OCTOBER TERM, 2002
Syllabus
BARNHART, COMMISSIONER OF SOCIAL SECURITY
v. PEABODY COAL
CO. ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No. 01-705. Argued October 8, 2002-Decided January 15,2003*
Under the Coal Industry Retiree Health Benefit Act of 1992 (Coal
Act or Act), the Commissioner of Social Security "shall, before
October 1, 1993," assign each coal industry retiree eligible for
benefits under the Act to an extant operating company-a "signatory
operator" --or a related entity, which shall then be responsible
for funding the beneficiary's benefits, 26 U. S. C. § 9706(a).
Assignment to a signatory operator binds the operator to pay an
annual premium to the United Mine Workers of America Combined
Benefit Fund (Combined Fund), which administers the benefits. The
premium has up to three components, a health benefit premium, a
death benefit premium, and a premium for retirees who are not
assigned to a particular operator, but whose benefits are paid from
the Combined Fund as if they were assigned. An important object of
the Coal Act was providing stable funding for the health benefits
of such "orphan retirees." Although signatory operators will only
be required to pay an unassigned beneficiaries premium if funding
from the United Mine Workers of America 1950 Pension Plan (UMWA
Pension Plan) and the Abandoned Mine Land Reclamation Fund (AML
Fund) runs out, each signatory operator's unassigned beneficiaries
premium is based on the number of its assigned beneficiaries, such
that the signatory with the most assigned retirees would be
required to cover the greatest share of the benefits payable to
unassigned beneficiaries. In two separate actions before different
District Courts, respondent companies challenged initial
assignments made to them after the October 1, 1993, deadline,
claiming that the date set a time limit on the Commissioner's
assignment power, so that a beneficiary not assigned on that date
must be left unassigned for life. If the challenged assignments are
void, the corresponding benefits must be financed by transfers from
the UMWA Pension Plan, the AML Fund, and, if necessary, unassigned
beneficiaries premiums paid by signatory operators to whom
*Together with
Barnhart, Commissioner of Social Security
v.
Bellaire Corp. et al. (see this Court's Rule 12.4), and
No. 01-715,
Holland et al. v.
Bellaire Corp. et al.,
also on certiorari to the same court.
150
Syllabus
timely assignments were made. The companies obtained summary
judgments, and the Sixth Circuit affirmed.
Held: Initial assignments made after October 1, 1993, are
valid despite their untimeliness. Pp. 157-172.
(a) The companies' contention that the Commissioner's failure is
"jurisdictional," so that affected beneficiaries may never be
assigned and their former employers may go scot free, is as
unsupportable as it is counterintuitive. pp. 157-171.
(1) This Court has rejected an argument comparable to the
companies' position that couching the duty in terms of the
mandatory "shall" together with a specific deadline leaves the
Commissioner with no authority to make an initial assignment on or
after October 1, 1993. In
Brock v.
Pierce County,
476 U. S. 253,
the Court found that the Secretary of Labor's 120-day deadline to
issue a final determination on a complaint of federal grant fund
misuse was meant to spur him to action, not limit the scope of his
authority, so that his untimely action was valid. Nor, since
Brock, has this Court ever construed a provision that the
Government "shall" act within a specified time, without more, as a
jurisdictional limit precluding action later. If a statute does not
specify a consequence for noncompliance with statutory timing
provisions, federal courts will not ordinarily impose their own
coercive sanction.
United States v.
James Daniel Good
Real Property, 510
U. S. 43, 63. Hence the oddity of a claim at this date that
late official action should shift financial burdens from otherwise
responsible private purses to the public fisc, let alone siphon
money from funds set aside for a different public purpose, like the
AML Fund for land reclamation. The point would be the same even if
Brock were the only case on the subject. The Coal Act was
passed six years after
Brock, when Congress was presumably
aware that the Court does not readily infer congressional intent to
limit an agency's power to finish a mandatory job merely from a
specification to act by a certain time. Nothing more limiting than
"shall" is to be found in the Coal Act: no express language
supports the companies, while structure, purpose, and legislative
history go against them. Structural clues support the Commissioner
in the Act's other instances of combining "shall" with a specific
date that could not possibly be read to prohibit action outside the
statutory period. See §§ 9705(a)(I), 9702(a)(I), 9704(h). In each
of these instances, a conclusion is based on plausibility grounds:
had Congress meant to set a counterintuitive limit on authority to
act, it would have said more than it did, and would surely not have
couched its intent in language
Brock had already held to
lack any clear jurisdictional significance. Pp. 157-163.
151
(2) The result of appealing to plausibility is not affected by
either of the other textual features that the companies argue
indicate inability to assign beneficiaries after October 1, 1993.
pp. 163-171.
(i) The provision for unassigned beneficiary status, § 9704(d),
cannot be characterized as the specification of a "consequence" for
failure to assign a beneficiary to an operator or related person.
It speaks not in terms of the Commissioner's failure to assign
beneficiaries but simply of "beneficiaries who are not assigned."
The most obvious reason for such unassigned status is a former
employer's disappearance. This is not to say that a failure of
timely assignment does not also leave a beneficiary "unassigned."
It simply means that unassigned status has no significance peculiar
to failure of timely assignment. In addition, to the extent that
unassigned status is a consequence of mere untimeliness, the most
obvious reason for specifying that consequence is not a supposed
desire for finality but a default rule telling the Social Security
Administration what funding source to use in the absence of any
other. It is unrealistic to think that Congress understood
unassigned status as an enduring consequence of uncompleted work,
for nothing indicates that it foresaw that some beneficiaries
matchable with operators still in business might not be assigned by
the deadline. In the one instance where Congress clearly weighed
finality on October 1, 1993, against accuracy of initial
assignments, accuracy won, see §§ 9704(d), (f); and the companies'
attempts to limit this apparent preference for accuracy fail. Pp.
163-169.
(ii) The provision that an operator's contribution for the
benefit of the unassigned shall be calculated based on "assignments
as of October 1, 1993," § 9704(f)(I), does not mean that an
assigned operator's percentage of potential liability for the
benefit of the unassigned is fixed according to the assignments
made at that date. "[A]s of" need not mean, as the companies
contend, "as assignments actually stand" on that date, but can mean
assignments as they shall be on that date, assuming the
Commissioner complies with Congress's command. Since there is no
"plain" reading, there is nothing left of this "as of" argument
except its stress that the applicable percentage can be modified
only in accordance with exceptions for initial error or an assignee
operator's demise. And the enunciation of two exceptions does not
imply the exclusion of a third when there is no reason to think
that Congress considered such an exclusion and there is good reason
to conclude that Congress did not foresee a failure to make timely
assignments. pp. 170-171.
(b) The Coal Act was designed to allocate the greatest number of
beneficiaries to a prior responsible operator. The way to reach
this objective is to read the statutory date as a spur to prompt
action, not as a bar to tardy completion of the business of
ensuring that benefits
152
are funded, as much as possible, by those principally
responsible. Pp. 171-172.
14 Fed. Appx. 393 (first judgment) and 424 (second judgment),
reversed.
SOUTER, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, KENNEDY, GINSBURG, and BREYER, JJ.,
joined. SCALIA, J., filed a dissenting opinion, in which O'CONNOR
and THOMAS, JJ., joined,
post, p. 172. THOMAS, J., filed a
dissenting opinion,
post, p. 184.
Barbara B. McDowell argued the cause for petitioner in No.
01-705. On the briefs were Solicitor General Olson, Assistant
Attorney General McCallum, Deputy Solicitor General Kneedler, Paul
R. Q. Wolfson, William Kanter, and Jeffrey Clair.
Peter Buscemi argued the cause for petitioners in No.
01-715. With him on the briefs were
John R. Mooney and
David WAllen.
John G.
Roberts, Jr., argued the cause for Peabody
Coal Co. et al., respondents in No. 01-705. With him on the brief
were
Lorane F. Hebert and
W Gregory M otto Jeffrey S.
Sutton argued the cause for Bellaire Corp. et al.,
respondents in both cases. With him on the brief were
Brian
G.
Selden, Louis A. Chaiten, and
Thomas A. Smock.
t
JUSTICE SOUTER delivered the opinion of the Court.
The Coal Industry Retiree Health Benefit Act of 1992 (Coal Act
or Act) includes the present 26 U. S. C. § 9706(a), providing
generally that the Commissioner of Social Security "shall, before
October 1, 1993," assign each coal industry retiree eligible for
benefits to an extant operating company or a "related" entity,
which shall then be responsible for funding the assigned
beneficiary's benefits. The question is whether an initial
assignment made after that date is valid despite its untimeliness.
We hold that it is.
tMary Lou Smith filed a brief for Elgin National
Industries, Inc., as
amicus curiae urging affirmance.
153
I
We have spoken about portions of the Coal Act in two recent
cases,
Barnhart v.
Sigmon Coal Co., 534 U. S. 438 (2002), and
Eastern Enterprises v.
Apfel, 524 U. S. 498 (1998), the
first of which sketches the Act's history, 534 U. S., at 442-447.
Here, it is enough to recall that in its current form the Act
requires the Commissioner to assign, where possible, every coal
industry retiree to a "signatory operator," defined as a signatory
of a coal wage agreement specified in § 9701(b)(1). §§ 9701(c)(1),
9706(a). An assignment should turn on a retiree's employment
history with a particular operator, § 9706(a), unless an
appropriate signatory is no longer in business, in which case the
proper assignee is a "related person" of that operator, defined in
terms of corporate associations and relationships not in issue
here, § 9701(c)(2).l The Act recognizes that some retirees will be
"unassigned." § 9704(d).
Assignment to a signatory operator binds the operator to pay an
annual premium to the United Mine Workers of America Combined
Benefit Fund, established under the Act to administer benefits. §
9702. The premium has up to three components, starting with a
"health benefit premium," computed by multiplying the number of
assigned retirees by the year's "per beneficiary" premium, set by
the Commissioner and based on the Combined Fund's health benefit
expenses for the prior year, adjusted for changes in the Consumer
Price Index. § 9704(b). The second element is a "death benefit
premium" for projected benefits to the retirees' survivors, the
premium being the operator's share of "the amount, actuarially
determined, which the Combined Fund will be required to pay during
the plan year for death benefits coverage." § 9704(c).
1 The Coal Act's definition of "related persons" was the subject
of our opinion last Term in
Barnhart v.
Sigmon Coal
Co., 534 U. S.
438 (2002). For simplicity, we will not refer to related
persons separately in the balance of this opinion.
154
A possible third constituent of the premium is for retirees who
are not assigned to a particular operator, whose health and death
benefits are nonetheless paid from the Combined Fund as if they
were assigned beneficiaries. Before passage of the Coal Act, many
operators withdrew from coal wage agreements, shifting the costs of
paying for their retirees' benefits to the remaining signatories,
Sigmon Coal Co., supra, at 444, and an important object of
the Coal Act was providing stable funding for the health benefits
of these "orphan retirees," House Committee on Ways and Means,
Development and Implementation of the Coal Industry Retiree Health
Benefit Act of 1992, 104th Cong., 1st Sess., 1 (Comm. Print 1995)
(hereinafter Coal Act Implementation). See Energy Policy Act of
1992, Pub. L. 102-486, § 19142, 106 Stat. 3037 (intent to
"stabilize plan funding" and "provide for the continuation of a
privately financed self-sufficient program").
Before signatory operators may be compelled to contribute for
the benefit of unassigned beneficiaries, however, funding from two
other sources must run out. The United Mine Workers of America 1950
Pension Plan (UMWA Pension Plan) was required to make three
substantial payments to the Combined Fund for this purpose on
February 1, 1993, October 1, 1993, and October 1, 1994. §
9705(a)(1). The Act also calls for yearly payments to the Combined
Fund from the Abandoned Mine Land Reclamation Fund (AML Fund),
established for reclamation and restoration of land and water
resources degraded by coal mining. 30 U. S. C. § 1231(c). Annual
transfers from this AML Fund are limited to the greater of $70
million and the annual interest earned by the fund, and are subject
to an aggregate limit equal to the amount of interest earned on the
AML Fund between September 30, 1992, and October 1, 1995. §§
1232(h)(2), (3)(B).
So far, these transfers from the UMW A Pension Plan and the AML
Fund have covered the benefits of all unassigned beneficiaries. If
they fall short, however, the third source comes into play (and the
third element of an operator's Com-
155
bined Fund premium becomes actual): all assignee operators (that
is, operators with assigned retirees) will have to pay an
"unassigned beneficiaries premium," being their applicable
percentage portion of the amount needed to pay annual benefits for
the unassigned. An operator's "applicable percentage" is defined as
"the percentage determined by dividing the number of eligible
beneficiaries assigned under section 9706 to such operator by the
total number of eligible beneficiaries assigned under section 9706
to all such operators (determined on the basis of assignments as of
October 1, 1993)." 26 U. s. C. § 9704(f)(1). The signatory with the
most assigned retirees thus would cover the greatest share of the
benefits payable to the unassigned (as well as their spouses and
certain dependants).2
II
Although § 9706 provides that the Commissioner "shall" complete
all assignments before October 1, 1993, the Commissioner did not,
and she now estimates that some 10,000 beneficiaries were first
assigned to signatory operators after the statutory date. The
parties disagree on the reason the Commissioner failed to meet the
deadline, but that dispute need not be resolved here.3
2 According to a 1995 congressional Report, the total premium
for a single beneficiary was $2,349.38 for the 1995 fiscal year.
This figure includes only the health and death benefit premiums,
since no unassigned beneficiaries premium has yet been charged.
Coal Act Implementation 32-33. The 2002 per-beneficiary premium was
approximately $2,725. General Accounting Office Report No. 02-243,
Retired Coal Miners' Health Benefit Funds: Financial Challenges
Continue 8 (Apr. 2002).
3 The Commissioner's proffered reason for the delay is that the
Social Security Administration (SSA) was not permitted to expend
appropriated funds to commence work on assignments until July 13,
1993, when Congress enacted the Supplemental Appropriations Act of
1993, Pub. L. 10350, 107 Stat. 254. The Commissioner also states
that the task of researching employment records for approximately
80,000 coal industry workers in order to determine the appropriate
signatory operators was monumental and could not have been
completed by October 1, 1993, without additional resources. The
respondent companies counter that the Acting
156
After October 1,1993, the Commissioner assigned 330
beneficiaries to respondents Peabody Coal Company and Eastern
Associated Coal Corp., and a total of 270 beneficiaries to
respondents Bellaire Corporation, NACCO Industries, Inc., and The
North American Coal Corporation. These companies challenged the
assignments in two separate actions before different District
Courts, claiming that the statutory date sets a time limit on the
Commissioner's power to assign, so that a beneficiary not assigned
on October 1, 1993 (and the beneficiary's eligible dependants) must
be left unassigned for life. If the respondent companies are right,
the challenged assignments are void and the corresponding benefits
must be financed not by them, but by the transfers from the UMW A
Pension Plan and the AML Fund and, if necessary, by unassigned
beneficiary premiums paid by other signatory operators to whom
timely assignments were made.
The Commissioner denied that Congress intended the
Commissioner's tardiness in assignments to impose a permanent
charge on the public AML Fund, otherwise earmarked for reclamation,
or to raise the threat of permanently heavier financial burdens on
companies that happened to get assignments before October 1, 1993.
The Commissioner argued that Congress primarily intended coal
operators to pay for their own retirees. The trustees of the
Combined Fund in-
Commissioner assured Congress less than a month before the
statutory date that SSA would meet its "statutory responsibility"
to complete the assignments on time. Hearing on Provisions Relating
to the Health Benefits of Retired Coal Miners before the House Ways
and Means Committee, 103d Cong., 1st Sess., 26 (1993) (hereinafter
1993 Coal Act Hearing), Ser. No. 103-59, p. 26 (Comm. Print 1994)
(statement of Acting Commissioner Thompson). The same
representative informed Congress in 1995 that SSA had "completed
the process of making the initial assignment decisions by October
1, 1993, as required by law." Hearing on the Coal Industry Retiree
Health Benefit Act of 1992 before the Subcommittee on Oversight of
the House Committee on Ways and Means, 104th Cong., 1st Sess., 23
(1995), Ser. No. 104-67, p. 23 (1997) (statement of Principal
Deputy Commissioner Thompson).
157
tervened in one of the cases and took the Commissioner's view
that initial assignments made after September 30, 1993, are
valid.4
The companies obtained summary judgments in each case, on the
authority of
Dixie Fuel Co. v.
Commissioner of Social
Security, 171 F.3d
1052 (CA6 1999), which went against the Commissioner on
the issue here. The United States Court of Appeals for the Sixth
Circuit affirmed in two opinions likewise following
Dixie
Fuel-Peabody Coal Co. v.
Massanari, 14 Fed. Appx. 393
(2001), and
Bellaire Corp. v.
Massanari, 14 Fed.
Appx. 424 (2001)-but conflicting with the Fourth Circuit's holding
in
Holland v.
Pardee Coal Co., 269
F.3d 424 (2001). We granted certiorari to resolve the
conflict,5 534 U. S. 1112 (2002), and now reverse.
III
It misses the point simply to argue that the October 1, 1993,
date was "mandatory," "imperative," or a "deadline," as of course
it was, however unrealistic the mandate may have been. The
Commissioner had no discretion to choose to leave assignments until
after the prescribed date, and the assignments in issue here
represent a default on a statutory duty, though it may well be a
wholly blameless one. But the failure to act on schedule merely
raises the real question, which is what the consequence of
tardiness should be. The respondent companies call the failure
"jurisdictional," such that the affected beneficiaries (like truly
orphan beneficiaries) may never be assigned, but instead must be
permanent
4 The General Accounting Office estimated in 2000 that
invalidation of assignments made after September 30, 1993, could
require the Combined Fund to refund $57 million in premium
payments. Letter of Gloria L. Jarmon to Hon. William V. Roth, Jr.,
Senate Committee on Finance 2 (Aug. 15,2000),
http://www.gao.gov/new.items/ai00267r.pdf
(as visited Jan. 9, 2003) (available in Clerk of Court's case
file).
5 After the grant of certiorari, the United States Court of
Appeals for the Third Circuit came down on the side of the Fourth
Circuit. See
Shenango Inc. v.
Apfel, 307 F.3d
174 (2002).
158
wards of the UMW A Pension Plan, the AML Fund, and, potentially,
of coal operators without prior relationship to these
beneficiaries. The companies, in other words, say that as to
tardily assigned beneficiaries who were, perhaps, formerly their
own employees, they go scot free. We think the claim is as
unsupportable as it is counterintuitive.
A
First there is the companies' position that couching the duty in
terms of the mandatory "shall" together with a specific deadline
leaves the Commissioner with no authority to make an initial
assignment on or after October 1, 1993. We rejected a comparable
argument in
Brock v.
Pierce County, 476 U. S. 253 (1986),
dealing with the power of the Secretary of Labor to audit a grant
recipient under a provision that he "'shall' issue a final
determination ... within 120 days" of receiving a complaint
alleging misuse of federal grant funds.
Id., at 255. Like
the Court of Appeals here, the Ninth Circuit in
Brock
thought the mandate and deadline together implied that Congress
"had intended to prevent the Secretary from acting" after the
statutory period, id., at 257. We, on the contrary, expressed
reluctance "to conclude that every failure of an agency to observe
a procedural requirement voids subsequent agency action, especially
when important public rights are at stake," id., at 260, and
reversed. As in this litigation, the Secretary's responsibility in
Brock was "substantial," the "ability to complete it within
120 days [was] subject to factors beyond [the Secretary's]
control," and "the Secretary's delay, under respondent's theory,
would prejudice the rights of the taxpaying public."
Id., at
261. We accordingly read the 120-day provision as meant "to spur
the Secretary to action, not to limit the scope of his authority,"
so that untimely action was still valid.
Id., at 265.
Nor, since
Brock, have we ever construed a provision that
the Government "shall" act within a specified time, without more,
as a jurisdictional limit precluding action later. Thus,
159
a provision that a detention hearing" 'shall be held immediately
upon the [detainee's] first appearance before the judicial
officer'" did not bar detention after a tardy hearing,
United
States v.
Montalvo-Murillo, 495 U. S. 711, 714 (1990)
(quoting 18 U. S. C. § 3142(f)), and a mandate that the Secretary
of Health and Human Services" 'shall report' " within a certain
time did "not mean that [the] official lacked power to act beyond
it,"
Regions Hospital v.
Shalala, 522 U. S. 448, 459, n. 3
(1998).
We have summed up this way: "if a statute does not specify a
consequence for noncompliance with statutory timing provisions, the
federal courts will not in the ordinary course impose their own
coercive sanction."
United States v.
James Daniel Good
Real Property, 510
U. S. 43, 63 (1993).6
6 No one could disagree with JUSTICE SCALIA that "[w]hen a power
is conferred for a limited time, the
automatic consequence
of the expiration of that time is the expiration of the power,"
post, at 174-175 (dissenting opinion), but his assumption
that the Commissioner's power to assign retirees was "conferred for
a limited time" assumes away the very question to be decided.
JUSTICE SCALIA'S dissent is an elaboration on this circularity,
forever returning as it must to his postulate that § 9706(a)
constitutes a "time-limited mandate" that "expired" on the
statutory date.
Post, at 177, 178.
JUSTICE SCALIA'S closest approach to a nonconc1usory
justification for his position is the assertion of an entirely
formal interpretive rule that a date figuring in the same statutory
subsection as the creation of a mandatory obligation
ipso
facto negates any power of tardy performance.
Post, at
176-177. JUSTICE SCALIA cites no authority for his formalism, which
is contradicted by
United States v.
Montalvo-Murillo,
495 U. S. 711
(1990), where a single statutory subsection provided that a
judicial officer "shall hold a hearing" and that "[t]he hearing
shall be held immediately upon the person's first appearance before
the judicial officer."
Id., at 714 (quoting 18 U. S. C. §
3142(f)). Conversely,
Brock v.
Pierce County,
476 U. S. 253
(1986), United States v.
James Daniel Good Real
Property, 510 U.
S. 43 (1993), and
Regions Hospital v.
Shalala,
522 U. S. 448
(1998), ascribed no significance to the formal placement of the
time limitation. One can only ask why a statute providing that "The
obligor shall perform its duty before October 1, 1993," should be
thought to differ fundamentally from one providing that "(i) The
obligor shall perform its duty. (ii) The obligor's
160
Hence the oddity at this date of a claim that late official
action should shift financial burdens from otherwise responsible
private purses to the public fisc, let alone siphon money from
funds set aside expressly for a different public purpose, like the
AML Fund for land reclamation. The point would be the same,
however, even if
Brock were the only case on the subject.
The Coal Act was adopted six years after
Brock came down,
when Congress was presumably aware that we do not readily infer
congressional intent to limit an agency's power to get a mandatory
job done merely from a specification to act by a certain time. See
United States v.
Wells, 519 U. S. 482, 495
(1997).7 The
Brock example conse-
duty shall be performed before October 1, 1993." The accepted
fact is that some time limits are jurisdictional even though
expressed in a separate statutory section from jurisdictional
grants, see,
e. g., 28 U. S. C. § 1291 (providing that the
courts of appeals "shall have jurisdiction of appeals from all
final decisions of the district courts of the United States"); §
2107 (providing that notice of appeal in civil cases must be filed
"within thirty days after the entry of such judgment");
Browder v.
Director, Dept. of Corrections of Ill.,
434 U. S. 257,
264 (1978) (stating that the limitation in § 2107 is "'mandatory
and jurisdictional''' (citation omitted)), while others are not,
even when incorporated into the jurisdictional provision, see,
e. g., Montalvo-Murillo, supra. Formalistic rules do not
account for the difference, which is explained by contextual and
historical indications of what Congress meant to accomplish. Here
that intent is revealed in several obvious ways: in rules that
define an operator's liability in terms of employment history, see
§ 9706(a), in appellate rights to test the appropriateness of an
initial assignment, see
infra, at 167, and in the expressed
understanding that the companies that got the benefit of a worker's
labor should pay for the worker's benefits, see
infra, at
164-166. What else, after all, would anyone naturally expect? As
opposed to the sensible indications that the initial assignment
deadline was not meant to be jurisdictional, JUSTICE SCALIA'S new
formal rule would thwart the statute's object and relieve the
respondent companies of all responsibility, which other, less lucky
operators might be required to shoulder. There undoubtedly was much
political compromise in the development of the Coal Act, but
politics does not justify turning the process of initial assignment
into a game of chance.
7 The respondent companies attempt to distinguish
Brock
because we noted in that case that an aggrieved party could sue
under the Administrative Procedure Act to "'compel agency action
unlawfully withheld or un-
161
quently has to mean that a statute directing official action
needs more than a mandatory "shall" before the grant of power can
sensibly be read to expire when the job is supposed to be done.
Nothing so limiting, however, is to be found in the Coal Act: no
express language supports the companies, while structure, purpose,
and legislative history go against them.
Structural clues support the Commissioner in the Coal Act's
other instances of combining the word "shall" with a specific date
that could not possibly be read to prohibit action outside the
statutory period. Congress, for example, provided that the UMW A
Pension Plan "shall transfer to the Combined Fund" installments of
$70 million on February 1, 1993, on October 1, 1993, and on October
1, 1994. § 9705(a)(1). It could not be that a failure to make a
transfer on one of those precise dates, for whatever reason, would
have left the UMW A Pension Plan with no authority to make the
payment; October 1, 1994, was not even a business day. Or consider
the Act's mandatory provisions that the trustees of the Combined
Fund "shall" be designated no later than 60 days from the enactment
date, § 9702(a)(1), and that the designated trustees "shall, not
later than 60 days after the enactment date," give the Commissioner
certain information about benefits, § 9704(h). No one could
seriously argue that the entire scheme would have been nullified if
appointments had been left to the 61st day, or that trustees (whose
appoint-
reasonably delayed,'" 476 U. S., at 260, n. 7 (quoting 5 U. S.
C. § 706(1)). The companies assert that no such remedy would have
applied to the Commissioner's duty under § 9706(a). Whether or not
this is the case, the companies do not argue that they were
aggrieved by the failure to assign retirees by the statutory date.
On the contrary, they temporarily avoided payment of premium
amounts for which they would indisputably have been liable had the
assignments been timely made. It therefore does not appear that
there was a need to provide operators "with any remedy at all-much
less the drastic remedy respondent[s] see[k] in this case-for the
[Commissioner's] failure to meet the [October 1, 1993] deadline."
476 U. S., at 260, n. 7.
162
ments could properly have been left to the 60th day) were
powerless to divulge information to the SSA after the 60-day period
had expired.8
8 JUSTICE SCALIA concedes that his theory should not extend so
far as to limit the UMWA Pension Plan's duty to transfer funds to
the Combined Fund to the particular dates in § 9705(a)(I). JUSTICE
SCALIA attempts to avoid such an outcome by assuming, without
basis, that the "UMWA Pension Plan has the power to transfer funds"
to the Combined Fund in the absence of the authorization in §
9705(a)(I).
Post, at 176 (dissenting opinion). JUSTICE
SCALIA'S confidence is misplaced. Prior to the Coal Act's
enactment, the Vice Chairman of the Secretary of Labor's Coal
Commission testified before Congress that legislative authorization
was needed for such a transfer to occur: "One of the things that
concerned the Commission was, first of all, our understanding of
the present state of law under the Employee Retirement Income
Security Act. Under that Act it is not within the power of any of
the participants or signatories to transfer a pension surplus to a
benefit fund. That is one of the reasons for the recommendation
that a transfer be authorized." Hearing before the Subcommittee on
Medicare and Long-Term Care of the Senate Committee on Finance,
102d Cong., 1st Sess., 13 (1991) (statement of Coal Commission Vice
Chairman Perritt). It appears, then, that § 9705(a)(I) provides
both the UMWA Pension Plan's power to act and a time limit, which
according to JUSTICE SCALIA would render action on any other date
ultra vires, a result that even the dissent does not embrace.
JUSTICE SCALIA thinks it "debatable" that the power to appoint
initial trustees survives the deadline in § 9702(a)(I).
Post, at 177. In order to avoid the embarrassment of
concluding that tardiness would remove all authority to appoint the
initial trustees, which would render the Act a dead letter, he
suggests that an initial trustee could be appointed under §
9702(b)(2), even though that provision applies only to appointment
of a "successor trustee" to be made "in the same manner as the
trustee being succeeded," whereas an initial trustee does not
"succeed" anyone. The extreme implausibility of JUSTICE SCALIA'S
suggested reading of § 9702(b)(2) points up the unreasonableness of
placing a jurisdictional gloss on the § 9706(a) time limitation. It
is impossible to believe that Congress meant its Herculean effort
to resolve the coal industry benefit crisis to come to absolutely
nothing if trustees were designated late.
There is a basic lesson to be learned from JUSTICE SCALIA'S
contortions to avoid the untoward results flowing from his
formalistic theory that time limits on mandatory official action
are always jurisdictional when they
163
In each of these instances, we draw a conclusion on grounds of
plausibility: if Congress had meant to set a counterintuitive limit
on authority to act, it would have said more than it did, and would
surely not have couched its intent in language
Brock had
already held to lack any clear jurisdictional significance. The
same may be said here.
B
Nor do we think the result of appealing to plausibility is
affected by either of two other textual features that the companies
take as indicating inability to assign beneficiaries after the
statutory date: the provision for unassigned beneficiary status
itself, and the provision that an operator's contribution for the
benefit of the unassigned shall be calculated "on the basis of
assignments as of October 1, 1993." §§ 9704(f)(1), (2).
1
The companies characterize the provision for unassigned
beneficiaries as the specification of a "consequence" for failure
to assign a beneficiary to an operator or related person. Cf.
Brock, 476 U. S., at 259. Specifying this consequence of
failure, they say, shows that the failure must be governed by the
consequence provided, not corrected by a tardy assignment
corresponding to one that should have been made earlier. The
specified consequence, in other words, reflects a legislative
preference for finality over accurate initial assignments and
creates a right on the part of the companies to rely permanently on
the state of affairs as they were on October 1, 1993. We think this
line of reasoning is unsound at every step.
To begin with, whatever might be inferable from the fact that a
specific provision addressed the failure to make a
occur in an authorizing provision. The lesson is that something
is very wrong with the theory.
164
timely assignment, the part of the Act referring to "unassigned"
beneficiaries is not any such provision. The Act speaks of the
beneficiaries not in terms of the Commissioner's failure to assign
them in time, but simply as "beneficiaries who are not assigned." §
9704(d). The most obvious reason for beneficiaries' being
unassigned, in fact, is the disappearance of a beneficiary's former
employer, leaving no signatory operator for assignment under §
9706(a). This is not to say that failure of timely assignment does
not also leave a beneficiary "unassigned" under the Act. It simply
means that unassigned status has no significance peculiar to
failure of timely assignment.
Second, to the extent that "unassigned" status is a consequence
of mere untimeliness, there would be a far more obvious reason for
specifying that consequence than a supposed desire for finality.9
On its face, the provision for a beneficiary left out through
tardiness functions simply as a default rule to provide coverage
under the new regime required to be in place by October 1, 1993;
there had to be some source of funding for every beneficiary by
then, and provisions for the "unassigned" employees tell the SSA
what the source will be in the absence of any other. But we do not
read a provision apparently made for want of something better as an
absolute command to forgo something better for all time.
In fact, it is unrealistic to think that Congress understood
unassigned status as an enduring "consequence" of uncompleted work,
for nothing indicates that Congress even foresaw that some
beneficiaries matchable with operators still in
9 Many "consequences," of course, are intended to induce an
obligated person to take untimely action rather than bar that
action altogether. Section 9704(i)(1)(C), for example, denies
certain tax deductions to operators who fail to make contributions
during specified periods, and § 9707(a) provides a penalty for
operators who fail to pay premiums on time. The first consequence
is eliminated when the operator takes action that is necessarily
untimely, and the second penalty ceases to run when the premiums
are paid, albeit out of time.
165
business might not be assigned before October 1, 1993. As the
companies themselves point out, the Commissioner led Congress to
believe as late as 1995 that all possible assignments had been made
on time, see n. 3,
supra, and such little legislative
history as there is on the point tends to show that Congress
assumed that any assignments that could be made at all (say, to an
operator still in business) would be made on time. On October 8,
1992, on the heels of the Conference Committee Report on the Act
and just before the vote in the Senate adopting the Act, Senator
Wallop gave a detailed explanation of the Coal Act's provisions for
unassigned beneficiaries, which assumed that the "unassigned" would
be true orphans:
"As a practical matter, not all beneficiaries can be assigned to
a specific last signatory operator, related person or assigned
operator for payment purposes. This is because in some instances,
none of those persons remain in business, even as defined to
include non-mining related businesses. Thus, provisions are made
for unassigned beneficiary premiums." 138 Congo Rec. 34003
(1992).
The Senator's report says that the transfer to the Combined Fund
from the UMW A Pension Plan and AML Fund would be made because
"unassigned beneficiaries were not employed by the assigned
operators at the time of their retirement .... [I]f no operator
remains in business under the formulations described above, that
retiree becomes an unassigned beneficiary .... [The Coal Act's]
purpose is to assure that any beneficiary, once assigned, remains
the responsibility of a particular operator, and that the number of
unassigned beneficiaries is kept to an absolute minimum."
Ibid.lO It seems not to have crossed Congress's mind
that
10 Postenactment statements, though entitled to less weight, are
to the same effect. At a hearing before the House Committee of Ways
and Means on September 9, 1993, one member asked whether SSA had
estab-
166
the category of the "unassigned" would include beneficiaries,
let alone a lot of beneficiaries, who could be connected with an
operator, albeit late. Providing a consequence of default was
apparently just happenstance.ll
Congress plainly did, however, weigh finality on October 1,
1993, against accuracy of initial assignments in one circumstance,
and accuracy won. Section 9704(d) speaks of "beneficiaries who are
not assigned ... for [any] plan year," sug-
lished procedures "to assure that beneficiaries are not
improperly designated as unassigned." The Acting Commissioner of
Social Security responded that employee training "emphasized that
the intent of the Coal Act was to assign miners to mine operators
if at all possible." 1993 Coal Act Hearing 46 (statements of Rep.
Johnson and Acting Commissioner Thompson). The record of the
hearing also contains a statement by the committee chairman that
the Act required operators to "pay for their own retirees, and to
assume a proportionate share of the liability for true 'orphans'
-retirees whose companies are no longer in existence and cannot pay
for the benefits."
Id., at 85. At no point did any witness
suggest that the unassigned beneficiary system was intended for
miners who could be assigned but were not assigned before October
1, 1993, or that such miners would remain unassigned in perpetuity
in order to protect the status quo on that date.
n The respondent companies cite a postenactment statement by
Representative Johnson that Congress had an obligation to "make
sure that companies ... have time to figure out their liability and
prepare to deal with it."
Id., at 42. The Representative's
comment did not purport to interpret the Coal Act as adopted,
however, but was made in discussing whether "there should be some
resolution passed" to give coal operators more time to prepare for
their Coal Act obligations.
Ibid.
One statement in Senator Wallop's pre enactment report, which
the companies do not cite, indicates an understanding that
assignments would be fixed after October 1, 1993. See 138 Congo
Rec. 34003 (1992) ("[T]he percentage of the unassigned beneficiary
premiums allocable to each assigned operator on October 1, 1993
will remain fixed in future years"). As discussed, however, there
is no indication that Congress foresaw that the Commissioner would
be unable to complete assignments by the statutory date. A general
statement made on the assumption that all assignments that could
ever be made would be made before October 1, 1993, does not show a
legislative preference for finality over accuracy now that that
assumption has proven incorrect.
167
gesting that assignment status may change from year to year. One
way it may change is by correcting an erroneous assignment. Under
the Act, an operator getting notice of an assignment has 30 days to
request information regarding the basis of the assignment and then
30 days from receipt of that information to ask for
reconsideration. §§ 9706(f)(1)(2). If the Commissioner finds error,
the Combined Fund trustees will fix it by reducing premiums and
refunding any overpayments. § 9706(f)(3)(A)(i); see also §
9706(f)(3)(A)(ii). Nothing is said about finality on October 1,
1993, and no time limit whatever is imposed on the Commissioner's
authority to reassign. The companies concede, as they must, that
the statute permits reassignment after October 1, 1993.
The companies do, however, try to limit the apparent preference
for accuracy by arguing that one feature of this provision for
reconsideration in § 9706(f) implicitly supports them; this
specific and isolated exception to an otherwise unequivocal bar to
assignments after the statutory date suggests, they say, that the
bar is otherwise absolute. Again, we think no such conclusion
follows.
First, the argument is circular; it assumes that the
availability of the § 9706(f) reconsideration process with no time
limit is an exception to a bar on all assignment activity imposed
by the October 1, 1993, time limit of § 9706(a). But the question,
after all, is whether the October 1, 1993, mandate is in fact a
bar. Section 9706(f) does not say it is, and nothing in that
provision suggests it was enacted as an exception to the October 1,
1993, date. It has no language about operating notwithstanding the
date specified in § 9706(a); on the contrary, it states that
reassignment will be made "under subsection (a)," §
9706(f)(3)(A)(ii). But if the authority to reassign is contained in
§ 9706(a), then § 9706(f) is reasonably read not as lifting a
jurisdictional time bar but simply as specifying a procedure for an
aggrieved operator to follow in requesting the Commissioner to
exercise the assignment power contained in § 9706(a) all along. In
the com-
168
bined operation of the two subsections, there is thus no
implication that the Commissioner is powerless to make an initial
assignment to an operator after the specified date; any suggestion
goes the other way.
Second, there is no reason to read the provision in § 9706(f)
for correction of erroneous assignments as implying that the
Commissioner should not employ her § 9706(a) authority to make a
tardy initial assignment in a situation like this. We do not read
the enumeration of one case to exclude another unless it is fair to
suppose that Congress considered the unnamed possibility and meant
to say no to it.
United Dominion Industries, Inc. v.
United States, 532 U. S. 822, 836
(2001). As we have held repeatedly, the canon
expressio unius
est exclusio alterius does not apply to every statutory listing
or grouping; it has force only when the items expressed are members
of an "associated group or series," justifying the inference that
items not mentioned were excluded by deliberate choice, not
inadvertence.
United States v.
Vonn, 535 U. S. 55, 65 (2002).
We explained this point as recently as last Term's unanimous
opinion in
Chevron U. S.
A. Inc. v.
Echazabal,
536 U. S. 73, 81
(2002):
"Just as statutory language suggesting exclusiveness is missing,
so is that essential extrastatutory ingredient of an
expression-exclusion demonstration, the series of terms from which
an omission bespeaks a negative implication. The canon depends on
identifying a series of two or more terms or things that should be
understood to go hand in hand, which [is] abridged in circumstances
supporting a sensible inference that the term left out must have
been meant to be excluded. E. Crawford, Construction of Statutes
337 (1940) (expressio unius '''properly applies only when in
the natural association of ideas in the mind of the reader that
which is expressed is so set over by way of strong contrast to that
which is omitted that the contrast enforces the affirmative
inference'" (quoting State ex rel. Curtis v. De
Corps,
169
134 Ohio St. 295, 299, 16 N. E. 2d 459, 462 (1938))); United
States v. Vonn, supra."
As in
Echazabal, respondents here fail to show any reason
that Congress would have considered reassignments after appeal "to
go hand in hand" with tardy initial assignments. Since Congress
apparently never thought that initial assignments would be late,
see
supra, at 164-167, the better inference is that what we
face here is nothing more than a case unprovided for.12
12 There is, of course, no "'case unprovided for' exception" to
the
expressio unius canon,
post, at 181 (SCALIA, J.,
dissenting). It is merely that the canon does not tell us that a
case was provided for by negative implication unless an item
unmentioned would normally be associated with items listed.
The companies emphasize that § 9704(f)(2)(B) requires that
beneficiaries whose operator goes out of business must be treated
as unassigned and cannot be reassigned. Even assuming that a
provision that goes to the definition of "applicable percentage"
and does not directly implicate assignments has the effect the
companies suggest, the most that could be said is that Congress
wished to identify the first, most responsible operator for a given
retiree, and not to follow that with a second assignment to a less
responsible operator if the initial assigned operator left the
business. This interest does not indicate an object of
date-specific finality over accuracy in the first assignment; on
the contrary, it opts for finality only once an accurate initial
assignment has been made. In the absence of a more exact
explanation for this arrangement, we suppose the explanation is
good political horse trading. But provisions that by their terms
govern after the initial assignment is made tell us nothing about
the period in which an initial assignment may be made. In fact, the
permissibility under § 9706(f) of postappeal reassignment after
October 1, 1993, makes plain that Congress was not "insisting upon
as perfect a matchup as possible
up to October 1,1993, and
then prohibiting future changes, both by way of initial assignment
or otherwise,"
post, at 183 (SCALIA, J., dissenting), as
JUSTICE SCALIA himself agrees. On the contrary, the reassignment
provision indicates that a system of accuracy "in
initial
assignments, whether made
before the deadline
or
afterward," is precisely what the Act envisions.
Ibid.
Here, as throughout this opinion, "accuracy" refers not to an
elusive system of "perfect fairness,"
ibid., but to
assignments by the Commissioner following the scheme set out in §§
9706(a)(I)-(3).
170
The remaining textual argument for the companies' side rests on
the definition of an operator's "applicable percentage" of the
overall obligation of all assignee operators (or related persons)
to fund benefits for the unassigned. Under § 9704(f)(1), it is
defined as the percentage of the operator's own assigned
beneficiaries among all assigned beneficiaries "determined on the
basis of assignments as of October 1, 1993" (parenthesis omitted).
The companies argue that the specification "as of" October 1, 1993,
means that an assigned operator's percentage of potential liability
for the benefit of the unassigned is fixed according to the
assignments made at that date, subject only to specific exceptions
set out in § 9704(f)(2), requiring a change in the percentage when
erroneously assigned retirees are reassigned or assignee operators
go out of business. The companies contend that their position rests
on plain meaning: "as of" the date means "as assignments actually
stand" on the date. Yet the words "as of," as used in the statute,
can be read another way: since Congress required that all possible
assignments be complete on October 1, 1993, see § 9706(a), it is
equally fair to read assignments "as of" that date to mean
"assignments as they shall be on that date, assuming the
Commissioner complies with our command." The companies' reading is
hospitable to early finality of assignments, while the alternative
favors completeness and accuracy before finality prevails.
Once it is seen that there is no "plain" reading, however, there
is nothing left of the "as of" argument except its stress that the
applicable percentage can be modified only in accordance with the
two exceptions recognizing changes for initial error or the demise
of an assignee operator. The answer to this point, of course, has
already been given. The enunciation of two exceptions does not
imply an exclusion of a third unless there is reason to think the
third was at least considered, whereas there is good reason to
conclude that when Congress adopted the language in question it did
not
171
foresee a failure to make timely assignments. See
supra,
at 168-169. The phrase "as of" cannot be read to govern a situation
that Congress clearly did not contemplate,13 nor does it require
the absolute finality of assignments urged by the companies.
IV
This much is certain: the Coal Act rests on Congress's stated
finding that it was necessary to "identify persons most responsible
for plan liabilities," and on its express desire to "provide for
the continuation of a privately financed selfsufficient program for
the delivery of health care benefits," Energy Policy Act of 1992,
Pub. L. 102-486, § 19142, 106 Stat. 3037.14 In the words of Senator
Wallop's report delivered shortly before enactment, the statute is
"designed to allocate the greatest number of beneficiaries in the
Plans to a prior
13 The same may be said of the provision for an initial trustee
to serve until November 1, 1993, § 9702(b)(3)(B), contrary to
JUSTICE SCALIA'S view.
Post, at 182 (dissenting
opinion).
14 Under the respondent companies' view, if the transfers from
the AML Fund prove insufficient to cover the benefits of all
unassigned beneficiaries, an operator that received no assignments
prior to October 1, 1993, would not have to contribute a penny to
the unassigned beneficiary poolsolely due to the Commissioner's
fortuitous failure to make all assignments by the statutory
deadline. At the same time, operators that received full
assignments prior to October 1, 1993, would be forced to cover more
than their fair share of unassigned beneficiaries' premiums.
Although JUSTICE SCALIA sees the Act as rife with "seemingly
unfair and inequitable provisions," ibid. (dissenting opinion),
even his view is no reason to assume that Congress meant contested
provisions to be construed in the most unfair and inequitable
manner possible. In any event, JUSTICE SCALIA'S citation of §
9704(f)(2)(B) does not help his position. It provides a clear
statutory solution to a problem Congress anticipated: the end of an
assigned operator's business. Had Congress propounded a response to
the issue now before us as clear as § 9704(f)(2)(B), there would
doubtless have been no split in the Courts of Appeals and no cases
for us to review. Given the absence of an express provision, the
statute's goals are best served by treating operators the way
Congress intended them to be treated, that is, by allowing the
Commissioner to identify the operators most responsible.
172
responsible operator. For this reason, definitions are intended
by the drafters to be given broad interpretation to accomplish this
goal." 138 Congo Rec. 34001 (1992).15 To accept the companies'
argument that the specified date for action is jurisdictional would
be to read the Act so as to allocate not the greatest, but the
least, number of beneficiaries to a responsible operator. The way
to reach the congressional objective, however, is to read the
statutory date as a spur to prompt action, not as a bar to tardy
completion of the business of ensuring that benefits are funded, as
much as possible, by those identified by Congress as principally
responsible.
The judgments of the Court of Appeals in both cases are
accordingly
Reversed.
JUSTICE SCALIA, with whom JUSTICE O'CONNOR and JUSTICE THOMAS
join, dissenting.
The Court's holding today confers upon the Commissioner of
Social Security an unexpiring power to assign retired coal miners
to signatory operators under 26 U. S. C. § 9706(a). In my view,
this disposition is irreconcilable with the text and structure of
the Coal Industry Retiree Health Benefit Act of 1992 (Coal Act or
Act), and finds no support in our precedents. I respectfully
dissent.
I
The respondents contend that the Commissioner improperly
assigned them responsibility for 600 coal miners under § 9706(a).
Section 9706(a) provides, in pertinent part:
15 A Congressional Research Service report dated shortly before
the enactment likewise states that the Act envisioned that
"[w]herever possible, responsibility for individual beneficiaries
would be assigned ... to a previous employer still in business."
Coal Industry: Use of Abandoned Mine Reclamation Fund Monies for
UMWA "Orphan Retiree" Health Benefits (Sept. 10, 1992), reprinted
in 138 Congo Rec., at 34005.
173
"[T]he Commissioner of Social Security shall, before October 1,
1993, assign each coal industry retiree who is an eligible
beneficiary to a signatory operator which (or any related person
with respect to which) remains in business in the following
order:
"(1) First, to the signatory operator which-
"(A) was a signatory to the 1978 coal wage agreement or any
subsequent coal wage agreement, and
"(B) was the most recent signatory operator to employ the coal
industry retiree in the coal industry for at least 2 years.
"(2) Second, if the retiree is not assigned under paragraph (1),
to the signatory operator which-
"(A) was a signatory to the 1978 coal wage agreement or any
subsequent coal wage agreement, and
"(B) was the most recent signatory operator to employ the coal
industry retiree in the coal industry.
"(3) Third, if the retiree is not assigned under paragraph (1)
or (2), to the signatory operator which employed the coal industry
retiree in the coal industry for a longer period of time than any
other signatory operator prior to the effective date of the 1978
coal wage agreement."
The Commissioner failed to complete the task of assigning each
eligible beneficiary to a signatory operator before October 1,
1993. As a result, many eligible beneficiaries were "unassigned,"
and their benefits were financed, for a time, by the United Mine
Workers of America 1950 Pension Plan (UMW A Pension Plan) and the
Abandoned Mine Land Reclamation Fund. See §§ 9705(a)(3)(B),
9705(b)(2).
The Commissioner blames her failure to meet the statutory
deadline on the "magnitude of the task" and the lack of
appropriated funds. Brief for Petitioners Trustees of the UMW A
Combined Benefit Fund 15. It should not be thought, however, that
these cases are about letting the
174
Commissioner complete a little unfinished business that barely
missed the deadline. They concern some 600 postOctober 1, 1993,
assignments to these respondents, the vast majority of which were
made between 1995 and 1997,
years after the statutory
deadline had passed. App. 98-121. Respondents contend that these
assignments are unlawful, and unless Congress has conferred upon
the Commissioner the power that she claims-an
unexpiring
authority to assign eligible beneficiaries to signatory
operators-the respondents must prevail. Section 9706(a) does not
provide such an expansive power, and the other provisions of the
Act confirm this.
II
It is well established that an agency's power to regulate
private entities must be grounded in a statutory grant of authority
from Congress. See
FDA v.
Brown &
Williamson
Tobacco Corp., 529 U. S. 120, 161
(2000);
Bowen v.
Georgetown Univ. Hospital, 488 U. S. 204, 208
(1988);
Louisiana Pub. Servo Comm'n v.
FCC, 476 U. S. 355, 374
(1986). This principle has special importance with respect to the
extraordinary power the Commissioner asserts here: to compel coal
companies to pay miners (and their families) health benefits that
they never contracted to pay. We have held that the Commissioner's
use of this power under § 9706(a), even when exercised before
October 1, 1993, violates the Constitution to the extent it imposes
severe retroactive liability on certain coal companies. See
Eastern Enterprises v.
Apfel, 524 U. S. 498 (1998).
When an agency exercises a power that so tests constitutional
limits, we have all the more obligation to assure that it is rooted
in the text of a statute.
The Court holds that the Commissioner retains the power to act
after October 1, 1993, because Congress did not" 'specify a
consequence for noncompliance'" with the statutory deadline.
Ante, at 159. This makes no sense. When a power is conferred
for a limited time, the
automatic consequence of the
expiration of that time is the expiration of the
175
power. If a landowner authorizes someone to cut Christmas trees
"before December 15," there is no doubt what happens when December
15 passes: The authority to cut terminates. And the situation is
not changed when the authorization is combined with a mandate-as
when the landowner enters a contract which says that the other
party "shall cut all Christmas trees on the property before
December 15." Even if time were not of the essence of that contract
(as it
is of the essence of § 9706(a), for reasons I shall
discuss in Part III,
infra) no one would think that the
contractor had continuing authority-not just for a few more days or
weeks-but perpetually, to harvest trees.1
The Court points out,
ante, at 161-162, that three other
provisions of the Coal Act combine the word "shall" with a
statutory deadline that in its view
is extendible:
(1) Section 9705(a)(1)(A) states that the UMWA Pension Plan
"shall transfer to the Combined Fund ... $70,000,000 on February 1,
1993";
(2) § 9704(h) says the trustees for the Combined Fund "shall,
not later than 60 days" after the enactment date,
1 This interpretation of § 9706(a) does not "assum[e] away the
very question to be decided," as the Court accuses,
ante, at
159, n. 6. It is no assumption at all, but rather the consequence
of the proposition that the scope of an agency's power is
determined by the text of the statutory grant of authority. Because
§ 9706(a)'s power to "assign ... eligible beneficiar[ies]" is
prefaced by the phrase "before October 1, 1993," the
statutory date is intertwined with the grant of authority; it is
part of the very definition of the Commissioner's power. If the
statute provided that the Commissioner "shall, on or after October
1, 1993," assign each eligible beneficiary to a signatory operator,
it would surely be beyond dispute that pre-October 1, 1993,
assignments were ineffective. No different conclusion should obtain
here, where the temporal scope of the Commissioner's authority is
likewise defined according to a clear and unambiguous date. If this
is (as the Court charges) "formalism," ibid., it is only because
language is a matter of form. Here the form that Congress chose
presumptively represents the political compromise that Congress
arrived at.
176
furnish certain information regarding benefits to the
Commissioner; and
(3) § 9702(a)(1) provides that certain individuals described in
§ 9702(b)(1) "shall designate" the trustees for the Combined Fund
"not later than 60 days ... after the enactment date."
I agree that the actions mandated by the first two of these
deadlines can be taken after the deadlines have expired (though
perhaps not
forever after, which is what the Court claims
for the deadline of § 9706(a)). The reason that is so, however,
does not at all apply to § 9706(a). In those provisions,
the
power to do what is mandated does not stem from the mere
implication of the mandate itself The private entities involved
have the power to do what is prescribed, quite apart from the
statutory command that they do it by a certain date: The UMW A
Pension Plan has the power to transfer funds,2 and the trustees of
the Combined Fund have the power to provide the specified
information, whether the statute commands that they do so or not.
The only question
2 Private entities, unlike administrative agencies, do not need
authorization from Congress in order to act-they have the power to
take all action within the scope of their charter, unless and until
the law forbids it. The Court suggests that the Employee Retirement
Income Security Act of 1974 (ERISA) may actually forbid the UMWA
Pension Plan from transferring its pension surplus to the benefit
fund.
Ante, at 162-163, n. 8. But if this is true, that does
not convert § 9705(a)(1) into a power-conferring statutory
provision in the mold of § 9706(a). It instead means that the UMWA
Pension Plan is subject to contradictory statutory mandates, and
the relevant question becomes whether, and to what extent, §
9705(a)(1) implicitly repealed the provisions of ERISA as applied
to the UMWA Pension Plan. Resolving that question would be no small
task, given our disinclination to find implied repeals, see
Morton v.
Mancari, 417 U. S. 535, 551
(1974), and I will not speculate on it. Instead, I am content to go
along with the Court's assumption that nothing in § 9705(a)(1), or
in the rest of the Coal Act, prevents the UMWA Pension Plan from
transferring money to the Combined Fund after the statutory
deadline, and to emphasize that nothing in this concession lends
support to the Court's interpretation of § 9706(a).
177
is whether the
late exercise of an unquestionably
authorized act will produce the consequences that the statute says
will follow from a
timely exercise of that act. It is as
though, to pursue the tree-harvesting analogy, a contract provided
that the
landowner will harvest and deliver trees by
December 15; even after December 15 passes, he can surely harvest
and deliver trees, and the only issue is whether the December 15
date is so central to the contract that late delivery does not have
the contractual consequence of requiring the other side's
counterperformance. The Commissioner of Social Security, by
contrast, being not a private entity but a creature of Congress,
has
no authority to assign beneficiaries to operators except
insofar as such authority is implicit in the mandate; but the
mandate (and hence the implicit authority) expired on October 1,
1993.
The last of these three provisions
does confer a power
that is not otherwise available to the private entities involved:
the power to appoint initial trustees to the board of the Combined
Fund. I do not, however, think it as clear as the Court
does-indeed, I think it quite debatable-whether that power survives
the deadline. If it be thought utterly essential that all the
trustees be in place, it seems to me just as reasonable to
interpret the provision for appointment of successor trustees (§
9702(b)(2)) to include the power to fill vacancies arising from
initial failure to appoint, as to interpret the initial appointment
power to extend beyond its specified termination date. The
provision surely does not establish the Court's proposition that
time-limited mandates include continuing authority.
III
None of the cases on which the Court relies is even remotely in
point. In
Brock v.
Pierce County, 476 U. S. 253 (1986), the
agency action in question was authorized by an explicit statutory
grant of authority, separate and apart from the provision that
contained the time-limited mandate.
178
Title 29 U. S. C. § 816(d)(1) (1976 ed., Supp. V) (now repealed)
gave the Secretary of Labor "authority to ... order such sanctions
or corrective actions as are appropriate."
Another provision
of the statute, former § 816(b), required the Secretary, when
investigating a complaint that a recipient is misusing funds, to
"make the final determination ... regarding the truth of the
allegation ... not later than 120 days after receiving the
complaint." We held that the Secretary's failure to meet the
120-day deadline did not prevent him from ordering repayment of
misspent funds. Respondent had not, we said, shown anything that
caused the Secretary to
"lose its power to act," 476 U. S.,
at 260 (emphasis added). Here, by contrast, the Commissioner
never had power to act apart from the mandate, which expired
after October 1, 1993.
In
United States v.
James Daniel Good Real Property,
510 U. S. 43 (1993), federal statutes authorized the Government
to bring a forfeiture action within a 5-year limitation period. 21
U. S. C. § 881(a)(7); 19 U. S. C. § 1621. We held that that power
was not revoked by the Government's failure to comply with some of
the separate "internal timing requirements" set forth in §§
1602-1604. Because those provisions failed to specify a consequence
for noncompliance, we refused to "impose [our] own coercive
sanction" of terminating the Government's authority to bring a
forfeiture action.
James Daniel Good, supra, at 63. The
authorization
separate from the defaulted obligation was not
affected. There is no authorization separate from the defaulted
obligation here.
In
United States v.
Montalvo-Murillo, 495 U. S. 711 (1990), the
statute at issue, 18 U. S. C. § 3142(e), gave courts power to order
pretrial detention "after a hearing pursuant to the provisions of
subsection (f) of this section." One of those provisions was that
the hearing "shall be held immediately upon the person's first
appearance before the judicial officer .... " § 3142(f). The court
had failed to hold a hearing immediately upon the respondent's
first appearance, yet
179
we held that the authority to order pretrial detention was
unaffected. As we explained: "It is conceivable that some
combination of procedural irregularities
could render a
detention hearing so flawed that it would
not constitute 'a
hearing pursuant to the provisions of subsection (f)' for purposes
of § 3142(e)," 495 U. S., at 717 (emphasis added), but the mere
failure to comply with the first-appearance requirement did not
alone have that effect. Once again, the case holds that an
authorization
separate from the defaulted obligation is not
affected; and there is no authorization separate from the defaulted
obligation here.
The contrast between these cases and the present ones
demonstrates why the Court's extended discussion of whether
Congress specified consequences for the Commissioner's failure to
comply with the October 1 deadline,
ante, at 163-164, is
quite beside the point. A specification of termination of authority
may be needed where there is a separate authorization to be
canceled; it is utterly superfluous where the only authorization is
contained in the time-limited mandate that has expired.
IV
That the Commissioner lacks authority to assign eligible
beneficiaries after the statutory deadline is confirmed by other
provisions of the Coal Act that are otherwise rendered
incoherent.
A
The calculation of "death benefit premiums" and "unassigned
beneficiaries premiums" owed by coal operators is based on an
assigned operator's "applicable percentage," which is defined in §
9704(f) as "the percentage determined by dividing the number of
eligible beneficiaries assigned under section 9706 to such operator
by the total number of eligible beneficiaries assigned under
section 9706 to all such operators
(determined on the basis of
assignments as of October 1, 1993)." (Emphasis added.) The
statute specifies
180
only two circumstances in which adjustments may be made to an
assigned operator's "applicable percentage": (1) when changes to
the assignments "as of October 1, 1993," result from the appeals
process set out in § 9706(f), see § 9704(f)(2)(A); and (2) when an
assigned operator goes out of business, see § 9704(f)(2)(B).
No provision allows adjustments to account for post-October
1, 1993, initial assignments. This is perfectly consistent with the
view that the § 9706(a) power to assign does not extend beyond
October 1, 1993; it is incompatible with the Court's holding to the
contrary.
The Court's response to this structural dilemma is nothing short
of astonishing. The Court concludes that the applicable percentage
based on assignments as of October 1, 1993,
may be adjusted
to account for the subsequent initial assignments, notwithstanding
the statutory
command that the applicable percentage be
determined "on the basis of assignments as of October 1, 1993," and
notwithstanding the statute's provision of two, and only two,
exceptions to this command that do not include post-October 1,
1993, initial assignments. "The enunciation of two exceptions," the
Court says, "does not imply an exclusion of a third unless there is
reason to think the third was at least considered."
Ante, at
170. Here, "[s]ince Congress apparently never thought that initial
assignments would be late, ... the better inference is that what we
face ... is nothing more than a case unprovided for."
Ante,
at 169 (referred to
ante, at 170-171). This is an unheard-of
limitation upon the accepted principle of construction
inclusio
unius, exclusio alterius. See,
e. g., O'Melveny &
Myers v.
FDIC, 512 U. S. 79, 86 (1994);
Leatherman v.
Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U. S. 163, 168
(1993). It is also an absurd limitation, since it means that the
more
unimaginable an unlisted item is, the more
likely it is
not to be excluded. Does this new maxim
mean, for example, that exceptions to the hearsay rule beyond those
set forth in the Federal Rules
181
of Evidence must be recognized if it is unlikely that Congress
(or perhaps the Rules committee) "considered" those unnamed
exceptions? Our cases do not support such a proposition. See,
e.
g., Williamson v.
United States, 512 U. S. 594 (1994);
United States v.
Salerno, 505 U. S. 317 (1992).3
There is no more reason to make a "case unprovided for" exception
to the clear import of an exclusive listing than there is to make
such an exception to any other clear textual disposition. In a way,
therefore, the Court's treatment of this issue has
ample
precedent-in those many wrongly decided cases that replace what the
legislature said with what courts think the legislature
would
have said (i.
e., in the judges' estimation
should
have said) if it had only "considered" unanticipated
consequences of what it
did say (of which the courts
disapprove). In any event, the relevant question here is not
whether § 9704(f)(2)
excludes other grounds for adjustments
to the applicable percentage, but rather whether anything in the
statute affirmatively
authorizes them. The answer to that
question is no-an answer that should not surprise the Court, given
its acknowledgment that Congress "did not foresee a failure to make
timely assignments."
Ante, at 170-171.
3 The most enduring consequence of today's opinion may well be
its gutting of the ancient canon of construction. It speaks volumes
about the dearth of precedent for the Court's position that the
principal case it relies upon,
ante, at 168-169, is
Chevron U. S.
A. Inc. v.
Echazabal, 536 U. S. 73 (2002). The
express language of the statute interpreted in that case
demonstrated that the single enumerated example of a "qualification
standard" was illustrative rather than exhaustive: "The term
'qualification standards'
may include a requirement that an
individual shall not pose any direct threat to the health or safety
of other individuals in the workplace." 42 U. S. C. § 12113(b)
(emphasis added). Little wonder that the Court did not find in that
text "an omission [that] bespeaks a negative implication," 536 U.
S., at 81. And of course the opinion said nothing about the
requirement (central to the Court's analysis today) that it be
"fair to suppose that Congress considered the unnamed possibility,"
ante, at 168.
182
B
Post-October 1, 1993, initial assignments can also not be
reconciled with the Coal Act's provisions regarding appointments to
the board of trustees. Section 9702(b)(1)(B) establishes for the
Combined Fund a board of seven members, one of whom is to be
"designated by the three employers ... who have been assigned the
greatest number of eligible beneficiaries under section 9706." The
Act provides for an "initial trustee" to fill this position pending
completion of the assignment process, but § 9702(b)(3)(B) permits
this initial trustee to serve only "until November 1, 1993." It is
evident, therefore, that the "three employers ... who have been
assigned the greatest number of eligible beneficiaries under
section
9706" must be known by November 1, 1993. It is
simply inconceivable that the three appointing employers were to be
unknown (and the post left unfilled) until the Commissioner
completes an open-ended assignment process-whenever that might be;
or that the designated trustee is constantly to change, as the
identity of the "three employers ... who have been assigned the
greatest number of eligible beneficiaries under section 9706"
constantly changes.
V
At bottom, the Court's reading of the Coal Act-its confident
filling in of provisions to cover "cases not provided for"-rests
upon its perception that the statute's overriding goal is accuracy
in assignments. That is a foundation of sand. The Coal Act is
demonstrably not a scheme that requires, or even attempts to
require, a perfect match between each beneficiary and the coal
operator most responsible for that beneficiary's health care. It
provides, at best, rough justice; seemingly unfair and inequitable
provisions abound.
When, for example, an operator goes out of business, §
9704(f)(2)(B) provides that beneficiaries previously assigned to
that operator must go into the unassigned pool for purposes of
calculating the "applicable percentage." It
183
makes no prOVISIOn for them to be reassigned to another
operator,
even if another operator might qualify under §§
9706(a)(1)-(3). That is hardly compatible with a scheme that is
keen on "accuracy of assignments," and that envisions perpetual
assignment authority in the Commissioner.
To account for the existence of § 9704(f)(2)(B), the Court
retreats to the more nuanced position that the Coal Act prefers
accuracy over finality only "in the first assignment,"
ante,
at 169, n. 12. Why it should have this strange preference for
perfection in virgin assignments is a mystery. One might understand
insisting upon as perfect a matchup as possible
up to
October 1, 1993, and then prohibiting future changes, both by
way of initial assignment or otherwise; that would assure an
initial system that is as near perfect as possible, but abstain
from future adjustments that upset expectations and render sales of
companies more difficult. But what is the conceivable reason for
insistence upon perfection in
initial assignments, whether
made
before the deadline
or afterward? 4 As it is,
however, the Act does
not insist upon accuracy in initial
assignments, not even in those made
before the deadline. For
each assigned beneficiary, only one signatory operator is held
responsible for health benefits,
even if that miner had
worked for other signatory operators that should in perfect
fairness share the responsibility.
The reality is that the Coal Act reflects a
compromise
between the goals of perfection in assignments and finality. It
provides
some accuracy in initial assignments along with
4 The Court points to § 9706(f)'s review process in support of
its view that the Coal Act envisions "accuracy 'in inital
assignments, whether made before the deadline or afterward.'''
Ante, at 169, n. 12 (emphasis deleted). In fact it shows the
opposite-reflecting the statute's
tradeoffs between the
competing objectives of accuracy in assignments and finality.
Sections 9706(f)(1) and (f)(2) provide time limits for coal
operators to request reconsideration by the Commissioner; errors
discovered after these time limits have passed are forever closed
from correction. (Unless, of course, the Court chooses, in the
interest of accuracy in assignments, to ignore those time limits,
just as it has ignored the time limit of § 9706(a).)
184
some repose to signatory operators, who are given full
notice of their obligations by October 1, 1993, and can plan their
business accordingly without the surprise of new (and retroactive)
liabilities imposed by the Commissioner. It is naive for the Court
to rely on guesses as to what Congress would have wanted in
legislation as complicated as this, the culmination of a long,
drawn-out legislative battle in which, as we put it in
Barnhart v.
Sigmon Coal Co., 534 U. S. 438, 461
(2002), "highly interested parties attempt[ed] to pull the
provisions in different directions." The best way to be faithful to
the resulting compromise is to follow the statute's text, as I have
done above-not to impute to Congress one statutory objective
favored by the majority of this Court at the expense of other,
equally plausible, statutory objectives.
***
I think it clear from the text of § 9706(a) and other provisions
of the Coal Act that the Commissioner lacks authority to assign
eligible beneficiaries to signatory operators on or after October
1, 1993. I respectfully dissent from the Court's judgment to the
contrary.
JUSTICE THOMAS, dissenting.
I fully agree with JUSTICE SCALIA'S analysis in these cases and,
accordingly, join his opinion. I write separately, however, to
reiterate a seemingly obvious rule: Unless Congress explicitly
states otherwise, "we construe a statutory term in accordance with
its ordinary or natural meaning."
FDIC v.
Meyer,
510 U. S. 471,
476 (1994). Thus, absent a congressional directive to the contrary,
"shall" must be construed as a mandatory command, see American
Heritage Dictionary 1598 (4th ed. 2000) (defining "shall" as (l)a.
"Something that will take place or exist in the future .... b.
Something, such as an order, promise, requirement, or obligation:
You shall leave now. He shall answer for his misdeeds. The
penalty shall not exceed two years in prison'~. If Congress
desires
185
for this Court to give "shall" a nonmandatory meaning, it must
say so explicitly by specifying the consequences for noncompliance
or explicitly defining the term "shall" to mean something other
than a mandatory directive. Indeed, Congress is perfectly free to
signify the hortatory nature of its wishes by choosing among a wide
array of words that do, in fact, carry such meaning; "should,"
"preferably," and "if possible" readily come to mind.
Given the foregoing, I disagree with
Brock v.
Pierce
County, 476 U. S.
253 (1986), and its progeny, to the extent they are taken,
perhaps erroneously, see
ante, at 177-179 (SCALIA, J.,
dissenting), to suggest that (1) "shall" is not mandatory and that
(2) a failure to specify a consequence for noncompliance preserves
the power to act in the face of such noncompliance, even where, as
here, the grant of authority to act is coterminous with the
mandatory command. I fail to see any reason for eviscerating the
clear meaning of "shall," other than the impermissible goal of
saving Congress from its own choices in the name of achieving
better policy. But Article III does not vest judges with the
authority to rectify those congressional decisions that we view as
imprudent.
I also note that, under the Court's current interpretive
approach, there is
no penalty at all for failing to comply
with a duty if Congress does not specify consequences for
noncompliance. The result is most irrational: If Congress indicates
a
lesser penalty for noncompliance (i.
e., less than
a loss of power to act), we will administer it; but if there is no
lesser penalty and "shall" stands on its own, we will let
government officials shirk their duty with impunity.
Rather than depriving the term "shall" of its ordinary meaning,
I would apply the term as a mandatory directive to the
Commissioner. The conclusion then is obvious: The Commissioner has
no power to make initial assignments after October 1, 1993.
Comments
Be the first to comment
Leave a Comment