PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CARBON FUEL COMPANY, a West
Virginia corporation,
Plaintiff-Appellant,

v.

USX CORPORATION, a Delaware
corporation; U. S. STEEL MINING
CO., INC., a Delaware corporation,
                                     No. 95-2471
Defendants-Appellees,

v.

ARCH MINERAL CORPORATION; ARCH
MINERALS OF KENTUCKY;
CONSOLIDATION COAL COMPANY; OLD
BEN COAL COMPANY,
Third Party Defendants.
CARBON FUEL COMPANY, a West
Virginia corporation,
Plaintiff-Appellee,

v.

USX CORPORATION, a Delaware
corporation; U. S. STEEL MINING
CO., INC., a Delaware corporation,
Defendants-Appellants,
                                     No. 95-2496
v.

ARCH MINERAL CORPORATION;
CONSOLIDATION COAL COMPANY; OLD
BEN COAL COMPANY,
Third Party Defendants-Appellees,

and

ARCH MINERALS OF KENTUCKY,
Third Party Defendant.

                   2
CARBON FUEL COMPANY, a West
Virginia corporation,
Plaintiff-Appellee,

v.

USX CORPORATION, a Delaware
corporation; U. S. STEEL MINING
CO., INC., a Delaware corporation,
Defendants-Appellees,
                                     No. 95-2522
v.

ARCH MINERAL CORPORATION; OLD
BEN COAL COMPANY,
Third Party Defendants-Appellants,

and

ARCH MINERALS OF KENTUCKY;
CONSOLIDATION COAL COMPANY,
Third Party Defendants.

                   3
CARBON FUEL COMPANY, a West
Virginia corporation,
Plaintiff-Appellee,

v.

USX CORPORATION, a Delaware
corporation; U. S. STEEL MINING
CO., INC., a Delaware corporation,
Defendants-Appellees,
                                                                      No. 95-2523
v.

CONSOLIDATION COAL COMPANY,
Third Party Defendant-Appellant,

and

ARCH MINERAL CORPORATION; ARCH
MINERALS OF KENTUCKY; OLD BEN
COAL COMPANY,
Third Party Defendants.

Appeals from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CA-93-1073-2)

Argued: June 3, 1996

Decided: November 18, 1996

Before MURNAGHAN and WILLIAMS, Circuit Judges, and
MACKENZIE, Senior United States District Judge for the Eastern
District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed in part and remanded in part by published opinion. Judge
Murnaghan wrote the opinion, in which Senior Judge MacKenzie
joined. Judge Williams wrote an opinion concurring in the judgment.

                    4
COUNSEL

ARGUED: James Knight Brown, Sr., JACKSON & KELLY,
Charleston, West Virginia, for Appellant. James Michael Jarboe, USX
CORPORATION, Pittsburgh, Pennsylvania; Anthony J. Polito,
POLITO & SMOCK, P.C., Pittsburgh, Pennsylvania; John Allen
Lucas, HUNTON & WILLIAMS, Richmond, Virginia, for Appellees.
ON BRIEF: W. Henry Jernigan, Jr., JACKSON & KELLY, Charles-
ton, West Virginia; Larry L. Roller, CARBON FUEL COMPANY,
Chesapeake, West Virginia, for Appellant. Gregory B. Robertson,
Bruin S. Richardson, III, HUNTON & WILLIAMS, Richmond, Vir-
ginia; Charles L. Woody, SPILMAN, THOMAS & BATTLE,
Charleston, West Virginia, for Appellees.

_________________________________________________________________

OPINION

MURNAGHAN, Circuit Judge:

The instant appeal and cross-appeal concern the financial responsi-
bility for premiums assessed against coal mine operators under the
Coal Industry Retiree Health Benefits Act of 1992 ("the Coal Act" or
"the Act"), 26 U.S.C. §§ 9701-9722, to finance health care for retired
United Mine Workers of America ("UMWA") miners and their
dependents. Plaintiff-Appellant Carbon Fuel Company ("Carbon")
filed a lawsuit against USX Corporation and U.S. Steel Mining Co.
("USX") seeking a decree that under a settlement agreement and lease
between the two companies, USX was required to pay for certain of
Carbon's Coal Act premiums. USX filed a counterclaim against Car-
bon seeking a declaration of all the parties' rights and obligations
under the Coal Act and initiated a third-party lawsuit against Arch
Minerals Corporation ("Arch"), Old Ben Coal Company ("Old Ben"),
and Consolidation Coal Company ("Consol"), contending that, under
sales agreements with those companies, they were all liable to pay for
certain of USX's Coal Act premiums. On cross motions for summary
judgment, the district court held that the Coal Act abrogated all pre-
Act contracts transferring obligations to finance health care for retired
miners. Carbon Fuel Co. v. USX Corp., 891 F. Supp. 1186 (S.D.W.
Va. 1995). Alternatively, the district court stated that if the agree-

                     5
ments were applied, they would not transfer any Coal Act obligations
or allow for indemnification. For the following reasons, we affirm in
part. We remand so that the district court may determine whether
USX must reimburse Arch, Consol, and Old Ben for attorney's fees.

I

All five mining companies involved in this lawsuit were parties to
pre-Act commercial transactions involving the sale or lease of coal
mines. Supporting agreements and contracts in those transactions con-
tained provisions regarding the assumption of liabilities imposed by
collective-bargaining agreements with the United Mine Workers of
America ("UMWA") and cross-indemnification clauses. In particular,
those agreements transferred liability to funds established through
collective bargaining to provide UMWA retirees health benefits. Sub-
sequent to the execution of the agreements, the United States Con-
gress, however, enacted the 1992 Coal Act which created a new
mechanism for allocating the costs of health benefits for UMWA
retirees. We are confronted with the question of whether the various
agreements obligate parties to them to reimburse other parties for
assessed premiums under the Coal Act. In addressing that question,
we find that it is helpful to have a reference framework, which
includes some details of the events leading up to the Coal Act, the Act
itself, and the agreements.

A. 1992 Coal Act's Predecessors

In 1946, the members of UMWA went on a nationwide strike over
health and retirement benefits. The crisis led to the nationalization of
the coal mines by President Truman, and eventually a collective-
bargaining agreement establishing health and retirement benefits
funded by an industry-wide royalty on tons of coal produced for use
or sale. When the coal mines were returned to their owners in 1947,
UMWA and the Bituminous Coal Operators Association, Inc.
("BCOA") agreed upon the first in a series of National Bituminous
Coal Wage Agreements ("NBCWAs"). The 1950 NBCWA estab-
lished a multiemployer fund to provide welfare and retirement bene-
fits to active and retired miners and their dependents.1 The 1950 Fund
_________________________________________________________________
1 Multiemployer plans are characteristically maintained to fulfill the
terms of collective-bargaining agreements. A group of employers makes

                    6
was established as an irrevocable trust to be financed on a pay-as-
you-go basis. Each mining company's contributions were calculated
based on tons of coal mined. The basic contours of that agreement
continued through subsequent NBCWAs until the early 1970s.

In the early 1970s, UMWA and BCOA realized that their system
of funding the welfare and retirement fund needed an overhaul in
light of the Employment Retirement Income Security Act of 1974
("ERISA"), 29 U.S.C. §§ 1001-1461, and changing demographics.
The 1974 NBCWA, therefore, divided the 1950 Plan into several sep-
arate multiemployer plans. It established a 1950 Pension Plan and
Benefit Plan and a 1974 Pension Plan and Benefit Plan. The 1950
Benefit Plan provided health-care benefits to miners who retired prior
to January 1, 1976, and their dependents. The 1974 Benefit Plan pro-
vided health-care benefits to miners who were active, or who retired
on or after January 1, 1976, and their dependents. Importantly, the
1974 NBCWA provided that the benefits would be guaranteed for the
life of the covered retirees. Mining companies who signed the 1974
agreement agreed to fund both the multiemployer 1950 and 1974
Benefit Plans based on cumulative hours worked as opposed to tons
of coal mined.

In 1978, the NBCWA shifted away from the multiemployer funded
plans to a decentralized system under which each mining company
financed its own health benefit plan through individual employer
plans ("IEPs"). The 1978 NBCWA provided that miners and their
dependents who retired prior to January 1, 1976, would still receive
benefits from the 1950 Benefit Plan. A miner retiring on or after Janu-
ary 1, 1976, however, would receive health-care benefits from an IEP
operated by his or her last employer. Signatory coal companies to the
1974 Benefit Plan would continue to fund the 1974 Plan in order to
provide benefits for those miners retiring on or after January 1, 1976,
who were "orphaned" because their last employer was no longer in
the coal mining business or participating in the Plan. Very signifi-
_________________________________________________________________
contributions to a multiemployer plan. The plan pools those funds into
a general fund available to pay any benefit obligation of the plan.
Concrete Pipe & Prods. of Cal., Inc. v. Construction Laborers Pension
Trust for S. Cal., 508 U.S. 602, 605 (1993).

                    7
cantly, the 1978 NBCWA also contained an "evergreen clause" which
imposed a perpetual obligation on mining companies to continue their
contributions to the 1950 and 1974 Benefit Plans. See UMWA 1974
Pension v. Pittston Co., 984 F.2d 469, 471-76 (D.C. Cir. 1993), cert.
denied, 509 U.S. 924 (1993).

The Benefit Plans came under great strain in the 1980s. Numerous
mining companies left the mining business, leaving their "orphaned"
retirees to be covered by the 1974 Benefit Plan. Other mining compa-
nies who failed to sign successor NBCWAs were able to discontinue
their IEPs and shift the responsibility for paying"orphaned" retirees'
benefits to the 1974 Benefit Plan. A shrinking number of signatories
to the NBCWAs thus came to carry the responsibility for an increas-
ing number of orphan retirees. That problem was exacerbated by
increasing costs of health care in the 1980s, thereby creating a finan-
cial crisis in the Benefit Plans.

In 1989, the threat of insolvency in the 1950 and 1974 Benefit
Plans led to a multi-month coal strike by the UMWA at the Pittston
Coal Company, which was only settled after the intervention of the
Secretary of Labor. That settlement resulted in the creation of an
Advisory Coal Commission on UMWA retiree health benefits. The
Coal Commission found that UMWA members had received a com-
mitment of health-care benefits for life and had traded lower pensions
over the years for better health-care benefits, but that the funds to
finance those benefits were in grave danger of insolvency absent leg-
islative action. It further found that collective bargaining was no lon-
ger capable of solving the problem of financing the Benefit Plans and
recommended a legislative solution. See Coal Commission Report: A
Report to the Secretary of Labor and the American People vii-viii, 1-
5, 58-60 (Nov. 1990).2
_________________________________________________________________
2 Further details regarding the events leading up to the enactment of the
Coal Act are recounted elsewhere. See, e.g., Blue Diamond Coal Co. v.
Shalala (In re Blue Diamond Coal Co.), 79 F.3d 516, 518-20 (6th Cir.
1996); Davon, Inc. v. Shalala, 75 F.3d 1114, 1117-18 (7th Cir. 1996),
pets. for cert. filed, 64 U.S.L.W. 3741, 3742 (Apr. 22 & 23, 1996); LTV
Steel Co. v. Shalala (In re Chateaugay Corp.), 53 F.3d 478, 481-86 (2d
Cir.), cert denied, ___ U.S. ___, 116 S. Ct. 298 (1995); Templeton Coal
Co. v. Shalala, 882 F. Supp. 799, 806-09 (S.D. Ind. 1995), aff'd, 75 F.3d

                    8
B. 1992 Coal Act

The Commission's report helped spur Congressional investigation
of UMWA's retiree benefits and the enactment of the 1992 Coal Act,
Pub. L. No. 102-486, 106 Stat. 2776, 3036-56 (codified at 26 U.S.C.
§§ 9701-9722). The Act sought to remedy the problems with the pro-
vision and funding of health-care benefits to UMWA retirees by plac-
ing funding responsibility on the "persons most responsible for plan
liabilities." Coal Act, 106 Stat. 3037 § 19142.

To effect its purpose, the Act established a new funding mecha-
nism for health-care benefits for those who received benefits from the
1950 and 1974 Benefit Plans by creating a new Combined Fund,
which merged both the 1950 and 1974 Benefit Plans' funds. 26
U.S.C. § 9702. In order to ensure its sound financial health, the Act
changed the basic method of funding from an operation-based for-
mula (e.g., calculated according to tons of coal produced or hours
worked) to one where specific beneficiaries would be assigned to
mining companies which they had worked for in the past--"signatory
operators" that "remain[ ] in business." Id. § 9706.3"A signatory oper-
ator" is a company that was a signatory to a coal wage agreement. Id.
§ 9701(c)(1). Signatory operators are considered to be "in business"
if they conduct business and derive revenues from any business activ-
ity, regardless of whether that activity is in the coal industry. Id.
§ 9701(c)(7). Orphaned employees are apportioned among the signa-
tory operators. Id. § 9704(d).

The Act provides that the Commissioner of Social Security ("the
Commissioner") will make all assignments. Id. § 9706.4 The Act pro-
_________________________________________________________________
1114 (7th Cir. 1996), pets. for cert. filed, 64 USLW 3741, 3742 (April
22 & 23, 1996); UMWA v. Nobel, 720 F. Supp. 1169, 1173-78 (W.D. Pa.
1989), aff'd, 902 F.2d 1558 (3d Cir. 1990), cert. denied, 499 U.S. 904
(1991).
3 The Act also continued the IEPs established in the 1978 NBCWA and
created a new 1992 UMWA Benefit Fund. Those financing mechanisms
are not relevant to the instant lawsuit.
4 Effective March 31, 1995, Pub. L. 103-296, Title I, §§ 108(h)(9)(B),
110(a), August 15, 1994, 108 Stat. 1487, 1490, amended 26 U.S.C.
§ 9706, by replacing the Secretary of Health and Human Services ("the
Secretary") with the Commissioner of Social Security. The assignments
contested here were made by the Secretary.

                    9
vides that the Commissioner shall assign each retiree covered by the
Combined Fund to a signatory operator in the following order: (1)
first, to the signatory operator which was a signatory to the 1978
NBCWA and the most recent signatory operator to employ the retiree
in the coal industry for at least two years; (2) second, to the signatory
operator which was a signatory to the 1978 NBCWA and was the
most recent signatory operator to employ the retiree in the coal indus-
try; and (3) third, to the signatory operator which employed the retiree
in the coal industry for a longer period of time than any other signa-
tory operator prior to the effective date of the 1978 NBCWA. Id.
§ 9706(a).

By holding all signatory operators to NBCWAs--which the Coal
Commission found had fostered an expectation of life benefits and
benefitted from UMWA concessions in exchange for better health-
care benefits--the Act placed responsibility on the "persons most
responsible for plan liabilities." In order to do that, the Conference
Report expressed Congress's view that it would "reach back" to those
operators who "had bargained out of their funding obligations." 138
Cong. Rec. S17566-01, 17603.

The Act also provides that assignment of eligible beneficiaries can
be transferred to successors of assigned operators"after the enactment
date" provided that the assigned operator who transferred the benefi-
ciary assignment remains the guarantor of the benefits provided to
that beneficiary under the Act. 26 U.S.C. § 9706(b)(2) (emphasis
added). Thus, the Act allows post-Act contracts to reallocate assign-
ments under the Act, although it requires that ultimate financial
responsibility not be reallocated. The Act contains no similar provi-
sion regarding pre-Act contracts, which is not surprising given that
Congress expressly intended to "reach back" and impose obligations
on signatories to the NBCWAs notwithstanding that many companies
had "bargained out of their funding obligations." 138 Cong.Rec.
S17566-01, S17603.5
_________________________________________________________________
5 Additionally, in § 9706, the Act includes a provision for private civil
actions that can be brought against another person for responsibility for
assigned premiums, notwithstanding any prior decision by the Commis-
sioner. 26 U.S.C. § 9706(f)(6).

                     10
The Act mandates that as of February 1, 1993, "[a]ll liability for
contributions to the Combined Fund shall be determined exclusively
under [the Act], including all liability for contributions to the 1950
UMWA Benefit Plan and the 1974 UMWA Benefit Plan." 26 U.S.C.
§ 9708 (emphasis added). The Act cautions, however, that the Act
shall have no effect on claims, obligations, or subrogation rights aris-
ing in connection with the 1950 and 1974 Benefit Plans as of Febru-
ary 1, 1993. Id.6

C. Lease and Sales Contracts

In question here is the liability to the Combined Fund for the pre-
1976 retirees assigned to USX and to Carbon by the Secretary. Car-
bon and USX both contend that certain lease or sales contracts and
accompanying agreements may impact their liability to the Combined
Fund or allow indemnification for their payments to the Fund. The
relevant provisions of those agreements are as follows.

1. USX and Carbon Fuel's Agreements

In a 1982 Settlement Agreement, dated June 11, and a Lease and
Sublease, dated June 12, Carbon sold its mining equipment to USX
and leased or subleased all of its coal properties to USX for a 15-year
_________________________________________________________________
6 Section 9708 in its entirety provides:

          All liability for contributions to the Combined Fund that arises
          on or after February 1, 1993, shall be determined exclusively
          under this chapter, including all liability for contributions to the
          1950 UMWA Benefit Plan and the 1974 UMWA Benefit Plan
          for coal production on and after February 1, 1993. However,
          nothing in this chapter is intended to have any effect on any
          claims or obligations arising in connection with the 1950
          UMWA Benefit Plan and the 1974 UMWA Benefit Plan as of
          February 1, 1993, including claims or obligations based on the
          "evergreen" clause found in the language of the 1950 UMWA
          Benefit Plan and the 1974 UMWA Benefit Plan. This chapter
          shall not be construed to affect any rights of subrogation of any
          1988 agreement operator with respect to contributions due to the
          1950 UMWA Benefit Plan or the 1974 UMWA Benefit Plan as
          of February 1, 1993.

                     11
term.7 All coal mine employees were transferred to USX as well. As
required by a successorship clause in the 1981 NBCWA, the Settle-
ment Agreement provided:

          9.9(a) Effective at the Closing, [USX] hereby assumes the
          National Bituminous Coal Wage Agreement of 1981, effec-
          tive, June 8, 1981, (the "UMW Agreement") applicable to
          the operations which are the subject of this Agreement or
          the Coal Lease ("Covered Operations"), and[USX] will
          assume and agree to perform, pay and discharge Carbon's
          obligations under such collective bargaining agreement to
          the extent such obligations arose with respect to any period
          after the Closing. . . . Pursuant to [USX's] assumption of the
          UMW Agreement as provided elsewhere herein, and in
          accordance with the requirements of the 1950 Plan and the
          1974 Plan, [USX] agrees that on and after the Closing Date
          it shall, with respect to the Covered Operations, be a signa-
          tory to the UMW Agreement and succeed to Carbon's obli-
          gations under the UMW Agreement to make contributions
          to the 1950 Plan and to the 1974 Plan in the amount and at
          the rate required by the UMW Agreement for the duration
          thereof.

The 1982 settlement agreement also provided that USX agreed to
assume and perform all of Carbon's contractual obligations which
relate to Carbon's performance of a 1974 agreement between Carbon
and USX. That included USX's agreeing to pay certain unbilled costs
such as "[p]ayments of health and medical benefits for bargaining and
non-bargaining employees and related administrative costs." Thus,
USX assumed Carbon's obligations under the NBCWAs to make all
contributions arising after closing to the 1950 and 1974 Benefit Plans
and to pay health and medical costs insofar as they related to the per-
formance of a 1974 agreement between Carbon and USX.

Disagreements between USX and Carbon resulted in a subsequent
settlement agreement in 1987, which terminated the lease and sub-
lease. The 1987 agreement provided that "all remaining or continuing
_________________________________________________________________
7 The agreement resulted from disputes arising out of a prior 15-year
contract in which Carbon had agreed to supply USX with coal.

                    12
obligations" under the 1982 settlement agreement"shall remain in full
force and effect." Carbon, however, did not resume its mining opera-
tions on the land previously leased to USX. Despite Carbon's failure
to re-open the covered operations and notwithstanding the terms of its
settlement agreements, the Secretary assigned to Carbon UMWA
retirees who had worked at the "covered operations" as Carbon's
employees and retired prior to 1976.8
_________________________________________________________________
8 Carbon and USX also included several indemnification provisions in
their agreements. Carbon agreed to indemnify USX,

          its officers, stockholders and directors against, and hold each of
          them harmless from, any and all claims . . . resulting from or
          arising out of the operation, administration and funding of Car-
          bon's employee benefit plans by Carbon prior to the Closing
          date, including but not limited to any taxes, penalties, liens or
          liabilities imposed or assessed by any governmental authority, or
          agency, under any statute, rule or regulation applicable to the
          operation, administration and funding of such plans.

USX agreed to indemnify Carbon,

          its stockholders and directors against, and hold each of them
          harmless from, any and all claims . . . resulting from or arising
          out of the operation, administration and funding of[USX's]
          employee benefit plans by USX for all periods on and after the
          Closing Date.

USX also agreed more generally to indemnify Carbon

          from and against any claim, loss, damage, cost, or expense of
          any kind or character arising out of or resulting from . . . any
          claims, causes of action, debts, liabilities and obligations,
          incurred in connection with the assets . . . and arising out of
          [USX's] operation, ownership or leasehold of such assets on or
          after the Closing Date.

Carbon, in turn, agreed to indemnify USX

          from and against any claims, loss, damages, cost or expense of
          any kind or character arising out of or resulting from . . . any
          debts, liabilities and obligations incurred or which may be
          incurred with respect to any of the Excluded Assets . . . [and] any
          debts . . . being identified as being for the account of Carbon.

Another indemnification clause provided for cross-indemnification
relating to claims for the "death of, disease incurred by or injury to per-
sons or destruction or damage to property," any public or private nui-
sance, and restoration, repair or reclamation of any area, required by law
or as provided in the Agreements.

                    13
2. USX and Other Companies' Agreements

In the early 1980s, USX sold off a large portion of its mining oper-
ations to Arch, Old Ben, and Consol. USX had contributed to both the
1950 and 1974 Benefit Plans based on the operations in the mines it
sold. Evergreen clauses in the NBCWAs required that each new buyer
covenant to provide funding to the 1950 and 1974 Benefits Plans.
Thus, under their sales agreements, each purchasing company agreed
in some fashion to assume USX's duties under the then existing
NBCWA to contribute to the 1950 and 1974 Trusts. 9 And, in fact,
_________________________________________________________________

9 The Arch Sales Agreement with USX provides:

         A[rch] will assume US[X]'s obligations under the collective bar-
         gaining agreement dated June 7, 1981, then in effect between
         US[X] and the UMWA applicable to such employees. A[rch]
         will discharge all of US[X]'s obligations under such collective
         bargaining agreement to the extent that such obligations arise
         with respect to the period after Closing.

The Consol Sales Agreement with USX provides:

         Consol will assume as of Closing US[X]'s obligations under the
         collective bargaining agreement dated June 7, 1981, then in
         effect between US[X] and the UMWA applicable to such
         employees. Subject to Article IV(b), Consol will discharge all of
         US[X]'s . . . obligations under such collective bargaining agree-
         ment to the extent that such obligations arise with respect to
         events occurring in the period after Closing . . . it being the
         intention of the Parties that Consol have no liability or responsi-
         bility for any benefits due or that may become due in the future
         to employees of US[X] . . . who have retired prior to Closing,
         unless and until any such retired employee may be subsequently
         employed by Consol at its discretion outside its obligations pur-
         suant to this Agreement.

The Old Ben Sales Agreement with USX provides:

         [Old Ben] will assume the collective bargaining agreements then
         in effect, if any, between [USX] and the UMWA applicable to
         these bargaining units. [Old Ben] will discharge all of [USX]'s
         obligations under such collective bargaining agreements, includ-
         ing obligations to make contributions to the 1950 Pension Plan,
         the 1950 Benefit Plan, the 1974 Pension Plan, and the 1974 Ben-

                   14
each company made its obligatory contributions to the Plans until the
enactment of the Coal Act's new funding system. 10

Each of the sales agreements also contained cross indemnification
provisions very similar, if not identical, to that included in the Old
Ben agreement:

          Buyers expressly assume and agree in due course to pay,
          perform, fulfill and discharge and to indemnify and hold
          harmless [USX], its officers, directors and shareholders, and
          their successors, heirs, administrators and assigns, from and
          against any claim, loss, damage, cost, or expense of any
          kind or character arising out of or resulting from:

          (i) Any claims, causes of action, debts, liabilities
          and obligations incurred in connection with the
          Acquired Assets or arising out of the ownership or
          operation of the Acquired Assets on or after the
          Business Closing, or from acts, omissions or activ-
          ities of Buyers in the ownership or operation of the
          Acquired Assets on or after the Business Closing.
          ...

In return, USX agreed to indemnify Buyers.

        [USX] expressly assumes and agrees in due course to pay,
        perform, fulfill and discharge and to indemnify and hold
        harmless BUYERS, their officers, directors and sharehold-
_________________________________________________________________

          efit Plan, to the extent that such obligations arose with respect to
          a period after the Business Closing. Except as otherwise pro-
          vided in this Agreement, [USX]'s obligation to make contribu-
          tions to the above employee benefit plans shall be limited to the
          obligations set forth in the 1978 National Bituminous Coal Wage
          Agreement or its successor to make contributions for hours
          worked or tons of coal mined prior to the Business Closing.
10 Employees at the mines sold who retired after January 1, 1976,
received and continued to receive health benefits directly from USX
under an IEP.

                     15
          ers, and their successors, heirs, administrators and assigns,
          from and against any claim, loss, damages, cost or expense
          of any kind or character arising out of or resulting from the
          following:

          (i) Any claims or causes of action against or
          debts, liabilities and obligations of [USX] incurred
          in connections with the Acquired Assets or arising
          out of the ownership or operation of the Acquired
          Assets prior to the Business Closing, or from the
          acts, omissions, or activities of [USX] in the own-
          ership and operation of the Acquired Assets prior
          to the Business Closing;

***

          (iii) Any claims, causes of action, debts, obliga-
          tions and liabilities of any kind or character
          (including, but not limited to workers' compensa-
          tion claims) and any related cost or expenses, to
          employees of [USX], former employees of [USX],
          actual or potential applicants for employment at
          [USX], any beneficiaries of the above or any other
          person asserting a claim on their behalf, arising out
          of or resulting from any incident or event which
          occurs prior to the Business Closing or any claim
          for employee benefits related to an employee's or
          former employee's period of service with [USX]
          prior to the Business Closing.

Thus, USX agreed to indemnify Buyers for liability arising out of the
operation of the mines prior to closing and the Buyers agreed to
indemnify USX for liabilities arising on or after closing.

The Secretary assigned to USX a number of UMWA retirees who
worked for USX at the operations transferred to Old Ben, Consol, and
Arch and retired prior to 1976.

D. Lawsuit

In the spring of 1994, Carbon filed a lawsuit in federal court based
on diversity jurisdiction which sought declaratory and injunctive

                    16
relief against USX. Carbon sought to hold USX liable based on the
1982 settlement agreement for the assigned retirees who had worked
at the operations which were covered by the lease. Carbon specifi-
cally relied on the provisions where USX agreed to assume Carbon's
obligations under the 1981 NBCWA collective-bargaining agreement
and successor agreements and where USX agreed to assume unbilled
medical costs arising out of Carbon's performance of the 1974 agree-
ment.

USX filed a counterclaim against Carbon seeking"a declaration of
the rights and obligations of the parties . . . under the [Coal Act]" and
initiated a third party complaint against Arch, Consol, and Old Ben
("counterdefendants"). USX argued that, under Carbon's interpreta-
tion of the Coal Act, Arch, Consol, and Old Ben should pay for, reim-
burse, or indemnify it for the retirees who worked at the operations
sold to those companies. USX relied on the provisions where those
companies agreed to assume all liability arising under the collective-
bargaining agreements which arose after closing. USX also relied on
the indemnification provisions in those agreements. The counterde-
fendants filed a counterclaim seeking indemnification from USX for
any liabilities imposed upon them or, alternatively, if no liabilities
were imposed, attorney's fees and costs under the indemnification
provisions in their sales contracts.

Each party filed a motion for summary judgment. After briefing
and oral argument, the district court ruled that the 1992 Coal Act, in
providing that, as of February 1, 1993, all contributions to the Com-
bined Fund "shall be determined exclusively" under the Act, explic-
itly abrogated all pre-Act private party agreements as to financial
responsibilities for pre-1976 UMWA retirees. The district court fur-
ther found that the private agreements at issue would provide for the
same result because they would not allow transfer of the obligations
or allow for indemnification as to any of the contested assignments.

Carbon has appealed. USX has cross-appealed. The cross-
defendants have appealed the district court's failure to grant them
attorney's fees under the cross-indemnification provisions in the sales
agreements.

                     17
II

A. Standard of Review

We review a district court's summary judgment ruling under a de
novo standard of review. Henson v. Liggett Group, Inc., 61 F.3d 270,
274 (4th Cir. 1995); Jackson v. Kimel, 992 F.2d 1318, 1322 (4th Cir.
1993). Under Rule 56(c) of the Federal Rules of Civil Procedure,
summary judgment is appropriate only where there are no genuine
issues of material fact. In conducting our analysis, we review the
record in the light most favorable to the nonmoving party.

B. Coal Act's Impact on Pre-Act Contractual Agreements

Carbon and USX argue that the Coal Act does not abrogate their
pre-Act contracts reallocating their obligations to the pre-Act Benefit
Plans. They contend that the Act recognizes and incorporates their
pre-Act contracts. They also contend that the Coal Act's Combined
Fund is essentially a codification of their obligations to the pre-Act
Benefit Plans. Therefore, they argue that they may bring a civil action
based on their pre-Act agreements for reimbursement or indemnifica-
tion for their contributions to the Combined Fund which are based on
assignments of retirees who worked at the mining operations they
sold or leased to others. We disagree. As explained below, the Coal
Act established a new funding method for financing UMWA retirees'
health-care benefits that expressly created new obligations on Carbon
and USX to a new and distinct fund--the Combined Fund--
notwithstanding their prior contracts. Under the Act "ALL" liability is
determined by the Act, regardless of prior private agreements. Fur-
thermore, we agree with the district court that, in any event, the con-
tracts relied upon do not require reimbursement for Coal Act
premiums paid to the Combined Fund.

Under the most basic canon of statutory construction, we begin
interpreting a statute by examining the literal and plain language of
the statute. William v. United States Merit Sys. Protection Bd., 15
F.3d 46, 49 (4th Cir. 1994); United States v. Allen, 2 F.3d 538, 539
(4th Cir. 1993). Absent explicit legislative intent to the contrary, the
statute should be construed according to its plain and ordinary mean-
ing. Id.

                     18
The Coal Act changed the entire mechanism for funding retirement
benefits and required that "[a]ll liability for contributions to the Com-
bined Fund that arises on and after February 1, 1993, . . . be deter-
mined exclusively under [the Coal Act], including all liability for
contributions to the 1950 UMWA Benefit Plan and the 1974 UMWA
Benefit Plan for coal production on and after February 1, 1993." 26
U.S.C. § 9708 (emphasis added). While the Act made clear that obli-
gations, claims, and subrogation rights arising in relation to the 1950
and 1974 Benefit Plans as of February 1, 1993, were not affected, the
Act's new method became the exclusive method for determining lia-
bility to the Combined Fund on and after February 1, 1993. Id. Only
liabilities imposed after February 1, 1993, to the Combined Fund are
the subject of this lawsuit.

In providing that all liability for contributions to the Combined
Fund, including all liability to the 1950 and 1974 Benefit Plans be
determined exclusively under the Coal Act, Congress "upset[ ] other-
wise settled expectations," and "impose[d] a new duty or liability
based on past acts" for some coal operators. LTV Steel Co. v. Shalala
(In re Chateaugay Corp.), 53 F.3d 478, 489 (2d Cir.) (citation omit-
ted), cert denied, ___ U.S. ___, 116 S. Ct. 298 (1995). While the Coal
Act maintained similar benefits to those provided previously, it
entirely changed the mechanism for funding those benefits by impos-
ing what we have termed a tax. See 1992 UMWA Benefit Plan v.
Leckie Smokeless, No. 96-1708, Slip op. at 19-20, ___ F.3d ___, ___
(4th Cir. Oct. 29, 1996). That tax rejected the previous methods for
funding health-care benefits based on operational formulas (e.g., tons
of coal mined, hours worked) achieved through collective bargaining
in favor of statutory assessments which in certain instances "reached
back" to companies that had left the coal business or bargained out
of their prior obligations.11 Those companies were the ones that
_________________________________________________________________
11 "The essence of the Conference Agreement [wa]s that those compa-
nies which employed the retirees in question, and thereby benefitted
from their services, will be assigned responsibility for providing the
health care benefits promised in their various collective bargaining
agreements." 138 Cong.Rec. S17566-01, 17603. The Conference Report
expressed the intent of Congress to "reach back" to those companies who
"had bargained out of their funding obligations." Congress believed that
"an equitable solution . . . require[d] that such companies remain obli-
gated to help fund the benefit program which covers retired persons who
worked for those companies." Id.

                     19
entered into the collective bargaining agreements and promised the
UMWA members life benefits. Those companies were the ones that
had benefitted from the retirees' work and efforts. Those companies
were the ones that had achieved concessions from the miners in
exchange for better health benefits. Those companies that bargained
out of their obligations and left the mining business helped, in part,
to cause near financial collapse of the Benefit Plans by causing a
small number of signatory companies to shoulder the entire burden.
Thus, Congress reasoned that an equitable solution would permit
reaching back to place responsibility on those companies which the
miners had worked for, notwithstanding their bargaining out of their
obligations.

Thus, to characterize the Act, as Carbon and USX do,"as merely
an `adjustment' to signatory operators' existing or pre-existing con-
tractual obligations to fund health care benefits for UMWA miners
and retirees," see Templeton Coal, 882 F. Supp. at 815, is not entirely
accurate. While the Coal Act continued signatory operators' pre-
existing contractual obligations to provide health-care benefits, it also
"reached back" to impose new obligations on companies that had bar-
gained out of their obligations and, in doing so, fundamentally
changed the method for funding UMWA retirees' health benefits. For
those reasons, we find that the Coal Act was not a mere codification
of pre-existing NBCWAs as Carbon and USX claim, but rather an
imposition of new obligations on certain NBCWA signatory opera-
tors.

Carbon and USX argue, however, that the Coal Act allows for their
pre-Act contracts to be enforced.12 Carbon and USX assert that 26
U.S.C. § 9706(f)(6), which provides for private civil actions to
enforce responsibility of assigned premiums notwithstanding the Sec-
retary's assignment, recognizes their ability to enforce pre-Act con-
tracts assigning liability to the 1950 and 1974 Benefit Plans.13 We
disagree for the reasons that follow.
_________________________________________________________________
12 The dissent also contends that the pre-Act contracts transferring obli-
gations to the 1950 and 1974 Benefit Plans allow for private civil law-
suits to seek reimbursement for premiums paid to the Coal Act.
13 Section 9706(f)(6) states:

          Nothing in this section shall preclude the right of any person to
          bring a separate civil action against another person for responsi-
          bility for assigned premiums, notwithstanding any prior decision
          by the Commissioner.

                     20
First, the express language of the statute requires that "All liability
for contributions to the Combined Fund that arises on and after Febru-
ary 1, 1993, . . . be determined exclusively under [the Coal Act]." 26
U.S.C. § 9708 (emphasis added). We interpret Congress to mean pre-
cisely what it said--that "All liability" to the Combined Fund be
determined by the Coal Act and not prior private agreements unless
expressly provided for in the Act. The Act contains no provisions that
expressly provide for the enforcement of pre-Act agreements.

Second, the private agreements USX and Carbon seek to enforce
were based upon and entered into under a system of funding benefits
that Congress expressly abrogated because of, in part, the signatory
operators' ability to contract out of their funding obligations. Con-
gress intended the Coal Act to reach back and impose liability on the
signatory operators who had contracted out of their obligations to
fund retiree benefits. Allowing the enforcement of those contracts
expressly undermines the intent and purpose of the Coal Act as
expressed in the Conference Agreement "that those companies which
employed the retirees in question, and thereby benefitted from their
services . . . be assigned responsibility for providing the health care
benefits promised." 138 Cong.Rec. S17566-01, 17603. While the Act
expressly recognizes that post-Act contracts may be entered into in
order to transfer that liability as long as the original assignee remains
the guarantor of the premiums, the Act contains no similar provisions
for pre-Act contracts.

Third, we do not read § 9706 as Carbon, USX, and the dissent read
it, to allow for private enforcement of pre-Act contracts. To do so
would allow those companies who had contracted out of their funding
obligations to, in effect, avoid their obligations, notwithstanding any
sort of primary liability to the Combined Fund. Instead, we read the
private action provision, as the district court did, to refer to an earlier
subsection of § 9706 which provides that post-Act private agreements
and contracts can reallocate responsibility for assigned retirees' bene-
fits to the Combined Fund to successor operators of mines, provided
that the operator transferring the assignment remains a guarantor of
the payments to the Fund.14
_________________________________________________________________

14 Section 9706(b)(2) states:

                     21
Carbon and USX argue, however, that disallowing pre-Act con-
tracts renders the section allowing for private contracts superfluous.
We do not think so. In allowing for reassignment under post-Act con-
tracts, the statute states that the assigned operators shall notify the
Trustees of the Combined Fund of the change in assignment. 26
U.S.C. § 9706(b)(2). The change is not made through the Commis-
sioner. In the event of a problem, § 9706(b)(2) does not state how the
problem is to be resolved. The operator who transferred its assign-
ment remains ultimately liable as the guarantor to the trustees of the
Fund. Id. All assignments by the Commissioner within a certain time
limit, or, if a request for review is filed within the time limit, after his
or her reconsideration, are final--they are not subject to judicial
review. Id. at 9706(f). Thus, recourse may not be had with the Com-
missioner. The private action section makes clear that the assignor in
the post-Act contract may bring a private civil action seeking reim-
bursement for the premiums it has paid. Id.§ 9706(f)(6).15
_________________________________________________________________

         If a person becomes a successor of an assigned operator after the
         enactment date, the assigned operator may transfer the assign-
         ment of an eligible beneficiary under subsection (a) to such suc-
         cessor, and such successor shall be treated as the assigned
         operator with respect to such eligible beneficiary for purposes of
         [the Coal Act]. Notwithstanding the preceding sentence, the
         assigned operator transferring such assignment (and any related
         person) shall remain the guarantor of the benefits provided to the
         eligible beneficiary under [the Coal Act]. An assigned operator
         shall notify the trustees of the Combined Fund of a transfer
         described in this paragraph.

(emphasis added).
15 Carbon and USX also rely on the Conference Report's description of
the private action section. The Conference Report states that:

         The section on private actions provides that if parties have com-
         mercial contracts relate[d] to acquisition or disposition of coal
         bearing properties or facilities which delineate their respective
         responsibilities concerning the obligation of retiree health care,
         the parties may enter into private litigation to enforce such con-
         tracts for indemnification or any other form of payment alloca-
         tion as may be appropriate under their private contract.
         Otherwise, this language does not create new private rights of

                   22
The dissent argues that the private agreements reallocating respon-
sibility to the Benefit Funds may be litigated by drawing a distinction
between primary responsibility to the Combined Fund and secondary
liability under a private agreement to reimburse those primarily liable
to the Combined Fund. Again, we must disagree. Congress expressly
stated that "All liability" should be determined as provided for by the
Act. Congress made no distinction between primary and secondary
liability. And, contrary to the dissent's assertion that "[i]t is not sur-
prising . . . that a statute enacted in 1992 fails to authorize parties to
enter into contracts prior to 1992," Congress was well aware that sig-
natory operators had "bargained out of their funding obligations." 138
Cong.Rec. S17566-01, 17603. If Congress had intended signatory
operators to continue to be able to enforce some type of secondary lia-
bility under the private agreements it could have so stated. Indeed,
Congress did allow for "a type of" secondary liability with respect to
post-Act contracts. However, Congress did not provide for any liabil-
ity other than that created by the Act. And Congress made clear that
the Act would "expressly" determine all liability. The failure to allow
for secondary liability based on pre-Act private contracts is not sur-
prising given Congress' expressed intent to "reach back" and impose
the obligation to fund retirement benefits on those signatory operators
who had "bargained out of their funding obligations." 138 Cong.Rec.
S17566-01, 17603.

C. Agreements and Contracts

In any event, as the district court recognized, the agreements and
contracts USX and Carbon rely upon would not allow reimbursement.
_________________________________________________________________
          action where they would not exist in the absence of this provi-
          sion.

138 Cong.Rec. S17566-01, S17605-06. We read "have" as ambiguous as
to whether it relates to post- or pre-Act contracts. Thus, we do not view
this section of the legislative history as dispositive or as expressing a
clear intent to allow private pre-Act contracts. In light of the express lan-
guage of the Act stating that all contributions shall be determined exclu-
sively under the Act and the legislative history indicating that the Coal
Act was intended to correct the problem of operators contracting out of
their obligations to the 1950 and 1974 Benefit Plans, we find that the
ambiguous "have" in the legislative history is not strong enough to create
an enforcement right for pre-Act contracts.

                     23
Under the Carbon/USX settlement agreement, USX agreed to "as-
sume and . . . to perform, pay and discharge Carbon's obligations
under [the NBCWA of 1981] collective bargaining agreement [--
which included the 1950 and 1974 Benefit Plans contributions--] to
the extent such obligations arose with respect to any period after the
Closing." (Emphasis added). Arch, Old Ben, and Consol also all
agreed to assume under their sales agreements with USX all of USX's
"obligations under [the NBCWA of 1981] collective bargaining
agreement [--which included the 1950 and 1974 Benefit Plans
contributions--] to the extent that such obligations arise with respect
to the period after Closing." (Emphasis added).

Those provisions are inapplicable to the assignments by the Secre-
tary or Commissioner for several reasons. First, while the obligation
to assume all collective-bargaining agreements, including health-care
benefits guaranteed in those agreements under the 1950 and 1974
Benefit Plans, was transferred to the successor interests, the Coal Act
is not a collectively bargained agreement. Rather, it is a legislatively
imposed tax. Furthermore, as explained previously, the obligations
assumed under the collective-bargaining agreements are not coexten-
sive with those imposed by the Coal Act.

Second, the obligations imposed under the 1992 Coal Act do not
arise from the acquired assets in and of themselves or from events on
or after the date of closing of each agreement. Although the Com-
bined Fund and the obligations thereunder did not exist prior to the
enactment of the Coal Act in 1992, the obligations the Act imposes
are based on events that occurred prior to the closing date in all the
transactions at issue. The new liability created by"the Coal Act links
operator liability to previous employment relationships," i.e. the hir-
ing and firing of workers, the signing of NBCWAs, the promise of
lifetime benefits, and the benefits and concessions the companies
received from those workers in the past. In re Chateaugay Corp., 53
F.3d at 489; cf. Davon, Inc. v. Shalala, 75 F.3d at 1114, 1126 (7th Cir.
1996) (discussing retroactive aspects of tax imposed under the Coal
Act). Significantly, USX must have interpreted the agreements in this
same fashion for some time because it did not seek to avoid its assess-
ments under the 1992 Coal Act until Carbon sued it.

In addition to assuming liability under the NBCWA collective-
bargaining agreements, the sales agreements USX entered into with

                     24
Old Ben, Consol, and Arch all contained cross-indemnification provi-
sions. Each of the Buyers agreed to assume and hold harmless USX
for all claims and the like arising in connection with the Acquired
Assets "on or after the Business Closing." USX in turn agreed to
assume and hold harmless the Buyers from all claims and the like
arising in connection with the Acquired Assets "prior to Business
Closing" and to assume all claims and the like"to employees of
[USX] [and] former employees of [USX] . . . arising out of or result-
ing from any incident or event which occurs prior to the Business
Closing or any claim for employee benefits related to any employee's
or former employee's period of service with [USX] prior to the Busi-
ness Closing." (Emphasis added).

While the Coal Act's obligations are new ones, they are based on
and arise from employment relations that were initiated and ended
long before the closing in any of the sales agreements. Thus, in no
sense can the Buyers be held liable under the indemnification provi-
sion for the Coal Act's obligations.

Furthermore, USX agreed to hold harmless Buyers from any claim
for employee benefits related to any employee's or former employ-
ee's period of service with USX prior to the closing. USX argues that
this provision only relates to claims for employee benefits by employ-
ees themselves. However, we do not read the relevant contract clause
in that fashion. We read USX as agreeing to hold harmless all claims,
costs, or expenses "to former employees of [USX], . . . or any claim
for employee benefits related to an employee's or former employee's
period of service with [USX] prior to the Business Closing." We read
the "or" as being disjunctive. We therefore read the last clause of the
sentence to apply to all claims for employee benefits related to an
employee's or former employee's period of service with USX prior
to the closing.

The Secretary's assignments under the Coal Act are claims for
employee benefits related to former employees' periods of service
with USX prior to the closing. We read USX as agreeing to hold
harmless Arch, Old Ben, and Consol for all such employee benefits--
excluding those imposed through the NBCWA collective bargaining
process. Thus, under the indemnification clauses, for that reason as

                    25
well, Arch, Old Ben, and Consol are not obligated to indemnify USX
for the Secretary's assessments under the Coal Act.

Similarly, indemnification provisions in the USX/Carbon Agree-
ments do not require that USX reimburse Carbon for its Coal Act pre-
mium assessments. Indeed, in the Carbon/USX agreement Carbon
expressly agreed to indemnify USX for any "claims. . . resulting from
or arising out of the operation, administration and funding of Car-
bon's employee benefit plans by Carbon prior to the Closing Date,
including but not limited to any taxes . . . imposed or assessed by any
governmental authority, or agency, under any statute, rule or regula-
tion applicable to the operation, administration and funding of such
plans." As explained previously, the Coal Act premiums are taxes
imposed under the Coal Act based upon Carbon's operation, adminis-
tration and funding of its employee benefit plan prior to the Closing
Date. Thus, we disagree with the dissent's assertion that if we permit-
ted Carbon and USX to proceed with their lawsuit based on the con-
tracts, remand would be necessary. The contracts are in the record.
We have reviewed the contracts, the district court's findings and the
parties' arguments, and conclude that the contracts do not allow for
the reimbursement sought. Remand would therefore be unwarranted
in any event.

D. Constitutionality

We recognize that USX and Carbon both likely understood when
they entered into the relevant agreements that they were negotiating
out of any obligations to fund health-care benefits for pre-1976
UMWA retirees. Thus, we briefly address the constitutionality of the
Coal Act imposing new duties on Carbon and USX based on past
acts, thereby upsetting settled transactions and settled expectations. In
re Chateaugay, 53 F.3d at 489.

The Supreme Court has expressly held that private contracts do not
present a due process bar to otherwise legitimate Congressional
action. Concrete Pipe & Prods. of Cal., Inc. v. Construction Laborers
Pension Trust for S. Cal., 508 U.S. 602, 639-41 (1993); Pension Ben-
efit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 733 (1984).
"[F]ederal economic legislation, which is not subject to the con-
straints coextensive with those imposed upon the States by the Con-

                       26
tract Clause of Art. I, § 10, of the Federal Constitution . . . , is subject
to due process review only for rationality." Concrete Pipe, 508 U.S.
at 640-41 (citations omitted); see also Connolly v. Pension Benefit
Guar. Corp., 475 U.S. 211, 223-224 (1986) ("Contracts, however
express, cannot fetter the constitutional authority of Congress. Con-
tracts may create rights of property, but when contracts deal with a
subject matter which lies within the control of Congress, they have a
congenital infirmity. Parties cannot remove their transactions from the
reach of dominant constitutional power by making contracts about
them."); Gray, 467 U.S. at 732-33 ("We have never held, however,
that the principles embodied in the Fifth Amendment's Due Process
Clause are coextensive with prohibitions existing against state impair-
ments of pre-existing contracts.").

All economic legislation can be said to upset settled economic
expectations of someone. "[L]egislation readjusting rights and bur-
dens is not unlawful solely because it upsets otherwise settled expec-
tations." Usery v. Turner Elkhorn Mining Co. , 428 U.S. 1, 16 (1976).
That principle holds true "even though the effect of the legislation is
to impose a new duty or liability based on past acts." Id.

The Coal Act burdens no fundamental rights. It is"`a classic exam-
ple of an economic regulation' and is subject only to the minimum
scrutiny rational basis test." In re Chateaugay, 53 F.3d at 486 (quot-
ing Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S.
59, 83 (1978)); see also Davon, 75 F.3d at 1121 (reaching same con-
clusion as to level of scrutiny applicable to due process challenge to
Coal Act). We therefore accord Congress's directives under the Coal
Act strong deference as economic legislation and review it only for
having a rational basis. Carbon and USX bear a difficult and heavy
burden to demonstrate that a piece of economic legislation is not
rational. See, e.g., Davon, 75 F.3d at 1121-22.

We find that the Coal Act was a rational congressional response to
a serious problem. NBCWA signatory operators through the 1970s
created and fostered an expectation of lifetime health-care benefits.
Templeton Coal, 882 F. Supp. at 816-17; Coal Commission Report,
at vii, 1. While perhaps not the fairest scheme, the one selected by
Congress for ensuring that those benefits are delivered is not irratio-
nal. The "Coal Act's financing scheme is one of proportionality. Sig-

                     27
natory operators bear the financial responsibility for the health care
costs of assigned Combined Fund beneficiaries and their pro rata
share of any `orphaned' beneficiaries." Id. at 819. The Supreme Court
has upheld retroactive cost-spreading statutes where a rational con-
nection exists between a legitimate legislative purpose and the means
chosen by Congress on a number of occasions. Concrete Pipe, 508
U.S. at 636-41; Gray, 467 U.S. at 730; Turner Elkhorn, 428 U.S. at
18-19. In doing so, the Court has opined that "the imposition of liabil-
ity for effects of disabilities bred in the past is justified as a rational
measure to spread the costs of the employees' disabilities to those
who have profited from the fruits of their labor--the operators and the
coal consumers." Turner Elkhorn, 428 U.S. at 18 (upholding statute
addressing black lung benefits). Likewise, the imposition of liability
for promised health-care benefits on those who made the promises in
the past and where the current carriers of the burden can no longer
sustain the benefits, is a rational measure to spread the costs on those
who benefited from the labor and concessions given in return for the
promised benefits.

Numerous courts considering the constitutionality of the Coal Act
have upheld it under rational Due Process review. See, e.g., Davon,
75 F.3d at 1121-26 (upholding "reach back" provisions of Coal Act
under rational review analysis); In re Chateaugay, 53 F. 3d at 486-91
(same); Templeton Coal, 882 F. Supp. at 811-21 (same). As the Sec-
ond Circuit reasoned in In re Chateaugay as to one coal company
who left the coal mining business, and challenged the constitutionality
of the Act's application to itself, that coal company

          might well have expected that other coal operators would be
          required to pay for [the benefits of its retirees, but the com-
          pany] also could reasonably have anticipated that the 1950
          and 1974 Benefit [Plans] would not be able to support the
          financial burdens imposed upon them as a result of escalat-
          ing health care costs, the aging of the beneficiary population
          and the "dumping" of beneficiaries into the 1974 Benefit
          [Plan].

53 F.3d at 490-91. We find that Congress's solution, which seeks to
reach back and impose the obligations to fund retirees' benefits on
those who benefited from the retirees' work and who made the prom-

                     28
ises of lifetime benefits as signatories to the NBCWAs, is rationally
related to its purpose of assuring health-care benefits to those retirees
who were given a promise of life-time benefits."It is surely proper
for Congress to legislate retrospectively to ensure that costs of a pro-
gram are borne by the entire class of persons that Congress rationally
believes should bear them." United States v. Sperry Corp., 493 U.S.
52, 65 (1989). Furthermore, evidence indicated that mandatory contri-
butions from all NBCWA signatory operators were necessary to
secure adequate financing for the Combined Fund. Davon, 75 F.3d at
1125-26.

For those same reasons, we reject USX and Carbon's contention
that the Coal Act's disparate treatment of pre-Act and post-Act con-
tracts violates their constitutional due process and equal protection
rights. Congress had rational reasons for rearranging the financing
scheme for UMWA retirees' health-care benefits. It had rational rea-
sons for imposing new obligations on coal operators who had con-
tracted out of their obligations to the 1950 and 1974 Benefit Plans
because those operators had helped foster the expectation of life-time
benefits and by imposing the burden of orphan employees on a smal-
ler and smaller number of coal operators helped jeopardize the finan-
cial health of the Benefit Plans. Under the Coal Act, those operators
remain the guarantors for those life-time benefits even if they enter
into post-Act contracts with successors. The Coal Act enables a "fresh
start" on funding UMWA retirees' benefits. Thus, we do not find it
irrational that Congress decided to allow post-Act contracts, but not
pre-Act contracts.

E. Attorney's Fees

One final matter remains--the counterdefendants' motion for attor-
ney's fees. The counterdefendants argue that the indemnification pro-
visions in their asset sales agreements require that USX reimburse
them for their attorney's fees in this lawsuit. The district court did not
specifically address attorney's fees. The district court merely dis-
missed all pending motions as moot when it entered its summary
judgment order.

Counterdefendants Old Ben, Arch, and Consol filed counterclaims
seeking indemnification from USX from any and all costs and attor-

                     29
ney's fees they incurred in the defense of USX's counterclaim. USX
failed to respond to the counterclaims on time. The district court
denied USX's motion to enter an untimely answer. Thus, the clerk of
the court entered a default judgment against USX on April 28, 1995.
It therefore appears that the district court's failure to award attorney's
fees is an oversight. If not an oversight, the district court's reasons for
not awarding fees after the entry of a default judgment are unclear to
us. We therefore remand solely on the question of the counterdefen-
dants' attorney's fees.

Accordingly, we

AFFIRM IN PART AND REMAND IN PART.

WILLIAMS, Circuit Judge, concurring in the judgment:

I agree that "the agreements and contracts USX and Carbon rely
upon would not allow reimbursement." Majority Op. at 23. Because
the agreements and contracts of Carbon and USX do not allow for
reimbursement or indemnification, we need not reach in Part II.B. the
question of whether the Coal Act precludes the enforcement of such
contracts. The majority's holding on this issue is simply dictum. See
Bettius & Sanderson, P.C. v. Nat'l Union Fire Ins. Co., 839 F.2d
1009, 1019 n.3 (4th Cir. 1988) (Murnaghan, J., concurring in part and
dissenting in part) (stating that "[t]o reach out and decide what need
not be decided is frequently denigrated as dictum."). Furthermore, I
disagree with the majority's dictum that pre-Act contracts cannot be
enforced to indemnify or reimburse a party for its liability under the
Act for payments to the Combined Fund. See Majority Op. at 18-23.
Because I believe that the Act does not preclude the enforcement of
such contracts, I limit my participation in the majority opinion to con-
curring in the judgment.

I.

I agree with the majority that the "Coal Act established a new fund-
ing method for financing UMWA retirees' health-care benefits that
expressly created new obligations on Carbon and USX . . . notwith-
standing their prior contracts." Majority Op. at 18. Under the Act,

                     30
Congress provided that all liability for contributions to the Combined
Fund shall be determined exclusively under the Act through a statu-
tory assessment imposed on signatory operators by the Commis-
sioner. See id. at 19. I also agree that Congress intended that these
statutory assessments would "reach back" to companies that had left
the coal business or bargained out of their prior obligations. See id.
at 19-20 & n.11.

The express language of the Act states that "[a]ll liability for con-
tributions to the Combined Fund . . . shall be determined exclusively
under [the Coal Act]." 26 U.S.C.A. § 9708 (West Supp. 1996). The
majority interprets this provision as abrogating all"prior private
agreements unless expressly provided for in the Act." Majority Op. at
21. However, nothing in the statute warrants this interpretation.
Indeed, while I agree that "`[a]ll liability' to the Combined Fund
[must] be determined by the Coal Act," id. (emphasis supplied), I can-
not find anything in the Act abrogating the liabilities of parties to
each other under an agreement for reimbursement, indemnification,
or the like, regardless of the date of the agreement. Nowhere does the
Act preclude the enforcement of pre-Act contracts. Cf. id. at 21 ("The
Act contains no provisions that expressly provide for the enforcement
of pre-Act agreements."). As a result, while I agree that the Coal Act
imposes new duties and liabilities on Carbon and USX, I disagree
with the majority's conclusion that the companies' pre-Act contracts
are abrogated by the Act, and cannot be enforced to indemnify or
reimburse them for their liability for payments to the Combined Fund.
See id. at 20-23.

The Act specifically states that post-Act, mine operators may real-
locate responsibility for assigned retirees' benefits to the Combined
Fund to successor operators by private agreement or contract, pro-
vided that the operator transferring the assignment notifies the trust-
ees of the Combined Fund and remains a guarantor of the payments
to the Fund. See 26 U.S.C.A. § 9706(b)(2) (West Supp. 1996).1 The
majority correctly asserts that § 9706(b)(2) authorizes mine operators
_________________________________________________________________
1 I agree with the majority that no pre-Act agreement is protected by
this provision, but note that parties contracting prior to 1992 could not
have anticipated the Act and thus, absent clairvoyance, would not have
contracted in a way that would meet the requirements of § 9706(b)(2).

                    31
to transfer Combined Fund liability to successor operators by contract
after the Act's enactment date, see Majority Op. at 21-22, but then
opines that "[i]f Congress had intended signatory operators to con-
tinue to be able to enforce some type of secondary liability under
[pre-Act] private agreements it could have so stated." Id. at 23. It is
not surprising, however, that a statute enacted in 1992 fails to autho-
rize parties to enter into contracts prior to 1992. As Congress surely
realized, mine operators were able to, and did, freely and lawfully
reallocate responsibility for retirees' benefits to successor operators
by private agreement or contract prior to 1992. Indeed, it is precisely
because operators were able to lawfully bargain out of their prior
employee benefit obligations, and because successor operators pro-
ceeded to default on the employee benefit obligations they assumed,
that Congress enacted the Coal Act. See id. at 19 (citing legislative
history).

In asserting that all pre-Act contracts are abrogated by the Act, the
majority confuses the status of guarantor operators under § 9706(b)(2)
with that of operators assigned primary liability to the Combined
Fund under § 9706(a) who retain pre-Act contractual rights of
indemnification.2 An operator assigned Coal Act liability by the Com-
_________________________________________________________________
2 The majority confuses the distinction between primary liability to the
Combined Fund (created by the Coal Act), and secondary liability among
parties (created by private contracts) when it argues that because the Act
does not expressly provide an analogue to § 9706(b)(2) for pre-Act con-
tracts, all pre-Act contracts must therefore be abrogated. In making this
argument, the majority makes an analytical leap that is unwarranted. The
Coal Act does not provide a companion to § 9706(b)(2) for pre-Act con-
tracts because the Act is expressly designed to reinstate the primary lia-
bility of the assigned operator, unless and until a post-Act transfer of
liability takes place. Obviously, affording a § 9706(b)(2) transfer right to
operators pursuant to their pre-Act contracts would defeat the Act's pur-
pose of assigning primary liability to signatory operators. However, rein-
stating this primary liability to signatory operators is not inconsistent
with allowing such operators private contractual recourse against the par-
ties with whom they have contracted.

The majority asserts that "Congress made no distinction between pri-
mary and secondary liability." Majority Op. at 23. As evidence of this
proposition, the majority chants repeatedly the mantra that "Congress

                    32
missioner is primarily liable and must pay into the Combined Fund,
regardless of the operator's private, pre-Act contractual rights. I agree
that under the Act, the Commissioner's assignments of liability to the
Combined Fund are final. See Majority Op. at 22. In contrast, an
assigned operator who has entered into a post-Act assignment of its
primary liability will be liable as a guarantor to the Fund only if the
successor operator does not satisfy the obligation. See § 9706(b)(2).

Additionally, the Act's express preservation of a broad right of
"separate" civil litigation for determining responsibility for assigned
premium payments, see 26 U.S.C.A. § 9706(f)(6) (West Supp. 1996),
undermines the majority's conclusion that pre-Act contracts are abro-
gated by the Act. Although pre-Act contracts cannot function to trans-
fer primary liability for employee benefit obligations under the Act,
§ 9706(f)(6) preserves the right of private civil action for determining
responsibility for assigned premiums as between contracting parties.

The majority, in order to explain the very existence of § 9706(f)(6),
asserts that in the event of a "problem" with payment by a post-Act
successor, § 9706(b)(2) does not provide a resolution. See Majority
Op. at 22. Section 9706(f)(6) exists, the majority claims, for the sole
purpose of enabling the transferring operator, pursuant to its post-Act
agreement, to seek indemnification (or such other payment allocation
provided in the post-Act agreement) from the successor company. See
id. at 22 ("The private action section [§ 9706(f)(6)] makes clear that
the assignor in the post-Act contract may bring a private civil action
seeking reimbursement for the premiums it has paid.").

I agree that § 9706(f)(6) enables operators who have transferred
their Combined Fund liability via post-Act contractual agreements to
sue for reimbursement or indemnification for the premiums they have
_________________________________________________________________

expressly stated that `All liability' should be determined as provided for
by the Act." Id. at 23; see also id. at 23 ("Congress made clear that the
Act would `expressly' determine all liability."). Again, the majority
looks beyond the mark. Congress did expressly state in the Act that all
liability to the Combined Fund is determined by the Act. Congress, how-
ever, said nothing to abrogate the right of parties to enforce pre-Act pri-
vate contracts for indemnification.

                     33
paid. However, I cannot find anything in § 9706(f)(6) that limits that
section's preservation of private civil litigation to post-Act contracts
only. The specific application of the provision to post-Act reimburse-
ment actions says nothing about the provision's broader implications.
In its entirety, § 9706(f)(6) states:

          Private actions. -- Nothing in this section shall preclude
          the right of any person to bring a separate civil action
          against another person for responsibility for assigned premi-
          ums, notwithstanding any prior decision by the Commis-
          sioner.

In my view, the Act preserves the right of parties to engage in private
civil litigation for the purpose of determining responsibility for pre-
mium payments, irrespective of whether their agreements were con-
summated pre-Act or post-Act.3 This reading of the Act differs from
_________________________________________________________________
3 The Conference Report's description of the private action section sup-
ports this conclusion:

          The section on private actions provides that if parties have com-
          mercial contracts related[d] to acquisition or disposition of coal
          bearing properties or facilities which delineate their respective
          responsibilities concerning the obligation of retiree health care,
          the parties may enter into private litigation to enforce such con-
          tracts for indemnification or any other form of payment alloca-
          tion as may be appropriate under their private contract.
          Otherwise, this language does not create new private rights of
          action where they would not exist in the absence of this provi-
          sion.

138 Cong. Rec. S17566-01, S17605-06 (1992).

The majority contends that this section of the legislative history is not
persuasive because it is "ambiguous" about whether § 9706(f)(6) relates
to pre- or post-Act contracts. See Majority Op. at 22 n.15. The majority
asserts that

          [i]n light of the express language of the Act stating that all con-
          tributions shall be determined exclusively under the Act and the
          legislative history indicating that the Coal Act was intended to
          correct the problem of operators contracting out of their obliga-
          tions to the 1950 and 1974 Benefit Plans, we find that the ambig-

                    34
the majority's only in that it declines to disturb the private contractual
rights of parties with regard to matters beyond the concern of the Coal
Act.

Thus, an operator who has been assigned primary liability by the
Commissioner under the Act for employee benefit premiums to be
paid into the Combined Fund may, pursuant to its pre-Act agreement,
seek indemnification (or such other form of reimbursement payment
as is provided in the agreement) from the successor company, "not-
withstanding any prior decision by the Commissioner." § 9706(f)(6).
In such a case, the Combined Fund is assured of payment regardless
of whether the operator bearing primary liability successfully obtains
reimbursement from the successor operator because, under the Act,
the Commissioner's assignments of liability to the Fund are final. See
Majority Op. at 22.

II.

Although the Act does not preclude the enforcement of pre-Act
contracts, I agree with the majority that "the agreements and contracts
USX and Carbon rely upon would not allow reimbursement." Major-
ity Op. at 23. As a result, I agree that the agreements and contracts
_________________________________________________________________
           uous . . . legislative history is not strong enough to create an
           enforcement right for pre-Act contracts.

Id. at 23 n.15.

In discussing the "express language of the Act," the majority again
confuses the distinction between contributions to the Combined Fund
(which are determined exclusively under the Act), and liabilities owed by
parties to each other (which may be allocated by contract). Despite the
resulting confusion, I agree with the majority that the express language
of § 9706(f)(6) (confused or not), coupled with the legislative history
(ambiguous or otherwise), does not "create new private rights of action
where they would not exist in the absence of" the section. See 138 Cong.
Rec. S17566-01, S17605-06 (1992). However, I find that the right to
engage in private civil litigation to enforce a contract existed prior to and
independent of the passage of the Act, and that nothing in the Act pre-
cludes parties like Carbon and USX from engaging in such private litiga-
tion to enforce their pre-Act contracts.

                     35
in question do not obligate USX, Arch, Consol, and Old Ben to
assume the Combined Fund liability of Carbon and USX. Accord-
ingly, I concur in the judgment of the court.

                  36
