UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


PENN ALLEGH COAL CO

v.

HOLLAND, MICHAEL H.


98-7161a

D.C. Cir. 1999


*	*	*


Buckley, Senior Judge: The trustees of a health benefit  plan created
by the Coal Industry Retiree Health Benefit Act  of 1992 claim that
Penn Allegh Coal Company is obliged to  pay premiums to the plan
because it is responsible, under  section 9711(b) of the Act as
codified, 26 U.S.C. s 9711(b)  (1994), for the continuing payment of
the health benefits due  a former employee under an earlier
industry-wide labor  agreement. Penn Allegh denies liability on the
grounds that  the former employee, who was a disability pensioner, had
not  met the "age and service requirements" necessary to qualify  for
benefits under section 9711(b) and that he had not "re- tired from the
coal industry" by September 30, 1994, as  required by the section. The
district court granted summary  judgment in favor of Penn Allegh based
on the first ground  and therefore did not reach the second.


Because we conclude that Congress intended to ensure the  continued
payment of the health benefits due all coal industry  retirees covered
by the Act, including those of disability  pensioners, we hold that
section 9711(b) must be construed to  cover any pensioner who
qualified for disability retirement on  or before the statutory
cut-off date of February 1, 1993, and  retired from the coal industry
on or before September 30,  1994. Accordingly, we reverse and remand
the case so that  the district court may consider Penn Allegh's
remaining claim  that the employee failed to retire by the September


I. Background


A. The Coal Act


For a number of years, the employees of the members of  the Bituminous
Coal Operators' Association ("Association")  were covered by health
benefit plans established pursuant to  collective bargaining
agreements between the Association and  the United Mine Workers of
America ("UMWA"). In the  1980's, these plans began to suffer
financial difficulties be-


cause a growing number of those members ("signatory opera- tors") went
out of business, withdrew from the agreements,  or otherwise defaulted
on their obligations to the plans estab- lished for the benefit of
employees. Because of these and  other developments, the various plans
began to experience  deficits that reached a level of approximately
$110 million by  1990. See Eastern Enterprises v. Apfel, 524 U.S. __,
118  S. Ct. 2131, 2140 (1998).


In March 1990, then-Secretary of Labor Elizabeth Dole  appointed an
Advisory Commission on United Mine Workers  of America Retiree Health
Benefits ("Coal Commission"),  which she tasked with developing a
"solution for assuring that  orphan retirees in the [various benefit
trusts] will continue to  receive promised medical care." The
Secretary of Labor's  Advisory Comm'n on United Mine Workers of
America Retir- ee Health Benefits, Coal Comm'n Report 2 (1990),
reprinted  in Joint Appendix ("J.A.") at 95. Later that year the Com-
mission issued a report in which it noted that "coal miners  have been
promised and guaranteed health care benefits for  life." Coal Comm'n
Report, Executive Summary at vii, re- printed in J.A. at 86. It then
submitted two alternative  statutory proposals for ensuring that these
promises would be  kept. Id. at viii, reprinted in J.A. at 87.


After conducting hearings on the report, in which it was  advised that
more than 120,000 retirees might not receive the  benefits promised to
them through the collective bargaining  process, Congress acted on the
Commission's recommenda- tions and passed the Coal Industry Retiree
Health Benefit  Act of 1992, Pub. L. No. 102-486, 106 Stat. 3036
(codified at  26 U.S.C. ss 9701-22 (1994)) ("Coal Act" or "Act").
Eastern  Enters., 118 S. Ct. at 2141-42. An explicit purpose of the
Act  was "to provide for the continuation of a privately financed 
self-sufficient program for the delivery of health care benefits  to
the beneficiaries of [multi-employer benefit] plans." Coal  Act, Pub.
L. No. 102-486, s 19142(b)(3), 106 Stat. 3037 (1992)  (codified as
note following 26 U.S.C. s 9701 (1994)).


This case is concerned with Subchapter C of the Coal Act,  which
ensures the continued payment of health benefits to 


certain retired coal mining employees through either an  individual
employer plan ("IEP") or a statutory trust fund.  Part I of the
subchapter is addressed to retired miners who  were covered by an IEP
maintained pursuant to a 1978 or  subsequent coal wage agreement. It
requires that the last  signatory operator to employ a retiree
continue to provide  him with health benefits under its IEP if he was
either  (a) receiving retiree health benefits as of February 1, 1993,
26  U.S.C. s 9711(a), or (b) "met the age and service require- ments
for eligibility to receive benefits under [the IEP]" by  that date and
had not "retired from the coal industry after  September 30, 1994."


Part II of the subchapter establishes a new statutory trust,  the
United Mine Workers of America 1992 Benefit Plan  ("1992 Plan"), id. s
9712(a), which provides health benefits to  two categories of
beneficiaries: those who "but for the enact- ment of [the Coal Act]
would be eligible to receive benefits  from the [1950 or 1974 UMWA
Benefit Plans], based upon  age and service earned as of February 1,
1993," id.  s 9712(b)(2)(A); and those "with respect to whom coverage
is  required to be provided under section 9711, but who do[ ] not 
receive such coverage from the applicable last signatory  operator,"
id. s 9712(b)(2)(B). The 1992 Plan is financed by  the operators who
were signatories to the 1988 coal wage  agreement between the
Association and the UMWA. These  signatory operators are required to
pay both an annual  "prefunding premium" for all eligible and
potentially eligible  beneficiaries of the Plan attributable to them
and a monthly  "per beneficiary" premium for each beneficiary
attributable to  them who is actually receiving benefits under the


B. Factual Background


Penn Allegh Coal Company, Inc. ("Penn Allegh" or "com- pany") was a
signatory to the 1988 coal wage agreement.  That agreement provided
that in order to qualify for health  benefits as a disabled pensioner,
an employee must be eligible  for Social Security Disability Insurance
benefits. In August  1992, Richard J. Ferrari, a Penn Allegh employee
who had 


been injured in a mine accident, applied for disability benefits  with
the Social Security Administration. More than two  years later, on
December 8, 1994, that Administration deter- mined that Mr. Ferrari
was indeed disabled and that Decem- ber 20, 1990, was the effective
date of his disability.


On January 12, 1995, Mr. Ferrari applied for a disability  pension,
which was granted and dated retroactively to July 1,  1992, the day
after he left active employee status. Mr.  Ferrari then applied to
Penn Allegh for health benefits under  its IEP. The company determined
that he was not eligible to  receive them on the ground that he had
not applied for his  pension, and thereby "retired," by September 30,
1994, as  required by section 9711(b). Mr. Ferrari thereafter sought 
and received benefits from the 1992 Plan pursuant to sections  9711(b)
and 9712(b)(2)(B) of the Act.


In April 1996, the Trustees of the 1992 Plan ("Trustees")  informed
Penn Allegh that Mr. Ferrari had been enrolled in  and received
benefits from the Plan retroactive to Febru-  ary 1, 1993, and
demanded that the company pay per benefi- ciary premiums on his
behalf. Penn Allegh disagreed with  the Trustees' conclusion that Mr.
Ferrari was eligible for  coverage under Penn Allegh's IEP and the
1992 Plan and  filed this action in district court. In its complaint,
the  company alleged that the Trustees had no authority, under 
section 9712(b)(2), to enroll Mr. Ferrari because he had not  retired
by September 30, 1994, as required by section 9711(b),  and sought a
declaration that it had no obligation to pay  premiums on his behalf.
The Trustees responded with a  counterclaim in which they asked the
court to declare that  Penn Allegh had a duty, under section 9711, to
provide  benefits directly to Mr. Ferrari and, under section 9712, to 
pay prefunding and per beneficiary premiums to the 1992  Plan.


The parties filed cross motions for summary judgment that  addressed
two issues: (1) whether, in order to qualify for  benefits under
section 9711(b), a disabled coal industry retir- ee had to be eligible
for an "age and service" pension as of  February 1, 1993; and (2)
whether Mr. Ferrari was ineligible  for such benefits because he did
not "retire" from the coal 


industry, within the meaning of the Act, on or before Septem- ber 30,
1994. The district court granted summary judgment  in favor of Penn
Allegh on the first issue and therefore did  not reach the second. It
concluded that because section  9711(b) specified that a retiree must
meet "age and service  requirements" in order to qualify for IEP
coverage, it applied  only to individuals who qualified for a pension
by virtue of age  and length of service, and not as a consequence of
an injury.  Accordingly, the court also held that Mr. Ferrari was not 
eligible for benefits from the 1992 Plan because section  9712(b)
"bases eligibility on age and service or on entitlement  to coverage
under s 9711." Penn Allegh Coal Co. v. Holland,  No. 97-0121, at 9-10
(D.D.C. July 22, 1998).


II. Discussion


Section 9711(b) of the Coal Act assures continued health  benefits
coverage under an IEP for any individual who has  retired from the
coal industry on or before September 30,  1994, and


who, as of February 1, 1993, is not receiving retiree  health benefits
under the individual employer plan main- tained by the last signatory
operator pursuant to a 1978  or subsequent coal wage agreement, but
has met the age  and service requirements for eligibility to receive
bene- fits under such plan as of such date.... 


26 U.S.C. s 9711(b)(1) (emphasis added).


The controversy in this case centers on the meaning to be  given to the
italicized language. The Trustees maintain that  the age and service
requirements cannot be read to disqualify  disability pensioners under
section 9711(b) for three reasons.  First, they point out that the
section speaks of the "age and  service requirements for eligibility
to receive benefits"; it  does not state that the section applies only
to miners who  have met the age and service requirements for
retirement.  Second, because section 9711(a) applies to all
pensioners,  including those retired because of disability, Penn
Allegh's  construction would lead to the absurd result of treating 
differently two miners injured in the same accident merely 


because the Social Security paperwork for one of them was  completed
before February 1993 while that for the other took  a month or so
longer. Finally, they maintain that Penn  Allegh's construction would
frustrate the purpose of the Act,  which is to ensure that all
retirees continue to receive the  health benefits they had bargained
for. For these reasons,  the Trustees insist that the language of
section 9711(b) must  be interpreted to require no more than that an
individual  meet whatever age and service requirements are applicable
to  the kind of pension he is qualified to receive.


For its part, Penn Allegh insists that section 9711(b) unam- biguously
applies to only one category of retiree, namely  those who qualify for
pensions by virtue of age and length of  service; and it advances two
arguments in support of that  position. It asserts, first, that the
inclusion of the "age and  service" provision necessarily
distinguishes the scope of sec- tion 9711(b) from the broader coverage
afforded by section  9711(a), which covers disability as well as age
and length of  service pensioners. In its view, any other
interpretation  would make the age and service requirement surplusage.
 Second, the company points to section 9712(b)(2)(A), which  includes,
as beneficiaries of the 1992 Plan, individuals who  would have been
eligible, under plans superseded by the Coal  Act, for benefits "based
upon age and service earned as of  February 1, 1993[.]" It insists
that the use of virtually  identical language in the two sections
confirms that Congress  intended to limit the application of section
9711(b) to miners  who satisfied the age and service requirement for


The plausibility of these competing interpretations under- scores the
ambiguity of the statute we are asked to apply. In  such instances, it
becomes necessary for a court to look to  "the intent of Congress as
revealed in the history and pur- poses of the statutory scheme." Adams
Fruit Co. v. Barrett,  494 U.S. 638, 642 (1990); Tataranowicz v.
Sullivan, 959 F.2d  268, 276 (D.C. Cir. 1992) ("[C]ongressional intent
can be  understood only in light of the context in which Congress 
enacted a statute and of the policies underlying its enact- ment.").


The history and purposes of the Coal Act, as summarized  on pages 2-5
above, persuade us that the Trustees have the  better part of the
statutory argument. As the Fourth Circuit  observed in a recent case
presenting the identical question  concerning the scope of section


[t]he historical background leading to the enactment of  the Coal Act
makes clear that Congress intended to  provide coal industry retirees
with the lifetime benefits  they had been promised. Since coal workers
had been  promised health benefits in the event of their retirement, 
whether that retirement resulted from a disability or was  based
solely on their satisfaction of age and service  requirements, we
conclude that Congress intended that  coal industry workers who
retired as a result of a disabil- ity would be eligible for benefits
under s 9711(b)(1) and  s 9712(b)(2).


Holland v. Big River Minerals Corp., No. 98-2353, 1999 WL  417472, *5
(4th Cir. June 23, 1999).


Because the promises the Coal Act was intended to apply  equally to all
classes of pensioners, we hold that to qualify for  benefits under
section 9711(b), a disability retiree need only  satisfy whatever
requirements entitle him to receive a pen- sion by February 1, 1993,
provided he has retired from the  coal industry on or before September
30, 1994. In so ruling,  we express no opinion as to how the age and
service require- ments of section 9712(b)(2)(A) are to be applied
because that  section is not involved in this case. If Mr. Ferrari
qualifies  for health benefits under section 9711(b), he is eligible
for  enrollment in the 1992 Plan pursuant to section 9712(b)(2)(B); 
and, of course, Penn Allegh is responsible, in turn, for premi- um
payments to the Plan as required by section 9712(d).


At this point, however, we cannot conclude that Penn  Allegh was
obligated to cover Mr. Ferrari under its IEP or to  pay premiums to
the 1992 Plan on his account because in its  motion for summary
judgment, Penn Allegh raised an alter- native argument that Mr.
Ferrari had not "retired," within  the meaning of section 9711(b), by
September 30, 1994, and  therefore was not eligible for benefits under


We do not address that issue because the district court did  not reach
it. See Singleton v. Wulff, 428 U.S. 106, 120 (1976)  ("It is the
general rule ... that a federal appellate court does  not consider an
issue not passed upon below.") We therefore  leave it for the district
court to address on remand.


III. Conclusion


In light of the foregoing, we set aside the district court's  grant of
summary judgment in favor of Penn Allegh and  remand the case so that
the court may consider the compa- ny's argument that Mr. Ferrari had
not retired from the coal  industry, within the meaning of the Coal
Act, by Septem-  ber 30, 1994, and was therefore not eligible for
benefits under  Penn Allegh's IEP or the 1992 Plan.


So ordered.