*2 RANDOLPH, Before WILLIAMS BUCKLEY, Senior Judges, and Circuit Judge. Circuit by Senior the court filed Opinion for Judge BUCKLEY. Circuit by filed Circuit Dissenting opinion Judge RANDOLPH.
BUCKLEY, Judge: Circuit Senior Health Industry Retiree Bene- The Coal the Commissioner of Act of 1992 fit directs responsi- financial assign Social covered industry retirees bility for coal of America Mine Workers certain United either to bargaining agreements collective formerly em- operator” “signatory person” to a “related the retiree or ployed R. Appellee G. signatory operator. the as- Company, protests Inc. employees of to it of the retired signment assets re- operator whose seven purchased business it had maining granted court years earlier. The district summary judg- company’s motion unambiguous ground on the that the of “re- language statutory definition to successors person” apply did not signatory. successors in interest to a Although fault cannot definition, we court’s reading interpreta- R. conclude such an Buscemi, because John whom Peter intent tion would Carolyn the clear Allen, frustrate David W. Mooney, Act, Congress in briefs, ar- the Coal enacting Dutrow were on the O’Meara phrase “related must be Thus, construed while the 1950 Benefit Plan successor in interest to a continued to cover all pre-1976 retirees, signatory operator. We therefore set the 1974 Plan, Benefit as restructured, aside grant of summary judgment in remained in effect only to cover employees favor R. of G. Johnson Company, Inc. and who had retired after 1975 and whose last *3 remand the case the district court. employer was no longer in business. The Association of Bituminous Contractors, BacKground Inc.,
I.
represented
which
contractors to the
coal mining industry, entered into similar
A.
Coal
Act
agreements with the UMWA. These enti-
The factors that led to the passage of
tled its member companies’ retired em-
the Coal Industry Retiree Health Benefit
ployees to participate in the 1950 and 1974
1992,
Act of
Pub.L.
102-486,
No.
106 Stat. Benefit Plans established for retired min-
(codified
3036
at 26
§§
U.S.C.
9701-22 ers.
(1994)) (“Coal Act”
“Act”),
are well doc-
1980’s,
In the
the
plans
benefit
began to
prior
in
umented
litigation. See, e.g.,
suffer
Enters,
increasing financial difficulties be-
Eastern
v. Apfel,
498,
118
cause of the growing number
signatories
2137-42,
identical a presents distinct counts, each of Johnson”). (“Old New Company for moved company argument. legal interruption, without employed, the two on first based summary judgment force; rented work Johnson’s much of Old it not a namely, that was counts; of these occu- previously building same in the space as defined to Old Johnson person related Johnson; the and assumed by Old pied not Act, the Act did and that in the Coal remaining contract. only company’s older of beneficiaries Johnson, Old to New the sale Following to a in interest successor or to successor essentially as exist Johnson continued operator. signatory its owners. for holding personal summary judg a cross-motion filed Johnson, performed the part, for its New motions, two the considering slope After mine shaft ment. kind same summary judg granted Johnson had that Old court work construction con It Johnson. of New since in favor engaged provi language the plain cluded notified New 1995, the Commissioner “related defining sions Act letters, as- Johnson, series to a did not beneficiaries it of a number signment history legislative operator and that of Old employees been former who had deter “could by the defendants cited contained the letters Each of Johnson. conclusively legislative intent so following statement: meaning plain would overcome indi- records Our and UMWA records Apfel, statute.”R. G. Johnson Co. John- [Old you related cate are (D.D.C.1998). 10, 14, 18 F.Supp. This in business. longer is no son] II. Discussion U.S. 842-45, 104 (1984). L.Ed.2d 694 In the instance, first above, As noted the Coal Act directs the we must determine whether the Commissioner to intent of assign a Fund beneficia- Congress is is, clear. If ry to a signatory operator “that is “any end related of matter; court, person.” 9706(a). as well as the The Act agency, give defines must related person as effect to the follows: unambigu ously expressed (A) intent of Congress.” In general 842-43, 104 If, S.Ct. 2778. however, we person A shall be considered to be a find that the statute silent ambiguous person related to a signatory operator if with respect is&emdash; to the issue, matter at court must defer to the agency’s construc (i) a member of the controlled tion of the statute if it is “permissible.” (within group of corporations 843, 104 Id. at S.Ct. 2778. 52(a) meaning section [of the Internal Code]) Revenue which includes such In support of its contention that signatory operator; definition of applies to a (ii) a trade or business which is un- signatory operator’s interest, successor in (as der common control determined the Commissioner argues that a signatory *5 52(b) under section [of the Internal operator is “person a described” in clauses Code]) Revenue with such signatory (i), (ii), (iii) and because the words “signa- operator; or tory operator” appear in each of them. (iii) any other person who is identi- With all respect, we find explanation that fied as having a partnership interest difficult to follow. Because the persons joint venture with a signatory oper- described in those clauses are described in ator in a business within the coal in- terms of their relationship to the signatory dustry, only but if such business em- operator, it would seem evident that they ployed eligible beneficiaries, except cannot include the' signatory itself. To that this clause shall not apply ato suggest otherwise is tantamount to saying person whose only interest is aas “I am related to me.” The Commissioner partner. limited also points to the general” words “In at A related person shall also a the beginning of the definition of related successor in any interest of person de- person as permitting it to view the statuto- (i), scribed in (ii), (iii). clause ry language as less than exhaustive. But § 9701(c)(2)(A). The statute thus cre- even if we were to accept the argument ates four categories of related persons: that the catalog of related persons in those (i), described in (ii), clauses (iii), (i), (ii), (iii) clauses not exclusive, is and those who are “successors in interest” Commissioner cannot overcome the fact to any person described in those clauses. that in order to be deemed a per- son, a On appeal, successor parties in interest pose two must be one to questions: a Does the Coal Act impose described those lia clauses. Un- bility for a Fund der beneficiary circumstances, on a successor we are unable to of a quarrel interest signatory operator; if district court’s conclusion does, is New a agency’s successor in construction of the relat- interest of the kind contemplated ed by the definition is “tortured.” R. G. statutory definition Co., “related person”? 994 F.Supp. at agree We As always, when asked rule on an with the agen Commissioner, however, cy’s interpretation aof Congress statute it is could not have intended this re- charged with administering, we sult; undertake and we say this any without reliance the two-step' analysis. Chevron See Chev on the inconclusive legislative history cited ron NRDC, Inc., Inc. v. U.S.A. al., et the Commissioner. omitted). In such a brackets marks and pur- of its one declared circumstance, “to intention of the draft- “the Coal Act was enacting the
poses plan ers, language, for con- than the strict responsible rather most identify persons funding Accordingly, “give to stabilize in order to in order trols.” Id. care case, of health provision intent in this Congress’s allow for effect” No. Pub.L. Chevron, retirees.” to such at 104 S.Ct. benefits (co- 19142(a)(2), Stat. 3037 9701(c)(2)(A) must be section we hold that § 9701 following 26 note dified of a permit construed (1994)). objective and light in inter- beneficiary to the successor imposing provisions reach broad signatory operator. Citibank est of we can think of persons, liability on related (In Emery), F.3d Emery re have in- why Congress no reason (2d Cir.1998) (because applica- “the the beneficia- liability impose tended 727(d) have here [could not] tion of in inter- a successor on, example, ries held that the by Congress,” court intended bottling company under a Coca-Cola est to suit). particular preclude section did signatory coal with a control common term “related that the Although we hold coal-mining exempting while a successor in encompass does operator. in interest we do not operator, interest to for New Johnson we asked counsel When argu alternative address any plausible reason if she could in interest not a successor is intended such should why Congress meaning of within the to Old Johnson explanation she only exemption, was not question before Act because mining that coal was suggest able to was prac It our normal court. the district lobbyists more effective had operators upon any to hear claim to “refuse[ ] af- tice non-mining their Washington than did *6 not had an court has less than which explanation findWe this filiates. rule.” Boehner v. our impressed by opportunity Nor are compelling. (see (D.C.Cir.1994). 156, Anderson, dis. suggestion 30 F.3d colleague’s dissenting 106, 896) in- Wulff, could have 428 U.S. Congress v. Singleton also op. at See (1976) by 2868, miners eliminat- coal 49 L.Ed.2d to benefit tended coal the sale of a (“It ... that a federal impediment rule ing general is the potential posed not consider issue court does appellate problem below.”). Act. by the Coal have no created We upon passed not is that assumes explanation this with practice from this depart reason to equally concerned Congress was not however, pres may, case. New relat- persons employees jobs court on to the district argument ent face who operator, would ed to Attorney’s Peralta v. U.S. See remand. a busi- disposing difficulties the same (on (D.C.Cir.1998) 169, 173 F.3d Office, 136 solely was in fact But if ness. argument remand, free reassert party protection miners concerned appeal). time on for first raised also have contingency, from in inter- liability successors from exempted III. Conolusion was engaged any est to of coal. mining in the setwe aside foregoing, light summary judg- grant court’s the district then, faced, one of those areWe and remand of New Johnson ment in favor application cases in which “rare may consider the court the case so result demon- produce statute will not that it is argument of its intentions strably at odds with Old Johnson as interest Pair En- Ron States drafters.” United in the counts forth set well as others ters., 109 S.Ct. placed before were (internal quotation complaint (1989) L.Ed.2d 290 the court in New Johnson’s motion for industry.” 26 U.S.C. summary judgment. § 9701(c)(7).) My colleagues say, in re- sponse, that Congress
So could ordered. gone fur- ther and exempted successors in interest RANDOLPH, related coal mining Circuit Judge, companies dissenting: from lia- bility, thus facilitating the sale of these The definition of “related persons” in companies as well. so, Perhaps but Con- the Coal Industry Retiree Health Benefit gress rarely has go as far as its logic Act excludes successors in interest to sig- would take it. point remains that natory operators, and thereby exempts construing the statute as it was written them from liability for the signatory opera- does not render it inscrutable. tor’s Fund beneficiaries. See 26 U.S.C. §§ 9701(c)(2)(A), 9706(a). My colleagues One further observation is in order. recognize as much. But they believe ex- The quandary my colleagues confront here empting successors in interest such ap- as is of the Social Security Commissioner’s pellee would frustrate Congress’s “clear own making. The problem stems from the intent.” And so they treat the words “re- Commissioner’s version of what constitutes persons” as if they covered succes- “business activity.” See id. Borrowing sors although they do not. Given the na- from an inapposite IRS regulation, ture of judicial process, this mode of Commissioner determined that the signa- judicial analysis embodies some severe tory operator Johnson” —no longer —“Old theoretical My difficulties. problem with engaged in “business activity” after the the majority decision is practical. more sale because it now derived its income detecting the “real” intent of Congress, my from securities and real estate. See 26 colleagues eye first the Act’s general pur- C.F.R. 1.355-3(b)(2)(iv). Old Johnson pose “to identify persons [those] most re- was, according to the Commissioner, sponsible liabilities.” Maj. op. at therefore out of business. Even though 894-95. With this firmly mind, they Old Johnson still existed, having merely find it implausible for Congress “to impose exchanged its physical assets cash, liability for the on, beneficiaries for exam- Commissioner no longer held it financially ple, a successor in interest to a Coca-Cola responsible for its Fund beneficiaries. See bottling company under common control 26 U.S.C. §§ 9706(a), 9701(c)(7). The *7 with a signatory coal while Commissioner was thus left groping exempting a coal-mining successor in in- “related person” to whom Old Johnson’s terest operator.” I find this be could assigned. See 26 not in the least bit implausible. Exempt- § 9701(c)(2)(A). Had the Commissioner ing successors in interest to signatory op- adopted a definition of “business activity” erators from liability for the signatory op- permitted to signatory erator’s Fund beneficiaries benefits miners operators still in existence and earning because it facilitates the sale of coal com- income, the entire problem would have panies. Without the exemption, prospec- disappeared and I presume my colleagues tive purchasers can never be sure of their would have read the Act as it was written. risks. Their liability would depend on
whether, sometime in the future, the sell- is,
er—that the signatory operator —ceases in business,” “remain[ ] a matter wholly
outside their control. See 26 U.S.C.
§ 9706(a). (A person is in “business”
within the meaning of the statute “if such
person conducts or derives revenue from
any business activity, whether or not in the