Eastern Enterprises v. Apfel Page 2

Eastern Enterprises v. Apfel general information

Media for Eastern Enterprises v. Apfel

Audio Transcription for Oral Argument - March 04, 1998 in Eastern Enterprises v. Apfel

John T. Montgomery:

The statute does not create any new right of action.

Sandra Day O'Connor:

Did Eastern preserve a right of recovery against its subsidiary?

John T. Montgomery:

In the action, in the third party action that we filed below, we alleged that we do have a right.

I will tell the Court that if to the extent that we have a right is a right in implied indemnity.

There were no documents that passed between Eastern and its subsidiary or between Eastern and Peabody Holding Company which specifically spoke to the possibility of future statutory liability, and in the event that we are unsuccessful here, we will be left with that third party action in the District of Massachusetts in which we will attempt to advance our right to obtain recovery on an indemnification or contribution ground.

Anthony M. Kennedy:

Does the record tell us the amount and the extent of the liability and the number of the employees?

Is that... is that known at this time?

John T. Montgomery:

Justice Kennedy, the record tells us that as of the time that we filed this lawsuit that 1,400 employees, former employees or their spouses had been assigned to Eastern.

Since the lawsuit was filed, we have had additional assignments, but those are not part of the record.

With respect to the amount of the liability, it is an annual premium that's established by the combined fund.

The record is undisputed that at the time that the lawsuit was filed, and Mr. Harper's affidavit is in the record to this effect, that the actuarial calculation of the liability was in the vicinity of $100 million.

Ruth Bader Ginsburg:

But that's disputed to the extent, at least, that you would have a deduction for that expense, so that would bring that down a considerable amount without any other factor.

John T. Montgomery:

Certainly, Justice Ginsburg, and we are not attaching any special significance to the amount of money.

Ruth Bader Ginsburg:

May I ask you, your position is that Eastern, which severed its relationship with these employees many decades ago, should not be responsible.

On your theory, if any private party in this picture, Eastern's successors, can anybody compatibly with substantive due process or the Takings Clause be responsible or is this the kind of obligation that can be thrust only on the public as a whole through the revenue system?

John T. Montgomery:

The test that we have suggested here, and that we think is reflected in the Court's precedence such as Concrete Pipe and Turner Elkhorn is whether a party upon whom Congress seeks to impose a retroactive liability has some reasonable basis to anticipate.

Ruth Bader Ginsburg:

Is there anybody... let's take this case specifically.

Are either of the successors... suppose the tax... scratch that.

Suppose this liability had been imposed on Peabody.

Under your theory, would that be compatible with due process?

John T. Montgomery:

There is a class of companies that are included within the Coal Act that we believe properly bear that responsibility.

Ruth Bader Ginsburg:

Would be Peabody who... currently in the business.

John T. Montgomery:

We are not seeking at this point to shift our liability to any particular company.

Ruth Bader Ginsburg:

But which... these are... these are miners who stopped working in the mines in the 1960s.

John T. Montgomery:

That's right.

Ruth Bader Ginsburg:

Who in this picture would be responsible for them?

John T. Montgomery:

If we are successful here the miners and their spouses assigned to Eastern will then be reassigned under the priority scheme set forth in the statute to other companies for whom those miners worked or in the absence of such a company will be assigned to what's called the orphan pool.

Ruth Bader Ginsburg:

Would that be compatible with due process, just concentrating on the people who never worked for any existing company?

John T. Montgomery:

Certainly.

Ruth Bader Ginsburg:

These employees, these very employees, would it be compatible with due process to distribute them among employers who never had any employment relationship with them?