                   CORRECTED OPINION

                         PUBLISHED

UNITED STATES COURT OF APPEALS
               FOR THE FOURTH CIRCUIT


A. T. MASSEY COAL COMPANY,            
INCORPORATED; ALOE ENERGY
CORPORATION; AMERICAN ELECTRIC
POWER COMPANY, INCORPORATED;
ANDALEX RESOURCES, INCORPORATED;
APOGEE COAL COMPANY; BELLAIRE
CORPORATION; BOLOGNA COAL
COMPANY; BUNCH CONSTRUCTION
COMPANY, INCORPORATED;
CANTERBURY COAL COMPANY;
CARBON INDUSTRIES, INCORPORATED;
CEDAR COAL COMPANY; CENTRAL
OHIO COAL COMPANY; CHARLES J.
MERLO, INCORPORATED; CLEVELAND-
CLIFFS, INCORPORATED; CLIFFS MINING
COMPANY; COMMERCIAL LAND                 No. 05-1996
COMPANY, INCORPORATED;
CONSOLIDATION COAL COMPANY;
CUMBERLAND RIVER COAL COMPANY;
DUKE ENERGY CORPORATION; EASTERN
ASSOCIATED COAL CORPORATION,
LLC; FREEMAN UNITED COAL MINING
COMPANY; G M & W COAL
COMPANY; GATEWAY COAL COMPANY;
GILBERT IMPORTED HARDWOODS,
INCORPORATED; HELVETIA COAL
COMPANY; HOBET MINING,
INCORPORATED; ISLAND CREEK COAL
COMPANY; JERICOL MINING,
INCORPORATED; KANAWHA COAL
COMPANY; KENTUCKY CARBON
                                      
2                MASSEY COAL CO. v. HOLLAND


CORPORATION; KEYSTONE COAL          
MINING CORPORATION; LAUREL RUN
MINING COMPANY; LYNN LAND
COMPANY; MAPLE MEADOW MINING
COMPANY; MARMON COAL COMPANY;
MASSEY COAL SERVICES,
INCORPORATED; MEADWESTVACO
CORPORATION; MUELLER INDUSTRIES,
INCORPORATED; NACCO INDUSTRIES,
INCORPORATED; NATIONAL BULK
CARRIERS, INCORPORATED; NELL-JEAN
INDUSTRIES, INCORPORATED; NEW
WARWICK MINING COMPANY; NORTH
CAMBRIA FUEL COMPANY,
INCORPORATED; OMAR MINING
COMPANY; PALMER COKING COMPANY;
PEABODY COAL COMPANY, LLC;
PEERLESS EAGLE COAL COMPANY;
PENN POCAHONTAS COAL COMPANY;       
PENNZOIL-QUAKER STATE COMPANY;
PERRY & HYLTON, INCORPORATED;
QUARTO MINING COMPANY; R&B
FALCON DRILLING (INTERNATIONAL &
DEEPWATER), INCORPORATED, LLC;
FOUNDATION AMERICAN COAL
COMPANY, LLC; RAWL SALES AND
PROCESSING COMPANY; RED ASH
SALES COMPANY, INCORPORATED;
ROCHESTER & PITTSBURGH COAL
COMPANY; RUHRKOHLE TRADING
CORPORATION; SAGINAW MINING
COMPANY; SHAWMUT DEVELOPMENT
CORPORATION; SHENANGO
INCORPORATED; SOUTHERN OHIO COAL
COMPANY; STELCO COAL COMPANY;
STELCO USA, INCORPORATED;
                                    
                 MASSEY COAL CO. v. HOLLAND   3


TENNESSEE CONSOLIDATED COAL         
COMPANY; TESONE LAND COMPANY;
THE VALLEY CAMP COAL COMPANY;
TURNER ELKHORN MINING COMPANY;
US NATURAL RESOURCES,
INCORPORATED; UNITED STATES FUEL
COMPANY; UNITED STATES STEEL
CORPORATION; WESTMORELAND COAL
COMPANY; WESTMORELAND COAL
SALES COMPANY; WHEELING-
PITTSBURGH STEEL CORPORATION;
WINDSOR COAL COMPANY; AK STEEL
CORPORATION; IKON OFFICE
SOLUTIONS, INCORPORATED, formerly
known as ALCO Standard
Corporation; ADAM EIDEMILLER,
INCORPORATED; ALEX E. PARIS
CONTRACTING COMPANY;                
APPALACHIAN CONSTRUCTION,
INCORPORATED; BEILCHICK BROTHERS;
BENTLEY DEVELOPMENT COMPANY,
INCORPORATED; BLUESTONE COAL
CORPORATION; BOLLMEIER
CONSTRUCTION COMPANY; C&A COAL
COMPANY, INCORPORATED; COAL
STATE CONSTRUCTION COMPANY;
CODELL CONSTRUCTION COMPANY;
DAVE HINKLE ELECTRIC,
INCORPORATED; ELGIN NATIONAL
INDUSTRIES, INCORPORATED; FERRELL
MINE SERVICE, INCORPORATED; FRANK
M. SHEESLEY COMPANY; GAL
CONSTRUCTION, INCORPORATED;
INSPIRATION COAL INCORPORATED;
MITTAL STEEL USA, INCORPORATED;
                                    
4                   MASSEY COAL CO. v. HOLLAND


STANDARD OIL COMPANY,                     
INCORPORATED; L & D,
INCORPORATED; LANDZENDORFER
TRUCKING, INCORPORATED; LONG
BRANCH DEVELOPMENT; LONG
BRANCH ENERGY; MENALLEN COKE
COMPANY OF NEW SALEM; METSO
MINERALS INDUSTRIES, INCORPORATED,
formerly known as Svedala
Industries, Incorporated; OHIO
AMCO, INCORPORATED; PARDEE COAL
COMPANY, INCORPORATED; RIDGE
LAND COMPANY, INCORPORATED; RUSH
RUN COAL COMPANY, INCORPORATED,
now known as Banner Coal & Land
Company; STEEL ERECTORS,
INCORPORATED; TERRA INDUSTRIES,
INCORPORATED; VECELLIO & GROGAN,          
INCORPORATED; WELDING
INCORPORATED; WEST VIRGINIA
ELECTRIC CORPORATION; F M C
CORPORATION; PENNSYLVANIA MINES,
LLC; CHISHOLM COAL COMPANY,
                  Plaintiffs-Appellees,
                 and
A. J. TAFT COAL COMPANY,
INCORPORATED; ALABAMA ELECTRIC
COOPERATIVE; BORTZ CORPORATION;
BUFFALO MINING COMPANY; COWIN &
COMPANY, INCORPORATED; DRUMMOND
COAL SALES, INCORPORATED; EASTERN
COAL CORPORATION; ELKAY MINING
COMPANY; JEWELL RIDGE COAL
                                          
                      MASSEY COAL CO. v. HOLLAND   5


CORPORATION; KENTLAND-ELKHORN          
COAL CORPORATION; MEADOW RIVER
COAL COMPANY; NORTH CAMBRIA,
INCORPORATED; ON MARINE SERVICES;
PITTSTON COAL GROUP,
INCORPORATED; RANGER FUEL
CORPORATION; REITZ COAL COMPANY;
SEA "B" MINING COMPANY; NORTH
AMERICAN COAL, INCORPORATED;
UNITED STATES STEEL MINING
CORPORATION, LLC; W-P COAL
COMPANY; CENTRAL CAMBRIA
DRILLING COMPANY; KERR-MCGEE
CHEMICAL WORLDWIDE LLC;
LATROBE CONSTRUCTION COMPANY;
CLINCHFIELD COAL COMPANY,
                         Plaintiffs,
                                       
                 v.
MICHAEL H. HOLLAND; WILLIAM P.
HOBGOOD; MARTY D. HUDSON;
THOMAS O. S. RAND; ELLIOT A.
SEGAL; CARL E. VAN HORN; GAIL R.
WILENSKY, as Trustees of the United
Mine Workers of America
Combined Benefit Fund,
             Defendants-Appellants,
                and
JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY,
                        Defendant.
                                       
6                 MASSEY COAL CO. v. HOLLAND


A. T. MASSEY COAL COMPANY,            
INCORPORATED; ALOE ENERGY
CORPORATION; AMERICAN ELECTRIC
POWER COMPANY, INCORPORATED;
ANDALEX RESOURCES, INCORPORATED;
APOGEE COAL COMPANY; BELLAIRE
CORPORATION; BOLOGNA COAL
COMPANY; BUNCH CONSTRUCTION
COMPANY, INCORPORATED;
CANTERBURY COAL COMPANY;
CARBON INDUSTRIES, INCORPORATED;
CEDAR COAL COMPANY; CENTRAL
OHIO COAL COMPANY; CHARLES J.
MERLO, INCORPORATED; CLEVELAND-
CLIFFS, INCORPORATED; CLIFFS MINING
COMPANY; COMMERCIAL LAND
COMPANY, INCORPORATED;                        No. 05-2215
CONSOLIDATION COAL COMPANY;
CUMBERLAND RIVER COAL COMPANY;
DUKE ENERGY CORPORATION; EASTERN
ASSOCIATED COAL CORPORATION,
LLC; FREEMAN UNITED COAL MINING
COMPANY; G M & W COAL
COMPANY; GATEWAY COAL COMPANY;
GILBERT IMPORTED HARDWOODS,
INCORPORATED; HELVETIA COAL
COMPANY; HOBET MINING,
INCORPORATED; ISLAND CREEK COAL
COMPANY; JERICOL MINING,
INCORPORATED; KANAWHA COAL
COMPANY; KENTUCKY CARBON
CORPORATION; KEYSTONE COAL
MINING CORPORATION; LAUREL RUN
                                      
                 MASSEY COAL CO. v. HOLLAND   7


MINING COMPANY; LYNN LAND           
COMPANY; MAPLE MEADOW MINING
COMPANY; MARMON COAL COMPANY;
MASSEY COAL SERVICES,
INCORPORATED; MEADWESTVACO
CORPORATION; MUELLER INDUSTRIES,
INCORPORATED; NACCO INDUSTRIES,
INCORPORATED; NATIONAL BULK
CARRIERS, INCORPORATED; NELL-JEAN
INDUSTRIES, INCORPORATED; NEW
WARWICK MINING COMPANY; NORTH
CAMBRIA FUEL COMPANY,
INCORPORATED; OMAR MINING
COMPANY; PALMER COKING COMPANY;
PEABODY COAL COMPANY, LLC;
PEERLESS EAGLE COAL COMPANY;
PENN POCAHONTAS COAL COMPANY;
PENNZOIL-QUAKER STATE COMPANY;      
PERRY & HYLTON, INCORPORATED;
QUARTO MINING COMPANY; R&B
FALCON DRILLING (INTERNATIONAL &
DEEPWATER), INCORPORATED, LLC;
FOUNDATION AMERICAN COAL
COMPANY, LLC; RAWL SALES AND
PROCESSING COMPANY; RED ASH
SALES COMPANY, INCORPORATED;
ROCHESTER & PITTSBURGH COAL
COMPANY; RUHRKOHLE TRADING
CORPORATION; SAGINAW MINING
COMPANY; SHAWMUT DEVELOPMENT
CORPORATION; SHENANGO
INCORPORATED; SOUTHERN OHIO COAL
COMPANY; STELCO COAL COMPANY;
STELCO USA, INCORPORATED;
                                    
8                MASSEY COAL CO. v. HOLLAND


TENNESSEE CONSOLIDATED COAL         
COMPANY; TESONE LAND COMPANY;
THE VALLEY CAMP COAL COMPANY;
TURNER ELKHORN MINING COMPANY;
US NATURAL RESOURCES,
INCORPORATED; UNITED STATES FUEL
COMPANY; UNITED STATES STEEL
CORPORATION; WESTMORELAND COAL
COMPANY; WESTMORELAND COAL
SALES COMPANY; WHEELING-
PITTSBURGH STEEL CORPORATION;
WINDSOR COAL COMPANY; AK STEEL
CORPORATION; IKON OFFICE
SOLUTIONS, INCORPORATED, formerly
known as ALCO Standard
Corporation; ADAM EIDEMILLER,
INCORPORATED; ALEX E. PARIS
CONTRACTING COMPANY;                
APPALACHIAN CONSTRUCTION,
INCORPORATED; BEILCHICK BROTHERS;
BENTLEY DEVELOPMENT COMPANY,
INCORPORATED; BLUESTONE COAL
CORPORATION; BOLLMEIER
CONSTRUCTION COMPANY; C&A COAL
COMPANY, INCORPORATED; COAL
STATE CONSTRUCTION COMPANY;
CODELL CONSTRUCTION COMPANY;
DAVE HINKLE ELECTRIC,
INCORPORATED; ELGIN NATIONAL
INDUSTRIES, INCORPORATED; FERRELL
MINE SERVICE, INCORPORATED; FRANK
M. SHEESLEY COMPANY; GAL
CONSTRUCTION, INCORPORATED;
INSPIRATION COAL INCORPORATED;
MITTAL STEEL USA, INCORPORATED;
                                    
                    MASSEY COAL CO. v. HOLLAND   9


STANDARD OIL COMPANY,                     
INCORPORATED; L & D,
INCORPORATED; LANDZENDORFER
TRUCKING, INCORPORATED; LONG
BRANCH DEVELOPMENT; LONG
BRANCH ENERGY; MENALLEN COKE
COMPANY OF NEW SALEM; METSO
MINERALS INDUSTRIES, INCORPORATED,
formerly known as Svedala
Industries, Incorporated; OHIO
AMCO, INCORPORATED; PARDEE COAL
COMPANY, INCORPORATED; RIDGE
LAND COMPANY, INCORPORATED; RUSH
RUN COAL COMPANY, INCORPORATED,
now known as Banner Coal & Land
Company; STEEL ERECTORS,
INCORPORATED; TERRA INDUSTRIES,
INCORPORATED; VECELLIO & GROGAN,          
INCORPORATED; WELDING
INCORPORATED; WEST VIRGINIA
ELECTRIC CORPORATION; F M C
CORPORATION; PENNSYLVANIA MINES,
LLC; CHISHOLM COAL COMPANY,
                  Plaintiffs-Appellees,
                 and
A. J. TAFT COAL COMPANY,
INCORPORATED; ALABAMA ELECTRIC
COOPERATIVE; BORTZ CORPORATION;
BUFFALO MINING COMPANY; COWIN &
COMPANY, INCORPORATED; DRUMMOND
COAL SALES, INCORPORATED; EASTERN
COAL CORPORATION; ELKAY MINING
COMPANY; JEWELL RIDGE COAL
                                          
10                    MASSEY COAL CO. v. HOLLAND


CORPORATION; KENTLAND-ELKHORN          
COAL CORPORATION; MEADOW RIVER
COAL COMPANY; NORTH CAMBRIA,
INCORPORATED; ON MARINE SERVICES;
PITTSTON COAL GROUP,
INCORPORATED; RANGER FUEL
CORPORATION; REITZ COAL COMPANY;
SEA "B" MINING COMPANY; NORTH
AMERICAN COAL, INCORPORATED;
UNITED STATES STEEL MINING
CORPORATION, LLC; W-P COAL
COMPANY; CENTRAL CAMBRIA
DRILLING COMPANY; KERR-MCGEE
CHEMICAL WORLDWIDE LLC;
LATROBE CONSTRUCTION COMPANY;
CLINCHFIELD COAL COMPANY,
                         Plaintiffs,
                                       
                 v.
JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY,
              Defendant-Appellant,
                and
MICHAEL H. HOLLAND; WILLIAM P.
HOBGOOD; MARTY D. HUDSON;
THOMAS O. S. RAND; ELLIOT A.
SEGAL; CARL E. VAN HORN; GAIL R.
WILENSKY, as Trustees of the United
Mine Workers of America
Combined Benefit Fund,
                        Defendants.
                                       
          Appeals from the United States District Court
           for the District of Maryland, at Baltimore.
               Richard D. Bennett, District Judge.
                     (CA-03-3389-1-RDB)
                   MASSEY COAL CO. v. HOLLAND                   11
                   Argued: September 21, 2006

                   Decided: December 21, 2006

            Opinion header corrected: January 19, 2007

  Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.



Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Shedd joined. Judge Traxler wrote a dissenting opin-
ion.


                           COUNSEL

ARGUED: Jeffrey A. Clair, UNITED STATES DEPARTMENT OF
JUSTICE, Civil Division, Appellate Section, Washington, D.C.; Ste-
phen John Pollak, GOODWIN & PROCTOR, L.L.P., Washington,
D.C., for Appellants. John Ray Woodrum, OGLETREE, DEAKINS,
NASH, SMOAK & STEWART, P.C., Washington, D.C., for Appel-
lees. ON BRIEF: Peter D. Keisler, Assistant Attorney General, Rod
J. Rosenstein, United States Attorney, William Kanter, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Fed-
eral Appellant. William J. Murphy, MURPHY & SHAFFER, L.L.C.,
Baltimore, Maryland; Howard R. Rubin, William E. Copley, III,
SONNENSCHEIN, NATH & ROSENTHAL, L.L.P., Washington,
D.C.; John Townsend Rich, GOODWIN & PROCTOR, L.L.P.,
Washington, D.C., for Appellant Trustees of the UMWA Combined
Benefit Fund. Margaret S. Lopez, W. Gregory Mott, OGLETREE,
DEAKINS, NASH, SMOAK & STEWART, P.C., Washington, D.C.;
Mary Lou Smith, Robert J. Weil, HOWE, ANDERSON & STEYER,
P.C., Washington, D.C.; Douglas K. Spaulding, REED SMITH,
L.L.P., Washington, D.C.; Elliott Schulder, COVINGTON & BURL-
ING, Washington, D.C.; R. Michael Smith, DECHERT, L.L.P.,
Washington, D.C., for Appellees.
12                  MASSEY COAL CO. v. HOLLAND
                             OPINION

NIEMEYER, Circuit Judge:

   By enactment of the Coal Industry Retiree Health Benefit Act of
1992 ("the Coal Act"), Congress established a new multiemployer
benefit plan, the United Mine Workers of America Combined Benefit
Fund ("Combined Fund"), to provide health care benefits to retired
coal mine workers. The Combined Fund resulted from the statutorily-
mandated merger of the 1950 and 1974 Benefit Plans that had been
agreed to, through collective bargaining, by the United Mine Workers
of America ("UMWA") and coal mine operators. It is financed by the
assets of the 1950 and 1974 Benefit Plans, by "premiums" that indi-
vidual coal mine operators pay to the Combined Fund, and by govern-
ment benefit plans including Medicare, and it is administered by an
independent Board of Trustees. The Coal Act specifies that the premi-
ums payable by the coal operators to the Combined Fund be deter-
mined on a per-beneficiary basis by a formula that (1) begins with the
sum of payments made to all beneficiaries from the 1950 Benefit Plan
and the 1974 Benefit Plan for the plan year July 1, 1991, through June
30, 1992 (the base year); (2) subtracts from that sum the "reimburse-
ments" received from Medicare and other publicly financed programs
for the base year but does not subtract administrative costs; (3)
divides the resulting number by the number of beneficiaries in the
base year; and (4) multiplies the quotient by a cost of living factor.
See 26 U.S.C. § 9704(b)(2).

   The parties commenced these actions — the most recent skirmishes
in a long-running fight — to resolve whether "reimbursements" as
used in the formula includes the total payments that Medicare made
to the 1950 and 1974 Benefit Plans for the base year ($182.3 million)
or only the amount that the 1950 and 1974 Funds actually paid out
in Medicare benefits to beneficiaries for the base year ($156.3 mil-
lion). Interpreting Medicare "reimbursements" to be the $182.3-
million figure results in lower premiums for the coal operators; inter-
preting "reimbursements" to be the $156.3-million figure results in
higher premiums.

   The district court ruled that "reimbursements" unambiguously
refers to the total payments ($182.3 million) that Medicare made to
                     MASSEY COAL CO. v. HOLLAND                         13
the 1950 and 1974 Benefit Plans in the base year, and it declined to
defer under Chevron1 to the contrary interpretation put forth by the
Commissioner of Social Security. See A.T. Massey Coal Co. v.
Barnhart, 381 F. Supp. 2d 469 (D. Md. 2005).

   Agreeing with the district court, we conclude that "reimburse-
ments" is an unambiguous historical term of art used by Congress to
refer to the total reimbursements that Medicare actually made, using
a capitation method, to the 1950 and 1974 Benefit Plans during the
base year.2 We also conclude that because Congress did not delegate
interpretative authority to the Commissioner to construe "reimburse-
ments," her interpretation of "reimbursements" is not entitled to defer-
ence under Chevron. See United States v. Mead Corp., 533 U.S. 218
(2001). Accordingly, we affirm.

                                     I

                                    A

   Before enactment of the Coal Act in 1992, more than 100,000
UMWA retirees were receiving benefits under the 1950 and 1974
UMWA Benefit Plans, which were multiemployer benefit plans
established through collective bargaining. By 1988, economic factors
and structural inadequacies in the Plans’ funding mechanisms placed
these plans in financial peril. As coal operators went out of business,
the stream of premiums diminished, leaving the Plans, which prom-
ised lifetime benefits to coal miner retirees, insolvent. As the Confer-
ence Report issued in connection with the Coal Act observed, "The
need for legislative intervention arose because mounting deficits in
the Plans threatened to curtail the flow of benefits absent a legislative
solution." 138 Cong. Rec. S17,603 (daily ed. Oct. 8, 1992) (confer-
ence report). Similarly, a Senate subcommittee conducting hearings in
  1
     Chevron U.S.A. Inc. v. Natural Resources Def. Council, Inc., 467 U.S.
837 (1984).
   2
     In reaching this conclusion, we join the Eleventh Circuit’s holding in
National Coal Ass’n v. Chater, 81 F.3d 1077 (11th Cir. 1996), and depart
from the D.C. Circuit’s holding in Holland v. National Mining Ass’n,
309 F.3d 808 (D.C. Cir. 2002), which had created a split between the cir-
cuits.
14                   MASSEY COAL CO. v. HOLLAND
1991 heard testimony warning that more than 120,000 coal miner
retirees were at risk of not receiving "the benefits they were prom-
ised" under the 1950 and 1974 Benefit Plans. Eastern Enterprises v.
Apfel, 524 U.S. 498, 513 (1998). Despite the recognized need for con-
gressional action, the Coal Act bill’s travels were long and tortured
and have been repeatedly described. See, e.g., Barnhart v. Sigmon
Coal Co., 534 U.S. 438, 444-47 (2002); Eastern Enterprises, 524 U.S.
at 511-14; Pittston Co. v. United States, 368 F.3d 385, 390-92 (4th
Cir. 2004).

   The Coal Act created the Combined Fund under the administration
of an independent Board of Trustees selected by representatives of the
UMWA and the coal industry. The Combined Fund was established
by the mandated merger of the 1950 and 1974 Benefit Plans, and its
continued operation is financed by Medicare and other government
benefit plans and by premiums fixed pursuant to a formula set out by
Congress in the Coal Act.

   The responsibilities for administering the Combined Fund are
divided among the Secretary of the Treasury, the Commissioner of
Social Security, and the Board of Trustees, but the roles assigned to
the Secretary of Treasury and the Commissioner of Social Security
are minor. The Secretary of Treasury is given the responsibility of
determining whether there is reasonable cause for a coal operator’s
failure to pay assessed premiums. The Commissioner is given the
responsibility of assigning coal miner retirees to coal mine operators
for the purpose of calculating premiums and of calculating the pre-
mium that each operator is required to pay annually. The Board of
Trustees, on the other hand, is given the more comprehensive respon-
sibilities of administering the Fund, collecting the premiums, enroll-
ing beneficiaries in health plans that fulfill the statute’s requirements,
negotiating payment rates with healthcare providers, and suing coal
mine operators for the nonpayment of premiums. See generally Pitts-
ton, 368 F.3d at 392.

  At bottom, the Coal Act sought to continue "substantially the
same" benefits to beneficiaries as were provided them under the 1950
and 1974 Benefit Plans. See 26 U.S.C. § 9703(b)(1). Because these
benefits are more comprehensive and include many benefits that oth-
erwise would be provided by Medicare, the benefits provided by the
                   MASSEY COAL CO. v. HOLLAND                      15
Combined Fund function as a "supplement" to Medicare. To provide
"one-stop shopping" to beneficiaries, however, the Combined Fund,
in agreement with Medicare, provides the beneficiaries with health
benefits, and Medicare provides the Combined Fund with "reimburse-
ments." This arrangement, while codified by the Coal Act, actually
preexisted it when benefits were being provided by the 1950 and 1974
Benefit Plans.

   Before July 1, 1990, Medicare reimbursed the 1950 and 1974 Ben-
efit Plans for Medicare-covered health benefits they provided to coal
miners on a "reasonable-cost basis." This reimbursement was made
on a cash basis, so that the 1950 and 1974 Benefit Plans could seek
reimbursement from Medicare only after the Plans had actually paid
out benefits to the beneficiaries. This required an ongoing and com-
plex administrative process that gave rise to numerous disputes
between Medicare and the Plans.

   By an agreement between Medicare and the 1950 and 1974 Benefit
Plans, dated September 25, 1990, the parties resolved these pre-1990
disputes, which were up to five years old, and agreed to a new, more
efficient method of reimbursement consisting of fixed forward-
looking payments based on historical data — a capitation-based
method of reimbursement. The capitation-based reimbursement was
grounded in accrual accounting, as authorized by Medicare regula-
tions. As the 1990 agreement related, "The parties agree that a num-
ber of advantages over the current [reasonable-cost methodology]
should result from the adoption by the parties of a capitated method
for determining payments to be made to the [1950 and 1974] Funds
for the Medicare-covered costs of its members." The agreement
explained the "capitation method" for reimbursement as follows:

    The payment for cost year 1991 will be $141.87 per member
    per month. This amount is based on the Fund’s most recent
    (1990) cost report, with a UCR adjustment of 9.9 percent
    (determined in accordance with the most recent data now
    available to [Medicare]), updated by [Medicare’s] actuarial
    estimate of the increase in costs for 1991. The payment rate
    includes administrative costs at the current (1990) amount,
    $14.71 per member per month, and payment of $127.15 for
    medical costs.
16                  MASSEY COAL CO. v. HOLLAND
  The September 25, 1990 agreement was formalized in a three-year
contract dated January 13, 1992, that ran from July 1, 1990, through
June 30, 1993.

   This arrangement for "reimbursement" of the 1950 and 1974 Bene-
fit Plans by Medicare was the arrangement for reimbursements that
was in place in 1992, when the Coal Act was enacted, and had been
in place since 1990. And Congress was aware of the arrangement.
The Coal Commission Report, which had been prepared at the request
of the Secretary of Labor and was placed in the Congressional
Record, stated:

     Under a special arrangement with Medicare, beneficiaries
     are provided "one-stop shopping." The [1950 and 1974]
     Funds perform administrative services for beneficiaries and
     pay providers for care. In turn, the Funds receive reimburse-
     ment from Medicare, both for the costs of health services
     and for the overhead costs of administration.

Sec’y of Labor’s Advisory Comm’n on United Mine Workers of Am.
Retiree Health Benefits, Coal Commission Report on Health Benefits
of Retired Coal Miners: Hearing Before the Subcommittee on Medi-
care & Long Term Care of the Senate Committee on Finance, 102d
Cong. 197 (1990) (text of report) (hereafter "Coal Commission
Report"). After describing the disputes that had arisen between Medi-
care and the 1950 and 1974 Benefit Plans because of the earlier
reasonable-cost reimbursement methodology, the Report describes
how the Plans and Medicare resolved their disputes and moved to pre-
vent them in the future by using a capitation-based reimbursement
methodology.

  Thus, when in 1992 the Coal Act describes how premiums payable
by coal operators are to be calculated, it refers to the actual arrange-
ment in effect for the 1991 plan year. Under the Coal Act, each coal
operator is required to pay the Combined Fund an annual premium
computed by the Commissioner as follows:

     The Commissioner of Social Security shall calculate a per
     beneficiary premium for each plan year beginning on or
     after February 1, 1993, which is equal to the sum of —
                    MASSEY COAL CO. v. HOLLAND                      17
    (A) the amount determined by dividing —

         (i) the aggregate amount of payments from the
         1950 UMWA Benefit Plan and the 1974 UMWA
         Benefit Plan for health benefits (less reimburse-
         ments but including administrative costs) for the
         plan year beginning July 1, 1991, for all individu-
         als covered under such plans for such plan year, by

         (ii) the number of such individuals, plus

    (B) the amount determined under subparagraph (A) multi-
    plied by the percentage (if any) by which the medical com-
    ponent of the Consumer Price Index for the calendar year in
    which the plan year begins exceeds such component for
    1992.

26 U.S.C. § 9704(b)(2) (emphasis added). And for the plan year
beginning July 1, 1991, Medicare paid the Plans $182.3 million in
reimbursements under a capitation-based method of reimbursement.

                                  B

   After enactment of the Coal Act and during the Combined Fund’s
inaugural year, staffers in the Department of Health and Human Ser-
vices gave Secretary Donna Shalala a memorandum, dated October 1,
1993, presenting her a question about her administrative responsibil-
ity under the Coal Act: "How should the Coal Industry Retiree Health
Benefit (Coal Act) premium be determined?" The memorandum cor-
rectly related the history of the reimbursement methods that had been
employed by Medicare — the reasonable-cost methodology that pre-
ceded July 1, 1990, and the capitation-based reimbursement policy
that existed since July 1, 1990. But it failed to recite the Coal Act’s
reference to "reimbursements for the plan year beginning July 1,
1991." Rather, the memorandum noted that under an actual-cost basis
of reimbursement, the Combined Fund would have received $26 mil-
lion less from Medicare (and thus more from the coal mine operators)
than it actually did receive in 1991 under the capitation-based method
of reimbursement ($156.3 million versus $182.3 million). The memo-
18                  MASSEY COAL CO. v. HOLLAND
randum then questioned "how this $26 million [the difference
between the two numbers] is to be treated for purposes of determining
the per beneficiary premium under the Coal Act of 1992." The author
of the memorandum gave the Secretary two choices, stated as fol-
lows:

     1. Set the fee based on defining "reimbursement" as the
        amount the Combined Fund paid on a fee-for-service
        arrangement. (This option results in more money to the
        Combined Fund.)

                                  or

     2. Set the fee based on defining "reimbursement" as the
        Medicare capitated payments received by the Fund.
        (This option results in less money to the Combined
        Fund.)

The Secretary was provided two signature lines, one labeled Option
1 and the other labeled Option 2; she signed Option 1 (the "more
money" option). By this stroke, the Secretary used a definition of "re-
imbursement" that harkened back to the type of reimbursements that
Medicare had used before 1990, and not the type that Medicare had
used "for the plan year beginning July 1, 1991," as required by the
Coal Act.

   In response to the Secretary’s decision, the National Coal Associa-
tion and eight coal operators sued the Secretary in the Northern Dis-
trict of Alabama, contending that the premiums they were required to
pay to the Combined Fund reflected an interpretation of "reimburse-
ments" contrary to the term’s unambiguous meaning in the Coal Act.
The coal industry argued that "reimbursements" referred to the
amount of reimbursements that Medicare actually paid for the plan
year beginning July 1, 1991, which was $182.3 million. The district
court agreed and held that the Secretary’s 1993 interpretation of reim-
bursements contradicted the term’s unambiguous meaning in the stat-
ute and ordered the Secretary to recalculate the premium using the
actual amount that the 1950 and 1974 Benefit Plans had received as
reimbursements from Medicare in the base year of 1991, i.e. $182.3
million. See Nat’l Coal Ass’n v. Shalala, No. CV 94-H-780-S, 1995
                    MASSEY COAL CO. v. HOLLAND                       19
U.S. Dist. LEXIS 21116 (N.D. Ala. June 2, 1995), amended by 1995
U.S. Dist. LEXIS 21125 (N.D. Ala. July 20, 1995). The district court
reasoned:

    Compelling evidence of the plain meaning of the statute and
    Congress’ intent in using the term reimbursement is found
    in the fact that the capitation agreement between the Secre-
    tary and the UMWA Plans had been in effect for over two
    years before the Act was passed. . . . It is clear that before
    the passage of the Act, the Secretary was using and referring
    to the term "reimbursement" in what can be categorized only
    as its plain and ordinary meaning. . . . The Secretary’s argu-
    ment that the plain meaning of the term reimbursement
    means something other than how she has been and continues
    to use this term in the capitation is wholly circular and
    somewhat imprudent.

Id. at *13-15. The Eleventh Circuit affirmed. Nat’l Coal Ass’n v.
Chater, 81 F.3d 1077 (11th Cir. 1996).

   After the Alabama decision, the Commissioner of Social Security,
who was now substituted by statute for the Secretary of Health and
Human Services to calculate the premiums, reversed the Secretary’s
decision, construing "reimbursements" to refer to the capitation-based
method used in 1991. And, rather than modify the interpretation for
just the eight coal companies formally bound by the Alabama judg-
ment, the Commissioner decided, by letter dated July 28, 1995 ("1995
decision"), to lower the premiums for all coal operators nationwide
by switching to the capitation-based definition of reimbursements.

   In response to the Commissioner’s 1995 decision, the Trustees of
the Combined Fund filed suit in the District of Columbia, arguing that
the Commissioner’s reversal of policy misinterpreted the Coal Act
and was arbitrary and capricious under the Administrative Procedure
Act. The district court agreed. Holland v. Apfel, No. 96-01744 (CKK),
2000 U.S. Dist. LEXIS 6134 (D.D.C. Feb. 25, 2000). On appeal, the
D.C. Circuit held that the term "reimbursements" as used in the Coal
Act was ambiguous and that it could mean either reimbursements
made on an actual-cost basis or reimbursements made on the capita-
tion basis actually employed in 1991. See Holland v. Nat’l Mining
20                   MASSEY COAL CO. v. HOLLAND
Ass’n, 309 F.3d 808 (D.C. Cir. 2002). In reaching this conclusion, the
court relied exclusively on dictionary definitions of "reimbursement."
Id. at 816. The D.C. Circuit accordingly vacated the district court and
Commissioner’s decisions and remanded the case to the Commis-
sioner to explain why the Social Security Administration had, in
1995, adopted the capitation-based definition nationwide, when it was
only obliged to do so for the eight coal operators involved in the Ala-
bama litigation. The court noted that if the Commissioner had felt
constrained by the Eleventh Circuit’s ruling in National Coal Ass’n,
then no deference was due her 1995 decision, since she was simply
acting as an agent of another court. But if the Commissioner had
made the choice voluntarily, then deference might be due under Chev-
ron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1984).

   In response to the D.C. Circuit’s decision, the Commissioner sent
a letter, dated June 10, 2003, to the Trustees of the Combined Fund,
stating that the Social Security Administration could not figure out
why, in 1995, the Commissioner had adopted the capitation-based
approach nationwide. The Commissioner again reversed the agency’s
position. She restricted the Eleventh Circuit’s ruling to only those
coal operators who were parties to that case, allowing them to pay a
lower premium as calculated by using the capitation-based definition
of "reimbursements." All other coal operators, however, would be
required to pay the higher premium rate, consistent with the actual
cost-based definition of "reimbursements" — the same definition
adopted by the Secretary of Health and Human Services in October
1993. The Commissioner’s June 10, 2003 letter, which is the Com-
missioner’s current position, reads in pertinent part:

     While we are unable to establish the rationale for our deci-
     sion in the past to apply the Eleventh Circuit’s interpretation
     on a nation-wide basis, we believe that it is now appropriate
     to adopt a different approach in light of recent litigation and
     the current financial condition of the Fund. The recent D.C.
     Circuit opinion in Holland made clear that we were not
     required to apply the holding of the Eleventh Circuit to coal
     operators who were not parties to the National Coal litiga-
     tion. Moreover, while considerations of fairness and unifor-
     mity remain important, the Fund’s worsening financial
                    MASSEY COAL CO. v. HOLLAND                        21
    condition makes it essential that the Fund be afforded all the
    premium revenues contemplated by the Coal Act.

    Accordingly, for the determination letter for the plan year
    beginning October 1, 2003, we intend to provide two per-
    beneficiary premium calculations [actual cost-based and
    capitation-based]. . . . We believe that this interpretation is
    consistent with the text and structure of the Coal Act as a
    whole and represents a permissible construction of the stat-
    ute’s plain language and of the term "reimbursement." . . .
    The Agency believes that implementation of the Eleventh
    Circuit’s decision in this manner, which enhances the finan-
    cial viability of the UMWA Combined Benefit Fund, is con-
    sistent with the Coal Act’s stated purpose of stabilizing plan
    funding and allowing for the provision of health care bene-
    fits to retired coal miners and their dependents.

   Reacting to the government’s second reversal in its interpretation
of "reimbursements," as used in the Coal Act, the coal mine operators
again filed suit in the Northern District of Alabama. The Trustees of
the Combined Fund responded with their own suit in the District
Court for the District of Columbia. Both actions were transferred to
the District of Maryland. A.J. Taft Coal Co. v. Barnhart, 291 F. Supp.
2d 1290 (N.D. Ala. 2003); Holland v. A.T. Massey Coal Co., 360 F.
Supp. 2d 72 (D.D.C. 2004).

   After consolidating the actions, the district court in Maryland
granted summary judgment to the coal operators. The court concluded
that the term "reimbursements" as used in 26 U.S.C. § 9704(b)(2) is
unambiguous and refers to the amounts Medicare actually paid to the
1950 and 1974 Benefit Plans, not just the expenses incurred by the
1950 and 1974 Benefit Plans in providing Medicare benefits to bene-
ficiaries. The district court also held that the Commissioner’s June 10,
2003 letter did not merit Chevron deference. Giving some respect to
the agency’s decision, citing Mead, 533 U.S. at 234-35, the district
court concluded nonetheless that the Commissioner’s decision was
unreasonable, arbitrary, and capricious. A.T. Massey Coal Co., Inc. v.
Barnhart, 381 F. Supp. 2d 469 (D. Md. 2005).
22                   MASSEY COAL CO. v. HOLLAND
   From the district court’s judgment, the Trustees of the Combined
Fund and the Commissioner of Social Security (hereafter collectively
"the Commissioner") filed this appeal.

                                   II

   The Commissioner contends that her June 10, 2003 letter interpret-
ing "reimbursements" as used in 26 U.S.C. § 9704(b)(2) is "consistent
with the plain language of the statute." To determine the plain mean-
ing, she relies on dictionary definitions, arguing that a reimbursement
"connotes, not total revenues or receipts, but only those payments that
are necessary to indemnify or repay a party for its expenditures." She
asserts that this meaning is "precisely the meaning adopted by [her
2003 decision]." Thus, in defining "reimbursements," the Commis-
sioner distinguishes "payments" made by Medicare to the 1950 and
1974 Benefit Plans from "reimbursements" for amounts paid by the
plans to beneficiaries, concluding that the Coal Act refers to the latter
in § 9704(b)(2).

   The Commissioner also argues that her interpretation "best furthers
Congress’ express intent to protect the financial stability of health
benefits for coal miner retirees and to ensure that these benefits are
privately funded." She points to an announced policy of the Coal Act
to "provide for the continuation of a privately financed self-sufficient
program for the delivery of health care benefits to the beneficiaries
of such plans." Coal Act, Pub. L. No. 102-486, § 19142(b)(3), 106
Stat. 3036, 3037 (1992) (emphasis added).

   The coal operators contend, also using dictionary definitions, that
"reimbursements" is an unambiguous term that refers to Medicare’s
payments to the 1950 and 1974 Benefit Plans "without regard to how
precisely [the payments] may approximate the costs being reim-
bursed." In addition, the coal operators argue that documents prepared
for and contemporaneous with the enactment of the Coal Act used
"‘reimbursements’ to refer to the total amount of payments computed
on a capitation basis." In particular, they point to the Coal Commis-
sion Report, which was "the seminal document in the deliberations
that led to the Coal Act" and which demonstrates that "reimburse-
ments" referred to the capitation method of reimbursement that was
                     MASSEY COAL CO. v. HOLLAND                       23
in place for the 1991 plan year, pursuant to the agreement between
Medicare and the 1950 and 1974 Benefit Plans.

   At the outset, we do not deny that in the abstract, the word "reim-
bursements" can have several meanings, as demonstrated by the dic-
tionary definitions advanced by the parties. In a common usage, we
understand that a traveling salesman may be "reimbursed" for travel
expenses on either an actual cost basis or on a per diem basis and that
both methods are understood to be forms of reimbursement, even
though a per diem basis will not perfectly track the salesman’s
expenses. See, e.g., Worldwide Labor Support of Miss., Inc. v. United
States, 312 F.3d 712, 714-15 (5th Cir. 2002)(using "reimbursement"
to refer to living expenses paid on a per diem basis). Likewise, the
Medicare Act has authorized two different forms of reimbursement —
reimbursement based on reasonable costs actually incurred and reim-
bursement based on prospectively assessed risks. See Good Samaritan
Hosp. v. Shalala, 508 U.S. 402, 406 n.3 (1993) (noting that Medicare
had, for practical reasons, changed its form of reimbursements to hos-
pitals from a reasonable-cost basis to a fixed-amount prospective
basis); Dist. Mem’l Hosp. of Southwestern N.C. v. Thompson, 364
F.3d 513, 515 (4th Cir. 2004) (same).

   But the Coal Act is not agnostic to these varying meanings. "Reim-
bursements" as used in 26 U.S.C. § 9704(b)(2) has a statutory context
and historical context, and both reveal a uniform and precise meaning
of the term. See Brown v. Gardner, 513 U.S. 115, 118 (1994)
("Ambiguity is a creature not of definitional possibilities but of statu-
tory context") (citation omitted).

                                   A

   Turning first to the statutory context, the Coal Act notes on its face
that it was enacted to protect the health benefits that the 1950 and
1974 Benefit Plans had promised to coal mine retirees for life but
which had been placed at risk by the demise of coal companies and
the imposition of the large cost of benefits on the remaining but dwin-
dling number of signatories to the Plans. See Coal Act, Pub. L. No.
102-486, § 19142, 106 Stat. 3036, 3037 (1992); 26 U.S.C.
§ 9703(b)(1). Thus, at the beginning of the Coal Act, Congress
announced its policy "for the continuation of a privately financed
24                  MASSEY COAL CO. v. HOLLAND
self-sufficient program for the delivery of healthcare benefits" to the
beneficiaries of the 1950 and 1974 Benefit Plans. To that end, the
Coal Act retained the terms of the 1950 and 1974 Benefit Plans but
merged their assets into a Combined Fund. See id. § 9702(a). It also
charged the Combined Fund with the duty of providing healthcare
services to the beneficiaries that were "substantially the same as (and
subject to the same limitations of) coverage provided under the 1950
UMWA Benefit Plan and the 1974 UMWA Benefit Plan as of Janu-
ary 1, 1992." Id. § 9703(b)(1). To stabilize the financing of benefits,
the Coal Act denied coal operators and "related companies" an easy
exit from the responsibilities that the coal operators undertook when
they subscribed to the 1950 and 1974 Benefit Plans. See generally id.
§ 9706 (requiring allocation of defunct coal operators’ beneficiaries
to related companies).

   As the historically established benefits were continued under the
Coal Act, so also was the historically established method of funding
them through premiums paid by the coal operators. Thus, the Coal
Act’s formula in § 9704(b)(2) is historically based, and the Act
explicitly instructed that the formula use figures as they existed in
1991, the last full year before the effective date of the Act: The pre-
mium was to be calculated by taking the aggregate of historical pay-
ments for benefits made by the 1950 and 1974 Benefit Plans for the
1991 plan year; subtracting from that sum the historical reimburse-
ments received by the Plans from Medicare for the 1991 plan year;
dividing the resulting sum by the historical number of beneficiaries
in the 1991 plan year; and applying a cost of living factor to that sum
each year thereafter. See 26 U.S.C. § 9704(b)(2). The premiums thus
calculated equaled the per-beneficiary premium paid in fact in 1991
by the coal operators to the antecedent plans, subject to a cost-of-
living adjustment. The Coal Act makes this clear by specifying "pay-
ments" and "reimbursements" that were made "for the plan year
beginning July 1, 1991." Id. § 9704(b)(2)(a)(i) (emphasis added). The
payments and reimbursements were not amounts subject to future
determination. Rather, the Coal Act refers to amounts that were actu-
ally transferred during the plan year 1991 as the basis for the premium
computation. In this sense, therefore, the payments and reimburse-
ments referred to in § 9704(b)(2) are historical events that had
occurred and thus were subject to conclusive determination shortly
after the Coal Act was enacted.
                    MASSEY COAL CO. v. HOLLAND                        25
   An examination of the books and records of the 1950 and 1974
Benefit Plans actually discloses those numbers and how they were
determined. Their financial statements include the following explana-
tion of the numbers:

    On September 25, 1990, the Trust entered into an agreement
    with [Medicare] which settled claims for fiscal years
    through 1990; however, the cost reports for fiscal years
    1988, 1989, 1990 are still subject to routine audit and adjust-
    ments, if any. . . . In accordance with this agreement, effec-
    tive July 1, 1990, the Trust is being reimbursed on a
    capitation basis for Medicare Part B benefits and for admin-
    istrative costs. The capitation agreement requires [Medicare]
    to make monthly payments based on the number of Medi-
    care eligible beneficiaries.

(Emphasis added).

  The parties agree that the reimbursement amounts that Medicare
paid historically — in the plan year 1991 — to the 1950 and 1974
Benefit Funds was $182.3 million.

   Thus, when the Coal Act merged the 1950 and 1974 Benefit Plans
and specified the computation of premiums based on historical num-
bers relating to the merged Plans, the formula was nothing more than
a recapitulation of what had occurred financially in the 1991 plan
year, before the Coal Act was enacted. The reference in 26 U.S.C.
§ 9704(b)(2) to payments made by the 1950 Benefit Plan for the 1991
plan year; the reference to the payments made by the 1974 Benefit
Plan for the 1991 plan year; the reference to the number of beneficia-
ries in the 1991 plan year; and the reference to reimbursements
received by the 1950 and 1970 Benefit Plans in the 1991 plan year
were all specific historical numbers, requiring no complicated deriva-
tion. In computing the premium, the Commissioner had only to col-
lect those numbers and perform the arithmetic. To that end, the
Combined Fund was required to provide the Commissioner with the
numbers. See id. § 9704(h).

  On this basis, we readily conclude that the reference to "reimburse-
ments" in § 9704(b)(2) is an unambiguous reference to the capitation-
26                  MASSEY COAL CO. v. HOLLAND
based reimbursements actually made by Medicare during the plan
year beginning July 1, 1991, and, therefore, is impervious to the Com-
missioner’s post-hoc reconstruction of the term using dictionaries.

                                  B

   Our analysis of the statutory context of the term "reimbursements"
is reinforced by the contemporaneous historical and legislative con-
text in which the Coal Act was enacted. This history shows that the
method of reimbursement adopted from the reimbursements made in
plan year 1991 was a purposeful act, of which the relevant actors
were aware and which Congress incorporated by reference in the Coal
Act.

   Under the reasonable-cost reimbursement method that Medicare
and the 1950 and 1974 Benefit Plans used before 1990, disputes arose
relating to the timing of when the Plans actually made payments to
beneficiaries and the timing of when those costs became reimburs-
able. To resolve those disputes and foreclose them in the future, as
well as to avoid the expensive auditing that attended the disputes,
Medicare and the 1950 and 1974 Benefit Plans agreed to an alterna-
tive, but still authorized, form of reimbursement using a capitation
approach. In the agreement, dated September 25, 1990, Medicare and
the 1950 and 1974 Benefit Plans explicitly referred to the capitation
approach as the new method of "reimbursement" that they would fol-
low in the future. That agreement provides in relevant part:

     I. Reimbursement

         Pursuant to waivers . . . the [Plans] will be reim-
         bursed on a risk-based capitated payment basis for
         a period of 3 years. . . .

                                ***

         No reimbursement will be made to the [Plans] for
         covered Part A and Part B services furnished by a
         provider of services to which payment will other-
         wise be made.
                    MASSEY COAL CO. v. HOLLAND                   27
                                ***

    II. HCPP [Medicare]

         A. The HCPP agrees to comply with the require-
            ments for participation and reimbursement as
            specified in Subpart D of the regulations . . .
            and program instructions, exempting those
            regulations . . . enabling reimbursement on a
            capitated basis.

                                ***

    IV. Termination or Non-renewal of Agreement

         B. If the [Plans] determine[ ] that . . . [they] can-
            not continue to be reimbursed on a risk-based
            capitated payment basis, the [Plans] may ter-
            minate the agreement . . . .

At the time the Coal Act was enacted in 1992, Medicare and the 1950
and 1974 Benefit Plans were operating under this reimbursement
arrangement, and the actual reimbursements made by Medicare to the
Plans in the plan year 1991 followed the capitation approach and
amounted to $182.3 million.

  In addition to the preexisting agreement, the Coal Commission
Report, which led to the enactment of the Coal Act, describes Medi-
care’s capitation payments as "reimbursements." The Report says:

    During the Commissions deliberations, in late September of
    1990, the [1950 and 1974] Funds and Medicare resolved the
    reimbursement dispute in the context of moving toward a
    capitated reimbursement arrangement for FY 1991 and the
    future.

Coal Commission Report 198. The Coal Commission Report included
the following definition of "capitated reimbursement":
28                   MASSEY COAL CO. v. HOLLAND
     An arrangement under which a health care provider receives
     a prospectively determined payment for services provided to
     patients. The advantage of a capitated reimbursement
     arrangement is that it creates incentives which may result in
     reduction in the amount of inappropriate and excessive ser-
     vices provided.

Id. at 251. Further, the Report, celebrating the benefits of a capitation
approach, stated "[c]apitation reimbursement offers better incentives
for cost savings and simplified reimbursement methodology. Capita-
tion reimbursement has the advantage of providing prompt and pre-
dictable reimbursement to the Funds, enabling them to strike better
bargains with providers." Id. at 199.

   There is yet more evidence of the contextual understanding of "re-
imbursements" as used in the Coal Act. As already noted above, the
annual reports of the 1950 Benefit Plan and the 1974 Benefit Plan for
the 1991 plan year, the last full year before the Coal Act was enacted,
refer to the capitated Medicare payments as "reimbursements": "In
accordance with [the September 25, 1990 agreement] effective July
1, 1990, the Trust is being reimbursed on a capitation basis for Medi-
care Part B benefits and for administrative costs." Moreover, the
Combined Fund in its own disclosures, made immediately after the
Coal Act was passed, referred to Medicare’s payments as "reimburse-
ments":

     [The Combined Fund] is entitled to reimbursement under a
     capitation agreement for those medical costs. . . . These
     reimbursements have been accrued and recorded.

                                 ***

     Medicare reimbursements are paid monthly on a capitation
     basis, with the monthly capitation rate adjusted annually.

(Emphasis added).

   And this contextual evidence continues even to the year of Secre-
tary Shalala’s 1993 decision. In an internal memorandum written to
                   MASSEY COAL CO. v. HOLLAND                     29
the Board of Trustees in 1993, the Director of Operations of the Com-
bined Fund reported on the Fund’s performance under the capitation
method of reimbursement: "Table I compares the total Funds’ quar-
terly . . . reimbursable medical and administrative cost per capita
. . . to the negotiated capitation reimbursement rate." (Emphasis
added). The same memorandum directly compares the "Actual Medi-
care Part B Expense" with the "Capitation Reimbursement," describ-
ing the very figures at issue in this case. The $182.3 million is
described as the "HCFA [Medicare] Reimbursement." The $156.3
million is described as the "Total Net Expense FY 92."

   Nowhere in the historical record does anyone use "reimburse-
ments" to mean what the Commissioner now says it means. When the
term "reimbursements" was used, it always referred to the total pay-
ments made by Medicare to the 1950 and 1974 Benefit Plans or to the
Combined Fund, not the "total net expense" they incurred in provid-
ing benefits to beneficiaries or what Medicare would have paid using
a reasonable cost-based reimbursement method.

                                 C

   The Commissioner fails in this appeal to address the statutory and
historical context of the word "reimbursements"; Secretary Shalala
failed to do so in her 1993 decision; and the Commissioner failed to
do so in her 2003 decision. Yet the Coal Act requires this consider-
ation because its formula is based on what happened in the 1991 plan
year.

   The Commissioner’s arguments are made almost entirely in the
abstract, relying on dictionary definitions and failing to take into
account the contextual use of the term "reimbursements." Yet, in
using dictionary definitions, the Commissioner’s arguments are
divorced not only from the 1991 context but even from the context
that existed before the 1990 agreement between Medicare and the
1950 and 1974 Funds. For example, she invokes various dictionary
definitions to support the obvious proposition that "reimbursements"
refers to a payment commensurate with monies paid out. But she does
not elaborate on how close the connection between the outflow and
the income must be. Focusing more precisely on her argument, she
asserts that her interpretation rests "not on aggregate payments made
30                  MASSEY COAL CO. v. HOLLAND
by Medicare to the UMWA plans, but on the portion of those pay-
ments necessary to ‘indemnify’ or ‘repay’ the plans for the sum those
plans expended in providing Medicare benefits to plan beneficiaries."
This "indemnification" notion, however, does not fit the context
either. Medicare never paid the plans the actual costs incurred on
Medicare’s behalf, even before the 1990 agreement. Rather, the actual
costs were always adjusted downward by as much as 9.9% to yield
the "reasonable costs." Thus, before the 1990 agreement, Medicare
reimbursed the 1950 and 1974 Benefit Plans only to the extent that
their tracked expenditures were "reasonable," that is, similar to the
costs of other health benefit plans. Thus, even under the reasonable-
cost reimbursement method that Medicare employed before 1990,
Medicare did not reimburse in the sense that it was "indemnifying."

   The Commissioner also contends that because the computation set
forth in 26 U.S.C. § 9704(b)(2) establishes a base level of premium
for future years, to be adjusted only for the medical component of the
consumer price index, the difference between capitation reimburse-
ment and reasonable-cost reimbursement is a "multi-million dollar
mistake" in favor of the coal operators, which must be corrected, cit-
ing Regions Hospital v. Shalala, 522 U.S. 448 (1998). In Regions, the
Supreme Court approved the Secretary’s adoption of a reaudit rule in
order to correct some erroneously reimbursed costs under the Medi-
care Act. In this case, however, there was no error in the form of
reimbursement because Medicare intentionally adopted and correctly
calculated the capitation method. Both Medicare and the 1950 and
1974 Benefit Plans considered the capitation method to be superior to
the reasonable cost-based method, not a "mistake." This was so for
several reasons.

   First, the capitation-based method of reimbursement saved admin-
istrative and negotiation costs because it paid the 1950 and 1974 Ben-
efit Plans based on historical averages instead of on the retroactive
calculations of costs that had led to long-running disputes, plaguing
the relationship between the parties over the years.

   Second, the capitation methodology improved the incentive for the
1950 and 1974 Funds to economize on healthcare costs. Under the
"reasonable cost" reimbursement method, the Benefit Plans had an
incentive to save only enough to make their costs "reasonable," which
                    MASSEY COAL CO. v. HOLLAND                       31
meant in line with the average for other Medicare-reimbursed plans.
Even though that reimbursement method was better than a one-for-
one indemnification form of reimbursement — which encourages
heedless spending — the reasonable-cost method still left plenty of
room for overspending. The capitation method created incentives for
the 1950 and 1974 Benefit Plans to treat Medicare dollars as their
own because any money left over from the capitation payment during
one year would stay with the Plans "to offset future costs."

   The parties explicitly identified this reasoning as part of the basis
for adopting a capitation-based method of reimbursement in 1990,
and it was reported in all of the contextual documents. Accordingly,
when Congress referred to "reimbursements" that were actually made
during the 1991 plan year, it referred not to a "mistaken" reimburse-
ment plan but to an alternative reimbursement plan that the relevant
parties thought would be more efficient. Congress’ incorporation of
the capitation reimbursement method in § 9704(b)(2) was intentional
and not a "mistake." The clear expectation was that the capitation
method would continue as an improvement over the reasonable-cost
method and would not result in Combined Fund shortfalls.

   Finally, the Commissioner argues at a general level that using the
higher reimbursement figure will starve the Combined Fund of premi-
ums, potentially resulting in reduced health benefits to retired coal
miners — precisely the outcome that the Coal Act was intended to
avoid. If such an outcome does emerge, however, it will only be
because the inflation factor specified by Congress in the Coal Act or
Medicare’s reimbursements have proved insufficient to stay abreast of
the rising costs of providing the benefits specified in the 1950 and
1974 Benefit Plans. See 26 U.S.C. § 9703(b)(1). The Act does not
grant the Commissioner authority to change the formula, and ongoing
problems undoubtedly will prompt either the coal operators, the
UMWA, or both to return to Congress.

   For all of these reasons, we readily conclude that the reference in
§ 9704(b)(2) to "reimbursements" made for the plan year 1991 is
unambiguous and refers to those payments made by Medicare to the
1950 and 1974 Benefit Plans for the plan year 1991 in the amount of
$182.3 million.
32                  MASSEY COAL CO. v. HOLLAND
                                  III

   The Commissioner argues, in addition to her position that her inter-
pretation of "reimbursements" is "fully consistent with well-settled
usage and the primary definition of the term," that Congress "im-
pliedly delegated authority" to her to construe the term and that there-
fore we must defer to her interpretation and determine only whether
her interpretation is "based on a permissible construction of the stat-
ute." Chevron, 467 U.S. at 842-43. Her reliance on Chevron to give
weight to her interpretation, however, is misplaced.

   While Chevron analysis often results in affording deference to
agency interpretations of statutes, that deference is limited to circum-
stances where (1) Congress has given the agency authority to make
rules carrying the force of law and (2) the agency’s interpretation is
rendered in the exercise of that authority. See United States v. Mead
Corp., 533 U.S. 218, 226-27 (2001). More precisely, Mead refined
the standard for deference, describing the type of agency action
deserving of Chevron deference this way:

     We hold that administrative implementation of a particular
     statutory provision qualifies for Chevron deference when it
     appears that Congress delegated authority to the agency gen-
     erally to make rules carrying the force of law, and that the
     agency interpretation claiming deference was promulgated
     in the exercise of that authority. Delegation of such author-
     ity may be shown in a variety of ways, as by an agency’s
     power to engage in adjudication or notice-and-comment
     rulemaking, or by some other indication of a comparable
     congressional intent.

Id. Thus, the Court in Mead observed that even though agencies
charged with applying statutes will make "all sorts of interpretive
choices," "not all of those choices bind judges to follow them." Id. at
227.

  Before according deference to an agency interpretation, the agency
must therefore demonstrate that Congress delegated authority to the
agency to make such an interpretation, and we look for an explicit or
implicit grant of interpretive power from Congress to the agency. If
                     MASSEY COAL CO. v. HOLLAND                       33
the grant is not explicit, "it can still be apparent from the agency’s
generally conferred authority and other statutory circumstances that
Congress would expect the agency to be able to speak with the force
of law when it addresses ambiguity in the statute or fills a space in
the enacted law." Mead, 533 U.S. at 229. If there is no such grant,
however, explicit or implicit, binding interpretive authority rests only
with the courts. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177
(1803).

   In determining whether Congress has implicitly delegated authority
to an agency, courts must examine the whole statute to determine
whether a congressional intent to delegate can reasonably be inferred.
See Mead, 533 U.S. at 229. If the agency’s decision and the processes
authorized to make that decision resemble legislative decisions and
legislative processes, the agency stands in the shoes of Congress, and
its decisions carry the force of law. For instance, formal procedures,
such as notice-and-comment rulemaking, provide clear evidence that
the agency stands in the shoes of Congress and deserves deference.
Id. at 229-30. But there can be delegation without such formal proce-
dures so their absence is not conclusive. See Barnhart v. Walton, 535
U.S. 212, 222 (2002).

   We do not undertake to describe all of the possible forms that a
congressional grant of interpretive authority might take. But when the
responsibility given to the agency does not present any of the normal
indicia of a legislative-type determination — i.e. those of weighing
conflicting policies, considering adversarial viewpoints, promulgating
forward-looking rules of general applicability — we can usually
assume that Congress did not delegate interpretive authority to the
agency. An agency may try to create the appearance of delegation
through the use of legislative-type processes, but this, of course, does
not create delegation where none exists. Following a more sophisti-
cated process might garner more judicial respect, but delegation must
appear from the statute itself, not from the agency’s actions. See Wal-
ton, 533 U.S. at 222.

   If we conclude that Congress has delegated authority to the agency
to make rules carrying the force of law, then we proceed to the tradi-
tional two-step Chevron analysis. "[I]f the intent of Congress is clear
[with respect to the matter that the agency has interpreted], that is the
34                  MASSEY COAL CO. v. HOLLAND
end of the matter; for the Court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress." Chevron,
467 U.S. at 842-43. But "if the statute is silent or ambiguous with
respect to the specific issue, the question for the court is whether the
agency’s answer is based on a permissible construction of the statute."
Id. at 843. We will overturn unreasonable agency decisions because
we presume that Congress does not authorize unreasonable statutory
constructions. At bottom, however, a court "may not substitute its
own construction of a statutory provision for a reasonable interpreta-
tion made by the administrator of the agency." Id. at 844.

   On the other hand, when we determine that no delegation can be
implied, as when the task of the agency is merely to perform a minis-
terial calculation or to issue a document whose contents are dictated
in detail by the statute, we do not afford the agency the type of defer-
ence we otherwise would afford if the agency acted by delegation in
Congress’ stead. For those kinds of tasks, Congress has already spo-
ken and its words are cast. The opinions of agencies pursuant to such
provisions do not carry the imprimatur of delegation. Even though the
task may require the agency to make interpretive decisions, produce
a binding rule, or issue a mandate in its field of expertise, we need
not yield because there is no predicate delegation as required by
Mead.

   In the case at hand, section 9704(b)(2) gave the Commissioner the
responsibility of "calculating" the per-beneficiary premium that the
coal operators must pay to finance the Combined Fund. The authori-
zation to calculate the premium, however, did not include a delegation
of authority to set the premium so that the fund would be "well
financed" or "viable." To the contrary, Congress specifically laid out
the formula for the calculation that the Commissioner had to perform
and delegated only the ministerial task of making the calculation.

   Moreover, looking to the statute as a whole, the Coal Act does not
generally confer anything but ministerial responsibilities on the Com-
missioner. The Coal Act gives the Commissioner exactly one other
function, that of assigning beneficiaries to coal operators for the pur-
pose of determining the particular coal operator’s annual premium.
See 26 U.S.C. § 9706(a). And again, the assignment of eligible bene-
ficiaries does not afford the Commissioner discretion to achieve a par-
                     MASSEY COAL CO. v. HOLLAND                       35
ticular end. Rather, it must be accomplished according to a strict
algorithm set forth in § 9706(a). Each of the two functions conferred
on the Commissioner is thus described by Congress in elaborate
detail.

   In calculating the premiums, the Commissioner need only assemble
the actual historical figures and perform the necessary arithmetic. The
figures are not described in conceptual terms such as "reasonable
reimbursements" or "appropriate expenditures." Rather, the Commis-
sioner must recognize the historical facts and apply them — that is
where her authority begins and ends. See id. § 9704(b)(2); see also id.
§ 9704(h) (referring to the Commissioner’s obligation to "compute"
the premium). And in assigning beneficiaries to coal operators for
payment of premiums, the Commissioner again acts strictly pursuant
to the statutory provision, which provides a clear, rote order of assign-
ment, that the Commissioner may not alter for policy reasons. See
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 461 (2002).

   The absence of delegation to the Commissioner becomes even
clearer when one compares her duties with those of the Board of
Trustees. The Trustees are uniquely suited to make policy decisions,
since their composition reflects the structural compromise embodied
in the Coal Act. The coal industry appoints two members; the UMWA
appoints two members; and those four appoint the remaining three
members. See 26 U.S.C. § 9702(b)(1). For this reason, the Trustees
have all of the policymaking powers under the Act. See, e.g., id.
§ 9703(b)(1) (requiring Trustees to provide "to the maximum extent
feasible" substantially the same coverage as were provided by the
prior plans); id. § 9703(b)(2) (authorizing Trustees to "negotiate pay-
ment rates with the healthcare services plans . . . which vary as neces-
sary" to provide uniform benefits in geographical areas); id.
§ 9704(b)(3) (authorizing Trustees — significantly not the Commis-
sioner — to adjust the premium to compensate for reduction of Medi-
care payments).

   The contrast between the Commissioner’s wholly ministerial func-
tions and the wide policymaking berth given to the Trustees could not
be more stark. The structure of the statute refutes any claim that Con-
gress delegated interpretive authority to the Commissioner of Social
Security because on all matters requiring policy judgment the Trust-
36                   MASSEY COAL CO. v. HOLLAND
ees, not the Commissioner, have Congress’ blessing to exercise judg-
ment on its behalf.

   The Commissioner has cited Holland v. Pardee Coal Co., 269 F.3d
424 (4th Cir. 2001), and Pittston Co. v. United States, 368 F.3d 385
(4th Cir. 2003), as cases where we have given her Chevron deference
under the Coal Act. These cases, however, provide the Commissioner
with little or no assistance. Pardee only noted that "if deference were
warranted, it would have no impact on the resolution of this case." Id.
at 431 n.8 (emphasis added). It did not conclude that Chevron defer-
ence was appropriate. Similarly, Pittston provides little comfort
because it involved a gap in the assignment-of-beneficiaries provision
created when the Supreme Court found a portion of that provision
unconstitutional. 368 F.3d at 392. Once that gap was created, the
agency was left with an open policy space, which was the quintes-
sence of legislative-type action to which Chevron deference was due.
Id. at 402-03. Of course no such gap has been created by Congress
or, indeed, the Supreme Court, in the formula for calculating the pre-
miums to be charged coal operators.

                                   IV

   Even though Chevron deference is inapplicable to the Commission-
er’s position, the Commissioner still claims that her determination is
entitled to some respect notwithstanding her limited role under the
Coal Act. See Skidmore v. Swift & Co., 323 U.S. 134 (1944). As the
Supreme Court stated in Skidmore:

     [O]pinions of the Administrator under this Act, while not
     controlling upon the courts by reason of their authority, do
     constitute a body of experience and informed judgment to
     which courts and litigants may properly resort for guidance.
     The weight of such a judgment in a particular case will
     depend upon the thoroughness evident in its consideration,
     the validity of its reasoning, its consistency with earlier and
     later pronouncements, and all those factors which give it
     power to persuade, if lacking power to control.

Id. at 140.
                     MASSEY COAL CO. v. HOLLAND                       37
   Yet, in twice calculating premiums under 26 U.S.C. § 9704(b)(2),
the Social Security Administration has, without conducting a review
of the Coal Act and its contexts, developed virtually no experience
that might be considered a "body of experience and informed judg-
ment to which courts and litigants may properly resort for guidance."
The Commissioner’s ipse-dixit declaration in her June 10, 2003 letter
defining how "reimbursements" is used in § 9704(b)(2) is simply
unsupportable and therefore due no respect under Skidmore.

   In her 2003 letter, the Commissioner reconsidered the 1996 pre-
mium decision made by her predecessor in light of the D.C. Circuit’s
opinion in Holland v. National Mining Ass’n, 309 F.3d 808 (D.C. Cir.
2002). That decision pointed out that the Eleventh Circuit decision in
National Coal Ass’n v. Chater, 81 F.3d 1077 (11th Cir. 1993), bound
the Commissioner only with respect to the eight coal operators who
were parties to that litigation and that the Commissioner could have,
though need not have, adopted a different rule with respect to the
remaining coal operators for their contributions to the Combined
Fund. 309 F.3d at 816-17. But the Commissioner was not free to
evade the unambiguous text of the Coal Act.

   The Commissioner considered the D.C. Circuit’s ambiguous man-
date and elected to reverse course from the policy of the preceding
eight years, except with respect to the coal operators who were party
to the National Coal Ass’n case. She gave two reasons: (1) a generic
proclamation that the new policy was consistent with the Coal Act
and (2) a concern for the "financial viability" of the Combined Fund.
In essence, the Commissioner’s rationale for her decision was a naked
desire to direct extra money to the Combined Fund by recalculating
the premiums, and the Act, she concluded, let her get away with it.
But, despite a decade of litigation in two district courts and two courts
of appeal in which all possible meanings of the word "reimburse-
ments" were considered in exhaustive detail, the Commissioner never
made even a passing attempt to justify her decision under the statute.
Nor are the financial difficulties of the Combined Fund articulated in
the 2003 letter, so that even her impermissible, asserted rationale
lacks support. The contributors to the Combined Fund, who were
expected to spend $70 million in retroactive premiums and more
going forward, rightly concluded that they deserved a better analysis.
38                  MASSEY COAL CO. v. HOLLAND
   The Commissioner’s 2003 decision fails each of the prerequisites
for Skidmore respect. Virtually no reasoned consideration appears on
the face of the decision; none has appeared from the depositions
attendant to this litigation; and what reasoning does appear is invalid.
Congress did not charge the Commissioner with ensuring the finan-
cial viability of the Combined Fund. Her job was to calculate the for-
mula established by Congress by using actual historical figures. In
performing her job, she was bound to obey the words of Congress and
to determine, through a reasoned analysis, what those words fairly
meant. No evidence of such an effort appears.

   Additionally, the emphasis on the wealth of the Combined Fund
suggests an improper understanding of the Commissioner’s role. As
we described earlier, the structure of the Coal Act grants the Trustees
policymaking authority to administer the Combined Fund. The Trust-
ees, who represent both the coal industry and the coal miners, consti-
tute a quasi-legislative body, well-situated to weigh the Coal Act’s
competing policies. The Commissioner, on the other hand, has no
policymaking authority. Her duties are tightly circumscribed — in
this case — to calculate certain numbers in a mechanical fashion. By
taking sides in the dispute between the coal operators and the
UMWA, the Commissioner abandoned neutrality and any legitimate
claim to judicial respect under Skidmore.

   Finally, the inconsistency of the Commissioner’s positions over the
years destroys any residual legitimacy. The policy history in this case
has a certain tidal quality. In 1993, the Secretary of Health and
Human Services opted for an actual-costs interpretation of "reim-
bursements" that gave the Combined Fund the most money, without
regard to what Congress specified. Three years later, the Commis-
sioner of Social Security reversed that interpretation and followed the
Eleventh Circuit’s decision in National Coal Ass’n. Nine years later,
after the D.C. Circuit’s decision in Holland, the Commissioner yet
again reversed her position. While the Commissioner’s open-
mindedness might in some contexts be considered admirable, we
would not yield to such undulations in interpreting a statute, even
were we uncertain as to the statutory meaning. See Pauley v. Beth
Energy Mines, Inc., 501 U.S. 680, 698 (1991) ("[T]he case for judicial
deference is less compelling with respect to agency positions that are
inconsistent with previously held views"); Watt v. Alaska, 451 U.S.
                    MASSEY COAL CO. v. HOLLAND                       39
259, 272-73 (1981) (noting that inconsistent interpretations garner
"considerably less deference").

  The judgment of the district court is accordingly

                                                          AFFIRMED.

TRAXLER, Circuit Judge, dissenting:

   Respectfully, I agree with the Court of Appeals for the District of
Columbia Circuit that the term "reimbursements," a component of the
"per beneficiary premium" formula prescribed by the Coal Act in
§ 9704(b)(2), is not clear and unambiguous. See Holland v. National
Mining Ass’n, 309 F.3d 808, 816 (D.C. Cir. 2002). Although I am
inclined to agree that the Commissioner’s interpretation is not entitled
to deference under the framework of Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), I would never-
theless sustain the Commissioner’s use of an actual-cost basis for
reimbursements in determining the per beneficiary premium to be
paid by coal companies ("coal operators"), rather than the risk-
capitation basis which resulted in a $25.5 million windfall of sorts to
the coal operators. Accordingly, I would reverse the decision of the
district court.

   The Coal Act, in order to finance benefits provided by the Com-
bined Fund, mandates the payment of an annual premium by each
coal operator. See 26 U.S.C. § 9704(a). One component of this annual
premium is a "health benefit premium," 26 U.S.C. § 9704(a)(1),
which is determined by multiplying a standard "per beneficiary pre-
mium" by "the number of eligible beneficiaries assigned [by the Com-
missioner] to [a given coal] operator under section 9706," 26 U.S.C.
§ 9704(b)(1).

   In turn, the "per beneficiary premium" is calculated annually by the
Commissioner according to a statutorily prescribed formula. See 26
U.S.C. § 9704(b)(2). In simple terms, the per beneficiary premium
reflects the average cost to the UMWA Benefit Plans of health bene-
fits for an individual beneficiary during the Coal Act’s "base year" —
1991, the final year before the 1950 and 1974 Benefit Plans merged
40                  MASSEY COAL CO. v. HOLLAND
under the Coal Act to become the Combined Fund. See 26 U.S.C.
§ 9704(b)(2)(A); Holland, 309 F.3d at 811.*

   Significantly, the statutory formula for determining this average
cost of individual health benefits during the 1991 base year excludes
"reimbursements" from the calculation: The per beneficiary premium
is "the aggregate amount of payments from the 1950 UMWA Benefit
Plan and the 1974 UMWA Benefit Plan for health benefits (less reim-
bursements but including administrative costs) for the plan year
beginning July 1, 1991, for all individuals covered under such plans
for such plan year," divided by the number of eligible beneficiaries
that year. See 26 U.S.C. § 9704(b)(2)(A)(i) and (ii) (emphasis added).
The treatment of "reimbursements" ensures that the baseline per bene-
ficiary premium reflects the average cost of only those benefits cov-
ered by the UMWA Benefit Plans. To avoid overlap with federal
benefit programs, the UMWA Benefit Plans did not provide benefits
for services covered by such programs — most notably Medicare. See
National Coal Ass’n v. Chater, 81 F.3d 1077, 1079 (11th Cir. 1996)
(per curiam). For the convenience of the beneficiaries of the UMWA
Benefit Plans, however, the Plans followed an administrative practice
of paying health care providers for all services rendered, even if such
services were covered by Medicare or another government program
and not by the UMWA Benefit Plans. The Plans then sought repay-
ment for any such services, thus relieving the individual beneficiaries
of the burden of seeking payment from multiple benefit plans. See
Holland, 309 F.3d at 811; National Coal Ass’n, 81 F.3d at 1079.
Thus, the formula set forth in section 9704(b)(2) is designed so that
Medicare and other government benefits not covered by the UMWA
Benefit Plans would not skew the average cost of UMWA benefits
during the base year as a result of the Plans’ efficient administrative
practices.

   The parties’ competing interpretations of "reimbursements" are
rooted in the pre-Coal Act administrative practices of the UMWA
Benefit Plans. Prior to 1990, the UMWA Benefit Plans presented
claims for reimbursement based on covered Medicare services actu-

   *The Coal Act directs the Commissioner to adjust this baseline amount
for inflation each year. See 26 U.S.C. § 9704(b)(2)(B); The Pittston Co.
v. United States, 199 F.3d 694, 699 (4th Cir. 1999).
                     MASSEY COAL CO. v. HOLLAND                       41
ally received by Plan beneficiaries and paid for by the Plans. See
National Coal Ass’n, 81 F.3d at 1080; Holland, 309 F.3d at 811. This
cost-based method of reimbursement, however, produced ongoing
disputes over covered services and reimbursement amounts. In 1990,
the parties adopted a different practice, entering into a "risk capita-
tion" agreement under which Medicare paid the UMWA Benefit
Plans a predetermined monthly flat fee based on projected Medicare
expenditures. See National Coal Ass’n, 81 F.3d at 1080; Holland, 309
F.3d at 811. As it turned out, the projected expenses (resulting in the
payment of a $182.3 million flat fee to the Plans) exceeded actual
costs during the base year ($156.8 million) by $25.5 million. See Hol-
land, 309 F.3d at 811.

   The Coal Act does not define the term "reimbursements." For
undefined statutory terms, courts accord them "their ordinary mean-
ing." Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995);
Schlossberg v. Barney, 380 F.3d 174, 180 (4th Cir. 2004) ("In the
absence of expressed Congressional intent, we must assume that Con-
gress intended to convey the language’s ordinary meaning." (internal
quotation marks omitted)). The parties emphasize different aspects of
the same dictionary definitions to support their readings of the text as
most faithful to the ordinary meaning of the words. Appellants
emphasize the notion of equivalency — that "to reimburse" is "to pay
back (an equivalent for something taken, lost or expended) to some-
one: [r]epay" or "to make restoration or payment of an equivalent
. . . : [i]ndemnify." Webster’s Third New International Dictionary
1914 (1981); see Holland, 309 F.3d at 816. The coal operators, by
contrast, contend that "reimburse" in the "repayment of an equivalent"
sense is not necessarily limited to repayment on a dollar-for-dollar
basis. See National Coal Ass’n, 81 F.3d at 1082. For example, they
suggest expenses may be "reimbursed" on a per diem basis where the
fixed per diem amount serves as the "equivalent" of the expenditures.

   In this instance, as suggested by the split between the circuit courts
of appeal, the "ordinary meaning" approach is not helpful in determin-
ing congressional intent as to the meaning of "reimbursement."
Because either reading is plausible on its face, I find the statute
ambiguous. Compare Holland, 309 F.3d at 816 ("The Eleventh Cir-
cuit’s analysis is somewhat perplexing, because it acknowledges that
reimburse means to pay back an equivalent for something expended
42                   MASSEY COAL CO. v. HOLLAND
. . . , and yet the opinion concludes that reimbursement is not
restricted dollar-for-dollar [to] what the reimbursed party payed out.
If anything, the Eleventh Circuit’s opinion seems to confirm the stat-
ute’s ambiguity.") (internal quotation marks omitted) with National
Coal Ass’n, 81 F.3d at 1082 (concluding, based on the dictionary defi-
nition, that the statutory text unambiguously refers to "the entire
amount of the capitation payments that were made to the UMWA
plans").

   Looking beyond the Webster’s definition of "reimburse," the coal
operators argue that the statute is unambiguous because the "per bene-
ficiary formula" uses 1991 as a base year, and Congress was aware
that a risk-capitation arrangement was in effect in 1991. In support of
this argument for an unambiguous text, the coal operators offer legis-
lative history and other extrinsic materials to demonstrate that the
UMWA Benefit Plans and Medicare had agreed to handle the actual-
cost dilemma via the capitation agreement. In my view, legislative
history cannot be used to establish the plainness of the statutory text,
see United States v. Gonzales, 520 U.S. 1, 6 (1997), and it probably
ought not be used, as the coal operators do here, to "confirm" the
meaning of a statute if the statute is indeed unambiguous, see Zedner
v. United States, 126 S. Ct. 1976, 1991 (2006) (Scalia, J., concurring)
("[I]f legislative history is relevant when it confirms the plain mean-
ing of the statutory text, it should also be relevant when it contradicts
the plain meaning, thus rendering what is plain ambiguous."). The
statutory text is quite clearly the best evidence of congressional intent
and, therefore, judicial inquiry ends with the conclusion that the stat-
ute is clear and unambiguous. See Robinson v. Shell Oil Co., 519 U.S.
337, 340 (1997). In sum, a statute’s clarity, or lack thereof, cannot be
discovered from extrinsic sources — such materials become useful
only after it becomes apparent that the statute itself is unclear or
ambiguous. See Exxon Mobil Corp. v. Allapattah Servs., Inc., 125 S.
Ct. 2611, 2626 (2005).

   But beyond that, I do not find the legislative history terribly helpful
in deciphering congressional intent. The report of the Coal Commis-
sion is the primary source of legislative history offered by the coal
operators, and it indeed references "capitated reimbursement" in
explaining the current state of affairs in the coal industry’s pre-Coal
Act health benefit system. Since the report does not represent the
                    MASSEY COAL CO. v. HOLLAND                       43
understanding of Congress as a whole, these references do not neces-
sarily mean that Congress meant "capitated reimbursement" when it
merely said "reimbursement." In fact, I cannot be sure of the more
basic premise that the Coal Commission’s report establishes that Con-
gress was "aware" that, in 1991 in this specialized context, "reim-
bursement" carried a specialized meaning. Indeed, as the Trustees
point out, the principal sponsor of the Act, Senator Rockefeller, sug-
gested "reimbursements" meant "payments by the plans for Federal
program benefits." 138 Cong. Rec. 34034. Of course, the statement
of an individual senator is obviously not controlling evidence of con-
gressional intent, but it highlights the generally ambiguous nature of
legislative history. Nor do I find the private parties’ understanding of
the capitation arrangement relevant to congressional intent. In sum,
these extra-textual sources offered by the coal operators do not indi-
cate that Congress was referring in section 9704(b)(2)(A)(i) to all
payments made pursuant to the capitation agreement.

   The text on its face directs the Commissioner to calculate the per
beneficiary premium using base year, or 1991, figures — meaning
that the Commissioner would simply gather and plug in historical data
about reimbursements received in 1991. Viewed in light of the text
and the purpose of the statute itself, however, I cannot conclude that
Congress thought of this fixed capitation arrangement, which pro-
duced a $25 million overpayment from Medicare, as a "reimburse-
ment." Indeed, the Coal Act suggests the opposite. The per
beneficiary premium is based on the average cost of Plan benefits to
a coal operator. It would be a curious approach for Congress to
attempt to achieve such a result by directing that capitation payments
far removed from actual costs be used. Moreover, the coal operators’
preferred interpretation would run contrary to a fundamental purpose
of the Coal Act: to continue private funding of the UMWA Benefit
Plans. Instead of burdening the public fisc with the coal operators’
obligation to continue providing benefits to retired miners, Congress
sought "to provide for the continuation of a privately financed self-
sufficient program for the delivery of health benefits to the beneficia-
ries of such plans." Pub. L. No. 102-486, § 19142(b)(3); cf. Shenango
Inc. v. Apfel, 307 F.3d 174, 195 (3d Cir. 2002) ("In short, the Coal
Act’s key objective is to ensure that the costs of providing retirement
benefits will, so far as possible, be borne by the private parties most
44                  MASSEY COAL CO. v. HOLLAND
responsible for creating retired miners’ expectations of lifetime health
benefits.").

   Based on the foregoing, I view the statute as ambiguous and would
so hold. I agree, however, that Chevron deference is not applicable to
the Commissioner’s decision in this instance. Ordinarily, the next step
would be to consider whether the agency decision is entitled, based
on its power to persuade, to "deference" under Skidmore v. Swift &
Co., 323 U.S. 134 (1944). Because the position ultimately adopted by
the Commissioner is the position I would adopt if I were construing
the statute from scratch, I would reverse regardless of whether Skid-
more deference is appropriate. See Edelman v. Lynchburg College,
535 U.S. 106, 114 & n.8 (2002). As noted, the construction advanced
by the coal operators runs contrary to a primary purpose of the Coal
Act to ensure the continued private-financing of health benefits for
retired miners. In effect, the $25.5 million overpayment to the
UMWA Benefit Plans resulted in a windfall for the coal operators and
shifted some of the burden of paying for benefits under the Coal Act
from private entities to Medicare. Accordingly, in the absence of clear
and unambiguous statutory language, and without definitive legisla-
tive history to clear up the statute, I would read the word "reimburse-
ment" consistently with the express purposes of the Coal Act and
affirm the Commissioner’s application of the per beneficiary premium
under section 9704(b)(2)(A)(i).
