UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 18-2155


MICHAEL H. HOLLAND; JOSEPH R. RESCHINI; CARLO TARLEY; UNITED
MINE WORKERS OF AMERICA 1992 BENEFIT PLAN,

                     Plaintiffs − Appellants,

              and

MICHAEL O. MCKOWN,

                     Plaintiff,

              v.

CONSOL ENERGY, INC.,

                     Defendant – Appellee.


Appeal from the United States District Court for the Southern District of West Virginia, at
Charleston. Thomas E. Johnston, Chief District Judge. (2:17-cv-02091)


Argued: May 7, 2019                                              Decided: August 1, 2019


Before GREGORY, Chief Judge, and AGEE and DIAZ, Circuit Judges.


Affirmed by unpublished opinion. Judge Diaz wrote the opinion, in which Chief Judge
Gregory and Judge Agee joined.


ARGUED: Diana Migliaccio Bardes, MOONEY, GREEN, SAINDON, MURPHY &
WELCH, PC, Washington, D.C., for Appellants. John R. Woodrum, OGLETREE,
DEAKINS, NASH, SMOAK & STEWART, P.C., Washington, D.C., for Appellee. ON
BRIEF: Paul A. Green, John R. Mooney, Olga M. Thall, MOONEY, GREEN, SAINDON,
MURPHY & WELCH, PC, Washington, D.C.; Glenda S. Finch, Larry Newsome, UMWA
HEALTH & RETIREMENT FUNDS, Washington, D.C., for Appellants. W. Gregory
Mott, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., Washington, D.C.;
Jan L. Fox, STEPTOE & JOHNSON PLLC, Charleston, West Virginia, for Appellee


Unpublished opinions are not binding precedent in this circuit.




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DIAZ, Circuit Judge:

       The United Mine Workers of America 1992 Benefit Plan (“1992 Plan”) and its

Trustees brought this action against Consol Energy Inc., alleging that Consol violated the

Coal Act by changing its health coverage for retired coal workers and their beneficiaries.

The district court dismissed the suit for lack of standing, finding that the plaintiffs could

not establish injury in fact. For the reasons set forth below, we affirm.



                                             I.

                                             A.

       We start with the legal backdrop. The issue of health care benefits for retired coal

workers has a protracted history. See E. Enters. v. Apfel, 

, 504–15 (1998)

(plurality opinion) (discussing history leading to the enactment of the Coal Act); Holland

v. Big River Minerals Corp., 

, 600–02 (4th Cir. 1999) (same). Suffice to say

that in 1992, in the wake of spiraling health care costs and declining coal production,

Congress enacted the Coal Act to guarantee health coverage for retired coal workers and

their dependents. See Pub. L. No. 102–486, 106 Stat. 2776 (1992) (codified at 26 U.S.C.

§§ 9701–9722).

       The Coal Act legislated significant changes in the industry. Two are relevant to this

dispute. First, the Act mandated that the coal worker’s last employer (referred to in the

Act as the “last signatory operator”) provide health coverage to coal workers (and their

dependents) who were receiving benefits or eligible to receive benefits as of February 1,

1993, and who retired on or before September 30, 1994. 26 U.S.C. § 9711(a)–(b). The


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coverage must continue for as long as the last signatory operator (and any related person)

remains in business, and the coverage must be “substantially the same as” the coverage

provided by the last signatory operator as of January 1, 1992. 

(b)(2).

       Second, the Act created a trust fund called the 1992 Plan. 

The 1992

Plan provides coverage to any beneficiary who is eligible for coverage under § 9711, but

who is not receiving such coverage from their last signatory operator. 

If the 1992 Plan is required to cover someone who should have received coverage from the

last signatory operator, then the operator is liable to the 1992 Plan for the costs of coverage.

9712(d)(4).

                                              B.

       Turning to the facts of this case, Consol Energy and its subsidiaries operate a coal

mining business in West Virginia. The subsidiaries are the “last signatory operators” for

its retirees, and Consol is a “related person” to the subsidiaries. Accordingly, Consol is

required under the Coal Act to provide health coverage to eligible retirees and their

dependents. It’s undisputed that Consol provided such coverage for more than two decades

following the passage of the Coal Act.

       In July 2016, however, Consol sent a letter to its beneficiaries informing them of

upcoming changes to their health coverage. Under these changes, beneficiaries would pay

more for brand-name drugs and out-of-network providers, and retirees couldn’t add new

dependents to their coverage after December 31, 2016. The 1992 Plan says it has fielded

numerous calls from beneficiaries who are concerned about these changes to their

coverage, and has otherwise expended resources monitoring the situation.


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       Following the changes, the 1992 Plan and its Trustees sued Consol. The plaintiffs

alleged that Consol had failed to provide coverage that was “substantially the same” as the

prior coverage, in violation of § 9711 of the Coal Act. They further alleged that Consol’s

refusal to provide such coverage to eligible beneficiaries would harm the 1992 Plan, which

is obligated under § 9712 of the Coal Act to provide health coverage to beneficiaries not

receiving the required coverage under § 9711. The plaintiffs sought a declaratory judgment

that Consol had violated the Coal Act, injunctive relief to prevent Consol from denying

benefits to statutorily eligible beneficiaries, and compensatory damages for any costs the

1992 Plan would expend if eligible beneficiaries were denied coverage.

       Both parties moved for summary judgment. The district court dismissed the suit for

lack of standing. The court found that the 1992 Plan had alleged no actual injury, and that

any future injury was too speculative to give rise to Article III standing. This appeal

followed.



                                             II.

       Article III limits the judicial power of the United States to “Cases” and

“Controversies.” U.S. Const. art. III, § 2. Embedded in this limitation is the requirement

of standing to sue, which “ensure[s] that federal courts do not exceed their authority” and

“confines the federal courts to a properly judicial role.” Spokeo, Inc. v. Robins, 

, 1547 (2016).

       To establish Article III standing, “[t]he plaintiff must have (1) suffered an injury in

fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is


                                              5
likely to be redressed by a favorable judicial decision.” 

as the party

invoking federal jurisdiction, bears the burden of establishing these elements.” 

primarily concerns injury in fact, the “‘[f]irst and foremost’ of standing’s

three elements.” 

Co. v. Citizens for a Better Env’t, 

, 103

(1998)). To establish injury in fact, a plaintiff must allege an injury that is “concrete and

particularized” and “actual or imminent, not conjectural or hypothetical.” 

(quoting Lujan v. Defs. of Wildlife, 

, 560 (1992)). “Imminence” means that

the injury is “certainly impending,” or that there is a “substantial risk” of future harm.

Clapper v. Amnesty Int’l USA, 

, 409, 414 n.5 (2013). “Although imminence

is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which

is to ensure that the alleged injury is not too speculative for Article III purposes . . . .” 

(quoting 

n.2).

       Here, the plaintiffs raise two theories of injury in fact. First, they allege economic

injury to the 1992 Plan in the form of future costs to cover beneficiaries and present

expenditures to mitigate those costs. Second, the plaintiffs allege a statutory injury that

they believe is sufficient by itself to satisfy Article III standing. We review these arguments

de novo. See Liberty Univ., Inc. v. Lew, 

, 87 (4th Cir. 2013).

                                               A.

       We first address the alleged economic harm to the 1992 Plan. The plaintiffs allege

impending injury to the 1992 Plan due to Consol’s failure to provide coverage that is

“substantially the same” as the prior coverage. According to the plaintiffs, the 1992 Plan

will be obligated to cover existing beneficiaries (making up for any differences between


                                               6
Consol’s prior and updated coverage) and to enroll any new dependents who become

eligible after December 31, 2016. For example, the plaintiffs argue that if a retiree gets

married or adopts a child today, then Consol will deny coverage to those new beneficiaries.

And if Consol denies coverage to those beneficiaries, then the 1992 Plan is obligated to

cover them. Although this particular scenario has not yet come to pass, in the plaintiffs’

view, it’s not a question of “whether” this will happen, but of “how many” beneficiaries

they will have to cover.

       The plaintiffs contend the district court erred by finding their “risk-based” theory of

harm insufficient to satisfy Article III standing. 1 But the district court didn’t outright reject

the risk-based theory. Rather, the court dismissed this case because the risk of harm—that

the 1992 Plan will have to provide benefits to beneficiaries at some point in the future—

was “too speculative to give rise to Article III standing.” J.A. 241. We agree.

       Although a risk of future harm can certainly satisfy the injury-in-fact requirement,

the plaintiffs must still show that the harm is imminent. The plaintiffs can’t meet that

burden. Simply put, the plaintiffs have failed to present evidence establishing even a

substantial risk that beneficiaries will seek coverage from the 1992 Plan. At most, they

have alleged that the 1992 Plan will someday have to enroll beneficiaries, without

specifying “when the some day will be.” 

. This allegation is simply


       1
         The plaintiffs also argue the district court erred by failing to consider that harm in
a declaratory judgment action is different from harm in actions seeking damages. But
although the Declaratory Judgment Act is a means to resolve a controversy prior to an
actual injury, it doesn’t eliminate the requirement that the injury be imminent, which “is a
hard floor of Article III jurisdiction that cannot be removed by statute.” Summers v. Earth
Island Inst., 

, 497 (2009).

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not enough, as the imminence standard is “stretched beyond the breaking point” when the

plaintiff “alleges only an injury at some indefinite future time.” 

n.2.

       We also find it significant that in the two years since the changes went into effect,

the 1992 Plan has suffered no actual injury. For example, in Beck v. McDonald, 

(4th Cir. 2017), the plaintiffs alleged injury based on an increased risk of future identity

theft after their laptops and boxes containing personal patient information were stolen. In

finding the risk of future injury “too speculative,” we noted that it had been years since the

breaches, but the plaintiffs had uncovered no evidence, “even after extensive discovery,”

that their information had been accessed or misused. 

       Similarly here, the plaintiffs have failed to present any evidence of a beneficiary

seeking coverage from the 1992 Plan. And since nothing in the record suggests this status

quo will change, we fail to see how the harm to the 1992 Plan is imminent. Indeed, as

Consol’s policy changes fade farther into the past, the plaintiffs’ “threatened injuries

become more and more speculative.” 

       We don’t dismiss the possibility that some beneficiaries may seek coverage from

the 1992 Plan at some point in the future. But “‘[a]llegations of possible future’ injury are

not sufficient” to satisfy Article III standing. 

(quoting Whitmore

v. Arkansas, 

, 158 (1990)). The injury must be imminent, and we agree with

the district court that the allegations in this case are too speculative to give rise to Article

III standing.

       Because we see no imminent risk of harm, we also reject the plaintiffs’ claim to

standing based on its present expenditures to identify, avoid, and mitigate the harm


                                               8
allegedly caused by Consol. Although plaintiffs can generally establish standing “on the

basis of costs incurred to mitigate or avoid harm,” they may only do so if a “substantial

risk of harm actually exists.” Hutton v. Nat’l Bd. of Exam’rs in Optometry, Inc., 

, 622 (4th Cir. 2018). Since the harm to the 1992 Plan is speculative, the plaintiffs’

mitigating measures also fail to establish injury in fact. See 

–77; see

also 

(“[R]espondents cannot manufacture standing by choosing

to make expenditures based on hypothetical future harm that is not certainly impending.”).

                                               B.

       We next address the plaintiffs’ allegation of a statutory injury. The plaintiffs

contend that Consol violated the Coal Act, and that the violation of a statutory requirement

can, in and of itself, satisfy the injury-in-fact requirement of Article III.

       The plaintiffs’ theory springs from the Supreme Court’s decision in Spokeo. There,

the Court recognized that Congress may create “legally cognizable injuries” and define

injuries that will give rise to a case or 

(quoting 

). But, the Court said, “even in the context of a statutory violation,” Article III

standing still “requires a concrete injury.” 

bare procedural violation”—

divorced from “any concrete harm” or “risk of real harm”—cannot satisfy in the injury-in-

fact requirement. 

a statutory injury, the plaintiffs allege that Consol violated § 9711 of the

Coal Act by failing to provide health coverage that is “substantially the same” as the prior

coverage. Even if we accept that premise, we fail to see a cognizable injury to the 1992

Plan. To the extent § 9711 creates statutory rights, they belong to the beneficiaries who


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would be denied coverage. But no beneficiaries are named parties, and the plaintiffs have

not brought this suit to enforce its beneficiaries’ statutory rights.

       To be sure, § 9712 of the Coal Act requires the 1992 Plan to provide health coverage

to beneficiaries not receiving the required coverage under § 9711. But even if this were a

legally cognizable injury, the plaintiffs must still show a concrete injury. See 

. And the only alleged injury is the possibility of future harm to the 1992

Plan. As this allegation is merely “a repackaged version of [Plaintiffs’] first failed theory

of standing,” 

(quoting 

), the statutory injury

suffers the same fate. Without any concrete harm or risk of real harm, the plaintiffs have

alleged only a bare statutory violation that can’t satisfy Article III requirements. 2

                                            * * *

       The district court correctly dismissed this case for lack of standing. Its judgment is

therefore

                                                                                 AFFIRMED.




       2
         Because we affirm on the ground that the plaintiffs have not suffered an injury in
fact, we don’t address Consol’s alternative arguments regarding ripeness or whether there
is an “actual controversy” for purposes of the Declaratory Judgment Act.


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