Barnhart v. Peabody Coal Co. - Oral Argument

Argument of Barbara B. McDowell

Chief Justice Rehnquist: We'll hear argument next in No. 01-705, Jo Anne Barnhart v. Peabody Coal Company and a related case.

We'll wait just a minute.

Ms. McDowell.

Mr. McDowell: Mr. Chief Justice, and may it please the Court:

The Coal Act states that the Commissioner of Social Security shall, before October 1st, 1993, assign each beneficiary to a signatory coal operator or related person that remains in business.

That provision understood, in light of this Court's precedents, establishes the deadline that is mandatory but not jurisdictional.

It does not deprive the commissioner of the power or the obligation to complete the assignments after that date, if necessary.

That understanding comports with the text and structure of the Coal Act, as well as with... with one of its central purposes, that to the maximum extent possible, each coal retiree's benefits would be paid for by a coal operator that actually employed that miner or a related person.

Justice Scalia: But that's not true.

In fact, if later research has showed that somebody should have been assigned somewhere else, you... you don't shift the beneficiaries.

It... it isn't the case that... that this is designed to assure a perfect system in which somebody who is responsible, no matter that a mistake was made in the past, in the future that person will be reassigned the way he should be.

Mr. McDowell: Well, the statute does provide for administrative review of assignment so that a coal operator who was assigned a miner in error could challenge that before the commissioner, and if the commissioner found that the assignment was erroneous, the miner could be assigned to a... a more appropriate coal operator.

In addition, the regulations promulgated by the commissioner for the administrative review process allowed the commissioner herself to reopen an assignment if she found that it had been erroneous within a 1-year period.

Chief Justice Rehnquist: What happens to someone who wasn't assigned before October 1st?

They're... they're not just left out in the cold, are they?

Mr. McDowell: No.

Congress did provide a fallback position for all of those who weren't assigned by October 1st or... or at any time because they had no former employer or related person who remained in business, and that is, that they will be treated as part of the unassigned beneficiary pool.

The benefits for those miners are paid from an appropriation from the AML Fund, a fund originally created to ameliorate the problems of abandoned mines, and if that fund proves insufficient, the funds will come from a... a premium imposed on all of the coal operators to whom beneficiaries who have been assigned.

Justice O'Connor: Ms. McDowell, there... there is a section, 9704(f)(2)(B), that deals with annual adjustment of unassigned premiums.

And it says that if there's an assigned miner and the operator goes out of business in any given year, then that assigned miner becomes part of the pool.

And it doesn't matter really whether the initial assignment was before the October 1 deadline or not.

They just go into the pool in time.

And that seems to work somewhat against your interpretation.

Mr. McDowell: I think the situation addressed in that provision is quite different, even assuming that it unequivocally establishes that the commissioner couldn't reassign somebody after a company went into bankruptcy.

But assignments at the outset of the process, the sorts of assignments that we're concerned with here, are quite different from an assignment after bankruptcy that could occur 20, 30, or 40 years down the road, and Congress may well have been interested only in achieving a correct initial assignment at the outset and not with continuing to readjust the assignments--

Justice O'Connor: Well, it does show at least that much, that Congress didn't want to continue perpetually to adjust these things for the--

Mr. McDowell: --Yes, that's correct.

But the fact that the... that Congress directed that the applicable percentage for calculating the assigned beneficiary premium shall be adjusted in certain circumstances doesn't suggest to us that Congress would not have permitted it to be adjust in other... adjusted in other circumstances as well that Congress may not have explicitly contemplated at the time that the Coal Act was enacted.

One of those was the fact that--

Justice O'Connor: --Is it possible that that deadline was some kind of political compromise, so to speak, at the time it was passed and the operators thought, well, that's it?

You know, after that deadline, it's fixed.

Mr. McDowell: --Well, there's... there's no indication in the text or legislative history that that was contemplated.

And indeed, since Congress was legislating in light of this Court's opinions in Pierce County and Montalvo-Murillo, the provision could not readily be understood as providing coal operators with that sort of assurance.

In addition--

Chief Justice Rehnquist: Well, you... you say Congress is legislating in light of our decision in Pierce County.

You're... you're just applying the general presumption that Congress does that?

Certainly there's... is there any indication here that Congress was legislating in light of Pierce County?

Mr. McDowell: --Congress didn't explicitly say so, no, but as, we have cited a number of statutes in our briefs that made clear that when Congress wants to terminate an agency's authority to make decisions at a particular point, Congress knows how to say so explicitly and it has done so in those situations.

It has not done so here.

Chief Justice Rehnquist: Well, this is... this is quite different than Pierce County, though, at least certainly on its facts.

There you had a provision that the... you're supposed to ferret out some sort of misappropriations and saying that the inspector general, whoever it was, was supposed to do it in 4 months.

That's simply a message to the agency to get going.

And we... I think we said quite properly that didn't mean that you couldn't ferret out this sort of thing after the 4 months.

But this thing has... has somewhat different ramifications, I think.

Mr. McDowell: Well, I think it's clear that Congress imposed deadlines, not only this deadline, but other deadlines in the statute, because it wanted to get the new funding mechanism established by the Coal Act into place.

Congress wanted the assignments to be made promptly so that the Combined Fund could then send bills for premiums to assigned operators.

But it wasn't essential to that scheme that every last assignment was made by October 1st, and there's no indication that Congress adopted the deadline in order to provide any sort of certainty to coal operators.

To paraphrase the Court's decision in James Daniel Good, it would seem somewhat curious that a deadline that was intended to expedite the collection of premiums by the Combined Fund could be construed to prevent the Combined Fund in some circumstances from collecting premiums at all.

And that's the effect of--

Justice Stevens: Is there any limiting principle to your interpretation?

I mean, can this go on forever and ever?

Mr. McDowell: --Oh, the statute doesn't itself impose a limit on the commissioner's authority.

However, as a practical matter, the commissioner has not made initial assignments for more than 5 years now and has no intent to recommence them.

Obviously, Congress can cut off the authority to do this at... at any particular time by denying an appropriation for the process or by doing it explicitly.

Justice Stevens: Would you tell us what percentage of the assignments were made after the deadline, and how long after the deadline was the most recent assignment?

Mr. McDowell: Yes.

The... to answer your last question first, the last one was made in 1997.

Congress made a total of approximately... rather, the commissioner made a total of approximately 40,000 assignments before the deadline, in addition to another 15,000, approximately, assignments that the coal operators had agreed to.

After the deadline, the commissioner made 10,000 more assignments.

A quarter of those were made in October 1993 or a handful in February 1994.

The rest were made primarily in 1995 and 1996 and a few more, about 55, in 1997.

And the process has been completed.

Justice Ginsburg: When there is a reassignment or taking somebody out of the unassigned pool and attributing that person to an operator, does the operator who has now gotten the assignment have to pay interest for the period from October '93 on, or is it just that you pay now the bill that we would have sent you if we had charged you in '93?

Mr. McDowell: The latter.

There's no interest charged.

So to the extent--

Justice Ginsburg: So that the--

Mr. McDowell: --the operator benefits by having the use of the money during the period before the obligation is imposed.

Justice Ginsburg: --What about the argument that the Social Security Administration stood before Congress and said, we can make this date?

Then the operators who might be saddled with additional responsibility could breathe easily and say, well, we don't have to set up any reserve for the assignment of more operators to us.

Mr. McDowell: Well, in fact, Your Honor, the commissioner didn't say we will make the deadline.

The commissioner did express optimism in September of 1993 that the deadline could be complied with.

Justice Ginsburg: I thought there were quotations in the record that had an official from the Social Security Administration telling Congress we are going to do it.

It was more than, it's a hope.

I... I don't have that at my fingertips now.

Mr. McDowell: I think it could have been only an expression of hope in... in September 1993, and then the operators would have received, in many cases, and... and these respondents certainly did... assignments of additional beneficiaries during October 1993, so that should have put them on notice to make inquiry as to precisely when the assignment had been made.

I think a particularly more telling and... and earlier statement from a... an acting commissioner came in February 1993 when the acting commissioner was testifying before a House appropriations subcommittee.

He said at that point that it did not appear that the assignments could be completed by the deadline.

One Member of Congress asked, well, what is the... the crucial date, then?

When is it that beneficiaries will lose benefits if the assignments aren't made?

And the acting commissioner went on to explain that, well, because there was a... a $70 million transfer coming into the Combined Fund on October 1st, 1993 from the United Mine Workers 1950 pension fund, there would be money in the Combined Fund for some time to pay benefits, and that the assignments could be done on a rolling basis to bring money into the fund.

So it was clearly understood at that point that there was no jurisdictional cutoff of the time to make assignments contemplated by the statute.

Justice Scalia: Ms. McDowell, what do you do with the provision of 9704(a)(3)(D) which makes an assigned operator's unassigned beneficiaries' premium equal to the operator's applicable percentage, which is defined as its percentage of total assigned beneficiaries, quote,

"determined on the basis of assignments as of October 1, 1993? "

Mr. McDowell: The statute then goes on to provide for adjustments in years after 1993 for two circumstances: when a change has been made as a result of the administrative review process, and when a change has been made as a result of coal operators going out of business.

Justice Scalia: Right, but... but--

Mr. McDowell: And the fact that Congress--

Justice Scalia: --but does not make a third exception; that is, a change is made as a result of the... the finding of additional assigned beneficiaries under the... under the commissioner's ability to... to find it after October 1.

Mr. McDowell: --That's correct, Your Honor, but the fact that Congress said that these adjustments shall be made doesn't suggest that Congress did not intend to permit other appropriate adjustments to be made as well.

Justice Scalia: No, but what does... what does suggest that is the language, determined on the basis of assignments as of October 1, 1993.

And then there's no provision for... elsewhere that would enable you to... to make the other adjustment.

Mr. McDowell: Well, Congress was obviously contemplating, at the point that it enacted the statute, that the deadline would be made, satisfied.

So it's... it's therefore somewhat understandable that Congress didn't discuss all the permutations of what would happen if... if the deadline was, in fact, not satisfied.

And an additional point is even if one assumed that the unassigned beneficiary premium, the applicable percentage used to calculate it had to remain fixed as of October 1st, 1993, that doesn't really address the commissioner's assignment authority after that date, and it is not essential to the statute--

Justice Scalia: Well, no, it isn't essential but it makes--

Justice Kennedy: --It has to because then you'd be paying more than your share.

You'd be paying based on the assumption that you only had X number of... of permanent beneficiaries, but then your... you'd be paying that premium, but then you have additional beneficiaries that you must take care of on their own account because they're assigned to you.

So you... so you are hurt if you can't... if you can't change the formula.

Mr. McDowell: --Well, I'm not sure that it would significantly change the... the percentage of the whole that the operator would be required to pay for.

But in any event, in practice the Combined Fund has gone back and taken subsequent assignments, just like subsequent reassignments, into account in calculating the applicable percentage, and the statutory scheme has worked quite satisfactorily in that respect.

Justice Stevens: Would you clarify one thing for me?

I don't know whether the... the fallback position to finance the unassigned... the benefits for the unassigned miners... they... there are two... some money comes out of the first pension fund.

Later it comes out of a Government fund.

And then there's the third possibility that that money may run out and the miners will be assessed for the payment... for the unassigned... the companies will be assessed for the payments for the unassigned miners.

Now, what is the Government's position with respect to a company that, say, had nobody assigned prior to the October date, but after the October date, say, 500 miners were assigned?

Now, as I read the statute, that would mean the... that company would have no responsibility to contribute to the payments for the unassigned miners.

Am I right about that?

Or would you adjust it based on post-October assignments?

Mr. McDowell: I'm not aware of any company in that situation, but I think it would be adjusted for post-October assignments as well.

Justice Stevens: Despite the language of the statute that Justice Scalia referred to.

Mr. McDowell: Yes, Your Honor.

We think it's flexible enough to allow those additional adjustments to be taken into account.

Justice Souter: When do you do the adjusting in the... I gather that's what you're doing.

When do you actually make the adjustments?

Mr. McDowell: That's a task that's left to the Combined Fund to do.

It's not an adjustment that the commissioner herself made.

Justice Souter: But is... is the percentage recalculated as of the beginning of... of each kind of fiscal year following the... the initial October 1 date?

Or... or in the middle of a company's... in the middle of a year running from October 1, are they suddenly socked with a... or at least liable to be socked with an assignment for which they had no reason to plan on October 1?

Mr. McDowell: You know, I think the commissioner typically made one round of assignments a year during the time--

Justice Souter: Annually.

Mr. McDowell: --when she was making additional assignments.

Justice Souter: Annually.

Mr. McDowell: Sometimes two rounds, I believe.

Justice Souter: And is that made in advance of October 1 each year to commence on October 1 or be effective as of October 1 each year?

Mr. McDowell: Yes.

Justice Souter: Okay.

Justice Scalia: I still don't see your basis for doing it.

You say it's flexible enough, but you're confronted with language that says it will be determined on the basis of assignments as of October 1, 1993.

I mean, there it is.

It says it in cold, hard language.

There is no... no exception elsewhere to do what you say there's flexibility to do.

Where do you get the flexibility from?

Mr. McDowell: Well, Congress didn't foreclose additional adjustments to be assigned beneficiary premium in addition to those specified in the statute.

Justice Scalia: What do you mean it didn't foreclose?

Yes, it did.

It said, determined on the basis of assignments as of October 1, 19... what... what more does it have to say?

Mr. McDowell: Well, then if you will turn to the next subsection of the statute, it provides for adjustments for plan years after 1993.

Justice Scalia: For other... exactly.

That... that makes it even clearer that except for those expressed exceptions, everything else has to be done as of October 1.

Mr. McDowell: Well, in any event, Your Honor, that particular provision is a separate section of the statute from one addressing the commissioner's assignment authority.

It doesn't provide the sort of clear and unambiguous indication that Congress intended to prevent the commissioner after the statutory deadline from completing the task that Congress thought was important.

Justice Souter: No, but if... if you don't read the two provisions together, if you don't read the shall clause and... and the calculation clause together, you... you get a system which is simply incoherent.

You've got a system in which assignments are being made, but in fact the... the Combined Fund is being operated as... as if they were not being made.

And, you know, it seems to me that you... you've got to go the whole hog.

You... you've simply got to say that the... the October 1 deadline has got to be read together with the shall clause, and if the shall clause can be varied, then the October 1 deadline can be varied, too, because otherwise you just get an incoherent system.

Do you agree?

Mr. McDowell: Well, that is certainly how it has been applied.

Justice Souter: That's what you're doing.

Mr. McDowell: It has been applied flexibly and adjustments in the applicable percentage have been made retroactively.

Thank you.

I'll reserve.

Justice Kennedy: I have one question.

I... I take it's possible if a company had received assignment of... of all of its employees, that it could argue that it was paying too much if there wasn't the adjustment.

Have any companies made that argument?

Mr. McDowell: Not that I'm aware of, Your Honor.

Argument of Peter Buscemi

Chief Justice Rehnquist: Thank you, Ms. McDowell.

Mr. Buscemi, we'll hear from you.

Mr. Buscemi: Thank you, Mr. Chief Justice, and may it please the Court:

The respondents in this case are seeking a windfall because the Social Security Administration didn't complete its work on time.

They should not get it.

It is conceded in this case that the beneficiaries at issue were supposed to be assigned to Bellaire and Peabody.

It's conceded that these respondents are not being asked to pay a penny more than Congress wanted them to pay.

It's conceded that Congress wanted as many beneficiaries as possible to be assigned to particular operators.

Section 9706(a) itself directs SSA to assign each beneficiary.

Now--

Justice O'Connor: Counsel, would you explain to us the real world consequences at the end of the day for the respective positions of the parties?

Apparently the miners will be covered one way or another.

Mr. Buscemi: --That is correct, Your Honor.

And respondents make a great deal of that as if the only purpose of the statute was to ensure that the beneficiaries would continue to receive their health coverage.

That was surely a major percentage.

Justice O'Connor: Yes.

Mr. Buscemi: But the financing method of the benefits was also a key component of the statute.

Justice Kennedy: Well, that's... the next part of Justice O'Connor's question is... and I had this in mind also... is the fund will always have adequate funds to pay for the unassigned miners, will they not?

The plans.

Mr. Buscemi: Well, the Combined Fund will--

Justice Kennedy: The... the plans in that sense aren't hurt because they're... they're not going to run out of money.

Mr. Buscemi: --The Combined Fund will receive funds in accordance with the provisions of the statute.

The answer to Justice O'Connor's question is threefold.

It is complicated.

For the first 3 plan years, beginning February 1, 1993 and ending October 1... I'm sorry... September 30, 1995, if these beneficiaries are not assigned, as they should be, to Bellaire and Peabody, all of the other assigned operators will receive a greater assessment, and they will... because there will be an increased number of unassigned beneficiaries during those first 3 plan years.

Justice O'Connor: A backwards looking assessment--

Mr. Buscemi: Correct.

Justice O'Connor: --for those early years.

Justice Kennedy: But they're not complaining, as I understand it, or am I wrong about that?

Mr. Buscemi: Well, they... they surely are complaining.

The Apogee case, for example, in the Eleventh Circuit was a case that arose precisely because of that sort of supplemental, after-the-fact assessment designed to take into account the fact that there was a greater number of unassigned beneficiaries in the plan.

And that, in particular, arose as a result of this Court's decision in the Eastern Enterprises case.

Justice Kennedy: But they're not in this case.

Mr. Buscemi: They're... they're not intervenors in this case, no, Your Honor.

Justice Breyer: Why?

I'm just... as I understand it, which may show I'm wrong, the... the... all this is about is, since the... this receptacle, the... the... what are we calling it... the fund... is--

Mr. Buscemi: UMWA Combined Benefit Fund?

Justice Breyer: --Yes.

That's financed by the coal companies, too.

So... so that... aren't... isn't the money that we're just talking about coming from them and... and... the unassigned people go into a fund.

The unassigned people go into a... what's the word?

It's escaped me.

Mr. Buscemi: Your Honor, both the assigned beneficiaries and the unassigned beneficiaries are beneficiaries of the Combined Benefit Fund.

The Combined Benefit Fund receives premiums for each beneficiary from the assigned operator, if the beneficiary is assigned.

If the beneficiary is not assigned, as I was starting to say in response to Justice O'Connor's question, there is a complicated system.

For the first 3--

Justice Souter: And you've given us step one.

Right?

Mr. Buscemi: --Step one is the first 3 plan years.

Justice Souter: All right.

Mr. Buscemi: During those 3 plan years, the unassigned beneficiaries are paid for out of the transfers from the UMWA 1950 pension plan.

Those were transfers that could not have been made but for the statute because pension benefits and the health benefits are different.

And Congress intervened and said there will be $210 million moving into the Combined Fund from the pension plan.

That money is used for unassigned beneficiaries' premiums.

It's used for death benefit premiums, and for the first year and the first year only, it's used to reduced the assigned operators' assigned beneficiary premiums.

So every time the number of unassigned beneficiaries goes up, a greater share of that $210 million must be used to pay for the unassigned beneficiaries.

Less is left for death benefits and to defray the first year assigned beneficiary premiums, and accordingly, a supplemental assessment is made on all assigned operators when the number of unassigned beneficiaries goes up.

That's part one.

Part two.

Beginning on October 1, 1995, Congress says that there shall be annual transfers from the interest earned by the Abandoned Mine Land Reclamation Fund established under the Surface Mining Control and Reclamation Act.

Now, obviously, you can't transfer interest that you don't have.

The interest earned by the AML Fund has been declining.

Interest rates have been going down, and accordingly, the interest rates that are earned by the fund goes down.

The fund at one time earned $80 million a year in interest.

It's now projected to earn only 30 in fiscal 2003.

So there's a limit to how much can be transferred from the AML Fund.

The third component.

If the AML Fund transfer is not sufficient to pay for the beneficiaries, the unassigned beneficiaries, then there must be an unassigned beneficiary premium assessed against all assigned operators, thereby shifting the cost of these beneficiaries from these respondents to all assigned operators.

Justice Ginsburg: Which hasn't happened yet in fact.

Mr. Buscemi: It has not happened yet.

Justice O'Connor: And how much are we talking about?

Mr. Buscemi: Well, right now we're talking... if everyone nationwide affected by this case, if the rule were to change, and you were looking purely prospectively, you have about 4,000 people.

But if you go back to the beginning--

Justice O'Connor: Yes.

Mr. Buscemi: --you have about 10,000 people.

Justice O'Connor: Yes.

Mr. Buscemi: And as Mr. Tennielle's declaration, which is in the joint appendix, shows, there is approximately $105 million that was already at stake as of the time of his declaration in 1999, and that number has been growing ever since.

Chief Justice Rehnquist: What exactly is the interest of the trustees that you represent?

Mr. Buscemi: Your Honor, the trustees want to see this statute operate the way it's supposed to operate.

The trustees--

Chief Justice Rehnquist: But that's a fairly... what is their financial or pecuniary interest?

Mr. Buscemi: --The trustee... it's... it's not a financial interest.

The trustees believe that the policy of the statute was to have the greatest possible amount paid for from the private sector by the employers who employed the beneficiaries, retired miners.

And the trustees have been, in each of these cases, arguing that the system ought to work the way Congress intended.

Now, on the applicable percentage, I do want to say one thing in response to Justice Scalia's several questions on this, and that is, the "as of" language in the statute is very important.

Every time there is a reassignment as a result of an administrative appeal, it's made as of October 1, 1993.

Every time there's an initial assignment made after September 30, 1993, it's made as of October 1, 1993.

They all go back to the beginning because these beneficiaries all need health care--

Justice Scalia: You can't read that language that way.

It... it says applicable percentage is defined as the percentage of total assigned beneficiaries determined on the basis of assignments as of October 1, 1993.

You're... you're telling me that means assignments made later, but that you say on their face, we're making these retroactive to October 1, 1993?

Mr. Buscemi: --It must be, Your Honor.

It must be because if there is a reassignment--

Justice Scalia: It must be because otherwise your theory doesn't work.

Mr. Buscemi: --No.

Otherwise the statute--

Justice Scalia: And... and the other side's theory of the case is... is correct.

Mr. Buscemi: --No, Your Honor, because when there's a reassignment after an administrative appeal, for example, the reassignment occurs in 1995 or 1996.

If an administrative appeal is successful and there's a reassignment, that reassignment is as of October 1, 1993, even though the reassignment isn't made until later.

That's absolutely plain--

Justice Souter: So there's a... there's a retroactive assessment?

Mr. Buscemi: --Absolutely, Your Honor.

All of these assignments, whether they're reassignments after administrative appeals, whether they're initial assignments during this period when the commissioner was finishing the assignment process, they all go back to the beginning.

In fact, they go back to February 1, 1993 because that's the beginning of the first plan year.

I might say there are many provisions in this statute that say do something by a date certain.

The trustees had to be appointed by a date certain.

The $70 million transfers from the '50 pension plan had to be by a date certain.

The merger of the '50 benefit plan, the '74 benefit plan into the Combined Fund had to be by a date certain.

Yet no one would argue that if any of those dates was missed, then there was no authority at all.

And--

Justice Ginsburg: Wouldn't you have to give back money if... if your side does not prevail?

Then these payments have been made... the assignments that were made, payments have been made as of October 1, '93.

And wouldn't the fund have to give those payments back?

Mr. Buscemi: --That's precisely what Mr. Tennielle's declaration points out, Your Honor.

As of the time of his declaration, there had been approximately $105 million worth of payments by various assigned operators who had received assignments, initial assignments of beneficiaries that were made after September 30, 1993.

Those amounts would have to be refunded or credited.

Indeed, the respondents in this case sought just such refunds or credits.

If you look at Judge Kinneary's opinion, for example, in the Bellaire case in the appendix, he grants a credit to Bellaire in the amount of the payments that they made on behalf of the beneficiaries assigned to them.

Justice Scalia: Well, of course.

They were assigned incorrect... I mean, what's so extraordinary about that?

It just means you've been collecting money from the wrong people.

Mr. Buscemi: I was just responding to--

Justice Scalia: I... I would hope you give it back.

I mean--

Mr. Buscemi: --And we did.

Chief Justice Rehnquist: --Thank you, Mr. Buscemi.

Mr. Roberts, we'll hear from you.

Justice Roberts: Thank you, Mr. Chief Justice, and may it please the Court:

The petitioners' position is that when Congress said shall before October 1st, 1993, it meant may before or after October 1st, 1993.

That is so, according to the petitioners because, as they read the statute, Congress could not really have intended to limit the authority of the commissioner to make assignments under the act.

But there is nothing implausible or even unusual about reading the statute to mean what it says.

The consequence of not assigning a particular miner by the statutory deadline is that the miner is unassigned under the statute.

The statute tells us what to do with unassigned miners.

There is an elaborate backup provision, as the Solicitor General calls it, to deal with unassigned beneficiaries.

First and foremost, they receive the same benefits as assigned miners.

Justice Souter: Mr. Roberts, all I... all that, I guess, is conceded in the argument, but the... the... when all is said and done, there seems to be an... an inequity as among the operators.

And I can understand your... I do understand, I accept your argument that at least to get the plan going initially, that the objective of Congress would have been, as it were, a good system rather than a perfect system.

What I don't see is why Congress would want... would have wanted to make it impossible to improve on that system later by eliminating the... the inequity of an erroneous failure to assign.

And it's... it's that issue that makes it difficult for me to read the... the shall language as being, as... as they say, jurisdictional or providing a cutoff.

Can you address what the reason Congress would have had for wanting to preserve that inequity?

Justice Roberts: Certainly.

First of all, from Congress's point of view, the overriding purpose is to continue benefits.

That's taken care of.

Second, the coal miners get the same benefits whether they're assigned or unassigned.

Now, but the argument is this undermines the pay for your own principle.

But the pay for your own principle itself is... embodies rough justice.

A company that employs a miner for 2 years pays for all his benefits.

Another company may have employed him for 25 years.

That's the compromise that was agreed to and that's fine.

But it doesn't mean that this pay for your own principle is some unqualified desideratum that you can assume Congress intended to pursue at all costs in perpetuity.

We know that's not the case.

They had a deadline and they imposed it.

Justice Stevens: But, Mr. Roberts, didn't you omit one of the other statutory purposes, which was, insofar as possible, to assign responsibility for paying the benefits to the company that had the best, the closest connection with that particular miner?

Justice Roberts: Yes, and we know that was, for example, not a purpose they wanted to pursue ueber alles.

If a company goes bankrupt, those miners--

Justice Stevens: But it was one of the major purposes, was it not?

Justice Roberts: --It was one of the purposes, yes, and it was one that Congress said, spend a year trying to make these assignments.

But then we've got to launch this fund and--

What is really going on here is that the commissioner wants to do a different sort of job than Congress delegated to her.

This is the sort of project... and I think this is a critical distinction from the deadlines in Pierce County and those sorts of cases.

The agency could have done a reasonably good job on this project in 4 months, a better job in a year, maybe a nearly perfect job in 5 years.

Congress said, we want the 1-year version.

Why do we want the 1-year version and not the nearly perfect version?

Because the miners are going to get the same benefits either way.

Coal companies or funds established by coal companies are going to pay for them either way.

Justice Stevens: But they will pay in different amounts.

Different coal companies will be paying for some of the miners under your proposal rather than the Government's proposal.

Justice Roberts: Yes, and the question is--

Justice Stevens: And the specific hypothetical that troubles me... let me put it right out on the table.

Supposing a company had no assignments made to its prior miners until after October 1st.

If I understand the system correctly, at the end of the line, if they have to finance the payments for the unassigned miners out of a... a pool contributed to by the operators, that company will not have to contribute to that pool.

Justice Roberts: --No.

That's right.

If it had no assignments.

Now, Congress--

Justice Kennedy: And... and the company which had a full assignment is going to be paying more than its pro rata share.

Justice Roberts: --And Congress knew--

Justice Kennedy: And even though that there was... you say there's rough justice.

This is making it even... even more rough, and if the companies are not paying the proportion of the... of the benefits that the statutory scheme requires.

They're paying more.

Justice Roberts: --And Congress knew there was some unfairness in requiring the companies to pay for unassigned beneficiaries, and it cushioned that unfairness by saying we're going to draw from this AML Fund that coal operators established earlier.

That will... it has to date ensured that there is no unassigned beneficiaries--

Justice Kennedy: But I take it that fund itself is maintained based on the... your share of fully assigned miners.

More, the more you're assigned, the more you have to pay to that fund.

Or correct me if I'm wrong.

Justice Roberts: --No.

That... it's a preexisting fund that was established based, I believe, on per-ton royalties.

The point is everybody is contributing in different amounts to establish--

Justice Stevens: No, but Mr.... let me just interrupt you as to your answer to Justice Kennedy.

It's true for the first and second stages that it doesn't matter, but if you have to go to the third stage where the unassigned miners are paid by the companies, then what he says is absolutely right.

Justice Roberts: --If you have to get to the third stage where there's an unassigned beneficiaries premium assessed, yes.

It's done pro rata.

And Peabody Coal, for example, will have a very sizeable bill if that reaches it because they have over 4,000 assigned miners.

This case is about 330 miners who were assigned after October 1st.

But the point is not whether you could write a funding mechanism that is more equitable or fair.

It's a question of whether that's the one that Congress wrote.

Congress--

Justice Breyer: What is the harm?

That is to say, as you agree... I think we both agree there are many statutes with deadlines in them.

There are regulatory statutes set, health regulations by such and such a date set, consumer, trucking regulations.

And the courts regularly say that those dates, even though they use words like shall, are not fixed because obviously Congress wanted the regulations written, even if late.

Well, here they're saying this is roughly the same thing.

Obviously, Congress would have wanted this assigned in the principle of pay for your own way, and nobody is hurt by doing that late.

Nobody is really hurt.

Now, I want you to reply to that.

What's the down side of trying to interpret this like we'd interpret other regulatory statutes?

Justice Roberts: --Well... well, it's not like the other regulatory statutes, first of all, because it's an extraordinary grant of the authority to impose retroactive liability.

The grant exists nowhere other than in the same sentence that says shall.

I think that's quite different than saying, EPA, in 2 years issue clean air regulations.

That's... that's a different case.

And Pierce County is quite different.

I think the Government probably has inherent authority to recover misspent funds.

The harm is the same harm that comes from disregarding any kind of deadline.

As I said, this is the sort of project you can spend 20 years on and always come up with a more perfect assignment.

Congress knew that.

They knew that a significant amount of work was involved.

They had to go and set up an interim funding system for February to October to give the commissioner time.

The commissioner came back and said, we've done it.

We've completed the project.

Justice Breyer: Is there any way that you or your clients or anyone have been hurt by the delay?

Justice Roberts: Oh, of course.

Justice Breyer: That is... how?

How were you hurt specifically by the delay compared with if they had done it all perfectly within 5 minutes?

Imagine they got the same assignments on time.

Now imagine they got them late, and how are you hurt by that?

Justice Roberts: Oh, sure.

Well, it's the same concern the Court noted last term in the Sigmon Coal case.

The coal industry is characterized by a significant amount of transactions, mergers, acquisitions.

You could be looking at acquiring the coal company, and of course, given the nature of the industry, the first question you ask is what is your liability, and they're going to say, well, it's this much.

And then you... then the... the merger or the acquisition takes place, and then you get another notice, here are, you know, 40 new miners.

And now, all of a sudden, it's this much.

That was a significant concern in Sigmon Coal, and it is significant in this instance as well.

Justice Ginsburg: But, Mr. Roberts, on the other hand, you are, in fact your companies are paying less than they would have paid had they been billed properly on time because you have had the use of the money in the interim, and Ms. McDowell said you're not being charged any interest because you're paying in 19... or any adjustment for inflation because you get to pay in 19-whatever, '97 dollars a bill that was due from October 1993 and you don't get charged any interest on that.

Justice Roberts: I don't think interest is a significant factor just the way the interest rates have been over this time period.

It certainly doesn't do much to cushion the unfairness and inequity of getting a bill retroactive as much as 5 years.

Justice Ginsburg: But my... my point is simply had you gotten that bill, that... timely, it would have been more costly than getting the bill later because you have had the use of the money in the interim.

Justice Roberts: The... the interest is apparently not... not charged.

Justice Scalia: Unless you're... unless you're a company that had bought a company which, which had that switch pulled, in which case you're... you're out of pocket a good deal.

Despite the fact that you're... that it's less money than... than would have been charged originally, it's coming out of your pocket when you bought a coal company that you did not believe had that liability.

Justice Roberts: And the... the key factor that such transactions play in this particular industry may well explain why you don't see any companies on this side of the case.

I think it's always wise to be skeptical of fairness arguments that are raised by proxy.

There are no companies complaining about, oh, we're going to end up potentially paying a higher pro rata assessment than otherwise because... a number of reasons.

Again, Congress cushioned the unfairness; they recognized it by making the AML Fund available.

Second of all, this is a statute that is suffused with concepts of rough justice.

It is not necessarily a more perfect result to pursue 5 years instead of 1 year to pay for your own principle.

That does not necessarily lead to a more perfect result.

It may mean that more companies who employed miners for 2 years are paying over all of those benefits than companies... when companies who employed the same miner for 20 years don't have to pay for any.

But the critical--

Justice Ginsburg: But there is... I mean, Congress did provide that if you think you were assigned people who belonged to someone else, you can complain and then there's an adjustment long after the 1993--

Justice Roberts: --Yes.

We think that helps us, of course, because it's an express provision for an assignment after October 1st.

There are no other such provisions and because--

Justice Stevens: --But isn't... isn't it true that with regard to the as... with regard to as of language that Justice Scalia is emphasizing, isn't it true that those post-October changes are made as of the October date?

Justice Roberts: --The reassignment provisions, yes.

Now, I'm not aware of a situation where it's reassigned to someone who never had any assignments--

Justice Stevens: No, but at least the cancellation of... of an assignment would be made as of the earlier date even though it took later... took place later.

Justice Roberts: --That's right.

But the other point is that although there's a provision for--

Justice Scalia: So... so you... you admit that that language doesn't really mean what it says.

Justice Roberts: --Oh, no.

It means as of October 1st.

What I'm saying, in the case of a reassignment, they say you can go back and... and reassign it.

The applicable percentage is based on the assignments a particular company had as of October 1st.

Justice Scalia: If you can do it with a reassignment, why can't you do it with an initial assignment?

Justice Roberts: Because there's--

Justice Scalia: Without doing violence to the language?

Justice Roberts: --Because there's a specific exception that allows reassignments.

There's no exception for reassignments.

And, I would point out, there is no provision that allows changes in the case of an unassigned miner, and that is what has been going on here primarily.

The commissioner has been revisiting the unassigned pool, and that's why this is quite different from a lot of the other deadline cases.

This is... we think the commissioner did get the job done on time.

She just wants to do a different job.

Justice Ginsburg: But Congress didn't think so, at least the Congress that made an appropriation so that the... the administration could get the job done.

There was a supplemental appropriation, wasn't there?

Justice Roberts: Yes.

Justice Ginsburg: And part of it was supposed to be spent to enable the administration to finish the job.

Justice Roberts: Yes, part of it.

And the one thing Congress did not do, with being told, you know, we're coming up with the deadline, they didn't change the deadline.

They kept that in place.

Look at what the Solicitor--

Justice Ginsburg: I thought that supplemental appropriation was made after October 1st, 1993.

Justice Roberts: --No, before.

In June I believe.

It was asked for in February, made in June or early July.

Justice Stevens: It's a little hard for me to accept your argument that the equitable structure of the statute is enhanced because the commissioner didn't get his work done on time.

Justice Roberts: Well, I think the commissioner did get the work done on time.

It's just she just wants to do a more perfect job.

And what I'm saying is it's reasonable for Congress to determine we don't need the more perfect job.

We need a good-enough job.

And this job is good enough to get the fund launched.

The one thing that's clear is that the way the petitioners read the statute, if that had been proposed when the Coal Act was... was enacted, it never would have gotten off the ground.

The idea of giving the commissioner significant discretion on an open-ended timetable was certainly not in the cards.

This was the legislative equivalent of trench warfare, parties fighting over every inch.

They had the black lung model which did give the Secretary of Labor significant discretion in allocating responsibility for that consequence of... of the... of coal mining, and they wanted nothing to do with it.

That's why--

Justice Souter: How... how do we know this, Mr. Roberts?

I... I take it there's no helpful statement in the legislative history saying, you know, by the way, this is, you know, the linchpin of the deal, that with respect to unassigned miners, there will be no monkeying around after October 1st, '93?

Justice Roberts: --I think we know it primarily... no.

There's no statement like that.

I think we know it from the structure of the statute which is carefully reticulated.

There is no delegation of discretion to the commissioner.

The compromises in the statute are spelled out.

And when you talk about revisiting fairness, keep in mind you're looking at one particular provision and you say, well, that looks unfair.

It may be because another provision that's not at issue balances that out.

This is, as the Court noted in Sigmon, an instance of legislative horse trading and log rolling, and they're setting up a system and everybody has to pitch in some.

The older pension funds pitched in some.

The operators pitched in.

Congress came forward with the AML Fund, and it moved forward.

And it had to be in place by October 1st or the wheels would have fallen off.

This is not a deadline of the sort you've got 120 days to issue a decision.

Thank you, Your Honor.

Argument of Jeffrey S. Sutton

Chief Justice Rehnquist: Thank you, Mr. Roberts.

Mr. Sutton, we'll hear from you.

Mr. Sutton: Thank you, Mr. Chief Justice.

May it please the Court:

I'd like to start with a legal point, and I want to start by looking at 9706(a), which I'm sure you have handy.

I'm going to... 9706(a).

I'm going to be reading from the red brief, Bellaire's brief, at A19.

And this is the assignment provision we've been discussing.

And there are two things that are important about the language of 9706(a).

The first is, of course, that it says, shall before October 1st, 1993, and I think you understand our arguments there.

But the second point--

Chief Justice Rehnquist: Which one are you reading from, Mr. Sutton?

Mr. Sutton: --The Bellaire--

Chief Justice Rehnquist: I know, but where on the page?

Mr. Sutton: --A19, 9706(a), section (a), 9706(a).

Chief Justice Rehnquist: Oh, thank you.

Mr. Sutton: And the... the first point you notice is the shall before October 1st, 1993 language.

And of course, you... we've made our point there.

But the second point is that it's the same shall term that modifies other clearly mandatory jurisdictional requirements under the act.

The commissioner would agree that she had no option of assigning these miners to nonsignatories or to assigning them to people that were out of business or to not following the statutory prescribed order of priority.

It's one term, shall.

As the Court made it clear in another deadline case, Mohasco, we're going to assume the same word has the same meaning throughout and--

Justice Souter: No, but... I mean, that... that's an assumption we can't make.

I mean, I think there is a clear understanding that when someone is given an either/or choice, shall may be... mean one thing.

When one is given a timing or a deadline choice, it may mean something else.

The statute is addressing different issues and the same verb may well have different meanings in... in the different contexts.

Mr. Sutton: --Well, Your Honor, I... I'm not aware of a case from this Court that has said one word in one sentence can have different meanings in the statute.

Justice Breyer: It doesn't have different meanings.

It has the same meaning.

But in fact, it doesn't tell you what happens if you don't do it.

All right.

So they didn't do it.

Now what?

If you don't do what it says, then what?

And there the statute is silent.

Mr. Sutton: And the point--

Justice Stevens: And furthermore, the argument is that the shall merely enhances and makes more meaningful the other shalls.

I mean, that's--

Mr. Sutton: --Well, there's just one shall.

And the petitioners would agree that there's a clear consequence if they had not assigned to a signatory operator.

Why isn't there the same mandatory--

Justice Breyer: --Because it's a... look.

It's not a linguistic point.

The point is, what happens if you don't do it, what you shall do?

And there, the consequence in the case... you said you couldn't go back.

You're absolutely right.

And now our question is what's the consequence here?

Mr. Sutton: --Well, the consequence here... and that's what makes this an easy case... is the fact that unlike Pierce County, the statute did provide a consequence.

It did provide a fail-safe safety net for all miners.

Justice Souter: Well, it provided... it had a default provision.

In effect, it says, if there hasn't been an assignment to an operator, this is where the person goes for purposes of this tripartite calculation.

But the fact that there may be a default provision in the case of... of inaction, I don't think necessarily is... is equivalent to saying that there is a provision for all time about what shall happen.

It's just that their immediate object was there had to be a grouping of these miners as of October 1 or there would have been no way to calculate the... the sources of the... the various assessments to pay for it.

But that... all that does is say, okay, you've got a default in place... default position... provision in place so that you know what to do as of October 1.

But it doesn't answer the... the question here.

Mr. Sutton: The proof, Your Honor, that this was not that mysterious in terms of language is the fact that the commissioner had no problem doing what... just what we say the statute required.

As of October 1st, 1993, she did just what Congress said she should do, which is to divide the world of miners into two parts, assigned or unassigned.

After October 1st, 1993... and keep in mind this was a statutory beginning, not a statutory--

Justice Souter: Well, she could have done that if she had done absolutely nothing at all.

If... if she had done zero on... on October 1st, the... the default provision would have... would have come into play and there would have been a result of October 1st.

And... and I assume you would not take the position there that a... a total default by the Government of any action at all would... would be required to go unremedied for all time.

Mr. Sutton: --Well, no.

Of course, the statute wouldn't have worked in that setting.

Justice Souter: No.

Mr. Sutton: There's no doubt, you would have required a congressional fix.

But the point--

Justice Souter: But there would have been a result as of October 1st.

Mr. Sutton: --But the point I'm making is there were only 5,000 out of these 80,000 miners that they ran out of time on.

As of October 1st, what did they do with these miners?

They put them in the unassigned pool.

The statute has very specific requirements for transferring--

Justice Stevens: Yes, but the unassigned pool wasn't created just for that purpose.

It was also created to take care of people who couldn't be hooked up with any particular company.

Mr. Sutton: --But to use Justice Souter's words, all default provisions cover everything.

It would be an odd safety net that said, some in and some out.

Justice Stevens: But you would agree that the default position was not just to take care of the timing problem.

Mr. Sutton: No, of course, not.

But... but this gets to--

Justice Kennedy: The universe... the universe of assigned and unassigned was, I don't think, intended by Congress to include people that the commissioner didn't get around to.

Mr. Sutton: --Well, there's one thing that Congress clearly appreciated, and let's make sure we're... I... I make this clear.

Of the 10,000 people that have been reassigned, i.e., original assignments after the date, 7,500 are folks that the commissioner originally did, quote, "designate" in the unassigned pool.

They reviewed the records.

They looked at them.

They said, we can't find anyone to whom they belong.

They're going to the unassigned pool.

Now, the proof that Congress contemplated that possibility is exactly the administrative review provisions we've been talking about.

What were they about?

Fact error.

And so they were aware of--

Justice Kennedy: Can you give me that number again?

What is the percentage of the unassigned we're talking about that were initially determined properly to be unassigned for other criteria?

Mr. Sutton: --20,000 were initially decided.

If you look at the Herrin affidavit at JA179 to 1984, it specifically says that 20,000 were initially designated unassigned.

And this proves Mr. Roberts' point that what's going on here is not a missed deadline case.

They met the deadline.

What's going on is they decided to reinvent the task.

Justice Kennedy: So we're talking about 20,000, and... and what's the total universe that we're talking about here of unassigned?

Mr. Sutton: Oh, well, they started with 80,000 altogether.

I'm making the point that 20,000 were initially designated unassigned.

Out of that 20,000, 7,500 later they decided we can do a better job with that.

And our point... our point is... I mean, there's a cost-benefit analysis here.

Congress could have said, Commissioner of Social Security, you can keep doing this into perpetuity until you get the job just right.

They didn't say that.

Justice Breyer: All right.

So their... their reassignments cost your clients money.

I understand that.

What I don't quite understand is Mr. Roberts' point which he mentioned.

If they're right in the case... I mean, if... if you're right in the case, then other companies should have had to pay more, isn't that right, to balance what you paid by way of less?

Mr. Sutton: But, Your Honor, I mean--

Justice Breyer: And why weren't they are on the other side of the case?

I'm genuinely puzzled about that.

Mr. Sutton: --Well, that's an important question.

But ultimately, it's robbing Peter to pay Peter.

All of these funds, at the end of the day, came from coal companies.

Justice Breyer: Yes, that's my understanding.

So I would appreciate why they aren't... I mean, Mr. Roberts brought that up.

Mr. Sutton: Because of the cushion.

Justice Breyer: And I'm just curious why they're not here.

Mr. Sutton: The cushion, Your Honor.

The cushion.

A critical part of the compromise that led to the enactment of the act was a cushion of funds to provide for the benefits of unassigned beneficiaries.

That cushion has been sufficient.

So there's no... there's... there's not been a concern yet for this pro rata--

Justice Stevens: Yes, but it isn't assumed it will always be sufficient, is it?

It's been sufficient up to now.

But isn't it assumed that in time that they will have to resort to a... a company financed pool of money to pay for the unassigned miners?

Mr. Sutton: --Your Honor, the Government all the time relies on much less reliable proxies than this one.

Keep in mind that 93 to 94 percent of these miners' records were reviewed.

The risk that somehow this pro rata unassigned beneficiary premium is going to awkwardly hurt one company I think is fanciful.

I can't imagine how that could happen given the numbers--

Justice Stevens: Well, do you not agree... I'm not sure you're responding to my question.

Do you not agree that there is a significant possibility, even a likelihood, that you'll reach the third stage of financing for the unassigned pool?

Mr. Sutton: --I don't know, and the reason I don't know is that you... these AML transfers have done the job.

Since 1995 they have done the job, and this is a declining population.

Justice Ginsburg: Where would that money go?

Justice Kennedy: Assume there is a significant risk.

Justice Stevens: But they haven't eliminated the unassigned pool.

Mr. Sutton: No, they haven't.

Of course, not.

Justice Stevens: And the question is who... who should pay for those?

Mr. Sutton: And the rough justice calculation that the Congress made is we're going to do it on a pro rata basis.

If I could just step back for one second, I think this, I hope, puts the 1992 decision in context.

Through... from 1946 forward, they paid for these benefits in two ways.

One was pay for your own.

The employer paid for his or her employee.

And the second one was pay as a group.

They've been doing that through... since 1946.

That's what the AML tax does.

That's on all coal companies.

Justice Ginsburg: Suppose the Secretary had gotten around to only half instead of what it was.

Mr. Sutton: Right.

Justice Ginsburg: You're saying she couldn't... she... she should not have tried to make it perfect.

It was good enough for Government work.

But suppose it was only... she... she was much slower and she only did, say, one-third.

Then what?

Mr. Sutton: There's... there's... I'm sorry.

There's clearly some point at which the wheels of the statute would fall off, but I think from the Court's perspective of construing what the statute means, it's appropriate to assume the commissioner is going to act in good faith.

She did act in good faith.

She did get--

Justice Ginsburg: When you say it would fall off, do you mean that in that event, if she had been slower than she was, then she would have been permitted to make assignments after the deadline?

Mr. Sutton: --No, Your Honor, I don't mean to be saying that.

The point I'm making is that--

Justice Ginsburg: Well, what would have happened?

Let's say she did only one-third of the job and you had this large pool of unassigned people.

Mr. Sutton: --Well, the bigger problem would have been the assigned miners and they wouldn't have had enough money to pay for them.

When I say the wheels fall off the statute, if they didn't get this job done by October 1st, they've got a very serious problem on their hands because the statutory beginning that starts on that date is they began sending out these premium requirements.

The first ones went out on October 22nd, 1993.

And if they hadn't done a sufficient number, you wouldn't have enough money to pay for their benefits.

You'd be back--

Justice Ginsburg: I thought the first 3 years they got the money from the pension fund.

Mr. Sutton: --Those were used primarily for unassigned.

They were used some to help with assigned, but most were used to pay for unassigned benefits.

So that's the point I'm making there.

I'd like to make a point about Pierce County that I think is helpful in thinking about deadline cases in general.

Here's why we're not saying that when a statute says you must complete this FOIA request in 20 days, our... our case would control it.

In Pierce County, as in that situation, these governmental agencies have preexisting general grants of authority to do these acts; i.e., go get misspent Federal funds.

There are general statutes.

There was one in Pierce County.

If you look at page 257 of Pierce County, the plaintiff conceded there was otherwise jurisdiction to get this money.

Here... and so what Pierce County means is we're not going to say there's a repeal by implication of that general grant of authority merely because we now have another statute that says do it quickly, get it done.

That's not this case.

9706(a) is the only provision either petitioner has pointed to that gives you this grant of authority.

So the grant comes with a limit.

Justice Stevens: May I just interrupt with... with one more question, if I may?

In response to the as of argument that Justice Scalia identified, Mr. Buscemi gave a... a list of a whole bunch of things that are as of October 1st.

What would be your response to his... his list of as of things that really happened later than that October date?

Mr. Sutton: There are express exceptions to the October 1st deadline, and under this Court's decision in Sigmon, you follow the Russello rule.

They knew about the possibility--

Justice Stevens: It was an express exception like on the appointment date of the trustees and so forth?

Mr. Sutton: --Oh, I'm sorry.

The other shalls.

I'm sorry.

The other shall... I'm sorry.

Thank you.

The other shalls throughout this statute... you've got two different issues there.

One of them is that they apply... there's no contingency plan if you miss.

Here we've got a contingency plan.

That's one inference.

The second is they all regulate private entities.

This goes back to the point I just made about Pierce County.

If a private entity is told do something by this date, they don't do it, a court clearly has authority to say, we said do it by this date, do it.

They had... they had... you don't have a authority problem with a private entity.

They can do what they want.

With the Government, however, and particularly when it comes to these extraordinary retroactive assignments of liability, the commissioner is not born with that authority.

It's not inappropriate to ask the Government to turn square corners in that kind of a setting as opposed to a setting where they're merely exercising a general power to get misspent Federal funds, fulfill a FOIA request.

There--

Justice Scalia: Mr. Sutton, I... I thought that or maybe I just hoped that Justice Stevens was... was asking about why it is that the... the crucial language determined on the basis of assignments of October 1, 1993 is in fact not so crucial, that... that as Mr. Buscemi said, there are other instances in which something was not determined before October 1, 1993, but nonetheless, it is deemed to have been determined before October 1, 1993.

Mr. Sutton: --By the statute.

It says that if they... if a company goes out of a... goes into bankruptcy, we're going to alter the applicable percentage as of October 1st, 1993 because they went into bankruptcy.

If there's a reassignment, it goes back to October 1st.

Justice Scalia: Well, does the statute say it goes back to October 1st?

Does the statute say the reassignment shall be deemed to have been made as of October 1?

Mr. Sutton: Let's go back to it right here.

You've got... in the provision you're talking about, 9704(f), the applicable percentage, it has the general rule.

Justice Scalia: Where is that?

What page?

Mr. Sutton: A13 of the appendix.

Justice Scalia: Okay.

Mr. Sutton: The general rule is stated in 9704(f) and then you have the adjustments to the general rule.

Justice Scalia: Right.

Mr. Sutton: And then it says, look at number 2: by making the following changes to the assignments as of October 1st, 1993.

They... they stuck with it.

I mean, they understood what was going on, and that's... that's what's so inappropriate here.

Justice Scalia: Okay.

Mr. Sutton: I mean, Justice Ginsburg, you made the point that there's no interest running on this, but keep in mind we don't get interest when they make mistakes on our assignments.

That's a wash.

Right?

I mean, if they mistakenly assign someone to us, we don't get interest there.

But... thank you, Your Honor.

Rebuttal of Barbara B. McDowell

Chief Justice Rehnquist: Thank you, Mr. Sutton.

Ms. McDowell, you have 1 minute remaining.

Mr. McDowell: Justice Breyer asked why there weren't coal companies on our side of the courtroom.

It's because we, that is, the Federal Government, has been paying through the AML Fund for the benefits for the last few years.

It appears that in the next few years that interest is going to run out, and at that point, there will be coal operators who will be bearing a larger burden through the unassigned beneficiaries' premium.

Justice Ginsburg: What would the interest be used for if it weren't being used to make up the--

Mr. McDowell: It would be used for correcting the severe health and safety problems caused by abandoned mines from the period before 1977.

The suggestion was made that coal operators were being denied certainty in making transactions.

If that had actually been a concern, there is a remedy provided by the Administrative Procedure Act, section 7061, an action for administrative action unreasonably delayed.

A coal operator conceivably could have brought an action under that statute.

Justice Ginsburg: --But they said that... they answered that by saying, how did we know there was going to be?

We didn't know there was going to be anything reassigned to us.

Mr. McDowell: They received initial assignments at... for the first time in October 1993.

That was at a time when no reassignments were being made through the administrative review process.

It therefore should have occurred to them that these were post-October 1st, 1993 assignments.

In terms of there having been a political compromise that the October 1st, 1993 date would have jurisdictional effect, in light of Pierce County and Montalvo-Murillo, no such compromise could be assumed.

Chief Justice Rehnquist: Thank you, Ms. McDowell.

The case is submitted.