Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-29-1999

Unity Real Estate Co v. Hudson
Precedential or Non-Precedential:

Docket 97-3234,97-3236




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Recommended Citation
"Unity Real Estate Co v. Hudson" (1999). 1999 Decisions. Paper 81.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/81


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Volume 2 of 2

Filed March 29, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NOS. 97-3234 and 97-3236

UNITY REAL ESTATE COMPANY,
       Appellant No. 97-3234

v.

MARTY D. HUDSON; MICHAEL H. HOLLAND; THOMAS
O. S. RAND; ELLIOTT A. SEGAL; CARLTON R. SICKLES;
GAIL R. WILENSKY; WILLIAM P. HOPGOOD; TRUSTEES
OF THE UNITED MINE WORKERS OF AMERICA
COMBINED BENEFIT FUND; THOMAS F. CONNORS;
ROBERTS WALLACE; TRUSTEES OF THE 1992 UNITED
MINE WORKERS OF AMERICA BENEFIT PLAN; UNITED
STATES OF AMERICA (Intervenor in District Court)

       LTV Corporation (LTV), NACCO Industries,
       Inc. (NACCO); Amicus Curiae

BARNES AND TUCKER COMPANY,
       Appellant No. 97-3236

v.

MARTY D. HUDSON, Trustee of the United Mine Workers
of America Combined Benefit Fund and Trustee of the
1992 United Mine Workers of America Benefit Plan;
MICHAEL H. HOLLAND, Trustee of the United Mine
Workers of America Combined Benefit Fund and Trustee
of the 1992 United Mine Workers of America Benefit Plan;
THOMAS O. S. RAND, Trustee of the United Mine
Workers of America Combined Benefit Fund; ELLIOTT A.
SEGAL, Trustee of the United Mine Workers of America
Combined Benefit Fund; CARLTON R. SICKLES, Trustee
of the United Mine Workers of America Combined Benefit
Fund; GAIL R. WILENSKY, Trustee of the United Mine
Workers of America Combined Benefit Fund; WILLIAM P.
HOPGOOD, Trustee of the United Mine Workers of
America Combined Benefit Fund; THOMAS F. CONNORS,
Trustee of the 1992 United Mine Workers of America
Benefit Plan; ROBERT G. WALLACE, Trustee of the 1992
United Mine Workers of America Benefit Plan; UNITED
STATES OF AMERICA (Intervenor in the District Court)

       LTV Corporation (LTV), NACCO Industries,
       Inc. (NACCO); Amicus Curiae

On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 93-cv-01802)
District Judge: Honorable D. Brooks Smith

Argued: November 20, 1998

Before: BECKER, Chief Judge, ALDISERT and WEIS,
Circuit Judges.

(Filed March 29, 1999)

4. Conclusion

We have evaluated the Coal Act against our traditional
standards of proportionality and distaste for retroactivity,
taking into account our deference to Congress on the evils
to be addressed by the law. Ultimately, although the issue
is close, we conclude that the Coal Act is targeted to
address the problem of insufficient resources in the benefit
funds and that it puts the burden on those who, in
Congress's reasonable judgment, should bear it. The law's
retroactivity is troubling, yet given the nature of the
commitments at issue and the relationship of Coal Act
liabilities to past acts in the industry, we cannot say that
the Act violates due process.

IV. Categorical Takings

Unity and B&T also maintain that the Coal Act is an
unconstitutional taking as applied to them. They ask us to

                                46
apply a categorical takings approach because, they claim,
their businesses will be entirely destroyed if they have to
pay benefits under the Act. In Eastern, the argument that
the Coal Act would drive the plaintiff out of business
entirely was not presented to the Court, and so the
plaintiffs argue that they retain a viable takings claim.

Five Justices, however, rejected the idea that a law that
imposed only a financial burden without identifying a
particular property right could ever consitute a taking. The
fact that in a particular case a financial burden might
consume all of a particular entity's assets would not seem
to change Justice Kennedy's analysis: "The Coal Act neither
targets a specific property interest nor depends upon any
particular property for the operation of its statutory
mechanisms." 

(Kennedy, J.,
concurring). Similarly, the dissent would require the
governmental identification of "a specific interest in
physical or intellectual property" in order tofind a
compensable taking. 

(Breyer, J., dissenting).
The reasoning of these five Justices was that any
governmental regulation that costs a business money could
become a taking if the plurality's standards prevailed, and
that this would be an unacceptable result. See 

(Kennedy, J., concurring); 

(Breyer, J.,
dissenting). This reasoning is unaffected by the
characterization of the burden as a "total" taking because it
consumes all of a particular company's resources.
Moreover, even the plurality gave no indication that it
would extend the categorical takings approach outside the
context of regulations of real property.

Because the Eastern Court was not confronted with this
situation, however, we must set forth our reasons for
rejecting it in greater detail. To date, the categorical
approach has only been used in real property cases such as
Lucas v. South Carolina, 

(1992). In those
cases, the concept of "total destruction" of value refers not
to the owner's total assets but to some identifiable property
interest. Indeed, even a multi-billionaire would be eligible
for an award under a categorical takings approach if some
small, distinct parcel of his holdings were condemned or
rendered worthless through regulation. Therefore, the "total

                               47
destruction" language of cases concerning real property
should not be mechanically applied to the situation at bar.
See Branch v. United States, 

, 1576-77 (Fed.
Cir. 1995) ("Because of `the State's traditionally high degree
of control of commercial dealings,' the principles of takings
law that apply to real property do not apply in the same
manner to statutes imposing monetary liability." (quoting

)).

The Supreme Court has repeatedly rejected the argument
that a tax--even a tax on a small set of businesses--may
violate due process or constitute a taking simply because it
may force some of the regulated entities out of business:

       The claim that a particular tax is so unreasonably high
       and unduly burdensome as to deny due process is
       both familiar and recurring, but the Court has
       consistently refused either to undertake the task of
       passing on the "reasonableness" of a tax that otherwise
       is within the power of Congress or of state legislative
       authorities, or to hold that a tax is unconstitutional
       because it renders a business unprofitable.

        . . . . The premise that a tax is invalid if so excessive
       as to bring about the destruction of a particular
       business, the Court said, had been "uniformly rejected
       as furnishing no juridical ground for striking down a
       taxing act." [Magano Co. v. Hamilton, 

,] 47
       [(1934)]. Veazie Bank v. Fenno, 

, 548, 

(1869); McCray v. United States, 

, 

, 

(1904); and Alaska Fish
       Salting & By-Products Co. v. Smith, 

, 

, 

(1921), are to the same effect.

        In Alaska Fish, a tax on the manufacture of certain
       fish products was sustained, the Court saying, 

41 S.Ct., at 220: "Even if the tax should destroy
       a business it would not be made invalid or require
       compensation upon that ground alone. Those who
       enter upon a business take that risk. . . ." See also
       International Harvester Co. v. Wisconsin Dept. of
       Taxation, 

, 444, 

, 1065, 

(1944); Child Labor Tax Case, 

,
       30, 

, 

(1922); Brushaber v.

                               48
       Union Pacific R. Co., 

, 24, 

, 244,
       

(1916); Flint v. Stone Tracy Co., 

, 168-169, 

, 356, 

(1911).

City of Pittsburgh v. Alco Parking Corp., 

, 373-
74 (1974). We note in this regard that we, along with other
Courts of Appeals, have held that Coal Act obligations are
taxes. See Lindsey Coal Mining Co. v. Chater, 

,
695 (3d Cir. 1996) (finding that the Act is "essentially a tax
to continue a benefits program").

The plaintiffs respond that these taxation cases all
concerned prospective, not retrospective, liability, but that
argument conflates two separate issues. The size of the
liability does not depend on whether or not the obligation is
retrospective. If the argument is that the complete
consumption of a company's assets is a categorical taking,
retroactivity would be irrelevant; if such a law would only
be a categorical taking when it was retroactive, then we are
not really discussing a "categorical" taking. We think that
retroactivity, while crucial to our due process analysis, is
not properly considered as a part of the categorical takings
analysis.

The Court of Appeals for the Federal Circuit has also
rejected the plaintiffs' argument, with reasoning wefind
persuasive:

       The constitutionality of the assessment should not
       depend on the happenstance of the financial condition
       of the assessed bank at the time of the assessment. We
       are unaware of any principle of takings law under
       which an imposition of liability is deemed a per se
       taking as to any party that cannot pay it. It would be
       perverse to hold that a statute resulting in a $99
       million liability would be constitutional as applied to
       any [entity] having a net worth of more than $100
       million but unconstitutional per se as to any member
       having a net worth of less than $100 million. The
       assessment in both cases is based on the same theory
       of liability and should meet the same constitutional
       fate.

Branch v. United 

. 15 Branch
_________________________________________________________________

15. The plaintiffs dispute the Branch court's reasoning by citing to
Lucas,
in which the Court wrote:

                               49
recognizes that general regulatory laws, unlike the
particularized applications of zoning regulations that are
the typical targets of takings challenges, usually have the
kind of general applicability that mutes the concerns
behind takings jurisprudence. The broader the reach of a
law, the less likely it is that a powerless segment of society
is being unfairly singled out to bear a burden that society
as a whole should bear.16

As the concurrence and the dissent in Eastern suggest,
considerable practical problems would arise were we to find
plaintiffs' categorical takings claim cognizable. For example,
we would have to decide at what point we could justify
granting relief on these grounds. Unity will go out of
business as soon as it is ordered to pay. B&T, by contrast,
will apparently go under in two years, when its liabilities
under the Act consume the last of its reserves. Should we
wait until B&T is in the same position as Unity? Would
being a year away from bankruptcy be enough? Should
_________________________________________________________________

       It is true that at least in some cases the landowner with 95% loss
       will get nothing, while the landowner with total loss will recover
in
       full. But that occasional result is no more strange than the gross
       disparity between the landowner whose premises are taken for a
       highway (who recovers in full) and the landowner whose property is
       reduced to 5% of its former value by the highway (who recovers
       nothing). Takings law is full of these "all-or-nothing" situations.

n.8. However, Lucas is inapposite. In Lucas,
there was a strip of affected beachfront land; that land was reduced to
zero value by regulation; that was a taking. The Court did not inquire
into whether the landowners had enough other resources to survive the
reduction in value, because that was not relevant to the test. All that
was necessary was to look at the value of the affected land. Under the
plaintiffs' interpretation, the Court should have examined Mr. Lucas's
financial condition before and after the regulation at issue, and there
would not have been a categorical taking if Mr. Lucas remained in the
black. This suggests the difficulties with a takings analysis that is
unanchored to a specific property interest.

16. Breadth of application has its own dangers, however, and one of
those dangers is that a law will have irrationally large effects on
regulated businesses. Our substantive due process jurisprudence has
developed to address this situation, as we 

in Section III.

                               50
B&T be required to show that there is no potential"white
knight" that might rescue it from destruction? Alternatively,
we might reduce B&T's obligations instead of eliminating
them entirely so that it could limp along, never showing a
profit but never going under. That would arguably be an
appropriate, constitutional remedy for the threatened harm,
the way that transferable use credits can mitigate what
would otherwise be a taking when zoning restrictions are at
issue. See Penn Central Transp. Co. v. City of New York,

(1978). If it is the total destruction of the
business that converts the Act into a taking, then perhaps
we should simply declare that part of the obligation that
will drive B&T out of business a taking and approve the
rest. Yet this would only plunge courts further into the
intricacies of business finance.

Deciding for Unity and B&T because they will be forced
into bankruptcy by the Coal Act would open up a Pandora's
Box that would throw into question every economic
regulation imaginable. Companies could adjust their
accounting practices to prove that any particular regulation
would be enough to destroy them as profitable enterprises.
The problem would be compounded if, as counsel for
plaintiffs suggested at oral argument, we should evaluate
the financial status of an entity without looking at its
corporate relatives for takings purposes. A corporation
subject to expensive regulation at some of its production
facilities could create a series of subsidiaries, each of which
would be insolvent on its own if forced to comply with a
particular set of regulations, and claim constitutional
protection against enforcement of the regulations, even
though a different corporate configuration would remain
solvent.17
_________________________________________________________________

17. A supporting in terrorem argument is not difficult to devise. For
example, an employer could resist an increase in the minimum wage on
the ground that the increased cost would drive it out of business.
Similarly, many small-business owners find that anti-discrimination laws
generate significant expenses, and some might be forced out of business
by compliance costs. See Mike Hudson, Jobs for Disabled People:
Handicapping Businesses, Roanoke Times & World News, July 30, 1995,
at F1. While such concerns might very well prove overstated in most
cases, courts would be forced into the dismal business of economic

                               51
A decision on these grounds would also open the door to
plaintiffs attempting to choose government regulations from
which they wanted to be excused. It is notable that B&T
repeatedly discusses its other expensive government-
imposed obligations, which involve cleaning up polluted
coal mines and paying out black lung benefits. The Coal Act
alone, according to B&T's submissions, would not
necessarily put B&T out of business; it is only because the
environmental and black lung obligations are so large that
this additional expense overwhelms B&T. There is nothing
in B&T's constitutional argument about "total takings" that
distinguishes its other obligations from those imposed by
the Coal Act, nor is there a conceptual reason to confine
this definition of total takings to retroactive laws.

We decline to enter into the conceptual morass that
would be engendered by the plaintiffs' total takings theory.
That a regulation will put a particular plaintiff out of
business cannot be proof that a taking has occurred.
Instead, the size of the deprivation inflicted by a law must
be evaluated in the context of the other relevant facts. In
Connolly, the Court noted that the MPPAA "completely
deprives an employer of whatever amount of money it is
obligated to pay to fulfill its statutory liability." 

. But this did not lead to the conclusion
that there had been a taking because "[t]here is nothing to
show that the withdrawal liability actually imposed on an
employer will always be out of proportion to its experience
with the plan, and the mere fact that the employer must
pay money to comply with the Act is but a necessary
consequence of the MPPAA's regulatory scheme." 

We do not gainsay that the liability imposed on Unity in
particular is troubling. Unity's assets are tiny, and its Coal
Act liabilities dwarf them. If we uphold the defendants'
_________________________________________________________________

prediction. Every economic regulation would have to be litigated on a
case-by-case basis. See Sheila A. Moloney, The Lady in Red Tape, Policy
Review, Sept./Oct. 1996, at 48 (discussing various regulations that
threaten the financial viability of specific businesses, including OSHA
safety regulations, FTC franchising rules, ADA accessibility
requirements, Endangered Species Act development restrictions, and
EPA Superfund clean-up costs).

                               52
position, this small family business will be bankrupted
instantly. But the size of a liability only weighs in favor of
finding a taking insofar as it is out of proportion to the
legitimate obligations society may impose on individual
entities. And, as we have discussed in Part III, wefind the
proportionality test satisfied in this instance.

V. Conclusion

We hold that Congress could reasonably determine that
the plaintiffs, along with other coal operatiors in similar
situations, placed the coal industry retiree benefit funds in
jeopardy after creating an expectation of lifetime benefits.
Moreover, the actions that created the need for the Coal Act
are not so far in the past as to make it fundamentally
unjust to impose liability upon the plaintiffs, because the
burden is proportional to their contribution to the problem
and the retroactivity is not too extensive. We do not deny
that Unity, in particular, presents a sympathetic case. This
family business has slowly decreased in size as the
economic changes of the past decades have buffeted it. Yet
small businesses, even businesses that have suffered from
the eroding pressures of time and economic change, cannot
be immune from reasonable government regulation simply
because that regulation has harsh effects. The Coal Act
may not be an ideal law; it may not even be a wise one. But
its wisdom, or lack thereof, in a particular case does not
determine its constitutionality.

For the foregoing reasons, the judgment of the District
Court will be affirmed.

                               53
ALDISERT, Circuit Judge, concurring:

I agree with the majority's determination that the 1992
Coal Industry Retiree Health Benefit Act, 26 U.S.C.
SS 9701-9722 (1994 and Supp II) ("Coal Act"), as applied to
Unity Real Estate Company and Barnes and Tucker
Company does not violate substantive due process and is
not an unconstitutional taking. I agree also that the
retroactive scope of the Act is not beyond appropriate
legislative power.

Although Appellants vigorously contend that their cases
are analogous to Eastern Enterprises v. Apfel, 

(1998), their analogical argument fails because the
decisive material facts of the cases bear no similarity. The
decisive material facts in Eastern Enterprises are that the
company (1) left the coal industry in 1965 and (2) was
never a party to the 1974 and later Wage Agreements that
first suggested the commitment to lifetime benefits for
retirees and family members. See Eastern 

(plurality opinion). Unlike the former coal
operator in Eastern Enterprises, Appellants remained in the
coal industry until 1981 and 1984 respectively, and
participated in negotiations for the 1974 and later Wage
Agreements. As emphasized in Eastern Enterprises, "It is
the 1974, 1978 and subsequent agreements that first
suggest an industry commitment to the funding of lifetime
health benefits for both retirees and their family members."

of signing the 1974 and subsequent
National Bituminous Coal Wage Agreements (NBCWA or
"Wage Agreement") precludes the rote application of Eastern
Enterprises to these cases.

I.

On the due process question of "promises" and
"representations" made to the miners, I would sustain the
constitutionality of the Act as applied to the Appellants for
one reason only: The evidence before Congress provided a
rational basis to believe that a promise of lifetime benefits
had been made. Congress relied on the Coal Commission
Report, its appendices and the Commissioners' testimony at
the Senate hearing. For example, the Coal Commission
Report stated:

                               54
       The Commission firmly believes that retired miners are
       entitled to the health care benefits that were promised
       and guaranteed them and that such commitments
       must be honored. . . .

       Retired coal miners have legitimate expectations of
       health care benefits for life; that was the promise they
       received during their working lives and that is how
       they planned their retirement years. That commitment
       should be honored.

See Supp. App. at 350, 360 (Secretary of Labor's Advisory
Commission on United Mine Workers of America Retiree
Health Benefits, Coal Commission Report (1990)). These
were important findings that were accepted by Congress.

Whether the Commission Report accurately portrayed the
state of affairs in the coal mining industry at the time the
1974 Wage Agreement was negotiated and signed is largely
irrelevant to what should be our analysis of the Coal Act's
constitutionality. In considering the question of who
promised what to whom, I do not believe that it is
appropriate for any reviewing court to review de novo the
history of the agreements or to parse their language.

I say this because, to paraphrase Holmes, "That's not our
job."1 Once we get beyond that portion of the Due Process
or Takings Clause analysis relating to the Coal Act's
financial effect on the Appellants, we must address whether
there was deprivation of property without due process of
law on the theory that the Appellants never promised any
benefits beyond the lifetime of the Wage Agreements. Our
job is not to examine the materials and to make an
independent determination of this issue, a sort of ersatz
fact-finding by either a federal trial or appellate court.
_________________________________________________________________

1. Learned Hand once reminisced: "I remember once I was with [Holmes];
it was a Saturday when the Court was to confer. It was before we had
a motor car, and we jogged along in an old coup). When we got to the
Capitol, I wanted to provoke a response, so as he walked off, I said to
him: `Well, sir, goodbye. Do justice!' . . . He replied: `That is not my
job.
My job is to play the game according to the rules.' " Learned Hand,
Continuing Legal Education for Professional Competence and
Responsibility, Report on the Arden House Conference, at 116-123
(1958).

                               55
On this issue, as I see it, our job is merely to determine
whether substantial evidence was presented before
Congress on this issue. And I conclude that there was. The
Coal Commission Report and other testimony before the
Senate Committee informed Congress that "[r]etired coal
miners have legitimate expectations of health care benefits
for life; that was the promise they received during their
working lives and that is how they planned their retirement
years. That commitment should be honored." Supp. App. at
360 (Secretary of Labor's Advisory Commission on United
Mine Workers of America Retiree Health Benefits, Coal
Commission Report (1990)). This determination serves as
the rational basis for the legislation.

Our sole obligation is "to assure that, in formulating its
judgments, Congress has drawn reasonable inferences
based on substantial evidence." Turner Broadcasting Sys.
Inc. v. Federal Communications Comm'n, 

, 195
(1997) (internal quotations omitted). Substantial evidence
"does not mean a large or considerable amount of evidence,
but rather `such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.' " Pierce
v. Underwood, 

, 565 (1988) (quoting
Consolidated Edison Co. v. National Labor Relations Bd.,

, 229 (1938)). "We owe Congress'findings
deference in part because the institution is far better
equipped than the judiciary to amass and evaluate the vast
amounts of data bearing upon legislative questions."

(internal quotations omitted). On
the basis of the record before Congress, I would conclude
that there was substantial evidence to provide Congress
with a rational basis for believing that the Coal Act was
consistent with promises that had been made by coal
operators to their former employees.

II.

Important prudential considerations undergird the
Court's limitations on the judicial role. In the case at bar,
reasonable persons can differ in evaluating the history of
the critical Wage Agreements and interpreting its
provisions. For example, although the majority has made a
thorough and scholarly analysis of these circumstances, my

                               56
own conclusions would be somewhat different. I would not
rely on promises and representations made apparently
dehors the explicit language of the Wage Agreements.

Critical to me is that the Wage Agreements expressly
limited all of the promised retiree health benefits to the
term of each agreement. Miners who retired after 1975, but
whose former employers were no longer in the coal mining
business, were promised benefits through the United Mine
Workers of America 1974 Benefit Plan and Trust ("1974
Plan"). See Eastern 

.
Article XX(c)(3)(ii) of the NBCWA stated that the purpose of
the 1974 Plan was to provide employee health benefits only
"during the term of this Agreement." Similarly, Article II of
the 1974 Plan expressly stated that if the plan assets were
to "become insufficient" to continue providing benefits after
the NBCWA had expired, "the benefits may be suspended or
reduced to amounts which, in the judgment of the
Trustees, can be paid from the net assets." The NBCWA
contained a "General Description" of all promised benefits
that expressly stated that health benefits were"guaranteed"
at fixed levels only "during the term of this Agreement."
Similar provisions are found or incorporated in other
agreements. I simply can find no evidence of any"promise"
of lifetime benefits contained in any Wage Agreement. Any
reliance on extra-contractual "promises" looks to a novel
theory of law that turns a blind eye to the centuries-old law
of contracts and to the current law on collective bargaining
agreements.

To suggest that the clear language limiting benefits to the
term of the Wage Agreement is trumped by the "lifetime"
health card is a stretch.2 By analogy, one could say that
possession of a Social Security card "for life," without more
and without any proof of disability, entitles one to benefits.
_________________________________________________________________

2. The basis for the claim of a "lifetime" health card is in the "General
Description" of the 1974 NBCWA, which states:

       Any pensioned miner covered in this Plan will retain his Health
       Services card until death, and upon his death his widow will retain
       a health Services card until her death or remarriage.

See Appellants' Supp. Br. at 6-7.

                               57
The "evergreen" clauses included in the 1978 Wage
Agreement do not persuade me to reach a different result:
My reading of these clauses is that they addressed only
employer funding, not the scope of the underlying employee
benefits.

As a native of Carnegie, Pennsylvania--a coal mining and
steel mill town near Pittsburgh--who is old enough to
remember the organizational efforts of John L. Lewis in the
coal fields in the 1930s and the 1947 Krug-Lewis
Agreement, I no doubt have a unique perspective. I know
first-hand the mantra of every coal miner through decades
of strikes and picketing: "No Contract, No Work."

To the miner, the actual contract controlled, not the
expectation of future agreements. Without the contract in
hand, the miners would not pick up their lamps at the
lamp house and descend into the shafts. They worked
under the precise language in a given contract and under
no other representations. The sordid history of the coal
company towns that surrounded Carnegie, and the
inhumane treatment of the miners and their families prior
to effective unionization in the mines, impelled the miners
to require thereafter that every representation of working
conditions and benefits be set forth in clear language in a
hard-fought written collective bargaining agreement.

The foregoing discussion is but my gratuitous
interpretation of some of the history and contents of the
Wage Agreements, and admittedly, it may be contrary to
that expressed in most other judicial opinions. My views
and those of judges with contrary interpretations are
important in one respect only: My views and those of other
judges are totally irrelevant. What is relevant is only that on
the basis of evidence before it, Congress concluded that a
promise of lifetime benefits had been made. This furnished
the rational basis for enacting the controversial provisions
of the Coal Act.

III.

This, too, must be said. I am conscious that in light of
the view that we take here, the handwriting is on the wall
that a kind of hydraulic pressure will generate economic

                                58
disasters in companies whose financial circumstances are
similar to Unity and Barnes and Tucker. Without additional
and more realistic Congressional intervention, we may see
a phenomenon of the "last man standing," as companies
disappear from the economic scene and responsibility for
paying benefits shifts to surviving companies. If this case is
any example and a forerunner of things to come, the
operation of the present statutory solution to the vexing
health benefit problem of retirees and their dependents may
serve as a full employment program for bankruptcy lawyers
of companies unable to make prescribed payments. Sadly,
I do not believe that this statement is an argumentum ad
terrorem.

I join in the judgment of the court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               59