1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-29-1999

Unity Real Estate Co v. Hudson

Precedential or Non-Precedential:

Docket 97-3234,97-3236

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Recommended Citation

"Unity Real Estate Co v. Hudson" (1999). 1999 Decisions. Paper 81.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/81
Volume 2 of 2 

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 Trustee 

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 America 

Combined Benefit Fund; CARLTON R. SICKLES, Trustee 

of the United Mine Workers of America Combined Benefit 
Fund; 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 1992 

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 traditional 

standards of proportionality and distaste for retroactivity, 

taking into account our deference to Congress on the evils 

to be addressed by the law. Ultimately, although the issue 

is close, we conclude that the Coal Act is targeted to 

address the problem of insufficient resources in the 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 Act 

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 ask us to 

 46 
apply 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 argument that 

the Coal Act would drive the plaintiff out of business 

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 law that 

imposed only a financial burden without identifying a 

particular property right could ever consitute a taking. The 

fact that in a particular case a financial burden might 

consume all of a particular entity's assets would not seem 

to change Justice Kennedy's analysis: "The Coal Act neither 

targets a specific property interest nor depends upon any 

particular property for the operation of its statutory 

mechanisms." Eastern, 118 S. Ct. at 2156 (Kennedy, J., 

concurring). Similarly, the dissent would require the 

governmental identification of "a specific interest in 

physical or intellectual property" in order tofind a 

compensable taking. Id. at 2161 (Breyer, J., dissenting). 

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 prevailed, 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 that it 

would extend the categorical takings approach outside the 

context of regulations of real property. 

Because the Eastern Court was not confronted with this 

situation, however, we must set forth our reasons for 

rejecting it in greater detail. To date, the categorical 

approach has only been used in real property cases such as 

Lucas v. South Carolina, 505 U.S. 1003 (1992). In those 

cases, the concept of "total destruction" of value refers not 

to the owner's total assets but to some identifiable property 

interest. Indeed, even a multi-billionaire would be eligible 

for an award under a categorical takings approach if some 

small, distinct parcel of his holdings were condemned or 

rendered worthless through regulation. Therefore, the "total 

 47 
destruction" language of cases concerning real property 

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." (quoting 

Lucas, 505 U.S. at 1027)). 

The Supreme Court has repeatedly rejected the argument 

that a tax--even a tax on a small set of businesses--may 

violate due process or constitute a taking simply because it 

may force some of the regulated entities out of business: 

 The claim that a particular tax is so unreasonably high 

 and unduly burdensome as to deny due process is 

 both familiar and recurring, but the Court has 

 consistently refused either to undertake the task of 

 passing on the "reasonableness" of a tax that otherwise 

 is within the power of Congress or of state legislative 

 authorities, or to hold that a tax is unconstitutional 

 because it renders a business unprofitable. 

 . . . . The premise that a tax is invalid if so excessive 

 as to bring about the destruction of a particular 

 business, the Court said, had been "uniformly rejected 

 as furnishing no juridical ground for striking 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, 195 U.S. 

 27, 24 S.Ct. 769, 49 L.Ed. 78 (1904); and Alaska Fish 

 Salting & By-Products Co. v. Smith, 255 U.S. 44, 41 

 S.Ct. 219, 65 L.Ed. 489 (1921), are to the same effect. 

 In Alaska Fish, a tax on the manufacture of certain 

 fish products was sustained, the Court saying, id., at 

 48-49, 41 S.Ct., at 220: "Even if the tax should destroy 

 a business it would not be made invalid or require 

 compensation upon that ground alone. Those who 

 enter upon a business take that risk. . . ." See also 

 International Harvester Co. v. Wisconsin Dept. 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); Brushaber v. 

 48 
 Union Pacific R. Co., 240 U.S. 1, 24, 36 S.Ct. 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. 389 (1911). 

City of Pittsburgh v. Alco Parking Corp., 417 U.S. 369, 373- 

74 (1974). We note in this regard that we, along with other 

Courts of Appeals, have held that Coal Act obligations are 

taxes. See Lindsey Coal Mining Co. v. Chater, 90 F.3d 688, 

695 (3d Cir. 1996) (finding that the Act is "essentially a tax 

to continue a benefits program"). 

The plaintiffs respond that these taxation cases all 

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 obligation 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 would only 

be a categorical taking when it was retroactive, then we are 

not really discussing a "categorical" taking. We think that 

retroactivity, while crucial to our due process analysis, is 

not properly considered as a part of the categorical takings 

analysis. 

The Court of Appeals for the Federal Circuit has also 

rejected the plaintiffs' argument, with reasoning wefind 

persuasive: 

 The constitutionality of the assessment should not 

 depend on the happenstance of the financial condition 

 of the assessed bank at the time of the assessment. 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. It 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 any member 

 having a net worth of less than $100 million. The 

 assessment in both cases is based on the same theory 

 of liability and should meet the same constitutional 

 fate. 

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

_________________________________________________________________ 

15. The plaintiffs dispute the Branch court's reasoning by citing to 

Lucas, 

in which the Court wrote: 

 49 
recognizes that general regulatory laws, unlike the

particularized applications of zoning regulations that are 

the typical targets of takings challenges, usually have the 

kind of general applicability that mutes the concerns 

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 suggest, 

considerable practical problems would arise were we to find 

plaintiffs' categorical takings claim cognizable. For example, 

we would have to decide at what point we could justify 

granting relief on these grounds. Unity will go out of 

business as soon as it is ordered to pay. B&T, by contrast, 

will apparently go under in two years, when its liabilities 

under the Act consume the last of its reserves. Should we 

wait until B&T is in the same position as Unity? Would 

being a year away from bankruptcy be enough? Should

_________________________________________________________________ 

 It is true that at least in some cases the landowner with 95% loss 

 will get nothing, while the landowner with total loss will recover 

in 

 full. But that occasional result is no more strange than the gross 

 disparity between the landowner whose premises are taken for a 

 highway (who recovers in full) and the landowner whose property is 

 reduced to 5% of its former value by the highway (who recovers 

 nothing). Takings law is full of these "all-or-nothing" situations. 

Lucas, 505 U.S. at 1019 n.8. However, Lucas is inapposite. In Lucas, 

there was a strip of affected beachfront land; that land was reduced to 

zero value by regulation; that was a taking. The Court did not inquire 

into whether the landowners had enough other resources to survive the 

reduction in value, because that was not relevant to the test. All that 

was necessary was to look at the value of the affected land. Under the 

plaintiffs' interpretation, the Court should have examined Mr. Lucas's 

financial condition before and after the regulation at issue, and there 

would not have been a categorical taking if Mr. Lucas remained in the 

black. This suggests the difficulties with a takings analysis that is 

unanchored to a specific property interest. 

16. Breadth of application has its own dangers, however, and one of 

those dangers is that a law will have irrationally large effects on 

regulated businesses. Our substantive due process jurisprudence has 

developed to address this situation, as we discuss supra in Section III. 

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

knight" that might rescue it from destruction? Alternatively, 

we might reduce B&T's obligations instead of eliminating 

them entirely so that it could limp along, never showing a 

profit but never going under. That would arguably be an 

appropriate, constitutional remedy for the threatened harm, 

the way that transferable use credits can mitigate what 

would otherwise be a taking when zoning restrictions 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 obligation that 

will drive B&T out of business a taking and approve the 

rest. Yet this would only plunge courts further into the 

intricacies of business finance. 

Deciding for Unity and B&T because they will be forced 

into bankruptcy by the Coal Act would open up a Pandora's 

Box that would throw into question every economic 

regulation imaginable. Companies could adjust their

accounting practices to prove that any particular regulation 

would be enough to destroy them as profitable enterprises. 

The problem would be compounded if, as counsel for 

plaintiffs suggested at oral argument, we should evaluate 

the financial status of an entity without looking at its 

corporate relatives for takings purposes. A corporation 

subject to expensive regulation at some of its production 

facilities could create a series of subsidiaries, each of which 

would be insolvent on its own if forced to comply with a 

particular set of regulations, and claim constitutional 

protection against enforcement of the regulations, even 

though a different corporate configuration would remain 

solvent.17 

_________________________________________________________________ 

17. A supporting in terrorem argument is not difficult to devise. For 

example, an employer could resist an increase in the minimum wage on 

the ground that the increased cost would drive it out of business. 

Similarly, many small-business owners find that anti-discrimination laws 

generate significant expenses, and some might be forced out of business 

by compliance costs. See Mike Hudson, Jobs for Disabled People: 

Handicapping Businesses, Roanoke Times & World News, July 30, 1995, 

at F1. While such concerns might very well prove overstated in most 

cases, courts would be forced into the dismal business of economic 

 51 
A decision on these grounds would also open the door to 

plaintiffs attempting to choose government regulations from 

which they wanted to be excused. It is notable that B&T 

repeatedly discusses its other expensive governmentimposed obligations, which involve cleaning up polluted 

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 because the 

environmental and black lung obligations are so large that 

this additional expense overwhelms B&T. There is nothing 

in B&T's constitutional argument about "total takings" that 

distinguishes its other obligations from those imposed by 

the Coal Act, nor is there a conceptual reason to confine 

this definition of total takings to retroactive laws. 

We decline to enter into the conceptual morass that

would be engendered by the plaintiffs' total takings theory. 

That a regulation will put a particular plaintiff out 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 facts. In 

Connolly, the Court noted that the MPPAA "completely 

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 conclusion 

that there had been a taking because "[t]here is nothing to 

show that the withdrawal liability actually imposed on an 

employer will always be out of proportion to its experience 

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 Unity in 

particular is troubling. Unity's assets are tiny, and its Coal 

Act liabilities dwarf them. If we uphold the defendants' 

_________________________________________________________________ 

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 businesses, including OSHA 

safety regulations, FTC franchising rules, ADA accessibility 

requirements, Endangered Species Act development restrictions, and 

EPA Superfund clean-up costs). 

 52 
position, this small family business will be bankrupted 

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 individual 

entities. And, as we have discussed in Part III, wefind the 

proportionality test satisfied in this instance. 

V. Conclusion 

We hold that Congress could reasonably determine that 

the plaintiffs, along with other coal operatiors in similar 

situations, placed the coal industry retiree benefit 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 fundamentally 

unjust to impose liability upon the plaintiffs, because the 

burden is proportional to their contribution to the problem 

and the retroactivity is not too extensive. We do not deny 

that Unity, in particular, presents a sympathetic case. 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 suffered from 

the eroding pressures of time and economic change, cannot 

be immune from reasonable government regulation simply 

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 does not 

determine its constitutionality. 

For the foregoing reasons, the judgment of the District 

Court will be affirmed. 

 53 
ALDISERT, 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 applied to 

Unity Real Estate Company and Barnes and Tucker 

Company does not violate substantive due process and is 

not an unconstitutional taking. I agree also that the 

retroactive scope of the Act is not beyond appropriate 

legislative power. 

Although Appellants vigorously contend that their cases 

are analogous to Eastern Enterprises v. Apfel, 118 S. Ct. 

2131 (1998), their analogical argument fails because the 

decisive material facts of the cases bear no similarity. 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 Enterprises, 118 

S. Ct. at 2150 (plurality opinion). Unlike the former coal 

operator in Eastern Enterprises, Appellants remained 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 lifetime 

health benefits for both retirees and their family members." 

Id. Appellants' act of signing the 1974 and subsequent 

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 sustain the 

constitutionality of the Act as applied to the Appellants for 

one reason only: The evidence before Congress provided a 

rational basis to believe that a promise of lifetime benefits 

had been made. Congress relied on the Coal Commission 

Report, its appendices and the Commissioners' testimony at 

the Senate hearing. For example, the Coal Commission 

Report stated: 

 54 
 The Commission firmly believes that retired miners are 

 entitled to the health care benefits that were promised 

 and guaranteed them and that such commitments 

 must be honored. . . . 

 Retired 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 retirement years. That commitment 

 should be honored. 

See Supp. App. at 350, 360 (Secretary of Labor's Advisory 

Commission on United Mine Workers of America Retiree 

Health Benefits, Coal Commission Report (1990)). These 

were important findings that were accepted by Congress. 

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 largely 

irrelevant to what should be our analysis of the Coal Act's 

constitutionality. In considering the question of who 

promised what to whom, I do not believe that it is 

appropriate for any reviewing court to review de novo the 

history of the agreements or to parse their language. 

I say this because, to paraphrase Holmes, "That's not our 

job."1 Once we get beyond that portion of the Due Process 

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 process of 

law on the theory that the Appellants never promised 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). When we got to the 

Capitol, I wanted to provoke a response, so as he walked off, I said to 

him: `Well, sir, goodbye. Do justice!' . . . He replied: `That is not my 

job. 

My job is to play the game according to the rules.' " Learned Hand, 

Continuing Legal Education for Professional Competence and 

Responsibility, Report on the Arden House Conference, at 116-123 

(1958). 

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

whether substantial evidence was presented before 

Congress on this issue. And I conclude that there was. The 

Coal Commission Report and other testimony before the 

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 retirement 

years. That commitment should be honored." Supp. App. at 

360 (Secretary of Labor's Advisory Commission on United 

Mine Workers of America Retiree Health Benefits, Coal 

Commission Report (1990)). This determination serves as 

the rational basis for the legislation. 

Our sole obligation is "to assure that, in formulating 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 evidence 

"does not mean a large or considerable amount of evidence, 

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'findings 

deference in part because the institution is far better 

equipped than the judiciary to amass and evaluate the vast 

amounts of data bearing upon legislative questions." 

Turner, 520 U.S. at 195 (internal quotations omitted). On 

the basis of the record before Congress, I would conclude 

that there was substantial evidence to provide Congress 

with a rational basis for believing that the Coal Act 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 case at bar, 

reasonable persons can differ in evaluating the history of 

the critical Wage Agreements and interpreting its 

provisions. For example, although the majority has made a 

thorough and scholarly analysis of these circumstances, my 

 56 
own conclusions would be somewhat different. I would not 

rely on promises and representations made apparently 

dehors the explicit language of the Wage Agreements. 

Critical to me is that the Wage Agreements expressly 

limited all of the promised retiree health benefits to the 

term of each agreement. Miners who retired after 1975, but 

whose former employers were no longer in the coal mining 

business, were promised benefits through the United Mine 

Workers of America 1974 Benefit Plan and Trust ("1974 

Plan"). See Eastern Enterprises, 118 S. Ct. at 2139-2140. 

Article XX(c)(3)(ii) of the NBCWA stated that the purpose of 

the 1974 Plan was to provide employee health benefits only 

"during the term of this Agreement." Similarly, Article II of 

the 1974 Plan expressly stated that if the plan assets were 

to "become insufficient" to continue providing benefits after 

the NBCWA had expired, "the benefits may be suspended or 

reduced to amounts which, in the judgment of the 

Trustees, can be paid from the net assets." The NBCWA 

contained a "General Description" of all promised benefits 

that expressly stated that health benefits were"guaranteed" 

at fixed levels only "during the term of this Agreement." 

Similar provisions are found or incorporated in other 

agreements. I simply can find no evidence of any"promise" 

of lifetime benefits contained in any Wage Agreement. Any 

reliance on extra-contractual "promises" looks to a novel 

theory of law that turns a blind eye to the centuries-old law 

of contracts and to the current law on collective bargaining 

agreements. 

To suggest that the clear language limiting benefits to the 

term of the Wage Agreement is trumped by the "lifetime" 

health card is a stretch.2 By analogy, one could say that 

possession of a Social Security card "for life," without more 

and without any proof of disability, entitles one to benefits. 

_________________________________________________________________ 

2. The basis for the claim of a "lifetime" health card is in the "General 

Description" of the 1974 NBCWA, which states: 

 Any pensioned miner covered in this Plan will retain his Health 

 Services card until death, and upon his death his widow will retain 

 a health Services card until her death or remarriage. 

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

 57 
The "evergreen" clauses included in the 1978 Wage 

Agreement do not persuade me to reach a different result: 

My reading of these clauses is that they addressed only 

employer funding, not the scope of the underlying employee 

benefits. 

As a native of Carnegie, Pennsylvania--a coal mining and 

steel mill town near Pittsburgh--who is old enough to 

remember the organizational efforts of John L. Lewis 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 decades 

of strikes and picketing: "No Contract, No Work." 

To the miner, the actual contract controlled, not the 

expectation of future agreements. Without the contract in 

hand, the miners would not pick up their lamps at the 

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 the miners 

to require thereafter that every representation of working 

conditions and benefits be set forth in clear language 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 are 

important in one respect only: My views and those of 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 furnished 

the rational basis for enacting the controversial provisions 

of the Coal Act. 

III. 

This, too, must be said. I am conscious that in light of 

the view that we take here, the handwriting is on the wall 

that a kind of hydraulic pressure will generate economic 

 58 
disasters in companies whose financial circumstances are 

similar to Unity and Barnes and Tucker. Without additional 

and more realistic Congressional intervention, we may see 

a phenomenon of the "last man standing," as companies 

disappear from the economic scene and responsibility for 

paying benefits shifts to surviving companies. If this 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 dependents may 

serve as a full employment program for bankruptcy lawyers 

of companies unable to make prescribed payments. Sadly, 

I do not believe that this statement is an argumentum 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