agreements. I simply can find no evidence of any"pr omise" of lifetime benefits contained in any Wage Agreemen t. Any reliance on extra-contractual "promises" looks to a novel theory of law that turns a blind eye to the centuri es-old law
of contracts and to the current law on collective b argaining
agreements.

To suggest that the clear language limiting benefit s to the term of the Wage Agreement is trumped by the "lifet ime" health card is a stretch.2 By analogy, one could sa y that possession of a Social Security card "for life," wi thout more and without any proof of disability, entitles one t o benefits.

___________________________________________________ ______________

2. The basis for the claim of a "lifetime" health c ard is in the "General Description" of the 1974 NBCWA, which states:

Any pensioned miner covered in this Plan wil l retain his Health Services card until death, and upon his deat h his widow will retain
a health Services card until her death or re marriage.

See Appellants' Supp. Br. at 6-7.

57The "evergreen" clauses included in the 1978 Wage

Agreement do not persuade me to reach a different r esult: My reading of these clauses is that they addressed only employer funding, not the scope of the underlying e mployee
benefits.

As a native of Carnegie, Pennsylvania--a coal minin g and steel mill town near Pittsburgh--who is old enough to remember the organizational efforts of John L. Lewi s in the coal fields in the 1930s and the 1947 Krug-Lewis Agreement, I no doubt have a unique perspective. I know first-hand the mantra of every coal miner through d ecades of strikes and picketing: "No Contract, No Work."

To the miner, the actual contract controlled, not t he expectation of future agreements. Without the contr act in hand, the miners would not pick up their lamps at t he lamp house and descend into the shafts. They worked under the precise language in a given contract and under no other representations. The sordid history of the coal company towns that surrounded Carnegie, and the
inhumane treatment of the miners and their families prior to effective unionization in the mines, impelled th e miners to require thereafter that every representation of working conditions and benefits be set forth in clear langu age in a hard-fought written collective bargaining agreement

.

The foregoing discussion is but my gratuitous interpretation of some of the history and contents of the Wage Agreements, and admittedly, it may be contrary to that expressed in most other judicial opinions. My views and those of judges with contrary interpretations a re important in one respect only: My views and those o f other judges are totally irrelevant. What is relevant is only that on the basis of evidence before it, Congress concluded that a promise of lifetime benefits had been made. This fu rnished the rational basis for enacting the controversial p rovisions

of the Coal Act.

III.

This, too, must be said. I am conscious that in lig ht of the view that we take here, the handwriting is on t he wall that a kind of hydraulic pressure will generate eco nomic

58disasters in companies whose financial circumstance s are

similar to Unity and Barnes and Tucker. Without add itional and more realistic Congressional intervention, we m ay see a phenomenon of the "last man standing," as compani es disappear from the economic scene and responsibilit y for paying benefits shifts to surviving companies. If t his case is any example and a forerunner of things to come, the operation of the present statutory solution to the vexing health benefit problem of retirees and their depend ents may serve as a full employment program for bankruptcy l awyers of companies unable to make prescribed payments. Sa dly, I do not believe that this statement is an argument um ad

terrorem.

I join in the judgment of the court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

59