UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARY HELEN COAL CORPORATION, a
Virginia Corporation,
Plaintiff-Appellant,

v.

MARTY D. HUDSON; MICHAEL H.
HOLLAND, Trustees of the United
Mine Workers of America
Combined Benefit Fund and
Trustees of the 1992 United Mine
Workers of America Benefit Plan;
                                                               No. 97-2331
THOMAS O. S. RAND; ELLIOTT A.
SEGAL; CARLTON R. SICKLES; GAIL R.
WILENSKY; WILLIAM P. HOBGOOD,
Trustees of the United Mine
Workers of America Combined
Benefit Fund; THOMAS F. CONNORS;
ROBERT WALLACE, Trustees of the
1992 United Mine Workers of
America Benefit Plan,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-97-71-3)

Argued: January 27, 1998

Decided: September 24, 1998

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

_________________________________________________________________
Reversed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Patrick Michael McSweeney, MCSWEENEY, BURTCH
& CRUMP, P.C., Richmond, Virginia, for Appellant. Peter Buscemi,
MORGAN, LEWIS & BOCKIUS, Washington, D.C., for Appellees.
ON BRIEF: William B. Ellis, John L. Marshall, Jr., MCSWEENEY,
BURTCH & CRUMP, P.C., Richmond, Virginia; Robert H. Bork,
Washington, D.C., for Appellant. John Mills Barr, MORGAN,
LEWIS & BOCKIUS, Washington, D.C.; David W. Allen, Office of
the General Counsel, UMWA HEALTH & RETIREMENT FUNDS,
Washington, D.C.; John R. Mooney, MOONEY, GREEN, BAKER,
GIBSON & SAINDON, P.C., Washington, D.C.; Samuel M. Brock,
III, MAYS & VALENTINE, Richmond, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Mary Helen Coal Corporation ("Mary Helen") appeals a final order
of the district court granting summary judgment to the appellees on
Mary Helen's claim that the Coal Industry Retiree Benefit Act of
1992, 26 U.S.C. §§ 9701-9722, as applied to Mary Helen, violates the
Due Process and Takings Clauses of the Fifth Amendment. Following
briefing and oral argument, we ordered that the case be held in abey-
ance pending argument and decision by the Supreme Court in Eastern
Enters. v. Apfel, 118 S. Ct. 2131 (1998). On June 25, 1998, the
Supreme Court issued a decision in Eastern in which five Justices
agreed that the Coal Act was unconstitutional as applied to Eastern
Enterprises. Because the case at bar is materially indistinguishable
from Eastern, we grant Mary Helen's motion for summary reversal

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pursuant to Fourth Circuit Rule 27(g), and remand the case to the dis-
trict court for further proceedings. Also outstanding are Mary Helen's
motion to strike portions of the appellees' brief, which is hereby
granted, and appellees' motion to supplement the record on appeal,
which is denied.

REVERSED

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