Shenango Inc v. Comm Social Security

307 F.3d 174 | 3rd Cir. | 2002

Before: SLOVITER, NYGAARD and McKEE, Circuit Judges.(cid:13) (Filed: September 24, 2002)(cid:13) DAVID J. LAURENT, ESQ.(cid:13) (Argued)(cid:13) Babst, Calland, Clemens and(cid:13) Zomnir, P.C.(cid:13) Two Gateway Center(cid:13) Pittsburgh, PA 15222(cid:13) Attorney for Appellants(cid:13) PETER BUSCEMI, ESQ.(cid:13) (Argued)(cid:13) Morgan, Lewis & Bockius LLP(cid:13) 1111 Pennsylvania Avenue, N.W.(cid:13) Washington, D.C. 20004(cid:13) JOHN R. MOONEY, ESQ.(cid:13) ELIZABETH A. SAINDON, ESQ.(cid:13) Mooney, Green, Gleason,(cid:13) Baker, Gibson & Saindon, P.C.(cid:13) 1920 L. Street, N.W., Suite 400(cid:13) Washington, D.C. 20036(cid:13) DAVID W. ALLEN, ESQ.(cid:13) Office of the General Counsel(cid:13) UMWA Health and Retirement(cid:13) Funds(cid:13) 2121 K. Street, N.W.(cid:13) Washington, D.C. 20037(cid:13) Attorneys for Appellees, Trustees(cid:13) of the UMWA Combined Benefit(cid:13) Funds(cid:13) DAVID W. OGDEN, ESQ.(cid:13) Assistant Attorney General(cid:13) HARRY LITMAN, ESQ.(cid:13) United States Attorney(cid:13) MARK B. STERN, ESQ.(cid:13) JEFFREY CLAIR, ESQ. (Argued)(cid:13) Attorneys, Civil Division(cid:13) Room 9536, Department of Justice(cid:13) 601 "D" Street, NW(cid:13) Washington, D.C. 20530(cid:13) Attorneys for the Federal Appellee,(cid:13) Commissioner of Social Security(cid:13) OPINION OF THE COURT(cid:13) McKEE, Circuit Judge.(cid:13) Shenango, Inc., Stelco USA, Inc., Stelco Coal Co. and(cid:13) Mueller Industries (hereinafter collectively referred to as the(cid:13) "Companies") challenge the Commissioner of Social(cid:13) Security’s assignment of responsibility for health care(cid:13) 2(cid:13) premiums of approximately 70 retired miners and their(cid:13) qualified dependents pursuant to the Coal Industry Retiree(cid:13) Health Benefit Act of 1992 (the "Coal Act"), 26 U.S.C.(cid:13) SS 9701-9722. The Companies argue that the Act is(cid:13) unconstitutional as applied to them pursuant to Eastern(cid:13) Enterprises v. Apfel, 524 U.S. 498 (1988). For the reasons(cid:13) that follow, we conclude that the assignments are not(cid:13) unconstitutional as applied, and that the district court did(cid:13) not err in dismissing the Companies’ challenge to the(cid:13) assignments. However, before we explain our reason, it will(cid:13) be helpful to explain the historical background and context(cid:13) of this dispute.(cid:13) I. THE COAL ACT(cid:13) The Coal Act was enacted in 1992 "to ensure that retired(cid:13) coal miners and their dependents would continue to receive(cid:13) the health and death benefits they had been receiving since(cid:13) the 1940s pursuant to a series of collective bargaining(cid:13) agreements." Anker Energy Corp. v. Consolidation Coal Co.,(cid:13) 177 F.3d 161, 163-64 (3d Cir. 1999). Because the origins(cid:13) and history of the Coal Act are set forth in great detail in(cid:13) the Supreme Court’s opinion in Eastern Enterprises, as well(cid:13) as in our opinions in Unity Real Estate v. Hudson, 178 F.3d(cid:13) 649 (3d. Cir. 1999), and Anker Energy, we need not repeat(cid:13) it here. Rather, we offer the following narrative from our(cid:13) opinion in Anker Energy as background for our analysis:(cid:13) In 1947, the United Mine Workers of America(cid:13) ("UMWA") and the Bituminous Coal Operators’(cid:13) Association ("BCOA") agreed upon the first of a series of(cid:13) National Bituminous Coal Wage Agreements ("NBCWA"(cid:13) or "wage agreement"), which specified the terms and(cid:13) conditions of employment and provided health and(cid:13) pension benefits for miners. The 1947 NBCWA(cid:13) established the United Mine Workers of America(cid:13) Welfare and Retirement Fund [W&R Fund], which used(cid:13) the proceeds of a royalty on coal production to provide(cid:13) pension and medical benefits for miners and their(cid:13) families. The 1947 NBCWA did not specify the benefits(cid:13) to which miners and their families were entitled,(cid:13) instead leaving this task to three trustees in charge of(cid:13) the Fund. In 1950 the union and the industry(cid:13) 3(cid:13) association agreed upon a new NBCWA that created a(cid:13) new Fund financed by a per ton levy on coal mined by(cid:13) signatory operators. Like the 1947 Fund, the 1950(cid:13) version did not promise specific benefits, and the(cid:13) benefits were always subject to cancellation or change.(cid:13) This system did not change significantly until 1974(cid:13) when, to comply with the newly enacted [Employee(cid:13) Retirement Income Security Act], the UMWA and the(cid:13) BCOA negotiated a new wage agreement that created(cid:13) four trusts funded by royalties on coal production and(cid:13) premiums based on hours worked by miners. Under(cid:13) the new agreement, the 1950 Benefit Plan covered(cid:13) miners who retired before January 1, 1976, and their(cid:13) dependents, while the 1974 Benefit Plan covered(cid:13) miners who retired after 1975 and their dependents.(cid:13) Both Plans provided nonpension benefits, including(cid:13) medical benefits.(cid:13) The 1974 NBCWA explained that it was amending the(cid:13) previous system to provide health benefits for retired(cid:13) miners "for life," and to their widows until death or(cid:13) remarriage. Because of this broadened coverage the(cid:13) number of eligible benefit recipients increased(cid:13) dramatically, and the Plans began losing money.(cid:13) In response, the 1978 NBCWA assigned responsibility(cid:13) to signatory employers for the health care of their own(cid:13) active and retired employees. The 1978 agreement also(cid:13) restricted the 1974 Plan so that it would provide health(cid:13) benefits only for "orphaned" retirees, those whose last(cid:13) employer had gone out of business or otherwise ceased(cid:13) contributing to the Plans. To ensure the Plans’(cid:13) solvency, the 1978 NBCWA included a "guarantee"(cid:13) clause that obligated signatories to make sufficient(cid:13) contributions to maintain benefits during that(cid:13) agreement, and the union and operators amended the(cid:13) Plans to include "evergreen clauses" that required(cid:13) signatories to contribute to the Plans if they remained(cid:13) in the coal business even if they never signed another(cid:13) wage agreement.(cid:13) Despite the 1978 NBCWA and subsequent attempts(cid:13) to improve the Plans, they continued to lose money(cid:13) 4(cid:13) because of the increase in beneficiaries, the escalating(cid:13) costs of health care, and the flood of signatory(cid:13) companies abandoning the Plans. In 1992 Congress(cid:13) responded by passing the Coal Act.(cid:13) 177 F.3d at 164-165.(cid:13) In enacting the Coal Act, Congress declared that the Act(cid:13) was intended to remedy problems with funding retiree(cid:13) health benefits in the coal industry, to allow for sufficient(cid:13) operating assets for the health benefit plans, and to provide(cid:13) for the continuation of a privately funded and self-sufficient(cid:13) program for the delivery of health care benefits to retired(cid:13) miners and their dependents. Pub.L. No. 102-486,(cid:13) S 19142(b), 106 Stat. 3036, 3037 (1992), 26 U.S.C. S 9701(cid:13) note. Accordingly, the Act required certain benefit plans(cid:13) previously established under the UMWA collective(cid:13) bargaining agreements to be merged into a new plan-- the(cid:13) United Mine Workers of America Combined Benefit Fund.1(cid:13) 26 U.S.C. S 9702(a). The Combined Fund provides health(cid:13) and death benefits to retired coal miners and dependents(cid:13) who, as of July 20, 1992, were eligible to receive, and were(cid:13) receiving, benefits under the UMWA 1950 or 1974 benefit(cid:13) plans. 26 U.S.C. SS 9703(a), (b)(1), (c), (e) & (f). Benefits paid(cid:13) through the Combined Fund are funded in part by(cid:13) premiums imposed on "signatory coal operators," i.e.,(cid:13) certain coal operators that employed an eligible beneficiary(cid:13) and had signed a collective bargaining agreement between(cid:13) the UMWA and BCOA, a multiemployer group of coal(cid:13) producers, or other "related persons" connected to the(cid:13) _________________________________________________________________(cid:13) 1. The Combined Fund is one of three components formulated by(cid:13) Congress to achieve the purposes of the Coal Act. The second component(cid:13) is the mandated continuation of individual employer health plans(cid:13) maintained by signatories to the 1978 and later NBCWAs. 26 U.S.C.(cid:13) S 9711. The third component is the 1992 Plan which provides benefits(cid:13) for persons who, but for the enactment of the Coal Act, would have been(cid:13) eligible to receive benefits from the UMWA 1950 or 1974 benefit plans,(cid:13) but who are not eligible for benefits from the Combined Fund. It also(cid:13) provides benefits for persons who are entitled to receive benefits directly(cid:13) from their former employers but who do not in fact receive such benefits.(cid:13) 26 U.S.C. S 9712. The second and third components are not implicated(cid:13) in this appeal. We are only concerned with the Combined Fund.(cid:13) 5(cid:13) signatory operator by common ownership or control. See 26(cid:13) U.S.C. SS 9701(c)(1) & (c)(2), 9704, 9706.(cid:13) The Act directs the Commissioner of Social Security 2 to(cid:13) assign each individual beneficiary to one of these signatory(cid:13) coal operators or its "related person." The assignment is(cid:13) determined by the length of the beneficiary’s service, the(cid:13) date of service, and whether the employer signed national(cid:13) collective bargaining agreements with the UMWA in 1978 or(cid:13) later. 26 U.S.C. S 9706(a). The Act establishes a three tier(cid:13) mechanism for making assignments that we have described(cid:13) as the "linchpin" of the Coal Act’s statutory scheme. Unity(cid:13) Real Estate Co. v. Hudson, 178 F.3d at 654. The Act(cid:13) provides in relevant part:(cid:13) (a) In general.--For purposes of this chapter, the(cid:13) Commissioner of Social Security shall, before October(cid:13) 1, 1993, assign each coal industry retiree who is an(cid:13) eligible beneficiary to a signatory operator which (or(cid:13) any related person with respect to which) remains in(cid:13) business in the following order:(cid:13) (1) First, to the signatory operator which--(cid:13) (A) was a signatory to the 1978 coal wage(cid:13) agreement or any subsequent coal wage agreement,(cid:13) and(cid:13) (B) was the most recent signatory operator to(cid:13) employ the coal industry retiree in the coal(cid:13) industry for at least 2 years.(cid:13) (2) Second, if the retiree is not assigned under(cid:13) paragraph (1), to the signatory operator which--(cid:13) (A) was a signatory to the 1978 coal wage(cid:13) agreement or any subsequent coal wage agreement,(cid:13) and(cid:13) _________________________________________________________________(cid:13) 2. Originally, the Coal Act provided that the Secretary of Health and(cid:13) Human Services would be responsible for the assignment of Combined(cid:13) Fund beneficiaries. The Secretary delegated this task to the(cid:13) Commissioner of Social Security. In 1994, Congress transferred the(cid:13) statutory responsibility directly to the Commissioner. See Social Security(cid:13) Independence and Program Improvements Act of 1994, Pub.L.No. 10-3-(cid:13) 296, SS 105(a)(2)(A), 108(h)(9)(A), 108 Stat. 1472, 1487-88 (1994).(cid:13) 6(cid:13) (B) was the most recent signatory operator to(cid:13) employ the coal industry retiree in the coal(cid:13) industry.(cid:13) (3) Third, if the retiree is not assigned under(cid:13) paragraph (1) or (2), to the signatory operator which(cid:13) employed the coal industry retiree in the coal(cid:13) industry for a longer period of time than any other(cid:13) signatory operator prior to the effective date of the(cid:13) 1978 coal wage agreement.(cid:13) 26 U.S.C. S 9706(a)(1), (2) & (3). Once the Commissioner(cid:13) makes the assignment under S 9706, the assignee must(cid:13) then pay the annual premiums to the Combined Fund(cid:13) based on the amounts required to provide health and death(cid:13) benefits for the assigned beneficiaries.(cid:13) If a miner or his3 dependents cannot be assigned under(cid:13) this scheme, his benefits are funded by either asset(cid:13) transfers from one of the Combined Fund’s predecessor(cid:13) benefit plans, see 26 U.S.C. S 9705(a)), transfers from the(cid:13) U.S. Treasury’s Abandoned Mine Land Reclamation Fund,(cid:13) see 26 U.S.C. S 9705(b), 30 U.S.C. S 1232(h); or, if those(cid:13) sources are insufficient or unavailable, an additional(cid:13) unassigned -- or "orphaned" -- retiree premium that the(cid:13) Act imposed on all signatory operators. See 26 U.S.C.(cid:13) SS 9704(d), 9705(a)(3)(B), 9705(b)(2).(cid:13) The Coal Act also contains several provisions that, taken(cid:13) together, treat a commonly controlled group of related(cid:13) corporations as a single employer for purposes of liability(cid:13) under the statute. Pursuant to those provisions, the(cid:13) original employer and a wide range of affiliated companies(cid:13) or successors are potentially liable for premiums on miners’(cid:13) benefits under the Act. The Commissioner can assign(cid:13) responsibility for paying premiums for a miner’s benefits(cid:13) either to a mine operator that actually employed an eligible(cid:13) beneficiary and signed a collective bargaining agreement(cid:13) between the UMWA and the BCOA ("signatory operator"), or(cid:13) to any "related person." 26 U.S.C. S 9706(a). The Act defines(cid:13) _________________________________________________________________(cid:13) 3. Inasmuch as it is highly unlikely that any women were employed as(cid:13) miners during the relevant period, we will use the masculine pronouns(cid:13) in referring to all miners.(cid:13) 7(cid:13) "related person" to include all members of a commonly(cid:13) controlled group of corporations including the signatory,(cid:13) other businesses under common control with the signatory,(cid:13) and subsequent successors in interest to any of those(cid:13) affiliated entities. 26 U.S.C. S 9701(c)(2)(A)). A "controlled(cid:13) group" is in turn defined as a group of companies in which(cid:13) a common parent or concentration of individual economic(cid:13) interests owns or controls more than 50% of each of the(cid:13) affiliated companies. See 26 U.S.C. S 9701(c)(2)(A),(cid:13) incorporating by reference 26 U.S.C. S 52(a) & (b), which in(cid:13) turn incorporates by reference 26 U.S.C. S 15563(a). The(cid:13) determination of which entities are "related persons" under(cid:13) the Coal Act turns on an entity’s status with regard to the(cid:13) miner or the miner’s employer as of July 20, 1992. 26(cid:13) U.S.C. S 9701(c)(2)(B).(cid:13) "Related persons" have broad and shared responsibility(cid:13) for premiums. Under the Act, any company within the(cid:13) commonly controlled group may be treated as having(cid:13) employed a related signatory’s miners. 26 U.S.C.S 9706(b).(cid:13) In addition, related persons are "jointly and severally liable(cid:13) for any premium required to be paid" by its affiliated(cid:13) signatory operator. 26 U.S.C. S 9704(a). Congress(cid:13) instructed the Commissioner to promptly assign miners to(cid:13) various companies according to this three tiered scheme(cid:13) promptly after the Coat Act’s 1992 enactment. The statute(cid:13) states: "For purposes of this chapter, the Commissioner of(cid:13) Social Security shall, before October 1, 1993, assign each(cid:13) coal industry retiree who is an eligible beneficiary to a(cid:13) signatory operator . . . ." 26 U.S.C. S 9706(a).(cid:13) II. THE COMMISSIONER’S ORIGINAL ASSIGNMENTS(cid:13) The Companies were collectively assigned responsibility(cid:13) for premiums for approximately 70 miners and qualifying(cid:13) dependents pursuant to the third tier of the assignment(cid:13) scheme. 26 U.S.C. S 9706(a)(3). The Companies did not(cid:13) employ any of the miners thus assigned. Rather, the(cid:13) Commissioner assigned the miners based upon the(cid:13) Companies’ relationships to other entities that had(cid:13) employed the miners.4(cid:13) _________________________________________________________________(cid:13) 4. The exact relationship between each plaintiff and its related entities is(cid:13) as follows:(cid:13) 8(cid:13) The Commissioner originally assigned liability on the(cid:13) grounds that the Companies were "related" to a now-(cid:13) defunct employer that had signed a pre-1974 NBCWA.(cid:13) Specifically, Mueller was assigned liability with respect to(cid:13) employees of Joanne Coal because Joanne Coal signed a(cid:13) 1964 wage agreement. Then, Joanne Coal merged with(cid:13) Sharon Steel which subsequently merged with Mueller.(cid:13) Shenango received assignments with respect to employees(cid:13) of Lucerne Coke, an employer that signed a 1971 wage(cid:13) agreement and later merged with Shenango. Stelco USA(cid:13) and Stelco Coal received assignments with respect to(cid:13) employees of Mather Colliers because Mather signed a 1959(cid:13) wage agreement. Stelco Coal mined coal under the name of(cid:13) "Mather". Stelco USA and Stelco Coal are commonly owned.(cid:13) The Commissioner’s assignments to Stelco Coal and(cid:13) Shenango were made before October 1, 1993. The(cid:13) assignments to Mueller Industries, Inc., were made(cid:13) sometime after that date.(cid:13) The Companies concede that they are "related persons"(cid:13) as defined in the Act, 26 U.S.C. S 9701(c)(2)(A). They(cid:13) _________________________________________________________________(cid:13) Shenango merged with Lucerne Coke Co. sometime after 1971.(cid:13) Lucerne last signed an NBCWA in 1971. That agreement expired in(cid:13) November, 1974. Lucerne employed the miners assigned to Shenango,(cid:13) but Lucerne is no longer in business. However, as of July 20, 1992,(cid:13) Shenango was related, via its parent company, to Aloe Coal Co. which(cid:13) signed NBCWAs in 1974 and later.(cid:13) Stelco Coal Co. mined coal under the name of Mather Collieries, which(cid:13) permanently ceased operating sometime before 1964. Stelco USA, Inc., is(cid:13) commonly owned with Stelco Coal Co. Mather signed several NBCWAs.(cid:13) It signed the last one in 1959. Mather employed the miners assigned to(cid:13) Stelco Coal and Stelco USA. As of July 20, 1992, Stelco Coal and Stelco(cid:13) USA were related to Pikeville Coal Company, which signed the 1974 and(cid:13) subsequent NBCWAs.(cid:13) In December, 1980, Mueller Industries, Inc., merged with Sharon Steel(cid:13) Corp., Sharon had previously merged with Joanne Coal Co., and Joanne(cid:13) Coal continued mining until approximately 1969. Joanne Coal last(cid:13) signed a NBCWA in 1964. Joanne Coal employed the miners assigned to(cid:13) Mueller. As of July 20, 1992, Mueller was related to Carpentertown Coal(cid:13) & Coke Co., and to United States Fuel Co. Carpentertown Coal signed(cid:13) the 1978 NBCWA and later NBCWAs.(cid:13) 9(cid:13) concede that they are related to the coal companies that(cid:13) actually employed the miners assigned to the Companies,(cid:13) signed pre-1974 NBCWAs and that are now out of(cid:13) business. They also concede that they are related to the(cid:13) coal companies that employed an entirely different set of(cid:13) miners and that signed post-1974 NBCWAs. The(cid:13) Companies differentiate between these two groups by(cid:13) referring to them as "Pre-1974 Signatories" and "Post-1974(cid:13) Signatories."(cid:13) III. EASTERN ENTERPRISES AND THE(cid:13) COMMISSIONER’S RESPONSE(cid:13) As is often the case under the Coal Act, the challenge to(cid:13) the Commissioner’s assignments here rests in large part(cid:13) upon our interpretation of Eastern Enterprises . The Court(cid:13) there considered the constitutionality of the Coal Act as(cid:13) applied to Eastern. That company had mined coal until(cid:13) 1965, and signed every NBCWA from 1947 until 1964. The(cid:13) Commissioner assigned Eastern liability for over 1000(cid:13) miners pursuant to 26 U.S.C. S 9706(a)(3), based upon(cid:13) Eastern’s status as the pre-1978 signatory operator for(cid:13) whom the miners had worked the longest. The total liability(cid:13) for those assignments was estimated to be between $50(cid:13) and $100 million. Eastern sued claiming that S 9706(a)(3)(cid:13) was unconstitutional as applied to it because the Act’s(cid:13) imposition of liability violated the Due Process and Takings(cid:13) Clauses of the Fifth Amendment.(cid:13) A four-justice plurality of the Supreme Court agreed that(cid:13) the Act violated the Takings Clause as applied to Eastern(cid:13) Enterprises. Eastern Enterprises, 524 U.S. at 537. While(cid:13) recognizing that a takings analysis is "essentially ad hoc(cid:13) and fact intensive," the plurality nonetheless identified(cid:13) three factors that are usually significant to assessing a(cid:13) Takings challenge under the Fifth Amendment: "the(cid:13) economic impact of the regulation, its interference with(cid:13) investment backed expectations, and the character of the(cid:13) governmental action." Id. at 523-524 (quoting Kaiser Aetna(cid:13) v. United States, 444 U.S. 164, 175 (1979)). The plurality(cid:13) then reviewed cases involving legislative schemes similar to(cid:13) the Coal Act; viz., the Black Lung Benefits Act and the(cid:13) Multiemployer Pension Plan Amendments Act ("MPPAA")(cid:13) 10(cid:13) which was enacted to supplement the Employee Retirement(cid:13) Income Security Act ("ERISA"). The justices concluded that(cid:13) those cases established:(cid:13) Congress has considerable leeway to fashion economic(cid:13) legislation, including the power to affect contractual(cid:13) commitments between private parties. Congress may(cid:13) also impose retroactive liability to some degree,(cid:13) particularly where it is confined to short and limited(cid:13) periods required by the practicalities of producing(cid:13) national legislation. Our decisions, however, have left(cid:13) open the possibility that legislation might be(cid:13) unconstitutional if it imposes severe retroactive liability(cid:13) on a limited class of parties that could not have(cid:13) anticipated the liability, and the extent of that liability is(cid:13) substantially disproportionate to the parties’ experience.(cid:13) Id. at 528-529 (citation and internal quotations omitted)(cid:13) (emphasis added).(cid:13) Applying these principles to Eastern Enterprises, the(cid:13) plurality first focused on the economic impact of the Act(cid:13) and found that it placed a "considerable financial burden"(cid:13) on that company. Id. at 529. The financial burden was not(cid:13) a "permanent physical occupation of Eastern’s property of(cid:13) the kind [usually] viewed as a per se taking[.]" However, the(cid:13) plurality noted that the Court’s decisions upholding the(cid:13) MPPAA "suggest that an employer’s statutory liability for(cid:13) multiemployer pension plans should reflect some(cid:13) proportionality to its experience with the plan." Id. at 530(cid:13) (citation and internal quotations omitted). The plurality(cid:13) concluded that this proportionality was lacking insofar as(cid:13) the Coal Act was applied to Eastern. Eastern had(cid:13) contributed to the 1947 and 1950 W&R Funds, but"it [had](cid:13) ceased it coal mining operations in 1965 and neither(cid:13) participated in negotiations nor agreed to make(cid:13) contributions in connection with the 1974, 1978, or(cid:13) subsequent NBCWAs." Id. This was significant because(cid:13) those latter agreements were the "first [to] suggest an(cid:13) industry commitment to funding lifetime health benefits for(cid:13) both retirees and their family members." Id . Thus, because(cid:13) Eastern had neither contemplated liability for lifetime(cid:13) benefits to miners nor contributed to the miners’(cid:13) expectations of lifetime benefits, the plurality found that(cid:13) 11(cid:13) "the correlation between Eastern and its liability to the(cid:13) Combined Fund is tenuous, and the amount assessed(cid:13) against Eastern resembles a calculation made in a(cid:13) vacuum." Id. at 531 (citation and internal quotations(cid:13) omitted).(cid:13) The assignments to Eastern faired no better when the(cid:13) plurality considered the second and third factors it had(cid:13) culled from the Court’s Takings Clause jurisprudence. The(cid:13) Act’s "substantial and particularly far reaching" retroactivity5(cid:13) interfered with Eastern’s reasonable investment backed(cid:13) expectations. Id. at 534. The plurality reasoned that a coal(cid:13) industry employer could not have contemplated liability for(cid:13) lifetime benefits to miners until those provisions were(cid:13) included in the 1974 NBCWA. Therefore, "the Coal Act’s(cid:13) scheme for allocation of Combined Fund premiums[was](cid:13) not calibrated either to Eastern’s past actions or to any(cid:13) agreement -- implicit or otherwise -- by the company." Id.(cid:13) at 536. Finally, the plurality found that the "nature of(cid:13) governmental action . . . is quite unusual," and"implicates(cid:13) fundamental principles of fairness underlying the Takings(cid:13) Clause," because it "singles out certain employers to bear a(cid:13) burden that is substantial in amount, based on the(cid:13) employers’ conduct far in the past, and unrelated to any(cid:13) commitment that the employers made or to any injury they(cid:13) caused." Id. at 537.(cid:13) Inasmuch as each of the three factors weighed against(cid:13) sustaining the "taking," the plurality concluded that the(cid:13) assignment to Eastern under the Act was unconstitutional.(cid:13) Justice Kennedy, who provided the fifth vote striking(cid:13) down the application of the Act as to Eastern, disagreed(cid:13) with the plurality’s analysis, but found that the Act’s(cid:13) retroactivity violated due process. Id. at 539-50. He applied(cid:13) an "arbitrary and irrational" standard of review, Id. at 547,(cid:13) _________________________________________________________________(cid:13) 5. Coal Act assignments operate retroactively because they require an(cid:13) assignee to use current funds to provide benefits for miners after the(cid:13) assignee believed its liability to the miners had been settled. See Eastern(cid:13) Enterprises, at 534 (O’Connor, J.) ("[T]he Coal Act operates retroactively,(cid:13) divesting Eastern of property long after the company believed its(cid:13) liabilities under the 1950 W&R Fund to have been settled.").(cid:13) 12(cid:13) and focused on the fact that Eastern Enterprises had not(cid:13) signed a 1974 or later NBCWA. He concluded:(cid:13) Eastern was once in the coal business and employed(cid:13) many of the beneficiaries, but it was not responsible(cid:13) for their expectation of lifetime benefits or for the(cid:13) perilous condition of the 1950 and 1974 plans which(cid:13) put the benefits in jeopardy. As the plurality discusses(cid:13) in detail, the expectation was created by promises and(cid:13) agreements made long after Eastern left the coal(cid:13) business. Eastern was not responsible for the resulting(cid:13) chaos in the funding mechanism caused by other coal(cid:13) companies leaving the framework of the National(cid:13) Bituminous Coal Wage Agreement. This case is far(cid:13) outside the bounds of retroactivity permissible under our(cid:13) law.(cid:13) Id. at 550 (emphasis added).(cid:13) The four dissenting justices agreed with Justice Kennedy(cid:13) that the application of the Act did not violate the Takings(cid:13) Clause, but disagreed with his view that the Act violated(cid:13) due process. Id. at 556-67.(cid:13) We have previously noted the "splintered nature" of the(cid:13) Court’s decision, and remarked that it is "difficult to distill(cid:13) a guiding principle from Eastern." Unity Real Estate Co.,(cid:13) 178 F.3d at 658. However, as recited above, both the(cid:13) plurality and Justice Kennedy focused on one fact which(cid:13) each considered significant. The 1974, 1978 and(cid:13) subsequent NBCWAs were the first wage agreements(cid:13) containing a commitment to fund lifetime health benefits(cid:13) for retired miners and their dependents. Eastern(cid:13) Enterprises had not signed either the 1974 or the 1978(cid:13) NBCWAs. Therefore, it could not have contemplated(cid:13) contributing to the miners’ expectation of lifetime health(cid:13) benefits. See Anker Energy Corp. v. Consolidation Coal Co.,(cid:13) 177 F.3d at 172 ("[A]nalysis of the decisions in Eastern(cid:13) Enterprises leads us to the conclusion that a majority of the(cid:13) Court would find the Act unconstitutional when applied to(cid:13) an employer that did not agree to the 1974 or subsequent(cid:13) NBCWAs, while application of the Act to a signatory to the(cid:13) 1974 or subsequent wage agreement would be an entirely(cid:13) different matter."); see also, Association of Bituminous(cid:13) 13(cid:13) Contractors, Inc. v. Apfel, 156 F.3d 1246, 1257 (D. C. Cir.(cid:13) 1998)("The clear implication of each opinion in Eastern(cid:13) Enterprises is that employer participation in the 1974 and(cid:13) 1978 agreements represents a sufficient amount of past(cid:13) conduct to justify the retroactive imposition of Coal Act(cid:13) liability (for the dissenting justices, of course, such(cid:13) participation is not even necessary")).(cid:13) After Eastern Enterprises, the Commissioner undertook a(cid:13) comprehensive review of all assignments that had(cid:13) previously been made under S 9706(a)(3), including those(cid:13) made to the Companies. The Commissioner reasoned that,(cid:13) under Eastern Enterprises, if neither the original employer(cid:13) nor related persons had signed the 1974 or later NBCWAs,(cid:13) the assignment could not be distinguished from Eastern(cid:13) Enterprises. Accordingly, the Commissioner, on his own(cid:13) initiative, voided hundreds of assignments that were based(cid:13) solely on an employer or related person’s participation in a(cid:13) pre-1974 NBCWA.(cid:13) However, the Commissioner also concluded that Eastern(cid:13) Enterprises allowed miners to be assigned to coal(cid:13) companies that where part of a controlled group of(cid:13) corporations that included entities that had signed post-(cid:13) 1974 NBCWAs. These assignments were deemed to be(cid:13) materially different from the assignments in Eastern(cid:13) Enterprises. The plaintiff in Eastern was not statutorily(cid:13) related to another company that had signed 1974 and later(cid:13) NBCWAs. The Commissioner therefore concluded that(cid:13) Eastern did not address circumstances in which the(cid:13) assignee is related to both the original employer and(cid:13) another, affiliated company that signed collective(cid:13) bargaining agreements promising lifetime care. Accordingly,(cid:13) the Commissioner rejected the Companies’ requests to(cid:13) vacate their assignments of the miners employed by the(cid:13) Pre-1974 Signatories.(cid:13) IV. DISTRICT COURT PROCEEDINGS(cid:13) On June 30, 1999, the Companies filed a five Count(cid:13) complaint against the Commissioner and the Trustees of(cid:13) the Combined Fund. In Count I, the Companies alleged that(cid:13) the Commissioner’s refusal to vacate the Coal Act(cid:13) 14(cid:13) assignments of liability for miners employed by the Pre-(cid:13) 1974 Signatories was unlawful under Eastern Enterprises.(cid:13) In Counts II and III, the Companies alleged that the Coal(cid:13) Act violates the Takings and Due Process Clauses of the(cid:13) Fifth Amendment as it applies to them. In Count IV, the(cid:13) Companies challenged the Commissioner’s authority to(cid:13) make any assignments after September 30, 1993. In Count(cid:13) V, the Companies argued that because the Commissioner’s(cid:13) assignments should be vacated for the reasons stated in(cid:13) the preceding four Counts, the Combined Fund is obligated(cid:13) to return all premium payments together with interest.(cid:13) After engaging in an excellent and well-reasoned analysis,(cid:13) the district court granted the Commissioner’s motion to(cid:13) dismiss Counts I through IV. Thereafter, the parties(cid:13) submitted their Joint Statement of Position informing the(cid:13) district court that the parties agreed that, given its(cid:13) dismissal of Counts I through IV, Count V was moot.(cid:13) Accordingly, the district court dismissed Count V as moot,(cid:13) and this appeal followed.6(cid:13) V. DISCUSSION(cid:13) The Companies assert two basic arguments. First, they(cid:13) argue that their position is essentially identical to the(cid:13) position of the plaintiff in Eastern Enterprises insofar as the(cid:13) Pre-1974 Signatories are concerned. The Companies claim(cid:13) that the Commissioner therefore violated the Due Process(cid:13) Clause in assigning them miners employed by the Pre-1974(cid:13) Signatories. Second, they argue that the Commissioner(cid:13) exceeded his authority under S 9706(a) because he made(cid:13) some assignments after October 1,1993; the "cutoff" that(cid:13) Congress mandated in the Act. We will address each(cid:13) argument separately.(cid:13) _________________________________________________________________(cid:13) 6. We review de novo the district court’s decision as to the(cid:13) constitutionality of the Coal Act as applied to the Companies. Anker(cid:13) Energy Co. v. Consolidation Coal Co., 177 F.3d at 169. Although the(cid:13) district court granted the Commissioner’s motion to dismiss under Fed.(cid:13) R. Civ. P. 12(b)(6), the parties apparently submitted documents outside(cid:13) the pleadings themselves; therefore the appropriate standard of review is(cid:13) the same as that for a motion for summary judgment, i.e., plenary(cid:13) review. Smith v. Johns-Manville Corp., 795 F.2d 301, 306 (3d Cir. 1986).(cid:13) 15(cid:13) A. Are the Companies in a Substantially Identical(cid:13) Position to Eastern Enterprises?(cid:13) As noted earlier, no single rationale emerges from the(cid:13) decision in Eastern Enterprises. Accordingly, " ‘the holding(cid:13) of the Court may be viewed as that position taken by those(cid:13) Members who concurred in the judgment on the narrowest(cid:13) grounds.’ " Marks v. United States, 430 U.S. 188, 193(cid:13) (1977)(quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15(cid:13) (1976)). The Marks rule is only applicable where "one(cid:13) opinion can be meaningfully regarded as ‘narrower’ than(cid:13) another" and can "represent a common denominator of the(cid:13) Court’s reasoning." Rappa v. New Castle County, 18 F.3d(cid:13) 1043, 1057 (3d Cir. 1994)(quoting King v. Palmer , 950 F.2d(cid:13) 771, 781 (D.C. Cir. 1991)(en banc). "[W]here approaches(cid:13) differ, no particular standard is binding on an inferior court(cid:13) because none has received the support of a majority of the(cid:13) Supreme Court." Anker Energy Corp., at 170 (citing Rappa(cid:13) v. New Castle County, 18 F.3d at 1058).(cid:13) In Unity Real Estate, we stated that "Justice Kennedy’s(cid:13) substantive due process reasoning is not a ‘narrower’(cid:13) ground that we might take to constitute the controlling(cid:13) holding." 178 F.3d at 658. Consequently, the only binding(cid:13) aspect of the fragmented decision in Eastern Enterprises is(cid:13) its "specific result," i.e., the Act is unconstitutional as(cid:13) applied to Eastern Enterprises. Anker Energy Corp., at 170(cid:13) (citing Association of Bituminous Contractors, Inc. v. Apfel,(cid:13) 156 F.3d 1246, 1255 (D.C. Cir. 1998)). Or, as we said in(cid:13) Unity Real Estate: "Eastern . . . mandates judgment for the(cid:13) plaintiffs only if they stand in a substantially identical(cid:13) position to Eastern Enterprises with respect to both the(cid:13) plurality and Justice Kennedy’s concurrence." 7 178 F.3d at(cid:13) 659.(cid:13) Earlier, we noted that the Companies concede that under(cid:13) the Coal Act, they are "related persons" to two sets of(cid:13) entities, which they call the "Pre-1974 Signatories" and the(cid:13) "Post-1974 Signatories." Because of their"related person"(cid:13) _________________________________________________________________(cid:13) 7. We also held in Unity Real Estate that because of the concurrence and(cid:13) dissent in Eastern Enterprises, "we are bound to follow the five-four vote(cid:13) against the takings claim. . . ." 178 F.3d at 659; see also Anker Energy(cid:13) Corp., at 170 n.3.(cid:13) 16(cid:13) status to the Post-1974 Signatories, the Companies were(cid:13) assigned premium liability for miners employed by the Pre-(cid:13) 1974 Signatories.(cid:13) The Companies concede that any assignments of Coal Act(cid:13) liability based on their status of being related persons to(cid:13) Post-1974 Signatories are constitutionally valid. Companies’(cid:13) Br. at 8. However, the Companies argue that they"stand in(cid:13) a substantially identical position to Eastern [regarding the(cid:13) pre-1974 Signatories] because, as in Eastern , all of the(cid:13) disputed miners worked for signatory operators who last(cid:13) signed [NBCWAs] before 1974." Id. at 9. In the Companies’(cid:13) view, the Pre-1974 Signatories and the Post-1974(cid:13) Signatories are two discrete sets of entities that must be(cid:13) viewed differently under Eastern Enterprises. Therefore,(cid:13) according to the Companies, the constitutionality of the(cid:13) Coal Act as applied to any particular member of a(cid:13) controlled group of corporations depends upon whether the(cid:13) particular member signed a 1974 or later NBCWA, not(cid:13) upon whether any other member of the group did so. The(cid:13) Companies rely upon our decision in Unity Real Estate in(cid:13) claiming that their substantial identity to the Pre-1974(cid:13) Signatories places them (the Companies) in the shoes of(cid:13) Eastern Enterprises, and the Commissioner’s assignments(cid:13) of the miners employed by the Pre-1974 Signatories was(cid:13) therefore unconstitutional as to them.(cid:13) The Companies make no other constitutional challenge to(cid:13) the assignments regarding the Pre-1974 Signatories.(cid:13) Therefore, their "as applied" constitutional challenge turns(cid:13) on whether they are in a "substantially identical position to(cid:13) Eastern Enterprises" with regard to assignments of the Pre-(cid:13) 1974 Signatories. We hold that the circumstances here are(cid:13) not substantially equivalent to the circumstances in(cid:13) Eastern Enterprises, and the Commissioner’s assignment of(cid:13) the Pre-1974 Signatories was therefore not a violation of the(cid:13) Fifth Amendment. A closer examination of Eastern(cid:13) Enterprises shows why.(cid:13) Eastern Enterprises began operations in 1929 and it(cid:13) mined coal in West Virginia and Pennsylvania until 1965.(cid:13) Eastern, 524 U.S. at 516. In that capacity, it was a(cid:13) signatory to each NBCWA executed between 1947 and 1964(cid:13) and made contributions of over $60 million to the 1947 and(cid:13) 17(cid:13) 1950 welfare and retirement funds. Id. In 1963, Eastern(cid:13) decided to spin-off its coal operations to a subsidiary,(cid:13) Eastern Associated Coal Corp. ("EACC"). Id. The spin-off(cid:13) was completed by 1965, but Eastern retained its stock(cid:13) interest in EACC through a subsidiary corporation, Coal(cid:13) Properties Corp. ("CPC") until 1987, and it received(cid:13) dividends of more than $100 million from EACC during(cid:13) that period. Id. (cid:13) After 1965, Eastern ceased coal mining operations and(cid:13) was not a signatory to the 1974 NBCWA, (which, as noted,(cid:13) was the first wage agreement to suggest an industry-wide(cid:13) commitment to funding lifetime health benefits to miners(cid:13) and their dependents), or to any subsequent NBCWAs. Id.(cid:13) at 530. EACC signed the 1974 NBCWA as well as(cid:13) subsequent ones. However, in 1987, Eastern sold its(cid:13) interest in CPC to Peabody Holding Co., Inc. Id . at 516. As(cid:13) a consequence of that sale to that unrelated, third party,(cid:13) Eastern had divested itself of all of its interests in its EACC(cid:13) subsidiary five years before the enactment of the Coal Act.(cid:13) After the enactment of the Coal Act, the Commissioner(cid:13) assigned Eastern the obligation for Combined Fund(cid:13) premiums for over 1,000 retired miners who had worked for(cid:13) Eastern before 1966, based on Eastern’s status as the pre-(cid:13) 1978 signatory operator for whom the miners had worked(cid:13) the longest as prescribed by S 9706(a)(3). Id. at 517.(cid:13) Eastern was not assigned responsibility for any miners who(cid:13) had been employed by EACC. Id. at 530.(cid:13) From this recitation of the facts in Eastern, it is obvious(cid:13) that the Companies are not in a "substantially identical(cid:13) position to Eastern." Eastern was assigned premium(cid:13) liability under the Coal Act solely because it employed the(cid:13) assigned miners. Inasmuch as Eastern never signed a wage(cid:13) agreement committing to lifetime health benefits, it could(cid:13) not be charged with the cost of furnishing those benefits.(cid:13) See Id. at 531 ("The company’s obligations under the Act(cid:13) depend solely on its roster of employees some 30 to 50(cid:13) years before the statute’s enactment, without any regard to(cid:13) responsibilities that Eastern accepted under any benefit(cid:13) plan the company itself adopted."). Eastern did not involve(cid:13) liability under the Coal Act’s "related person" provisions. In(cid:13) contrast, the Companies’ liability here arises from their(cid:13) 18(cid:13) relationship to "related person" subsidiaries that signed a(cid:13) NBCWA in 1974 or thereafter. The Commissioner concluded(cid:13) that the nexus between the Companies and those related(cid:13) parties was sufficient to assign liability for miners’ lifetime(cid:13) benefits even though none of the Companies signed a wage(cid:13) agreement obligating them to do so.(cid:13) The Companies attempt to find shelter under the(cid:13) umbrella of Eastern Enterprises by stressing that Eastern(cid:13) also had a subsidiary, EACC, that signed a post-1974(cid:13) NBCWA, and arguing that Eastern’s relationship with EACC(cid:13) was not sufficient to sustain the Commissioner’s(cid:13) assignments of Coal Act liability to Eastern. Companies’ Br.(cid:13) at 15-16. However, that argument ignores a critical(cid:13) distinction. Eastern divested itself of EACC in 1987, five(cid:13) years before the enactment of the Coal Act. The Coal Act(cid:13) provides that where ostensibly related companies remain in(cid:13) business, the question of whether they are "related(cid:13) persons" within the meaning of the statute is determined(cid:13) with respect to their relationship as of a date shortly before(cid:13) the Act’s enactment -- July 20, 1992. 26 U.S.C.(cid:13) S 9701(c)(2)(B). Because Eastern sold EACC before that(cid:13) date, EACC was not a "related person" to Eastern under the(cid:13) Act. Therefore, premium liability could not have been(cid:13) imposed on Eastern as a related person to EACC.(cid:13) We have twice before held that liability based upon the(cid:13) Act’s related person provisions removes an assignee from(cid:13) the shelter of Eastern Enterprises. In Unity, we upheld the(cid:13) constitutionality of the Coal Act as applied to a company(cid:13) that was a related person to both a pre-1974 NBCWA(cid:13) signatory and a post-1974 signatory. At the time the(cid:13) Commissioner made the premium assignments, Unity Real(cid:13) Estate Company was a small corporation closely-held by(cid:13) members of the Jamison family. Unity owned only a small(cid:13) commercial building and a parking lot. It never mined coal(cid:13) and never signed a coal wage agreement. Nonetheless, the(cid:13) assignments to it were valid under the Coal Act because it(cid:13) was a related person to several, defunct coal mining(cid:13) companies that ultimately merged into Unity. Among those(cid:13) companies were South Union-PA and South Union-WVA.(cid:13) South Union-PA had mined coal since 1923 and signed(cid:13) NBCWAs from 1947 through 1961. South Union-WVA(cid:13) 19(cid:13) began mining coal when South Union-PA stopped and it(cid:13) signed the 1974, 1978 and 1981 NBCWAs.8 (cid:13) The Commissioner assigned Combined Fund premium(cid:13) liability to Unity for the miners formerly employed by all of(cid:13) Unity’s related person entities pursuant to SS 9706(a)(1) &(cid:13) (2), and Unity challenged the assignment relying on(cid:13) Eastern. After a comprehensive analysis of the various(cid:13) opinions in Eastern, we upheld the Coal Act as applied to(cid:13) Unity and sustained all of the assignments, including(cid:13) assignments of those miners who had worked for South(cid:13) Union-PA. As noted earlier, South Union-PA had not signed(cid:13) a NBCWA in 1974 or thereafter. The critical distinction(cid:13) between Unity/the Jamison family and Eastern Enterprises(cid:13) was that Eastern never signed a 1974 or subsequent(cid:13) NBCWA and was not a related person to any entity that(cid:13) had. Unity, however was tethered to the commitment of(cid:13) lifetime benefits through South Union-WVA, its related(cid:13) person. That coal company had made such a commitment(cid:13) in the 1974, 1978 and 1981 NBCWAs. In affirming Unity’s(cid:13) liability we stated:(cid:13) [b]ecause the plaintiffs signed NBCWAs in 1974 and(cid:13) thereafter, they are factually distinguishable(cid:13) from Eastern Enterprises. Language in the plurality(cid:13) and the concurrence suggesting that expectations(cid:13) fundamentally changed after 1974 support our(cid:13) conclusions.(cid:13) 178 F.3d at 659. That distinction "compell[ed] the(cid:13) conclusion that Eastern is not on all fours with the case(cid:13) before us." Id.(cid:13) Similarly, in Anker we upheld the Act’s application to(cid:13) Anker coal via a related person that was a post-1974(cid:13) signatory operator. We held that Anker’s related person had(cid:13) agreed to the terms of the 1974, 1978, 1981 and 1984(cid:13) NBCWAs and that "factually distinguish[ed] Anker’s(cid:13) situation from that of Eastern Enterprises and compell[ed](cid:13) a finding that the Act [was] constitutional[as applied to(cid:13) Anker]." 177 F.3d at 172. There, from 1967 until 1982,(cid:13) Consolidation Coal had contracted with King Knob Coal for(cid:13) _________________________________________________________________(cid:13) 8. A bankruptcy court granted it leave to reject the 1981 NBCWA.(cid:13) 20(cid:13) King Knob to mine coal on Consolidation’s property. As part(cid:13) of this arrangement, King Knob agreed that its employees(cid:13) would be UMWA members and that it would be a signatory(cid:13) to the then current NBCWAs. To achieve that end, King(cid:13) Knob signed "me too" agreements in 1974, 1978, 1981 and(cid:13) 1984.9(cid:13) An affiliate of Anker acquired King Knob in 1975 and the(cid:13) relationship between Consolidation and King Knob(cid:13) continued until Consolidation canceled its contract with(cid:13) King Knob in 1982. In 1994 and 1995, the Commissioner(cid:13) informed Anker that it was a related person to King Knob(cid:13) and assigned premium liability to Anker for King Knob’s(cid:13) retired miners. Anker sued alleging that under Eastern(cid:13) Enterprises the Commissioner’s assignments were(cid:13) unconstitutional as applied to it.(cid:13) Relying on Unity, we upheld the assignment. We(cid:13) concluded that Anker’s related person had agreed to be(cid:13) bound by the terms of the post-1974 NBCWA’s.(cid:13) Accordingly, Anker’s situation "[fell] outside the specific(cid:13) holding of Eastern Enterprises." Id . at 172.(cid:13) Here, not to be deterred by the wealth of precedent(cid:13) (seemingly on point) against them, the Companies press on(cid:13) and argue that Unity imposes a limitation on related person(cid:13) liability that precludes consideration of the bargaining(cid:13) history of any company other than the assigned miners’(cid:13) actual employer. They argue that because the assignments(cid:13) in Unity were made pursuant to SS 9706(a)(1) and (2), Unity(cid:13) was treated as if it stood in the shoes of the signatory(cid:13) operators who employed the miners and who had signed all(cid:13) of the NBCWAs through 1978. Therefore, the Companies(cid:13) claim that Unity requires that we treat them as if they too(cid:13) _________________________________________________________________(cid:13) 9. A "me too" agreement is an agreement between an employer who is(cid:13) not a member of the BCOA but who agrees with the UMWA to be bound(cid:13) by the terms of the NBCWA. Anker, 177 F.3d at 166-7. A "me too"(cid:13) agreement has terms identical to the terms of the respective NBCWA.(cid:13) There is no legal distinction between the NBCWA itself, and the(cid:13) corresponding "me too" agreement insofar as the employer’s rights and(cid:13) obligations are concerned. Id. at 172 n.4. Thus, the "distinction" between(cid:13) a NBCWA signatory and a "me too" signatory is not a difference for(cid:13) purposes of our Coal Act analysis. Id.(cid:13) 21(cid:13) stand in the shoes of the signatory operators who employed(cid:13) the assigned miners. Based upon their insistence that they(cid:13) stand in the shoes of the Pre-1974 Signatories who actually(cid:13) employed the assigned miners, the Companies claim that(cid:13) premium liability assignments are unconstitutional as(cid:13) applied under Eastern Enterprises because the Pre-1974(cid:13) Signatories neither committed to paying lifetime benefits,(cid:13) nor contributed to any such expectation on the part of the(cid:13) assigned miners.(cid:13) However, this argument is based upon a misreading of(cid:13) Unity. Unity was not treated as if it stood in the shoes of a(cid:13) signatory operator who signed a post-1974 NBCWA. Unity(cid:13) was treated as a "related person" to pre-1974 signatories(cid:13) and at least one post-1974 signatory and it was assigned(cid:13) liability for miners who had worked for pre-1974 signatories(cid:13) because of that "related person" status. The Companies are(cid:13) in exactly the same position here.(cid:13) The Companies also argue that because the assignments(cid:13) were made pursuant to 9706(a)(3), the fact that they have(cid:13) related persons who signed 1974 and later NBCWAs is(cid:13) irrelevant because only the bargaining history of the Pre-(cid:13) 1974 Signatories can be considered in determining the(cid:13) constitutionality of the assignments. This argument also(cid:13) allows them to again claim to stand in the shoes of Eastern(cid:13) Enterprises. It is based upon a document in the record(cid:13) signed by a man named "Ray Worley." Worley writes:(cid:13) The Coal Act does not permit us to impute a related(cid:13) company’s signatory status to that of a signatory(cid:13) operator; that is, a pre-1978 signatory cannot be(cid:13) treated as a 1978 (or later) signatory simply because its(cid:13) parent or "sister" company is a 1978 (or later)(cid:13) signatory.(cid:13) App. at 178. In the Companies’ view, the Commissioner and(cid:13) the Combined Fund Trustees have violated this "policy"(cid:13) because they claim that the Commissioner’s and the(cid:13) Combined Fund Trustees’ theory that they are liable for the(cid:13) premiums of the miners employed by the Pre-1974(cid:13) Signatories effectively treats the Pre-1974 Signatories as if(cid:13) they were Post-1974 Signatories. That is, they have(cid:13) imputed the signatory status of the Post-1974 Signatories(cid:13) 22(cid:13) to the Pre-1974 Signatories. Moreover, the Companies(cid:13) argue this "imputation of signatory status" theory suggests(cid:13) that the assignments originally made were improper. In the(cid:13) Companies’ view, all miners who have been assigned under(cid:13) S 9706(a)(3), should have been assigned, or should be(cid:13) reassigned, under either SS 9706(a)(1) or (2) if the pre-1978(cid:13) operator who employed them had a related person who(cid:13) signed a 1978 or later NBCWA.(cid:13) We disagree. In the first place, the Companies have never(cid:13) claimed that the original assignments of the miners(cid:13) employed by the Pre-1974 Signatories were incorrect under(cid:13) the S 9706(a) statutory assignment scheme. 10 Second, we(cid:13) reject the Companies’ claim that Worley’s memo is an(cid:13) admission by the Commissioner that the signatory status of(cid:13) one related person cannot be imputed to another. Reply Br.(cid:13) at 10. The Companies do not identify Worley’s position with(cid:13) the Social Security Administration, they do not claim that(cid:13) Worley was speaking for the Commissioner and they do not(cid:13) tell us the purpose of Worley’s memo. Third, and perhaps(cid:13) most importantly, Worley’s memo appears to speak to the(cid:13) original assignment of beneficiaries procedures under(cid:13) S 9706(a). It does not appear to have anything to do with(cid:13) the related person provisions of the Act.11 Accordingly, the(cid:13) Companies’ "obligations must stand or fall regardless of(cid:13) how [it] was assigned the beneficiaries." Unity, at 655 n.2.(cid:13) Our rejection of the Companies’ attempt to analogize(cid:13) their circumstances to the facts in Eastern Enterprises does(cid:13) _________________________________________________________________(cid:13) 10. The Coal Act provides that if an assigned operator believes that(cid:13) beneficiaries have erroneously been assigned to it, the operator can(cid:13) obtain information about the beneficiaries from the Commissioner and(cid:13) seek review of the assignments. 20 C.F.R. S 9706(f); see also 20 C.F.R.(cid:13) SS 422.601-607. The burden is on the assigned operator to make out a(cid:13) prima facie case that the assignments were in error. See 20 C.F.R.(cid:13) S 422.605. If the Commissioner finds that the assignments were in error,(cid:13) he or she can declare them void and reassign the beneficiaries to the(cid:13) appropriate signatory operator or related person. 26 U.S.C.(cid:13) S 9706(f)(3)(A). If the Commissioner finds that the assignments are not in(cid:13) error, he or she must notify the assigned operator. The Commissioner’s(cid:13) determination is final. 26 U.S.C. S 9706(f)(3)(B).(cid:13) 11. As we noted at the outset, the Companies are not challenging the(cid:13) constitutionality of the related person provisions.(cid:13) 23(cid:13) not end our inquiry. In Eastern, the plurality also noted(cid:13) that the Court’s prior decisions(cid:13) have left open the possibility that legislation might be(cid:13) unconstitutional if it imposes severe retroactive liability(cid:13) on a limited class of parties that could not have(cid:13) anticipated the liability, and the extent of that liability(cid:13) is substantially disproportionate to the parties’(cid:13) experience.(cid:13) Eastern, at 528-529 (O’Connor, J.). In recognition of that(cid:13) possibility, and the possibility that "Eastern embodies(cid:13) principles capable of broader application," we required an(cid:13) additional level of substantive due process analysis to(cid:13) determine if the assignments to the Companies are(cid:13) constitutional as applied in Unity.12 178 F.3d at 659. That(cid:13) additional level of analysis measures "the extent of the gap(cid:13) between the coal companies’ contractual promises to the(cid:13) Funds and the requirements of the Coal Act." Id.(cid:13) In Unity, we stated that the standard of review when a(cid:13) due process violation is alleged "is forgiving; it bars only(cid:13) arbitrary and irrational congressional action." Id. In Unity(cid:13) we began our analysis with an extensive review of the(cid:13) available evidence. We noted that Congress’ findings in(cid:13) enacting the Coal Act that the coal industry had created a(cid:13) reasonable expectation that miners would have lifetime(cid:13) benefits, and that the coal companies were responsible for(cid:13) the deterioration of miners’ Benefit Plans, were"reasonable(cid:13) evaluations of the problem." Id. at 670.(cid:13) We next concluded that the Act’s retroactivity did not(cid:13) mean that the legislation was irrational or a violation of due(cid:13) process. Id. In reaching that conclusion we recognized that(cid:13) "[t]he heart of retroactivity analysis is an evaluation of the(cid:13) extent of the burden imposed by a retroactive law in(cid:13) _________________________________________________________________(cid:13) 12. While the Eastern Enterprise plurality’s cautionary note that(cid:13) legislation might be unconstitutional if it is severely retroactive and(cid:13) substantially disproportionate was made in the course of its Taking(cid:13) Clause analysis, the admonition is applicable to a substantive due(cid:13) process analysis because, as the plurality noted,"[o]ur analysis of(cid:13) legislation under the Takings and Due Process Clauses is correlated to(cid:13) some extent." 524 U.S. at 537 (plurality) (citing Connolly v. Pension(cid:13) Benefit Guaranty Corp., 475 U.S. 211, 223 (1986)).(cid:13) 24(cid:13) relation to the burdened parties’ prior acts[.]" We held that(cid:13) "[w]here Congress acts reasonably to redress an injury(cid:13) caused or to enforce an expectation created by a party, it(cid:13) can do so retroactively." Id. at 670, 671. In Unity, the(cid:13) period between the coal company’s contractual undertaking(cid:13) to pay for benefits to the date of the passing of the Coal Act(cid:13) was eleven years. Id. at 670.13 Although that period was(cid:13) "quite long," we concluded that it was "not so extensive as(cid:13) to violate Justice Kennedy’s standard, although Unity offers(cid:13) a close case." Id.14 Even though we concluded that the time(cid:13) frame was not unreasonably long, we were nonetheless(cid:13) aware of the considerable financial burden that can result(cid:13) from an assignment of liability under the Act.15(cid:13) Finally, we addressed the proportionality issue and found(cid:13) sufficient proportionality to sustain the constitutionality of(cid:13) the Act.16 That conclusion was, in large part, driven by the(cid:13) underlying conclusion that the burdens imposed under the(cid:13) Act are justified by the industry’s past conduct and the(cid:13) reasonable expectations of lifetime benefits it created. We(cid:13) further concluded that the industry’s conduct in creating a(cid:13) _________________________________________________________________(cid:13) 13. The Coal Act was passed in 1992 and South Union-WVA, Unity’s(cid:13) related person, last signed a NBCWA in 1981.(cid:13) 14. In Unity, we relied on Justice Kennedy’s "explication of the relevant(cid:13) due process principles because the plurality did not reach Eastern’s due(cid:13) process claim." 178 F.3d at 670 n.13.(cid:13) 15. Eastern Enterprises’ estimated liability was between $50 and $100(cid:13) million. 524 U.S. at 529. Unity alleged that its estimated Coal Act(cid:13) liabilities were over six times its total assets and that if the assignments(cid:13) were upheld, it would be bankrupted. 178 F.3d at 655. At the time(cid:13) Unity’s appeal was before us, Unity’s total payments were under $1(cid:13) million. Id. at 671. Significantly, the Companies do not contend that the(cid:13) assignments will force them into bankruptcy. In fact, they have not(cid:13) bothered to supply us with an estimate of their total potential liability.(cid:13) 16. A statute will not violate substantive due process where the burden(cid:13) imposed is "proportional to the harm legitimately addressed by the(cid:13) legislature." Unity, at 671. A statute is not unconstitutional "if the(cid:13) liability actually imposed is not out of proportion to the claimant’s prior(cid:13) experience with the object of the legislation." Id. at 672. "Prior experience(cid:13) can consist of conduct that creates reasonable expectations about the(cid:13) object of the legislation or conduct that creates the problems that(cid:13) impelled the legislature to act." Id.(cid:13) 25(cid:13) benefit fund obligated to pay out more monies than the(cid:13) operators were required to provide, and the industry’s(cid:13) conduct in creating the problem of underfunding, was(cid:13) exacerbated by coal companies fleeing the coal industry to(cid:13) avoid further contributions to the fund. Id. at 673.(cid:13) Essentially, then, we reasoned that the Act was"Congress’(cid:13) attempt to do equity." Id. at 672. Accordingly, we concluded(cid:13) that the Coal Act did not violate substantive due process.(cid:13) Congress was, after all, entitled to remedy the problems(cid:13) caused by the companies’ conduct. Given the importance of(cid:13) the coal industry, Congress could certainly respond to a(cid:13) benefits funding structure "vulnerable to ‘dumping’ retirees(cid:13) when companies left the industry." Id. at 673. The Coal Act(cid:13) "is targeted to address the problem of insufficient resources(cid:13) in the benefit funds and . . . it puts the burden on those(cid:13) who, in Congress’s reasonable judgment, should bear it."(cid:13) Id. at 674.(cid:13) At oral argument, counsel for the Companies stated that(cid:13) the Companies’ "related person" Post-1974 Signatories last(cid:13) signed NBCWAs in 1988. That is only four years from the(cid:13) time the Post-1974 Signatories’ contractual obligations to(cid:13) the Funds ceased as the effective date of the Act was 1992.(cid:13) That is significantly less time than the eleven years we(cid:13) found acceptable in Unity.17 Accordingly, we reject the(cid:13) Companies’ proportionality attack on the Commissioner’s(cid:13) assignments.18(cid:13) B. Can the Commissioner Make Original Assignments(cid:13) After October 1, 1993?19(cid:13) _________________________________________________________________(cid:13) 17. We also applied Unity’s due process analysis in Anker and found no(cid:13) retroactivity problems in the eight years between the time when Anker’s(cid:13) "related person," King Knob, last agreed in a"me too" agreement to be(cid:13) bound by an NBCWA and the passage of the Coal Act. Anker, 177 F.3d(cid:13) at 173.(cid:13) 18. After this case was argued, the Supreme Court decided Barnhart v.(cid:13) Sigmon Coal Co., 534 U.S. 438 (2002). The issue for adjudication in(cid:13) Sigmon was a question of statutory construction centering on whether(cid:13) the Coal Act permits the Commissioner to assign retired miners to(cid:13) successors in interest of out-of-business signatory operators. It has no(cid:13) bearing on the issues presented here.(cid:13) 19. The district court rejected the Companies’ argument that certain(cid:13) assignments should be voided because they were made after October 1,(cid:13) 26(cid:13) The Companies argue in the alternative that, even if the(cid:13) Commissioner’s assignments are constitutional, some of the(cid:13) assignments are nevertheless invalid because they were(cid:13) made on or after October 1, 1993.20,21 This argument is(cid:13) grounded upon 26 U.S.C. S 9706(a) which states that the(cid:13) Commissioner "shall, before October 1, 1993, assign each(cid:13) coal industry retiree who is an eligible beneficiary to a(cid:13) signatory operator which (or any related person with(cid:13) respect to which) remains in business. . . ." (emphasis(cid:13) added). The Companies contend that "shall" means "shall."(cid:13) Accordingly, argue the Companies, since Congress explicitly(cid:13) mandated the Commissioner to make all Coal Act(cid:13) assignments by a date certain, any initial assignments(cid:13) made after that October 1, 1993 are invalid.22(cid:13) The Companies’ position is supported by Dixie Fuel Co. v.(cid:13) Commissioner of Social Security, 171 F.3d 1052 (6th Cir.(cid:13) 1999). There, the Court of Appeals for the Sixth Circuit held(cid:13) that the plain language of the statute, the statutory scheme(cid:13) for assigning beneficiaries and the legislative history all(cid:13) demonstrate that "the intent of Congress is clearly(cid:13) expressed in the statute. The October 1, 1993 date is a(cid:13) deadline." Id. at 1064.(cid:13) _________________________________________________________________(cid:13) 1993. The standard of review in cases of statutory construction is(cid:13) plenary. Pfeiffer v. Marion Center Area School District, 917 F.2d 779, 781(cid:13) (3d Cir. 1990).(cid:13) 20. The Companies’ complaint acknowledges that the assignments to(cid:13) Stelco Coal and Shenango were made before October 1, 1993. App. at(cid:13) 29, 31. Therefore, this portion of our analysis does not apply to either of(cid:13) those entities.(cid:13) 21. The Supreme Court has granted certiorari in two cases on this same(cid:13) issue. Peabody Coal Co. v. Massanari, ___ F.3d ___, 2001 WL 857197(cid:13) (6th Cir. 2001), cert. granted by Barnhart v. Peabody Coal Co., ___ U.S.(cid:13) ___, 122 S.Ct. 918 (2002)( No. 01-705), and Bellaire Corp. v. Massanari,(cid:13) ___ F.3d ___, 2001 WL 856962 (6th Cir. 2001), cert. granted by Holland(cid:13) v. Bellaire Corp., ___ U.S. ___, 122 S.Ct. 918 (2002)(No. 01-715).(cid:13) 22. The Companies "do not challenge the Commissioner’s authority to(cid:13) reassign miners after September 30, 1993, i.e., to take miners who were(cid:13) assigned incorrectly before September 30, 1993, and correctly reassign(cid:13) them after September 30, 1993 as provided for in Section 9706(f)(3)."(cid:13) Companies Br. at 23 n.4.(cid:13) 27(cid:13) Nevertheless, we disagree. We are persuaded by the(cid:13) analysis of the Court of Appeals for the Fourth Circuit in(cid:13) Holland v. Pardee Coal Co., 269 F.3d 424 (4th Cir. 2001).(cid:13) That is the only other case that has addressed the effect of(cid:13) the October 1, 1993 deadline, and we believe it is better(cid:13) reasoned than Dixie Fuel. In Pardee Coal , the Commissioner(cid:13) determined that Pardee was a signatory operator and(cid:13) assigned it premium liability for a number of retired miners(cid:13) and their spouses. Because several of the retired miners(cid:13) were assigned to Pardee after October 1, 1993, Pardee(cid:13) denied that it was liable to the Combined Fund for those(cid:13) premiums because they were made after the supposed(cid:13) statutory cut-off date. The district court agreed with Pardee(cid:13) and held that the post-October 1, 1993 assignments were(cid:13) void as a matter of law. However, applying "well-settled(cid:13) principles of statutory construction," the court of appeals(cid:13) examined the text of the Act, the context in which it was(cid:13) enacted, its structure and its legislative history, and found(cid:13) no indication of congressional intent to establish October 1,(cid:13) 1993 as a "jurisdictional deadline, rendering void all(cid:13) beneficiary assignments made by the [Commissioner] after(cid:13) that date." 269 F.3d 437. Our inquiry leads us to the same(cid:13) result.(cid:13) Admittedly, "shall" is generally mandatory when used in(cid:13) a statute. See, e.g., United States v. Monsanto , 491 U.S.(cid:13) 600, 607 (1989) ("Congress could not have chosen stronger(cid:13) words [than ‘shall order forfeiture’] to express its intent that(cid:13) forfeiture is mandatory. . . ."). However, a statutory(cid:13) deadline does not, by itself, establish that Congress(cid:13) intended to strip an agency’s authority to act after the(cid:13) deadline has passed. In Brock v. Pierce County , 476 U.S.(cid:13) 253 (1986), the Court had to decide if Congress intended to(cid:13) prevent the Secretary of Labor from recovering misused(cid:13) funds under the Comprehensive Employment and Training(cid:13) Act ("CETA") after the expiration of a statutory deadline in(cid:13) that Act. The relevant provision of CETA stated that the(cid:13) Secretary "shall" issue a final determination regarding(cid:13) misuse of CETA funds within 120 days after receiving a(cid:13) complaint alleging misuse. Id. at 254-55. The Secretary(cid:13) disallowed Pierce County’s expenditure of approximately(cid:13) $500,000 of CETA funds after an investigation disclosed(cid:13) that the funds had not been used appropriately. The county(cid:13) 28(cid:13) challenged the Secretary’s determination in court alleging(cid:13) that the Secretary had no authority because his(cid:13) determination had been made after the 120 day period had(cid:13) expired.(cid:13) A unanimous Supreme Court disagreed. The Court held(cid:13) that "the mere use of the word ‘shall’ . . ., standing alone,(cid:13) is not enough to remove the Secretary’s power to act after(cid:13) 120 days." Id. at 262. The Court was"most reluctant to(cid:13) conclude that every failure of an agency to observe a(cid:13) procedural requirement voids subsequent agency action,(cid:13) especially when important public rights are at stake." Id. at(cid:13) 260. Rather, the Court concluded that "the normal indicia(cid:13) of congressional intent" should be used to determine(cid:13) whether an agency has authority to act despite the(cid:13) expiration of a statutory deadline. Therefore, we can not(cid:13) satisfactorily resolve that question by focusing upon a(cid:13) single word in a statute, even when that word appears to be(cid:13) as conclusive of congressional intent as "shall" appears to(cid:13) be. Id. at 262 n.9.(cid:13) We find the Court’s reasoning in United States v. James(cid:13) Daniel Good Real Property, 510 U.S. 43 (1993), dispositive(cid:13) here. There, the Court addressed, inter alia, the issue of(cid:13) whether a civil forfeiture action, filed within the statute of(cid:13) limitations, but without complying with other statutory(cid:13) timing directives, must be dismissed. In finding that the(cid:13) timing did not compel dismissal so long as the action was(cid:13) filed within the statute of limitations, the Court noted that(cid:13) "many statutory requisitions intended for the guide of(cid:13) officers in the conduct of business devolved upon them . . .(cid:13) do not limit their power or render its exercise in disregard(cid:13) of the requisitions ineffectual." Id. at 63 (quoting French v.(cid:13) Edwards, 80 U. S. (13 Wall.) 506, 511 (1872)).(cid:13) Consequently, "if a statute does not specify a consequence(cid:13) for noncompliance with statutory timing provisions, the(cid:13) federal courts will not in the ordinary course impose their(cid:13) own coercive sanction." 510 U. S. at 63 (citations omitted)(cid:13) (emphasis added). No such consequence is included in the(cid:13) Coal Act.(cid:13) Moreover, we addressed this issue of statutory(cid:13) interpretation in Southwestern Pennsylvania Growth(cid:13) Alliance v. Browner, 121 F.3d 106, 113-115 (3d Cir. 1997).(cid:13) 29(cid:13) We were there concerned with whether the Environmental(cid:13) Protection Agency’s failure to act on a Clean Air petition(cid:13) within the statutory time frame deprived the agency of(cid:13) authority to take action on the petition. Relying heavily on(cid:13) Brock v. Pierce County, we held that a statute stating that(cid:13) an agency "shall" complete action by a certain time does(cid:13) not divest the agency of jurisdiction to act unless there is(cid:13) some additional indication in the statute of a congressional(cid:13) intent to bar further agency action.(cid:13) Our review of the Coal Act discloses no further indication(cid:13) of congressional intent to deprive the Commissioner of the(cid:13) authority to make original assignments after October 1,(cid:13) 1993. Congress’ failure to specify any consequences if the(cid:13) Secretary does not make assignments by the purported(cid:13) drop dead date is quite telling.23 Moreover, Brock v. Pierce(cid:13) County was decided six years before Congress passed the(cid:13) Coal Act. Accordingly, we must presume that Congress(cid:13) knew that its instruction that the Commissioner"shall"(cid:13) make assignments before October 1, 1993, would not by(cid:13) itself divest the Commissioner of jurisdiction to act after(cid:13) that date. See United States v. Wells, 519 U.S. 482, 485(cid:13) (1997) ("[W]e presume that Congress expects its statutes to(cid:13) be read in conformity with this Court’s precedents[.]").(cid:13) Congress would have specified consequences for failing to(cid:13) assign by a drop dead date or explicitly stated that the(cid:13) Secretary’s authority to assign terminated after that date if(cid:13) Congress had intended to abruptly end the Secretary’s(cid:13) authority to make original assignments after October 1,(cid:13) 1993.(cid:13) Congress has been this explicit in a number of other(cid:13) statutes. See, e.g., 42 U.S.C. S 1396n(h) (application for(cid:13) waiver of Medicaid requirements must be deemed approved(cid:13) if Secretary of Health and Human Services does not issue(cid:13) a decision within 90 days); 49 U.S.C. S 15910(c) (providing(cid:13) that Surface Transportation Board investigative proceeding(cid:13) is dismissed automatically if not concluded within three(cid:13) years).(cid:13) _________________________________________________________________(cid:13) 23. See In re TWA, 96 F.3d 687, 690 (3d Cir. 1996), referring to a(cid:13) statutory time bar in the Bankruptcy Code as a "drop dead date."(cid:13) 30(cid:13) The Companies argue that the Act does provide a(cid:13) consequence for not assigning a miner before October 1,(cid:13) 1993 because after that date the miner becomes an(cid:13) "unassigned miner" and is placed in the orphan retiree(cid:13) pool. However, that is not enough to conclude that the(cid:13) Secretary no longer has authority to assign after October 1,(cid:13) 1993. It is simply a safety net insuring that miners who are(cid:13) not assigned will not thereby be denied the benefits they(cid:13) are entitled to. We see no language in the Act, and the(cid:13) Companies direct us to none, that would forge a link(cid:13) between unassigned status and the Commissioner’s failure(cid:13) to complete the assignment process by October 1, 1993.(cid:13) In addition, the Act’s administrative review provisions(cid:13) suggest that Congress did not intend to limit the(cid:13) Commissioner’s authority to make assignments after(cid:13) October 1, 1993. The Coal Act gives coal companies the(cid:13) right to an administrative review of an assignment decision(cid:13) and further provides that if the Commissioner concludes(cid:13) that an initial decision was erroneous, the Commissioner(cid:13) must review the beneficiary’s record and reassign the miner(cid:13) accordingly. 26 U.S.C. S 9706(f)(3). Although a coal(cid:13) operator’s request for a review must be submitted to the(cid:13) Commissioner within a specified time frame, the Act does(cid:13) not impose any time limitations on the Commissioner’s(cid:13) review process.24 This strongly suggests that Congress(cid:13) expected that beneficiary reassignments would be made(cid:13) after October 1, 1993. However, if October 1, 1993 is the(cid:13) drop dead date the Companies claim, the Commissioner(cid:13) would have no authority to make a new assignment even(cid:13) though the initial assignment resulted from factual error, a(cid:13) misreading of the statute, or administrative misfeasance.(cid:13) Although it can be argued that the October 1, 1993 cutoff(cid:13) only applies to original assignments, not those made as a(cid:13) result of the administrative review process, nothing in the(cid:13) text of the Act allows us to draw such a distinction.(cid:13) _________________________________________________________________(cid:13) 24. An assigned operator may, within 30 days of receiving notice with(cid:13) respect to a particular beneficiary, request information as to his work(cid:13) history. See 26 U.S.C. S 9706(f)(1). After receiving the information, the(cid:13) assigned operator has an additional 30 days in which to request review(cid:13) of the assignment. See 26 U.S.C. S 9706(f)(2).(cid:13) 31(cid:13) In addition, we can infer no congressional intent to bar(cid:13) agency action after October 1, 1993, from the purpose and(cid:13) structure of the Coal Act. As we noted earlier, the Coal Act(cid:13) was enacted in 1992 "to ensure that retired coal miners(cid:13) and their dependents would continue to receive the health(cid:13) and death benefits they had been receiving since the 1940s(cid:13) pursuant to a series of collective bargaining agreements."(cid:13) Anker, at 163-64. The Act was bottomed on Congress’(cid:13) explicit finding that(cid:13) in order to secure the stability of interstate commerce,(cid:13) it is necessary to modify the current private health care(cid:13) benefit plan structure for retirees in the coal industry(cid:13) to identify persons most responsible for plan liabilities(cid:13) in order to stabilize plan funding and allow for the(cid:13) provision of health care benefits to such retirees.(cid:13) 26 U.S.C. S 9701 note (emphasis added). Congress was(cid:13) attempting to "insure that every reasonable effort is made(cid:13) to locate a responsible party to provide the benefits before(cid:13) the costs are passed to other signatory companies which(cid:13) have never had any connection to the individual[.]" 138(cid:13) Cong. Rec. S17604 (daily ed. Oct. 8, 1992). Thus, the(cid:13) Conference Committee Report declared that the Act’s(cid:13) "overriding purpose is to find and designate a specific(cid:13) obligor for as many beneficiaries in the [Benefit] Plans as(cid:13) possible." Id. The conferees further stated their "inten[tion](cid:13) that the largest possible number of beneficiaries in the(cid:13) [Benefit] Plans be assigned to a specific or designated(cid:13) company[,]" and "that the number of unassigned(cid:13) beneficiaries is kept to an absolute minimum." Id. at(cid:13) S17605.(cid:13) In short, the Coal Act’s key objective is to ensure that the(cid:13) costs of providing retirement benefits will, so far as(cid:13) possible, be borne by the private parties most responsible(cid:13) for creating retired miners’ expectations of lifetime health(cid:13) benefits. Consequently, the Act broadly imposes liability on(cid:13) original signatories and a broad class of related business(cid:13) entities. Cutting off the Commissioner’s authority to make(cid:13) assignments after October 1, 1993, would surely frustrate(cid:13) that objective. If the Commissioner cannot make(cid:13) assignments beyond that date, otherwise assignable(cid:13) beneficiaries would be retained in the orphan retiree pool(cid:13) 32(cid:13) and benefits would paid from federal funds. 30 U.S.C.(cid:13) S 1232(h) and 26 U.S.C. S 9705(b). Moreover, if those(cid:13) transfers are inadequate, orphan retiree costs will be(cid:13) imposed on other private parties through the imposition of(cid:13) the unassigned beneficiary premium. See 26 U.S.C.(cid:13) S 9704(d).25 Those other private parties would have no(cid:13) substantive connection or nexus to the unassigned(cid:13) beneficiary, and would certainly not be responsible for(cid:13) creating any expectation of lifetime benefits.(cid:13) Thus, reading "shall" to invalidate post-October 1, 1993(cid:13) assignments would eviscerate a program intended to(cid:13) impose funding burdens on the most responsible parties(cid:13) and shift funding burdens to the government or to other(cid:13) companies with no connection to the beneficiaries assigned(cid:13) to those companies. We are thus reminded of the situation(cid:13) in Brock v. Pierce County, where the Court was reluctant to(cid:13) find that a statutory deadline barred agency action because(cid:13) "public rights [were] at stake" and the"public fisc" was(cid:13) implicated. 476 U.S. at 260, 262. Such a result here would(cid:13) also result in a financial windfall to some operators at the(cid:13) expense of those operators whose assignments were(cid:13) completed before October 1, 1993 because the former(cid:13) would be relieved of paying for miners’ expectations that(cid:13) they or their related entities helped create.(cid:13) Finally, putting aside the intricacies of statutory(cid:13) interpretation and legislative history, we reach the same(cid:13) result by employing that all too often overlooked tool:(cid:13) practical common sense. Interpreting the October 1, 1993(cid:13) date as a cutoff results in a time frame that would make(cid:13) the action Congress required of the Commissioner(cid:13) impossible. It would thereby frustrate the very(cid:13) congressional purpose the Act sought to further. The Coal(cid:13) Act became law in October of 1992. The Commissioner(cid:13) therefore had to review the records of, and assign premium(cid:13) responsibility for, roughly 65,000 miners by October 1,(cid:13) 1993. Holland v. Pardee Coal Co., 269 F.3d at 432 n.9. "To(cid:13) _________________________________________________________________(cid:13) 25. The government submits that these costs could amount to millions(cid:13) of dollars in additional liability. According to the government, nearly(cid:13) 10,000 beneficiary assignments were made after October 1, 1993.(cid:13) Government’s Br. at 48.(cid:13) 33(cid:13) assign those miners, the agency had to search each miner’s(cid:13) records, and reconstruct his employment history, and then(cid:13) match that history against the lists of signatory coal(cid:13) operators." Id. This Gordian knot was significantly(cid:13) tightened by Congress’ failure to appropriate funds until(cid:13) July 2, 1993 -- less than 80 days before the statutory date(cid:13) of October 1, 1993. It would therefore have been as close to(cid:13) impossible as any administrative task can get for the(cid:13) Commissioner to complete the 65,000 by October 1, 1993.(cid:13) Accordingly, we cannot agree that the Commissioner was(cid:13) powerless to make original assignments after October 1,(cid:13) 1993.26 Thus, as the Court stated in Regions Hosp. v.(cid:13) Shalala, 522 U.S. 448, 459 n.3 (1998), "The Secretary’s(cid:13) failure to meet the deadline, a not uncommon occurrence(cid:13) when heavy loads are thrust on administrators, does not(cid:13) mean that the official lacked power to act beyond it."(cid:13) _________________________________________________________________(cid:13) 26. The House Committee on Ways and Means, in a Committee Print(cid:13) issued on September 3, 1993, only four weeks before the effective date(cid:13) of the Coal Act reinforces this point. The Committee Print reads:(cid:13) SSA anticipated that checking the [employment] records would be(cid:13) very-time consuming. Most beneficiaries are associated with the(cid:13) 1950 Benefit Fund, and therefore with miners who retired before(cid:13) 1976. Social Security records are not computerized for work history(cid:13) prior to 1978. Linking an individual’s work history to a specific(cid:13) employer will thus require searching through microfilm records and(cid:13) entering the information by hand into the computer system.(cid:13) Preliminary estimates by the SSA suggest that it would take(cid:13) approximately 150 work years just to retrieve the microfilm records.(cid:13) This does not include the additional work involved in determining the(cid:13) assignment to an employer. On a routine basis, SSA has 140(cid:13) technicians specially trained to work with the microfilm records,(cid:13) which are difficult to decipher. Extra resources would be needed to(cid:13) complete the assignments by the October 1, 1993 target date.(cid:13) Financing UMWA Coal Miner "Orphan Retiree" Health Benefits, House(cid:13) Committee of Ways and Means (Sept. 3, 1993), at 64-65 (emphasis(cid:13) added). However, Congress did not appropriate any"extra resources" to(cid:13) the Commissioner between September 3, 1993 and October 1, 1993.(cid:13) Therefore, Congress could not possibly have intended that the(cid:13) Commissioner would complete the entire assignment process by October(cid:13) 1, 1993.(cid:13) 34(cid:13) VI.(cid:13) Accordingly, for all of the above reasons, we will affirm(cid:13) the judgment of the district court.27(cid:13) A True Copy:(cid:13) Teste:(cid:13) Clerk of the United States Court of Appeals(cid:13) for the Third Circuit(cid:13) _________________________________________________________________(cid:13) 27. Because we have found that the Coal Act is constitutional as applied(cid:13) to the Companies, we need not address the Companies’ argument that(cid:13) the Commissioner’s refusal to revoke their assignments in the wake of(cid:13) Eastern Enterprises was arbitrary, capricious, an abuse of discretion or(cid:13) otherwise not in accordance with law in violation of the Administrative(cid:13) Procedure Act, 5 U.S.C. S 705(2)(A). In addition, because we have found(cid:13) that the Commissioner has the authority to make original assignments(cid:13) after October 1, 1993, we need not address the Companies’ argument(cid:13) that they are entitled to a refund of premiums they are paid.(cid:13) 35