the Pittston Company v. United States of America

FILED: August 13, 2004
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-2199(L)
(CA-97-294-3; CA-01-273-3)
THE PITTSTON COMPANY; BUFFALO MINING COMPANY;
CLINCHFIELD COAL COMPANY; EASTERN COAL
CORPORATION; ELKAY MINING COMPANY; JEWELL
RIDGE COAL CORPORATION; KENTLAND-ELKHORN
COAL CORPORATION; MEADOW RIVER COAL COMPANY;
PITTSTON COAL GROUP; RANGER FUEL CORPORATION,
Plaintiffs - Appellants,
versus
UNITED STATES OF AMERICA,
Defendant & Third Party Plaintiff - Appellee,
versus
MICHAEL H. HOLLAND, Trustee of the United Mine Workers of
America Combined Benefit Fund; UNITED MINE WORKERS OF
AMERICA COMBINED BENEFIT PLAN; ELLIOT A. SEGAL, Trustee of
the United Mine Workers of America Combined Benefit Fund;
WILLIAM P. HOBGOOD, Trustee of the United Mine Workers of
America Combined Benefit Fund; MARTY D. HUDSON, Trustee of
the United Mine Workers of America Combined Benefit Fund;
THOMAS O. S. RAND, 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;
CARL E. VAN HORN, 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;
Third Party Defendants - Appellees,
THE BITUMINOUS COAL OPERATORS' ASSOCIATION, INCORPORATED,
Intervenor,

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and
INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA,
Party in Interest.
O R D E R
The court amends its opinion filed May 18, 2004, and reported
at 368 F.3d 385 as follows:
On page 33, first full paragraph, line 2 and line 9 -- the
citations are corrected to read “26 U.S.C. § 7852(a)” on line 2 and
“§ 7852(a)” on line 9.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 THE PITTSTON COMPANY; BUFFALO
MINING COMPANY; CLINCHFIELD COAL
COMPANY; EASTERN COAL
CORPORATION; ELKAY MINING
COMPANY; JEWELL RIDGE COAL
CORPORATION; KENTLAND-ELKHORN
COAL CORPORATION; MEADOW RIVER
COAL COMPANY; PITTSTON COAL
GROUP; RANGER FUEL CORPORATION,
Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA,
Defendant & Third Party Plaintiff-
Appellee,
v. No. 02-2199 
MICHAEL H. HOLLAND, Trustee of
the United Mine Workers of
America Combined Benefit Fund;
UNITED MINE WORKERS OF AMERICA
COMBINED BENEFIT PLAN; ELLIOT A.
SEGAL, Trustee of the United Mine
Workers of America Combined
Benefit Fund; WILLIAM P. HOBGOOD,
Trustee of the United Mine Workers
of America Combined Benefit
Fund; MARTY D. HUDSON, Trustee of
the United Mine Workers of
America Combined Benefit Fund;
THOMAS O. S. RAND, Trustee of the
United Mine Workers of America 

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 Combined Benefit Fund; GAIL R.
WILENSKY, Trustee of the United
Mine Workers of America
Combined Benefit Fund; CARL E.
VAN HORN, 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, Third Party Defendants-Appellees,
THE BITUMINOUS COAL OPERATORS’
ASSOCIATION, INCORPORATED,
Intervenor,
and
INTERNATIONAL UNION, UNITED MINE
WORKERS OF AMERICA,
Party in Interest. 
 THE PITTSTON COMPANY; BUFFALO
MINING COMPANY; CLINCHFIELD COAL
COMPANY; EASTERN COAL
CORPORATION; ELKAY MINING
COMPANY; JEWELL RIDGE COAL
CORPORATION; KENTLAND-ELKHORN No. 02-2200 COAL CORPORATION; MEADOW RIVER
COAL COMPANY; PITTSTON COAL
GROUP; RANGER FUEL CORPORATION,
Plaintiffs-Appellants,
v. 
2 THE PITTSTON COMPANY v. UNITED STATES

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 UNITED STATES OF AMERICA,
Defendant & Third Party Plaintiff-
Appellee,
v.
MICHAEL H. HOLLAND, Trustee of
the United Mine Workers of
America Combined Benefit Fund;
UNITED MINE WORKERS OF AMERICA
COMBINED BENEFIT PLAN; ELLIOT A.
SEGAL, Trustee of the United Mine
Workers of America Combined
Benefit Fund; WILLIAM P. HOBGOOD,
Trustee of the United Mine Workers
of America Combined Benefit
Fund; MARTY D. HUDSON, Trustee of 
the United Mine Workers of
America Combined Benefit Fund;
THOMAS O. S. RAND, 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; CARL E.
VAN HORN, 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,
Third Party Defendants-Appellees, 
3 THE PITTSTON COMPANY v. UNITED STATES

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 THE BITUMINOUS COAL OPERATORS’
ASSOCIATION, INCORPORATED,
Intervenor,
and 
INTERNATIONAL UNION, UNITED MINE
WORKERS OF AMERICA,
Party in Interest. 
 THE PITTSTON COMPANY; BUFFALO
MINING COMPANY; CLINCHFIELD COAL
COMPANY; EASTERN COAL
CORPORATION; ELKAY MINING
COMPANY; JEWELL RIDGE COAL
CORPORATION; KENTLAND-ELKHORN
COAL CORPORATION; MEADOW RIVER
COAL COMPANY; PITTSTON COAL
GROUP; RANGER FUEL CORPORATION,
Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA, No. 03-1351 
Defendant & Third Party Plaintiff-
Appellee,
v.
MICHAEL H. HOLLAND, Trustee of
the United Mine Workers of
America Combined Benefit Fund;
UNITED MINE WORKERS OF AMERICA
COMBINED BENEFIT PLAN; ELLIOT A.
SEGAL, Trustee of the United Mine
Workers of America Combined
Benefit Fund; WILLIAM P. HOBGOOD, 
4 THE PITTSTON COMPANY v. UNITED STATES

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 Trustee of the United Mine Workers
of America Combined Benefit
Fund; MARTY D. HUDSON, Trustee of
the United Mine Workers of
America Combined Benefit Fund;
THOMAS O. S. RAND, 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; CARL E.
VAN HORN, 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,
Third Party Defendants-Appellees,
and
THE BITUMINOUS COAL OPERATORS’
ASSOCIATION, INCORPORATED;
INTERNATIONAL UNION, UNITED MINE
WORKERS OF AMERICA,
Parties in Interest. 
5 THE PITTSTON COMPANY v. UNITED STATES

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 THE PITTSTON COMPANY; BUFFALO
MINING COMPANY; CLINCHFIELD COAL
COMPANY; EASTERN COAL
CORPORATION; ELKAY MINING
COMPANY; JEWELL RIDGE COAL
CORPORATION; KENTLAND-ELKHORN
COAL CORPORATION; MEADOW RIVER
COAL COMPANY; PITTSTON COAL
GROUP; RANGER FUEL CORPORATION,
Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA,
Defendant & Third Party Plaintiff-
Appellee, No. 03-1354 
MICHAEL H. HOLLAND, Trustee of
the United Mine Workers of
America Combined Benefit Fund;
UNITED MINE WORKERS OF AMERICA
COMBINED BENEFIT PLAN; ELLIOT A.
SEGAL, Trustee of the United Mine
Workers of America Combined
Benefit Fund; WILLIAM P. HOBGOOD,
Trustee of the United Mine Workers
of America Combined Benefit
Fund; MARTY D. HUDSON, Trustee of
the United Mine Workers of
America Combined Benefit Fund;
THOMAS O. S. RAND, Trustee of the 
6 THE PITTSTON COMPANY v. UNITED STATES

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 United Mine Workers of America
Combined Benefit Fund; GAIL R.
WILENSKY, Trustee of the United
Mine Workers of America
Combined Benefit Fund; CARL E.
VAN HORN, 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,
Third Party Defendants-Appellees,
and
THE BITUMINOUS COAL OPERATORS’
ASSOCIATION, INCORPORATED;
INTERNATIONAL UNION, UNITED MINE
WORKERS OF AMERICA,
Parties in Interest. 
Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-97-294-3; CA-01-273-3)
Argued: January 21, 2004
Decided: May 18, 2004
Before WILKINS, Chief Judge, and NIEMEYER and
TRAXLER, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Traxler joined. Chief Judge Wilkins wrote an opinion
concurring in part and dissenting in part.
7 THE PITTSTON COMPANY v. UNITED STATES

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COUNSEL
ARGUED: Wade Wallihan Massie, PENN, STUART &
ESKRIDGE, Abingdon, Virginia, for Appellants. Ara B. Gershen-
gorn, Appellate Staff, Civil Division, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Federal Appellee;
Howard Robert Rubin, SHEA & GARDNER, Washington, D.C., for
Appellees Trustees of the United Mine Workers of America Com-
bined Benefit Fund and the United Mine Workers of America Com-
bined Benefit Plan. ON BRIEF: Stephen M. Hodges, PENN,
STUART & ESKRIDGE, Abingdon, Virginia; Gregory B. Robertson,
HUNTON & WILLIAMS, Richmond, Virginia; A. E. Dick Howard,
Charlottesville, Virginia, for Appellants. Robert D. McCallum, Jr.,
Assistant Attorney General, Paul J. McNulty, United States Attorney,
Mark B. Stern, Appellate Staff, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Appel-
lee. D. Eugene Webb, Jr., Richard F. Hawkins, III, TROUTMAN
SANDERS, L.L.P., Richmond, Virginia; Stephen J. Pollak, John
Townsend Rich, Jeffrey D. Fox, SHEA & GARDNER, Washington,
D.C., for Appellees Trustees of the United Mine Workers of America
Combined Benefit Fund and the United Mine Workers of America
Combined Benefit Plan. Peter Buscemi, Stanley F. Lechner, MOR-
GAN, LEWIS & BOCKIUS, L.L.P., Washington, D.C., for Interve-
nor.
OPINION
NIEMEYER, Circuit Judge:
These appeals challenge the constitutionality of the Coal Industry
Retiree Health Benefits Act of 1992 (the "Coal Act"), 26 U.S.C.
§§ 9701-9722.
In response to severe financial difficulties that were undermining
the National Bituminous Coal Wage Agreements ("NBCWAs") —
collective bargaining agreements between the Bituminous Coal Oper-
ators’ Association and the United Mine Workers of America, promis-
ing healthcare benefits to active and retired coal miners — Congress
8 THE PITTSTON COMPANY v. UNITED STATES

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enacted the Coal Act to preserve benefits promised by the NBCWAs
to retired coal miners. The Coal Act requires coal operators who had
signed NBCWAs over the years to pay premiums into a trust fund in
an amount related to the number of retired coal miners they have
employed, thereby creating a common trust fund from which the
promised healthcare benefits can be paid.
In Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), the Supreme
Court held that the Coal Act was unconstitutional insofar as it
imposed severe retroactive liability on a coal company that had not
signed a labor agreement since 1964.
In challenging the constitutionality of the Coal Act and its applica-
tion following the decision in Eastern Enterprises, the Pittston Com-
pany contends in this case: (1) that the Coal Act unconstitutionally
violates nondelegation and separation of powers principles by placing
governmental powers in the hands of the trustees of the common trust
fund, a private entity created by the Coal Act; (2) that the Coal Act
is nonseverable and therefore the decision in Eastern Enterprises
invalidating application of the Coal Act to certain coal operators
invalidates it as to all coal operators; and (3) the Social Security Com-
missioner’s reassignment of beneficiaries to the Pittston Company
after the decision in Eastern Enterprises was accomplished through
an impermissible interpretation of the Coal Act’s language, resulting
in larger premiums for the Pittston Company. The Pittston Company
has also raised two administrative issues: it has urged that this court
hold in abeyance review of the district court’s ruling that the Coal Act
does not violate the Due Process Clause or the Takings Clause of the
Fifth Amendment, pending Supreme Court review of our decision in
A.T. Massey Coal Co. v. Massanari, 305 F.3d 226 (4th Cir. 2002);
and it has assigned as an abuse of discretion the district court’s refusal
to unseal confidential documents produced to the Pittston Company
by the Bituminous Coal Operators’ Association and made part of the
record in this case.
The district court rejected Pittston’s substantive arguments and
denied its motion to unseal the confidential documents. For the rea-
sons that follow, we deny as moot the motion to hold the Fifth
Amendment issue in abeyance, and we affirm on the remaining
issues.
9 THE PITTSTON COMPANY v. UNITED STATES

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I
The Coal Act’s enactment in 1992 was the culmination of a long
history involving bituminous coal companies (represented by the
Bituminous Coal Operators’ Association ("BCOA")), the United
Mine Workers of America ("UMWA"), and collective bargaining
agreements between them, beginning with the NBCWA signed in
1947. The Supreme Court has detailed this history in Eastern Enter-
prises, 524 U.S. at 504-15, and we draw on that history here only
briefly to provide context to the issues presented on appeal.
A
The NBCWA negotiated in 1947 between the BCOA and the
UMWA provided pension and medical benefits to coal miners and
their families through a trust fund created by the 1947 NBCWA. This
trust fund became a multiemployer trust fund in the 1950 NBCWA,
funded by coal operators with royalties paid in proportion to the oper-
ators’ coal production.
Upon enactment of the Employee Retirement Income Security Act
of 1974 ("ERISA"), which imposed specific funding and vesting
requirements on the NBCWAs and other similar agreements, the
UMWA and the BCOA entered into the 1974 NBCWA, which
replaced the trust fund in the 1950 NBCWA with four separate trusts,
again funded by royalties on coal production and premiums based on
employee hours. The 1974 NBCWA was, as the Supreme Court noted
in Eastern Enterprises, "the first agreement between the UMWA and
the BCOA to expressly reference health benefits for retirees." 524
U.S. at 509.
The trust funds created by the 1974 NBCWA soon began to experi-
ence financial difficulties, and to address them, the 1978 NBCWA
assigned responsibility to signatory coal operators for the healthcare
of all of their own current and former employees. In addition, under
the 1978 NBCWA, the coal operators for the first time became
responsible for funding specific benefits for employees, rather than
simply paying a predetermined amount of royalties to a trust fund
based on coal production. Nonetheless, the trust funds continued to
experience financial difficulties, and more and more coal operators
10 THE PITTSTON COMPANY v. UNITED STATES

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abandoned the NBCWAs, choosing to hire only nonunion employees
or electing to leave the coal business altogether. Those developments
left remaining NBCWA signatories with yet heavier financial obliga-
tions, which in turn prompted still more coal operators to leave. In
this downward spiral, the incentive to abandon the NBCWAs became
greater as fewer companies were left to bear the burdens, and with the
1988 NBCWA, the UMWA and the BCOA began imposing with-
drawal liability on NBCWA signatories. Despite this measure, the
trust funds had, by 1990, run up a deficit of about $110 million. A
Senate subcommittee conducting hearings on the Coal Act was
advised in 1991 that more than 120,000 coal miner retirees had
become at risk of not receiving "the benefits they were promised."
Eastern Enterprises, 524 U.S. at 513.
B
In 1992, Congress enacted the Coal Act to identify the coal opera-
tors most responsible for benefit plan liabilities and to enlist them to
provide benefits to retirees under a new comprehensive plan. The
Coal Act merged the earlier trust funds of the NBCWAs into a new
multiemployer trust fund called the United Mine Workers of America
Combined Benefit Fund ("Combined Fund"). 26 U.S.C. § 9702. This
new Combined Fund was constituted to provide "substantially the
same" health benefits to retirees and their dependents that they were
receiving under the 1950 and 1974 NBCWAs as of January 1, 1992.
Id. §§ 9703(b)(1), (f). To continue financing the Combined Fund, the
Coal Act assessed annual premiums against "signatory operators" —
coal operators that had signed any agreement requiring contributions
to the earlier trust funds, id. §§ 9701(b)(1), (b)(3), (c)(1), and who
remained "in business" (defined by the statute as any person who
"conducts or derives revenue from any business activity, whether or
not in the coal industry"), id. § 9706(a); id. § 9701(c)(7). If a signa-
tory coal operator was no longer in business, liability for payment of
the premium passed to any "related person." Id. § 9706(a); id.
§ 9701(c)(2)(A).
The premiums assessed against each signatory operator depended
on the number of beneficiaries assigned to it, and the assignment of
beneficiaries to each signatory operator was made on the basis of the
Coal Act’s determination of the operator most responsible for the ben-
11 THE PITTSTON COMPANY v. UNITED STATES

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eficiaries’ benefits. The Coal Act required that the Social Security
Commissioner assign all beneficiaries to signatory operators accord-
ing to a three-tiered statutory scheme. Id. § 9706(a). That scheme pro-
vided that coal miner retirees be assigned first to the operator who
signed the 1978 NBCWA or later agreement and who was the most
recent operator to have employed the retiree for at least two years. Id.
§ 9706(a)(1). If no operator fit that description for a given retiree, the
retiree was assigned to the operator who signed the 1978 NBCWA or
later agreement and was the most recent signatory operator to have
employed the retiree, regardless of the length of employment. Id.
§ 9706(a)(2). And if no operator fit that description, the retiree was
assigned to the signatory operator who employed the retiree for the
longest period of time. Id. § 9706(a)(3). The statute provided benefits
for "unassigned" beneficiaries under a separate system. Id. § 9704(d).
To administer the Combined Fund, the Coal Act assigned responsi-
bilities to the Secretary of the Treasury, the Commissioner of Social
Security, and the Board of Trustees of the Combined Fund. The Com-
missioner was given the responsibility of assigning the beneficiaries
to signatory operators according to the scheme established in
§ 9706(a) and of calculating the premium that each operator was to
be assessed under the formulation provided in the statute. Id. §§ 9704,
9706. If a signatory operator were to fail to pay the premiums
assessed, the Trustees of the Combined Fund could report that fact to
the Secretary of Treasury, who was given the responsibility of deter-
mining whether there was reasonable cause for the failure to pay. Id.
§ 9707. The Board of Trustees of the Combined Fund was given the
responsibility of administering the Fund, by collecting the premiums,
id. § 9704(a); enrolling beneficiaries in health plans that fulfilled the
statute’s requirements, id. § 9703(b)(1); negotiating with health plans
for payment rates, id. § 9703(b)(2); and suing signatory operators for
nonpayment, id. § 9721; 29 U.S.C. § 1451.
Congress designated the Combined Fund a "plan" under both the
Labor Management Relations Act and ERISA. 26 U.S.C.
§ 9702(a)(3).
12 THE PITTSTON COMPANY v. UNITED STATES

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C
The Pittston Company is a coal operator that was a signatory to the
1974 NBCWA, but to no subsequent agreements. The company does,
however, have nine subsidiaries,1 which are "related parties" under
the Coal Act. At least one of the Pittston Company’s subsidiaries
signed a NBCWA after 1974. As a signatory operator, Pittston is
responsible under the Coal Act for providing the healthcare benefits
for active and retired coal miners.
Following the Supreme Court’s decision in Eastern Enterprises v.
Apfel, 524 U.S. 498 (1998), which invalidated the application of the
Coal Act to plaintiff Eastern because Eastern had quit the coal busi-
ness and had not signed a wage agreement since 1964, the Social
Security Commissioner reevaluated its assignments under 26 U.S.C.
§ 9706(a). The Commissioner determined that, in light of Eastern
Enterprises, coal operators that had not signed the 1974 NBCWA or
a later agreement were not to be assigned beneficiaries under the third
prong of § 9706(a). Instead, each beneficiary would be assigned to a
coal operator that had signed the 1974 NBCWA or a later agreement
and that had employed the beneficiary for the longest amount of time.
As a result of this reevaluation and interpretation of the Coal Act, the
Commissioner reassigned to the Pittston Company 95 beneficiaries
whose earlier assignments had been invalidated.
The Pittston Company and its subsidiaries (collectively, "Pittston")
commenced this action in 1997, before the decision in Eastern Enter-
prises, alleging (1) that the Coal Act was unconstitutional as violating
the nondelegation doctrine, and (2) that the United States had over-
charged Pittston under the Coal Act in its assessments made over a
period of three years. While the case was pending, the Supreme Court
decided Eastern Enterprises and invalidated the application of the
Coal Act to Eastern because the assignments of beneficiaries to East-
ern created a severe retroactive liability that violated the Fifth
1The subsidiaries are Buffalo Mining Company, Clinchfield Coal
Company, Eastern Coal Corporation, Elkay Mining Company, Jewell
Ridge Coal Corporation, Kentland-Elkhorn Coal Corporation, Meadow
River Coal Company, Pittston Coal Group, Inc., and Ranger Fuel Corpo-
ration.
13 THE PITTSTON COMPANY v. UNITED STATES

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Amendment. Pittston accordingly filed a motion for leave to amend
its complaint to add a Fifth Amendment claim and also to claim that
the Coal Act was not severable and therefore invalid as to Pittston
under the ruling of Eastern Enterprises. The district court denied Pit-
tston’s motion to amend and also dismissed Pittston’s pending consti-
tutional claims as barred by the doctrine of res judicata. The district
court, however, granted judgment for Pittston on the overpayment
claim, a claim that the parties settled after the United States noticed
an appeal.
On Pittston’s appeal, we concluded that Pittston’s claims were not
barred by res judicata and that the district court improperly denied
Pittston leave to amend its complaint. Pittston Co. v. United States,
199 F.3d 694, 706 (4th Cir. 1999).
On remand, Pittston filed an amended complaint adding claims that
the Coal Act is nonseverable and that it violates the Fifth Amendment
as applied to Pittston, based on Eastern Enterprises. On motions for
summary judgment, the district court resolved all substantive claims
against Pittston.
These appeals followed.
II
Pittston contends first that the Coal Act unconstitutionally dele-
gates governmental authority to the Combined Fund, a private entity,
giving the Combined Fund "discretionary authority to collect and
spend federal taxes and the plenary authority to administer a federal
entitlement." It asserts that under the constitutional structure, "[t]he
President — not Congress, not the Judiciary, and certainly not a pri-
vate party — is the person vested with executive power and charged
with the right and duty faithfully to execute the nation’s laws." In par-
ticular, Pittston argues that the Combined Fund is "unique" in that
there is no entity under federal or state law like it because it is a pri-
vate entity given the power "to collect, manage, and spend federal
revenues." Pittston then lists some 21 powers given to the Combined
Fund that it maintains involve an unconstitutional delegation, con-
cluding at bottom that the Coal Act authorizes a "‘delegation in its
14 THE PITTSTON COMPANY v. UNITED STATES

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most obnoxious form’" (quoting Carter v. Carter Coal Co., 298 U.S.
238, 311 (1936)).
The United States and the Trustees of the Combined Fund contend
that the Coal Act specifies "in detail" how coal operators are identi-
fied for responsibility under the Coal Act; how assignments of retired
coal miners to operators are made; how coal miners are identified;
and the type of benefits each is to receive. They assert that the Act
lawfully delegates to the Commissioner of Social Security the respon-
sibility for calculating premiums assessed against coal operators, for
making assignment of retirees to coal companies, for hearing chal-
lenges to the assignments, and for reviewing and revising them. They
conclude: "The Act permits the Combined Fund and the Trustees to
exercise only limited responsibilities on a strictly circumscribed basis,
and all of those responsibilities are ones that are traditionally exer-
cised by private parties."
It is a fundamental principle of jurisprudence that an agent has no
authority to delegate his power to represent the principal except as
authorized or as necessary and proper for the agent to perform his
duties. Thus, when the Constitution vests "all legislative Powers" in
a Congress of the United States, "the executive Power" in a President
of the United States, and "the judicial Power" in one Supreme Court
and such courts as Congress may establish, see U.S. Const. art. I, § 1;
id. art. II, § 1; id. art. III, § 1, a nondelegation principle serves both
to separate powers as specified in the Constitution, see, e.g., Whitman
v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001), and to retain
power in the governmental Departments so that delegation does not
frustrate the constitutional design, see Carter, 298 U.S. at 311. More-
over, because the Constitution’s text "permits no delegation of those
powers," see Whitman, 531 U.S. at 472, in exercising conferred pow-
ers, a Department may authorize a person or body to act on its behalf
only by designating "‘an intelligible principle to which the person or
body authorized to act is directed to conform.’" Id. (quoting J.W.
Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1938)). In
other words, core governmental power must be exercised by the
Department on which it is conferred and must not be delegated to oth-
ers in a manner that frustrates the constitutional design.
Because the Combined Fund in this case is a private entity, rather
than a part of the executive branch of government, improper delega-
15 THE PITTSTON COMPANY v. UNITED STATES

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tion of power to it would represent "legislative delegation in its most
obnoxious form." Carter, 298 U.S. at 311. Any delegation of regula-
tory authority "to private persons whose interests may be and often
are adverse to the interests of others in the same business" is disfa-
vored. Id. In Carter, the Supreme Court invalidated the Bituminous
Coal Conservation Act, which provided that all coal producers had to
accept the maximum labor hours and minimum wages negotiated by
majority producers of coal and representatives of more than half of
the mine workers. The Court found that the law improperly delegated
governmental power to the majority, enabling it to "regulate the
affairs of an unwilling minority" and thus allowing controlling pro-
ducers to pursue their interests unfairly. Id.
Not every Congressional delegation of authority to a private party
is impermissible, however. In Sunshine Anthracite Coal Co. v.
Adkins, 310 U.S. 381 (1940), the Supreme Court upheld a statute that
allowed a private party, made up of coal producers, to propose mini-
mum coal prices to the National Bituminous Coal Commission, a
public agency, which could then approve, disapprove, or modify the
proposal. The Court found that because "members of the [private
entity] function[ed] subordinately to the Commission," which had
"authority and surveillance" over the private entity, the delegation
was not unlawful. Id. at 399.
The Third Circuit applied Sunshine Anthracite to uphold the Beef
Promotion Act, which created the Cattlemen’s Board, a private entity,
to collect from cattle producers an assessment of one dollar per head.
United States v. Frame, 885 F.2d 1119 (3d Cir. 1989), cert. denied,
493 U.S. 1094 (1990). Under the Beef Promotion Act, the Cattle-
men’s Board was authorized to use the money collected to develop a
beef-promotion plan, which was then subject to the approval of the
Secretary of Agriculture. The Third Circuit found that because the
private entity served "an advisory function, and in the case of collec-
tion of assessments, a ministerial one," the Act did not improperly
delegate governmental power to a private entity. Id. at 1129. Thus, in
applying the holding of Sunshine Anthracite and Carter, the Third
Circuit articulated the standard that Congress may employ private
entities for ministerial or advisory roles, but it may not give these
entities governmental power over others. We agree that this articula-
tion accurately summarizes the Supreme Court’s holdings, and it is
16 THE PITTSTON COMPANY v. UNITED STATES

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this standard that we now apply in assessing the provisions of the
Coal Act to determine whether it improperly delegates core govern-
mental power to the Combined Fund.
The Coal Act creates the Combined Fund to provide benefits to
retired coal miners. 26 U.S.C. § 9702. The Act finances those benefits
by annual assessments on "signatory operators," defined by the Coal
Act to be any coal operator that has signed an agreement with the
UMWA requiring the coal operator to pay for health and death bene-
fits for retired miners. Id. § 9701(b)(1), (c)(1); id. § 9706(a). The Coal
Act provides that any signatory coal operator still in business,
whether or not in the coal business, remains liable for payment of pre-
miums. Id. § 9701(c)(7); id. § 9706(a). And the Act sets out specific
formulas for calculating the premiums to be paid by each signatory
operator. Id. § 9704. It provides that the health benefit premium must
be the "product of the per beneficiary premium for [each] plan year
multiplied by the number of eligible beneficiaries assigned to such
operator under section 9706." Id. § 9704(b)(1). And the Act assigns
to the Social Security Commissioner the task of performing the spe-
cific calculations. Id. § 9704(b)(2). Thus, the Combined Fund has no
power to determine the premium payments owed by each coal opera-
tor to the Combined Fund.
Under this calculation of the health benefit premium, of course, the
"number of eligible beneficiaries" assigned to a signatory operator
ultimately fixes the amount that an operator must pay. The Social
Security Commissioner, rather than the Combined Fund, is given the
responsibility of assigning beneficiaries to the coal operators that will
pay their benefits, according to a three-tiered preference structure
explicitly set forth in the Act. Id. § 9706(a). The Commissioner is also
given the responsibility of notifying each coal operator of its assign-
ment of responsibility for each retired miner, id. § 9706(e)(2), and an
assignee may seek administrative review of the Commissioner’s deci-
sion if it believes that the assignment was in error, id. § 9706(f).
Finally, the Coal Act defines the scope of benefits that the Com-
bined Fund must provide to beneficiaries, stating that they must be
"substantially the same as (and subject to the same limitations of)
coverage provided under the 1950 [NBCWA] and the 1974
[NBCWA] as of January 1, 1992." Id. § 9703(b)(1). A similar require-
17 THE PITTSTON COMPANY v. UNITED STATES

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ment is imposed on the death benefits provided by the Plan. See
§ 9703(c).
Against these detailed requirements of the Coal Act, the Trustees
of the Combined Fund are assigned the task of collecting the premi-
ums designated by the statute from the persons specified by statute.
The Trustees are directed to preserve the assets through investment
and to pay them out as benefits to the beneficiaries in an amount spec-
ified by the statute. Id. § 9703(a)-(c). If a coal operator fails to pay the
premium required by the Coal Act, it becomes liable to a $100-per-
day penalty, and the Secretary of Treasury, not the Combined Fund,
determines whether the penalty may be excused. Id. § 9707.
In short, the Coal Act or the Social Security Commissioner defines
the nature of the Combined Fund and who must contribute to it; speci-
fies the amount of each premium payable by a coal operator to the
Combined Fund; specifies with particularity each beneficiary who is
entitled to receive benefits from the Combined Fund; and designates
the nature and amount of the benefits. With those functions specifi-
cally defined and mandated by Congress, the Coal Act confers
responsibility to the Trustees of the Combined Fund to implement the
collection of the premiums, the preservation of premiums collected,
and the payment of the premiums to specified beneficiaries in an
amount stated by the Act. These powers given to the Trustees are of
an administrative or advisory nature, and delegation of them to the
Trustees does not, we conclude, violate the nondelegation doctrine.
Despite the reservation to Congress or the Commissioner of the
core governmental powers with respect to the Combined Fund, Pitts-
ton has generated a 21-item list of powers that it claims were uncon-
stitutionally delegated to the Combined Fund under the Coal Act.2
(Text continued on page 20)
2Pittston characterizes the 21 powers of the Combined Fund as fol-
lows:
(1) It has the power to create its own charter — the trust doc-
ument.
(2) It has the power to amend its charter at any time.
(3) It has the power to receive transfers of federal revenues
directly from the United States Abandoned Mine Recla-
mation Fund.
18 THE PITTSTON COMPANY v. UNITED STATES

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(4) It has the power to collect taxes from assigned operators.
(5) It has the power to invest the money it receives, including
placing the money with foreign banks and governments.
(6) If a taxpayer does not pay voluntarily, it has the authority
to refer the taxpayer to the Treasury Department for impo-
sition of a $100 per day per beneficiary penalty.
(7) It has the power to sue the taxpayer for the taxes owed.
(8) It has the power to compromise with the taxpayer on the
principal amount owed, as well as interest, costs, and
attorney’s fees.
(9) It has the power not to sue a delinquent taxpayer if it so
chooses.
(10) It decides whether taxpayers are still "in business" and
thus subject to the Coal Act.
(11) It has the power to determine and sue "related persons" of
the taxpayer.
(12) It has the power to "pierce the veil" of corporations and
sue individuals.
(13) It has the power to employ staff under such terms as it
chooses.
(14) It has the power to employ outside counsel.
(15) It has the power to contest in court the amount of the per
beneficiary premium calculated by the Commissioner (and
has done so).
(16) It has the power to enact rules and regulations governing
its operations.
(17) It has the power to decide issues of eligibility under the
definitions of the Coal Act.
(18) It has (or at least claims) the power to interpret the "intent
of Congress" in enacting the Coal Act.
(19) It has (or at least claims) the power to decide whether to
issue refunds or credits to taxpayers for overpayments.
(20) It has the power to calculate and assess death benefit pre-
miums and unassigned beneficiary premiums.
19 THE PITTSTON COMPANY v. UNITED STATES

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The vast majority of these items clearly do not violate the nondelega-
tion doctrine. First, several of them relate to the Combined Fund’s
internal governance, which in no way impinges upon others. These
include creating and amending its own charter, employing staff and
outside counsel, and enacting rules and regulations governing its
operations. Second, several relate to the power to sue for monies
owed to itself, which is not a governmental power, but a private one.
Third, the mere ability to receive governmental monies is clearly min-
isterial, so that the power to receive taxes (premiums) and other fed-
eral revenues (which private employers do with every paycheck) does
not violate the nondelegation doctrine. Fourth, the Fund’s authority
to refer delinquent operators to the Treasury Department for a penalty
is just an "advisory" role, subject to the Secretary of Treasury’s super-
visory authority, similar to that specifically authorized in Sunshine
Anthracite as a valid delegation to a private entity. Fifth, the Com-
bined Fund’s power to "calculate and assess" some premiums is
inconsequential, given that the Coal Act gives detailed guidance as to
what those premiums must be and by whom they must be paid. The
Fund in these capacities is merely carrying out the ministerial task of
doing calculations and collecting funds.
Several of Pittston’s other allegations are too vague even to consti-
tute a power on the part of the Combined Fund. Its claims that the
Combined Fund has the power "to decide issues of eligibility under
the definitions of the Coal Act" and "to interpret the ‘intent of Con-
gress’ in enacting the Coal Act" do not alone allege impermissible
delegation. Anyone can interpret the intent of Congress, of course.
The question is in what context the Combined Fund’s interpretations
might have weight, and how much. The Coal Act does not grant the
Combined Fund any authority in interpreting its provisions. Similarly,
Pittston fails to explain what "issues of eligibility" the Combined
Fund has power to decide. Again, the Coal Act does not appear to
leave any issues of eligibility to the Combined Fund. Pittston’s claim
that the Fund has the power to "decide whether to issue refunds or
credits to taxpayers for overpayments" is an erroneous characteriza-
(21) It has the power to do all other acts that, in its opinion, are
necessary to carry out the business of the Combined Fund.
20 THE PITTSTON COMPANY v. UNITED STATES

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tion. Indeed, in this very litigation, Pittston sued the Combined Fund
and received a judgment for its overpayment of Coal Act premiums
as determined by the provisions of the Coal Act.
Pittston also challenges the Combined Fund’s power to invest the
premiums it receives from the coal operators. The function of invest-
ing money, however, is not essentially governmental in nature. The
Combined Fund’s activities in this regard are no different from those
of many pension funds after the enactment of the Multiemployer Pen-
sion Plan Amendments Act of 1980 ("MPPAA"), 29 U.S.C. §§ 1381
- 1461. The MPPAA was enacted to supplement ERISA and to estab-
lish the Pension Benefit Guaranty Corporation to administer an insur-
ance program for vested benefits. Under the MPPAA, private pension
funds receive withdrawal penalties that are assessed according to stat-
ute, and these private pension funds use the withdrawal-penalty pay-
ments to make investments and to pay pension fund beneficiaries. See
Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 723-
25 (1984). While the Supreme Court has not decided explicitly that
the MPPAA is permissible under the nondelegation doctrine, it has
upheld the constitutionality of the Act against challenges under the
Takings Clause and the Due Process Clause. See id. at 734; Concrete
Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S.
Cal., 508 U.S. 602, 641 (1993); Connolly v. Pension Benefit Guar.
Corp., 475 U.S. 211, 227-28 (1986). Pittston argues that the Com-
bined Fund’s activities are different from those of private pension
funds under the MPPAA because the monies used by the Combined
Fund have been defined as taxes. See Pittston Co. v. United States,
199 F.3d 694, 702 (4th Cir. 1999). Regardless of how the monies are
labeled, however, both the monies received by the pension funds
under the MPPAA and the monies received by the Combined Fund
under the Coal Act are assessed by statute. More to the point, the cen-
tral inquiry is whether the function of the Combined Fund in preserv-
ing and investing money assessed by statute is governmental in
nature. The label placed on the monies received by the Fund does not
change the Fund’s function. Moreover, the act of investing the money
received under the Coal Act does not impinge upon the interests of
other citizens in a way feared by the Supreme Court in Carter.
At its core, the Coal Act identifies each coal operator responsible
for the payment of premiums and each coal miner who is to receive
21 THE PITTSTON COMPANY v. UNITED STATES

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a benefit from the premiums. The Act determines the nature of the
retiree’s benefit and its amount, and the Social Security Commis-
sioner, not the Combined Fund, computes the amount of the premium
payable by a coal company for this purpose, based on the number of
retirees assigned to the coal operator and the benefits payable to them.
In this scheme, the Coal Act, in essence, leaves to the private entity
only the administrative tasks of collecting the premiums, preserving
them for the benefit of the beneficiaries, and using them to provide
the beneficiaries with the benefits specified by the Coal Act.
Even with respect to the ministerial and advisory functions dele-
gated to the Combined Fund, the Coal Act imposes restrictions by
designating the Fund as a "plan" under the Labor Management Rela-
tions Act and the Employee Retirement Income Security Act
("ERISA"). See 26 U.S.C. § 9702(a)(3). Among other requirements,
ERISA provides that an ERISA plan’s trustees must act "solely in the
interest of the participants and beneficiaries and . . . for the exclusive
purpose of: (i) providing benefits to participants and their beneficia-
ries; and (ii) defraying reasonable expenses of administering the plan
. . . ." 29 U.S.C. § 1104(a)(1). As characterized by the Supreme Court,
ERISA imposes "‘strict fiduciary obligations on those who have dis-
cretion or responsibility respecting the management, handling, or dis-
position of pension or welfare plan assets.’" Mass. Mut. Life Ins. Co.
v. Russell, 473 U.S. 134, 141 n.8 (1985) (quoting 120 Cong. Rec. 29,
932 (1974)). Their failure to discharge their specified duties properly
subjects them to the threat of personal lawsuits for breach of fiduciary
duty. The Combined Fund Trustees are thus subject to many restric-
tions ensuring that even in discharging administrative and advisory
powers, they not act according to their own whims or prejudices, but
solely in the best interest of the Combined Fund’s beneficiaries.
In sum, the Trustees’ powers with respect to the Combined Fund
are far from unfettered. The Trustees are not able to use their position
for their own advantage — to the disadvantage of their fellow citizens
— as was permitted by the Bituminous Coal Conservation Act struck
down in Carter. They are given ministerial and advisory tasks in a
manner and to an extent that does not violate the nondelegation doc-
trine.
22 THE PITTSTON COMPANY v. UNITED STATES

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III
Pittston next contends that the Supreme Court’s decision in Eastern
Enterprises, 524 U.S. 498, invalidating the Coal Act’s application to
a group of coal operators, had the effect of invalidating the entire
Coal Act, because the decision so altered the Act that to continue to
enforce it would contradict congressional intent. Pittston argues that
to make up for the shortfall effected by the holding in Eastern Enter-
prises and its elimination of a group of coal operators as contributors
to the Combined Fund, the Trustees assigned retired coal miners to
Pittston and others, requiring them "to pay more because others are
paying less." Pittston notes that the Coal Act was a "bipartisan com-
promise," the "key feature [of which] was the imposition of liability
on all former signatories to NBCWAs." For these reasons, Pittston
argues that no part of the Coal Act is severable from the parts deemed
unconstitutional, and therefore the entire Act is unenforceable.
The Coal Act directs the Commissioner of Social Security to assign
to each coal operator the duty of paying premiums to fund the benefits
of each retired coal miner whom it employed and for whom it had the
most responsibility. The assignments are made in accordance with a
detailed, three-tiered system designed to match up beneficiaries with
the coal operators deemed most responsible for providing the retirees’
benefits. Thus, a retiree is assigned first to any operator who signed
the 1978 NBCWA and who was the most recent operator to employ
the retired miner for at least two years. 26 U.S.C. § 9706(a)(1). If no
such operator exists, the retiree is assigned to a coal operator who
signed the 1978 NBCWA and who was the most recent employer of
the coal miner, regardless of his length of service. Id. § 9706(a)(2).
Finally, if no such operator exists, the Coal Act provides that the ben-
eficiary is assigned to the operator who employed the retired coal
miner the greatest length of time, regardless of which NBCWA the
operator has signed. See id. § 9706(a)(3).
In Eastern Enterprises, the Supreme Court held this assignment
scheme unconstitutional as it applied to the plaintiff Eastern. Eastern
had conducted business as a coal operator from 1929 to 1965, and
even though it was a signatory to each NBCWA between 1947 and
1964, it signed none after the 1964 NBCWA. Under the assignment
scheme of the Coal Act, Eastern was assigned more than 1000 retired
23 THE PITTSTON COMPANY v. UNITED STATES

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coal miners who had worked for the company before 1966 and who
had not worked for any coal operator that had signed the 1978
NBCWA or later agreement. See 26 U.S.C. § 9706(a)(3). Because of
those assignments, Eastern was retroactively assessed more than $5
million in premiums to pay for benefits of employees who had
worked for it some 35 years earlier and for whom Eastern had never
signed a NBCWA promising lifetime healthcare benefits. The plural-
ity in Eastern Enterprises identified the 1974 NBCWA, one that East-
ern did not sign, as the one in which lifetime benefits were first
promised. See 524 U.S. at 509, 530, 535.
The majority of the Supreme Court found the application of the
Coal Act to Eastern unconstitutional because it imposed severe retro-
active liability on the company. The plurality of the Court held that
the assignment of beneficiaries to Eastern worked an unconstitutional
taking, reasoning that Eastern was being forced "to bear a burden that
is substantial in amount, based on . . . conduct far in the past, and
unrelated to any commitment that [Eastern] made or to any injury [it]
caused." Eastern Enterprises, 524 U.S. at 537 (O’Connor, J.). Justice
Kennedy, concurring in the judgment, found that the statute’s applica-
tion to Eastern violated substantive due process, reasoning that
because Eastern left the coal business long ago and was not a party
to any agreements that contemplated lifetime benefits, "[t]his case is
far outside the bounds of retroactivity permissible under our law." Id.
at 550 (Kennedy, J., concurring in the judgment and dissenting in
part).
The question Pittston thus presents is whether the Supreme Court’s
holding that the Coal Act was unconstitutional, as it applied to East-
ern, in effect invalidated the Coal Act for all coal operators because
the Act is not severable.
We begin with the background presumption that when an applica-
tion of a statute is determined to be unconstitutional, courts seek to
preserve as much of the statute as is still consistent with legislative
intent; courts "should refrain from invalidating more of the statute
than is necessary. . . . [W]henever an act of Congress contains unob-
jectionable provisions separable from those found to be unconstitu-
tional, it is the duty of this court to so declare, and to maintain the act
in so far as it is valid." Alaska Airlines, Inc. v. Brock, 480 U.S. 678,
24 THE PITTSTON COMPANY v. UNITED STATES

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684 (1987) (internal quotation marks and citations omitted). The
question of whether portions of an act can be severed from unconsti-
tutional portions requires "an inquiry into legislative intent." Minne-
sota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191
(1999). Thus, valid provisions of an act will remain enforceable
unless it is "evident that the Legislature would not have enacted those
provisions which are within its power, independently of that which is
not." Alaska Airlines, 480 U.S. at 684 (internal quotation marks and
citations omitted). Of course, an explicit severability clause within a
statute "creates a presumption that Congress did not intend the valid-
ity of the statute in question to depend on the validity of the constitu-
tionally offensive provision. In such a case, unless there is strong
evidence that Congress intended otherwise, the objectionable provi-
sion can be excised from the remainder of the statute." Id. at 686
(citations omitted) (emphasis added).
The Coal Act is subject to a severability clause that provides, "If
any provision of this title, or the application thereof to any person or
circumstances, is held invalid, the remainder of the title, and the
application of such provision to other persons or circumstances, shall
not be affected thereby." 26 U.S.C. § 7852(a). Because Congress
revealed its intent to make the provisions of Title 26 severable, Pitts-
ton must present "strong evidence" that Congress would never have
intended to enact the Coal Act’s assignment scheme at all if it could
not have included Eastern-like operators.
Pittston argues that the strong evidence of Congress’ intent that the
Coal Act not be severable when some coal operators — such as
Eastern-like operators — are removed from the funding pool is sup-
plied by (1) legislative history, and (2) the altered functioning of the
Act without Eastern-like operators included in the pool.
In support of its legislative-history argument, Pittston points only
to a statement by Senator Rockefeller that "[i]nstead of including a
broad industrywide tax, the basic funding mechanism of this legisla-
tion generally requires premium payments from those for whom the
retirees worked." (Quoting 138 Cong. Rec. S 17,633 (daily ed. Oct.
8, 1992) (Statement of Sen. Rockefeller)) (emphasis added). This
statement, however, does not suggest that it was an essential aspect
of the Coal Act that every coal operator be an actual contributor to the
25 THE PITTSTON COMPANY v. UNITED STATES

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Combined Fund. The most that can be drawn from it is that coal oper-
ators will be assessed premiums only for those retired coal miners
they actually employed. Thus, even if we were permitted to consider
this statement from the legislative history as binding, it would not
advance Pittston’s cause. When Eastern-like operators are excluded
from operation of the Coal Act, the reassignments of remaining
retired miners are made under 26 U.S.C. § 9706(a) only to coal opera-
tors who actually employed the retired miners. This is just what Sena-
tor Rockefeller said: that the functioning of the Coal Act "generally
requires premium payment from those for whom the retirees worked."
More importantly, Pittston’s assertion that the Coal Act’s function-
ing was dependent on the imposition of liability "on all former signa-
tories to NBCWAs" is belied by the very terms of the Act.
Anticipating that not all coal operator signatories will be available for
the assignment of retired coal miners, the Act provides procedures for
when companies go out of business and no longer contribute to
the Combined Fund. See 26 U.S.C. §§ 9706(a), 9701(c)(7),
9704(f)(2)(B). In such circumstances, the orphaned beneficiaries are
supported by the remaining companies. These provisions conclusively
indicate that Congress did not intend the Coal Act to cease in force
simply because some operators who were initially intended to be
included in the statutory scheme had dropped out.
Furthermore, after the decision was handed down in Eastern Enter-
prises and after it became clear that Eastern-like operators could not
be included in the Coal Act’s assignment scheme, Congress continued
to make appropriations to benefit Coal Act funds. See Consolidated
Appropriations Act of 2000, Pub. L. No. 106-113, § 501, 113 stat.
1501, 1501A-214 (1999); Dept. of the Interior and Related Agencies
Appropriations Act of 2001, Pub. L. No. 106-291, § 701, 114 stat.
922, 1024 (2000). These appropriations after Eastern Enterprises sug-
gest that Congress would have intended that the constitutional appli-
cations of the Coal Act continue to survive after Eastern Enterprises.
Although these appropriations were by a later Congress, they carry
weight in construing the intent of Congress in enacting the Coal Act.
Cf. Loving v. United States, 517 U.S. 748, 770 (1996).
Pittston also argues that if Eastern-like operators are not included
as contributors, the Coal Act is "incapable of functioning indepen-
26 THE PITTSTON COMPANY v. UNITED STATES

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dently," which would be dispositive evidence that Congress would
not have enacted it without the inclusion of these operators. See
Alaska Airlines, 480 U.S. at 684. But Pittston’s assertion that the Coal
Act is "incapable of functioning independently" is belied by the fact
that the Coal Act continues to function without Eastern-like operators
and has so functioned since 1998, when the Eastern Enterprises deci-
sion was handed down. The third-tier group under the assignment
scheme in § 9706(a) has merely ceased to include Eastern-like opera-
tors. Moreover, even if beneficiaries assigned to Eastern-like opera-
tors could not be assigned to any other operators in accordance with
the provisions of § 9706(a), the Act contemplates providing benefits
to such "unassigned" beneficiaries. 26 U.S.C. § 9704(d).
In sum, Congress intended the Coal Act to be severable by inclu-
sion of a severability clause, and the Act remains fully functional
without including Eastern-like coal operators. There is no evidence to
overcome the presumption that the Coal Act should continue in force
despite the Supreme Court’s decision in Eastern Enterprises.
IV
Pittston also contends that the Social Security Commissioner
improperly interpreted and applied the Coal Act in the wake of East-
ern Enterprises when she reassigned retirees previously assigned to
Eastern-like operators. In making those reassignments, the Commis-
sioner interpreted Eastern Enterprises to invalidate any assignments
made under 26 U.S.C. § 9706(a)(3) to coal operators that never signed
the 1974 NBCWA or later agreements. According to Pittston, the
number of assignments so invalidated was in the thousands. The
Commissioner then reassigned these retirees to the coal operator that
had signed the 1974 NBCWA or a later agreement and that employed
the retiree for the longest amount of time. As a result of this reassign-
ment, Pittston, as a signatory to the 1974 NBCWA or (through related
companies) to a later agreement, received 95 more beneficiaries than
it had prior to the Supreme Court’s decision in Eastern Enterprises.
Pittston contends that the Commissioner’s construction of the Coal
Act to make these reassignments violated the explicit provisions of
§ 9706(a) (establishing the priority scheme for assigning retirees to
coal operators) and § 7852(a) (the severability clause for Title 26 of
the United States Code).
27 THE PITTSTON COMPANY v. UNITED STATES

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It is true that Congress did not state explicitly in the Coal Act what
the Commissioner should do if assignments to specific coal operators
were deemed unconstitutional. But without specific instructions, in
light of Eastern Enterprises, the Commissioner removed Eastern-like
coal companies from the pool of qualified signatory operators and
reassigned their beneficiaries to other companies, applying the provi-
sions of § 9706(a) to this smaller pool of operators. Because Congress
provided no explicit instructions, the question presented is whether
the Commissioner’s reassignments under § 9706(a) are "based on a
permissible construction of the statute." Chevron U.S.A., Inc. v. Natu-
ral Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).
The provision of the Coal Act on which the Commissioner based
her construction, § 9706(a), provides the method of assigning retirees
to signatory coal operators:
For purposes of this chapter, the Commissioner of Social
Security shall, before October 1, 1993, assign each coal
industry retiree who is an eligible beneficiary to a signatory
operator which (or any related person with respect to which)
remains in business in the following order:
(1) First, to the signatory operator which —
(A) was a signatory to the 1978 coal wage agree-
ment or any subsequent coal wage agreement, and
(B) was the most recent signatory operator to
employ the coal industry retiree in the coal indus-
try for at least 2 years.
(2) Second, if the retiree is not assigned under paragraph
(1), to the signatory operator which —
(A) was a signatory to the 1978 coal wage agree-
ment or any subsequent coal wage agreement, and
(B) was the most recent signatory operator to
employ the coal industry retiree in the coal indus-
try.
28 THE PITTSTON COMPANY v. UNITED STATES

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(3) Third, if the retiree is not assigned under paragraph (1)
or (2), to the signatory operator which employed the
coal industry retiree in the coal industry for a longer
period of time than any other signatory operator prior
to the effective date of the 1978 coal wage agreement.
26 U.S.C. § 9706(a).
With respect to its argument that the Commissioner misconstrued
and misapplied § 9706(a), Pittston asserts that the 95 retirees reas-
signed to it were properly assigned in the first place to Eastern-like
coal operators under the terms of § 9706(a), and because they were
properly assigned to other coal operators, they could not later be prop-
erly assigned to Pittston. Pittston explains:
The fact that the assignments [made to Eastern-like coal
operators] proved to be unconstitutional does not mean that
they were not made as the statute requires. In Eastern, the
Supreme Court held that the assignments required by the
statute were unconstitutional, not that the assignments were
contrary to the statute. The Government and Trustees want
to revise the statutory order and make the remaining opera-
tors like Pittston pay for people who should be — and were
— assigned to other operators.
In short, Pittston argues that the Commissioner had no authority to
take beneficiaries away from Eastern-like companies and reassign
them to Pittston as the "next-in-line" coal operator.
Pittston is wrong, however, in asserting that the assignments origi-
nally made to Eastern-like companies were proper — that beneficia-
ries ever "should" have been assigned to Eastern and to other Eastern-
like signatories. In so arguing, Pittston misconstrues the nature and
effect of Eastern Enterprises. When Eastern Enterprises held that it
was unconstitutional to assign retirees to Eastern under the Coal Act,
the ruling effectively held that the Commissioner should never have
assigned retirees to Eastern in the first place. Because the Commis-
sioner’s assignments were invalid from the beginning, she had to start
over to assign the beneficiaries to comport with the terms of the stat-
ute as well as the Constitution. Thus, contrary to Pittston’s suggestion
29 THE PITTSTON COMPANY v. UNITED STATES

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that the Commissioner merely reassigned retirees to the "next-in-line"
operator, after Eastern Enterprises the Commissioner in fact inter-
preted "signatory operators," as used in the Coal Act and in light of
the requirements of the Constitution, to include only operators that
had signed a 1974 NBCWA or later agreement. She then assigned
each retiree whose assignment was declared invalid to the signatory
operator that had employed the retiree the longest — exactly as she
was instructed to do by § 9706(a)(3) of the Coal Act. Had the Com-
missioner merely moved these retirees to the "next-in-line" operator,
as Pittston supposes, the Commissioner would occasionally have
ended up with yet another Eastern-like operator, and moreover would
have acted inconsistently with her statutory responsibility to identify
the signatory operator that employed the beneficiary the longest.
When a retiree cannot be assigned under § 9706(a)(1) or
§ 9706(a)(2), the Coal Act sometimes directs the Commissioner to do
something unconstitutional: i.e., assign the retiree to an Eastern-like
coal operator. In drafting the Coal Act, Congress did not contemplate
that some members of the "signatory operators" group could not con-
stitutionally be required to contribute to the Combined Fund. The sit-
uation faced by the Commissioner was thus the kind of "case
unprovided for" that allows her to engage in gap-filling.3 See Barn-
3The dissent argues that this was not a "case unprovided for," in the
sense that the statute provides for "unassigned" beneficiaries. It argues:
In the case of each of the 95 retirees at issue here, the plain lan-
guage of § 9706(a) at the time the original assignments were
made identified a single company — an Eastern-type company.
However, because assignments to these companies were uncon-
stitutional, the Commissioner could not lawfully perform the
only act authorized by § 9706(a). . . . The statute provides unam-
biguous instructions for the Commissioner to follow with respect
to retirees who are not assigned under § 9706(a): They must
remain unassigned. Thus, there is no gap for the Commissioner
to fill.
This argument fails for two reasons.
First, it fails to take into account the retroactivity of the holding in
Eastern Enterprises. Even though Eastern Enterprises was decided six
years after enactment of the Coal Act, it had the effect of disqualifying
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hart v. Peabody Coal Co., 537 U.S. 149, 169 (2003). In applying
§ 9706 to the retirees left unassigned as the result of the decision in
Eastern Enterprises, the Commissioner has not violated or disturbed
the structure of the Coal Act. She merely removed from the pool of
ab initio Eastern-like companies from the pool to whom the Commis-
sioner could assign retirees. The dissent’s statement that the Coal Act
"identified a single company — an Eastern-type company" — to whom
to assign the 95 retirees at issue is literally true, but it is incomplete in
that it fails to address how the assignment pool was to be determined
when Eastern-like companies were disqualified as of the time the origi-
nal assignments were made. Because Eastern Enterprises retroactively
disqualified Eastern-like companies from assignments under the Coal
Act, the Commissioner looked at the defined pool of qualified signatories
as if it were 1992, when the Coal Act was enacted. She reasoned that
inasmuch as Congress intended to include in the pool only those compa-
nies then "in business," see U.S.C. § 9706(a) (providing that retirees may
be assigned only to a "signatory operator which . . . remains in busi-
ness"), she should take the small step of construing the class of out-of-
business operators to include Eastern-like companies who were constitu-
tionally disqualified. This gap-filling is, as we conclude, entitled to
Chevron deference.
Thus, when assigning the 95 retirees to the pool adjusted by Eastern
Enterprises, the Commissioner followed the provisions of § 9706(a)
strictly, assigning each of the 95 retirees to the single signatory operator
then in the pool who had employed the retiree the longest — in this case,
Pittston. The retiree would have remained "unassigned" only if the
adjusted pool had not, as of the Coal Act’s enactment, contained an oper-
ator who had employed the retiree. See 26 U.S.C. §§ 9706(a), 9704(d).
Of course, if an operator went out of business after the Coal Act went
into effect, its retirees would also become unassigned.
Second, the dissent’s proposed solution to leave the 95 retirees unas-
signed for constitutional reasons finds no explicit basis in the text of
§ 9706(a) and therefore cannot reflect "unambiguous instructions" of
Congress, as the dissent claims. Section 9706(a) leaves unassigned only
those retirees who were never employed by a signatory operator that was
"in business" at the enactment of the Coal Act. The 95 retirees at issue
were employed by signatory operators who clearly fit the definition in
§ 9706(a), albeit Eastern-like companies. Therefore, the Act cannot have
"unambiguously expressed" Congress’ intent that they become "unas-
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possible contributors those coal operators that could not constitution-
ally be required to contribute. Among the remaining contributors, she
followed the Coal Act’s assignment structure to the letter. In short, in
making reassignments, the Commissioner did not change the wording
of the statute, but merely followed the Supreme Court’s ruling that the
Coal Act may only apply to a narrower group of persons than previ-
ously thought.
In finding that the Commissioner has permissibly interpreted the
Coal Act in the wake of Eastern Enterprises, we have also considered
the legislative intent expressed by Congress to minimize the number
of unassigned beneficiaries by assigning each retiree to a coal opera-
tor most responsible for providing benefits. As the Supreme Court has
observed:
This much is certain: the Coal Act rests on Congress’s stated
finding that it was necessary to "identify persons most
responsible for plan liabilities," and on its express desire to
"provide for the continuation of a privately financed self-
sufficient program for the delivery of health care benefits,"
Energy Policy Act of 1992, Pub. L. 102-486, § 19142, 106
Stat. 3037. In the words of Senator Wallop’s report deliv-
ered shortly before enactment, the statute is "designed to
allocate the greatest number of beneficiaries in the Plans to
a prior responsible operator. For this reason, definitions are
intended by the drafters to be given broad interpretation to
accomplish this goal." 138 Cong. Rec. 34001 (1992).
Barnhart v. Peabody Coal, 537 U.S. at 171-72 (footnote omitted).
The Commissioner’s interpretation and application of § 9706 fulfills
this legislative intent. She determined that, of all the signatory coal
operators to whom assignments would be lawful, Pittston employed
these 95 beneficiaries the longest. According to the rationale underly-
signed" under § 9704(d), as the dissent proposes. Left without explicit
instructions as to how to apply Eastern Enterprises, the Commissioner
filled the gap by deciding which operators qualified for the pool as of the
time of enactment and then assigning each retiree to the one operator in
the pool who employed the retiree the longest, as provided in § 9706(a).
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ing the Coal Act’s assignment structure, that makes Pittston the coal
operator most responsible for providing benefits to those 95 benefi-
ciaries.
With respect to Pittston’s argument that the Commissioner’s reas-
signment of retirees to Pittston violated 26 U.S.C. § 7852(a), the
Internal Revenue Code’s severability clause, Pittston contends that
"the application of an internal revenue law to one person ‘shall not be
affected’ by the invalidation of that law to another person. Yet that
is exactly what the Government and Trustees have done to Pittston;
they have made Pittston pay more because Eastern and other compa-
nies are paying less." We conclude that this argument misconstrues
§ 7852(a).
The severability clause reads:
If any provision of this title, or the application thereof to any
person or circumstances, is held invalid, the remainder of
the title, and the application of such provision to other per-
sons or circumstances, shall not be affected thereby.
26 U.S.C. § 7852(a). From a straightforward reading of this provision,
we conclude that the clause merely provides that if a provision in
Title 26 applied to one party before the provision was invalidated as
to other parties, it will continue to apply to that one party. It does not
mean that the application of the provision to one party cannot result
in changed liabilities after an invalidation as to other parties. Severing
a statute’s provisions will occasionally result in enhanced liabilities
for some parties as a result of the remaining provisions. That result
is not inconsistent with the idea that the application of the statute will
not be affected as to those parties. Indeed, in accordance with
§ 7852(a), the Coal Act remains operative as to non-Eastern-like coal
companies. Thus, even though the statute — as now applied to Pitts-
ton without Eastern-like companies in the contributing pool — may
result in different liabilities, the fact and method of applying the Coal
Act to Pittston have not changed.
In sum, we conclude that the Commissioner’s application of 26
U.S.C. § 9706(a) in making 95 reassignments to Pittston following
Eastern Enterprises was a permissible construction of the Coal Act.
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V
Finally, Pittston contends that the Coal Act violates the Due Pro-
cess Clause and Takings Clause of the Fifth Amendment. It argues
that the last NBCWA that it signed was the 1974 NBCWA which, it
contends, did not contemplate lifetime benefits for coal miners.
According to Pittston, such lifetime benefits were first included in the
1978 NBCWA. Accordingly, it argues, applying the Coal Act to Pitts-
ton violates the Fifth Amendment.
Pittston acknowledges, however, that its subsidiaries — "related
parties" under the Coal Act — did sign the 1978 NBCWA and later
agreements, and, according to our precedent, the signatory status of
one related party may be imputed to other related parties, making
Pittston effectively a signatory to the 1978 NBCWA and later agree-
ments. See A.T. Massey Coal Co. v. Massanari, 305 F.3d 226 (4th
Cir. 2002). Pittston also acknowledges that Massey Coal requires us
to reject Pittston’s argument. In lieu of pressing the point further to
this three-judge panel of the court, which is bound by Massey, Pitts-
ton urges us to hold this issue in abeyance until the Supreme Court
decides whether to grant a petition for writ of certiorari in Massey or
in Berwind Corp. v. Comm’r, 307 F.3d 222 (3d Cir. 2002) (reaching
the same conclusion as Massey).
The Supreme Court has, since Pittston filed its brief on appeal,
denied the petitions for a writ of certiorari in both Massey and Ber-
wind. See Massey, 123 S. Ct. 1928 (2003); Berwind, 123 S. Ct. 1927-
28 (2003). Accordingly, its motion to hold this claim in abeyance has
been rendered moot. And on the merits of its Fifth Amendment argu-
ment, we agree with Pittston that it is foreclosed by Massey.
VI
In addition to its substantive contentions, Pittston argues that the
district court abused its discretion in refusing to unseal documents
that were sealed pursuant to a stipulated protective order.
During discovery, in order to facilitate the discovery of documents
from the Bituminous Coal Operators’ Association ("BCOA"), which
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is not a party to this case, counsel for both Pittston and BCOA agreed
that certain categories of information produced in discovery would be
protected from public disclosure. On October 22, 2001, the district
court issued a stipulated protective order, which both parties signed,
protecting from disclosure documents "denominated by the producing
person . . . as containing confidential, proprietary, commercial, or
financial data." Operating under that protective order, BCOA pro-
duced 295 pages of documents to Pittston, several of which were des-
ignated as protected under the Protective Order. Pittston used the
protected documents in connection with its filings on motions for
summary judgment, and then filed a motion to unseal the documents,
which the district court denied.
In seeking to reverse the district court, Pittston claims that it is pro-
moting the public interest in access to the documents, as was The
Washington Post in Rushford v. New Yorker Magazine, Inc., 846 F.2d
249, 252-54 (4th Cir. 1988)(holding that The Washington Post was
entitled access to documents sealed by a protective order and used by
the parties in summary judgment proceedings). Unlike the circum-
stances in Rushford, where The Washington Post did not have access
to the documents, Pittston already had access to the documents cov-
ered by the protective order. Moreover, Pittston itself agreed to the
sealing of the documents in order to benefit from a more open discov-
ery from BCOA, which was not a party to the litigation.
In the circumstances, we conclude that the district court did not
abuse its discretion.
AFFIRMED
WILKINS, Chief Judge, concurring in part and dissenting in part:
Following Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) [here-
inafter "Eastern"], it was apparent that assignments to companies sim-
ilarly situated to Eastern ("Eastern-type assignments"), although
made at Congress’ direction in accordance with the Coal Act, were
unconstitutional and thus should never have been made. However, in
reviewing these assignments in light of Eastern, the Social Security
Commissioner ("the Commissioner") not only revoked the unconstitu-
tional assignments but also reassigned the affected retirees to other
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companies such as Pittston. Because I believe these reassignments
contravened the plain language of the Coal Act, I respectfully dissent
in part from Part IV of the majority opinion. I concur in the remainder
of the opinion.
Initially, it is important to recognize that with regard to each
retiree, at the time of the Commissioner’s review, 26 U.S.C.A.
§ 9706(a) (West 2002) either identifies a single company for assign-
ment or does not authorize assignment at all. The Commissioner’s
narrow task with regard to each retiree is to determine whether
§ 9706(a) identifies a company to which the retiree can be assigned.
If so, the assignment is made, and the company to which the retiree
is assigned funds the retiree’s benefits. See id. If not, the retiree’s ben-
efits are funded by all companies in proportion to the number of retir-
ees they have been assigned. See 26 U.S.C.A. § 9704(d) (West 2002)
(requiring operators to fund benefits of eligible beneficiaries "who are
not assigned under section 9706"); 26 U.S.C.A. § 9704(f)(1) (West
2002).
The question thus becomes how to apply Eastern retroactively to
§ 9706(a). In the case of each of the 95 retirees at issue here, the plain
language of § 9706(a) at the time the original assignments were made
identified a single company—an Eastern-type company.1 However,
1The majority contends that applying Eastern retroactively could
somehow change which operator § 9706(a) identifies. See ante, at 30-32
n.3. That is incorrect. In the case of each of the 95 retirees at issue here,
Eastern only prevented assignment of the retiree to the single company
that § 9706(a) identified. It did not somehow create an ambiguity regard-
ing the identification of that company. In other words, the "signatory
operator" remaining "in business" "which employed the . . . retiree in the
coal industry for a longer period of time than any other signatory opera-
tor prior to the effective date of the 1978 coal wage agreement" is no dif-
ferent after Eastern than it was before. The majority reaches the opposite
conclusion by reasoning that, under Eastern, the Eastern-type companies
might reasonably be viewed as being no longer "in business," thereby
leaving the door open to assignment to other, non-Eastern-type compa-
nies. However, that interpretation of "in business" is plainly foreclosed
by the definition Congress gave that term. See 26 U.S.C.A. § 9701(c)(7)
(West 2002) (providing that company remains "in business" so long as
it continutes to "conduct[ ] or derive[ ] revenue from any business activ-
ity"); infra n.3.
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because assignments to these companies were unconstitutional, the
Commissioner could not lawfully perform the only act authorized by
§ 9706(a).
The majority concludes that the Commissioner’s inability to per-
form this act leaves a gap in the statute. See ante, at 28-32 & n.3. I
disagree. The statute provides unambiguous instructions for the Com-
missioner to follow with respect to retirees who are not assigned
under § 9706(a): They must remain unassigned.2 Thus, there is no gap
for the Commissioner to fill.
The majority reaches the opposite conclusion by effectively divid-
ing the mandate of § 9706(a) into two distinct commands—a general
requirement that the Commissioner assign each retiree to a signatory
operator and a more specific set of instructions about how to select
the appropriate operator for such an assignment. On this reading,
there is a gap; the Commissioner must make an assignment but cannot
2The majority contends that my "proposed solution to leave the 95
retirees unassigned for constitutional reasons finds no explicit basis in
the text of § 9706(a)." Ante, at 31 n.3 (emphasis omitted). The majority
similarly notes that Congress did not unambiguously express its intent to
leave retirees unassigned when the plain language of § 9706(a) would
require Eastern-type assignments. From these premises, the majority
concludes that the Commissioner lacked explicit instructions regarding
how to proceed with respect to the 95 retirees at issue here. See id.
The majority’s conclusion does not follow from its premises. The
Commissioner’s direction here comes not simply from the text of the
Coal Act, but from the text read in light of Eastern. The text of the Coal
Act unambiguously authorized the Commissioner to assign each of the
95 retirees at issue here to an Eastern-type company. And, Eastern
negated that authority. Prohibited from making the only assignment that
Congress had authorized, the Commissioner’s work was complete. She
had full directions—from the Coal Act and from the Constitution—and
there was no gap left to fill. To be clear, that the Commissioner’s assign-
ments of these 95 retirees to Pittston were unauthorized is not established
by the presence of an unambiguous expression of Congressional intent
to have the Commissioner leave retirees unassigned when the language
of the Coal Act would require that they be assigned to Eastern-type com-
panies. Rather, it is based on the absence of any authority to make any
assignments other than those that Congress authorized.
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adhere to Congress’ directions about how to do this, and the Commis-
sioner therefore must formulate her own assignment rules. In my
view, however, this bifurcation of § 9706(a) misreads the statute.
Congress plainly did not require that every retiree be assigned to a
signatory operator whenever such an operator is available; for exam-
ple, as the majority notes, if the operator to whom a retiree is origi-
nally assigned goes out of business, the retiree is not reassigned, but
instead becomes unassigned, see 26 U.S.C.A. § 9704(f)(2)(B) (West
2002). Thus, the better reading of § 9706(a) is that Congress intended
for the Commissioner to make assignments under that provision only
when she can do so consistently with its plain language; if not, the
Commissioner must leave the retiree unassigned rather than devise
additional assignment rules.
Nevertheless, the Commissioner did not stop there. Unable to make
the assignments that Congress actually authorized, the Commissioner
created a new assignment plan and assigned the 95 retirees at issue
here to Pittston, a company that would not have been liable under the
plan that Congress established.3 This rewriting of the statute—without
any authority from Congress—is impermissible. See La. Pub. Serv.
Comm’n v. FCC, 476 U.S. 355, 374 (1986) (explaining that "an
agency literally has no power to act . . . unless and until Congress
confers power upon it"); Atlantic City Elec. Co. v. FERC, 295 F.3d
1, 8 (D.C. Cir. 2002) (emphasizing that a federal agency, as a "crea-
ture of statute," has "only those authorities conferred upon it by Con-
gress") (internal quotation marks omitted). As the Supreme Court
stated in another case interpreting the Coal Act, "[o]ur role is to inter-
pret the language of the statute enacted by Congress. . . . We will not
alter the text in order to satisfy the policy preferences of the Commis-
sioner." Barnhart v. Sigmon Coal Co., 534 U.S. 438, 461-62 (2002).
The majority notes that allowing reassignment to companies like
3The Commissioner’s new assignment plan removed Eastern-type
companies from the pool of signatory operators to whom retirees could
be assigned; thus, retirees who worked for such operators could be
assigned to an operator who remained within that pool. But neither the
definitions of "signatory operator," see 26 U.S.C.A. § 9701(c)(1) (West
2002), and "in business," see id. § 9701(c)(7), nor the assignments provi-
sion, see id. § 9706(a), provides for narrowing the pool in this manner.
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Pittston serves the purposes that Congress sought in enacting the Coal
Act. See ante, at 31-33. With respect to the majority, even if it has
correctly identified the purposes of the Coal Act, those purposes are
irrelevant when the language of the Coal Act plainly provides no
authority for the agency action. See Barnhart, 534 U.S. at 461-62. If
Congress wanted the Commissioner after Eastern to be able to create
a new assignment plan, it was incumbent on Congress to have pro-
vided the Commissioner with that authority. Because Congress did
not do so, I would hold that the 95 reassignments to Pittston were
ultra vires and that Pittston thus is entitled to a refund of the addi-
tional premiums it paid as a result of those reassignments.
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