UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA, et al.,

Plaintiffs,

v. Civil Action No. 1:20-cv-01475 (CJN)

CONSOL ENERGY INC., et al.,

Defendants.

MEMORANDUM OPINION

In June 2020, the Southern District of West Virginia transferred two consolidated cases to

this District. See Mem. Op. and Order (“Transfer Op.”), ECF No. 119. In the first, International

Union, United Mine Workers of America sought to enforce a 2017 arbitration award in its favor.

See generally 2d Am. Compl., ECF No. 78. In the second, former subsidiaries of a company

formerly known as CONSOL (now CNX Resources Corporation) sought to vacate the arbitration

award. See generally Helvetia Coal Co. v. United Mine Workers of Am., Int’l Union, No. 1:20-cv-

01476, Am. Compl., ECF No. 25. Once the cases were transferred here, the Court permitted the

Union to amend its own complaint for a third time to add the former subsidiaries as defendants (in

addition to CNX), and in the case brought by the subsidiaries, allowed the Union to counterclaim

to compel enforcement of the award. See Mem. Op. and Order, ECF No. 144, 145.

Pending before the Court are several motions. The Union moves for summary judgment,

seeking to enforce the arbitration award against CNX and the former subsidiaries and to reject the

subsidiaries’ claims seeking to vacate the award. See Pls.’s Mot. for Summ. J., ECF No. 153;

Pls.’s Mem. in Opp’n to Defs.’s Cross-Mot. for Summ. J., ECF No. 158; Defs.’s Answer to 3d

1 Am. Compl. (“Defs.’s Answer”), ECF No. 149 at 20. The subsidiaries seek to vacate the award,

contending that the arbitration panel exceeded its authority under the plain language of the

bargaining agreement, such that the award should be vacated and not enforced. See Defs.’s Cross-

Mot. for Summ. J., ECF No. 155; Pl.’s Mem. in Opp’n to Defs.’s Cross-Mot. for Summ. J., ECF

No. 158; Defs.’s Answer at 20. And CNX moves to dismiss for lack of jurisdiction, arguing that

the Union has failed to plead a cognizable, actual controversy against it. See Def.’s Mot. to

Dismiss, ECF No. 154. After hearing argument on the motions and for the reasons explained

below, the Court grants CNX’s motion to dismiss for lack of jurisdiction and denies the cross-

motions for summary judgment, pending the additional briefing ordered below.

Background

International Union, United Mine Workers of America (the Union for short) and a

multiemployer bargaining association called the Bituminous Coal Operators’ Association, which

acts on behalf of member employers, came to terms on a collective bargaining agreement in the

summer of 2011. Defs.’s Answer, ECF No. 151 at ¶ 10. By its express terms, the bargaining

agreement would expire at the end of 2016. Id. The bargaining agreement governed the terms and

conditions of employment for the Union-represented miners who work or had worked for signatory

employers. See Transfer Op. at 2–3. It also includes several specific provisions pertinent to this

case.

The first set of relevant provisions committed each signatory to provide health care benefits

to plan participants and retirees. Article XX(c)(3)(i) states in relevant part:

“Each signatory Employer shall establish and maintain an Employee benefit plan to provide . . . health and other non-pension benefits for its Employees covered by this agreement . . . . The benefits provided by the Employer to its eligible participants pursuant to such plan shall be guaranteed during the term of this Agreement at levels set forth in such plan. The plans established pursuant to this subsection are incorporated by reference and made a part of this Agreement, and

2 the terms and conditions under which the health and other non-pension benefits will be provided under such plans are as to be set forth in such plans.” See The CBA, ECF No. 1-1 at 18.

The second set of provisions establish the arbitration panel’s jurisdiction to entertain

disputes arising under the bargaining agreement. The Parties refer to this as the Resolution of

Disputes (or ROD) process. Article XX(e)(5) provides in part that:

“Disputes arising out of this Agreement with regard to the Employer benefit plan established in (c)(3) above shall be referred to the Trustees. The Trustees shall develop procedures for the resolution of such disputes. In the event the trustees decide such dispute, such decision of the Trustees shall be final and binding on the parties.” Id. at 36.

An explanatory note found in Article XX Section 10 adds that:

“The Trustees of the UMWA Health and Retirement Funds shall resolve any disputes . . . to assure consistent application of the health plan provisions in the Employer Benefit Plans and of the managed care programs authorized by this Agreement.” Id. at 76.

And Article XX Section (e)(5) states that:

“The Trustees shall develop procedures for the resolution of such disputes. In the event the trustees decide such dispute, such decision of the Trustees shall be final and binding on the parties.” Id. at 35.

The third set of provisions provide the process for changing health benefits under the plans.

Article XX Section (c) provides that:

“The benefits and benefit levels provided by the Employer under its Employer Plan are established for the term of this Agreement only, and may be jointly amended or modified in any manner at any time after the expiration or termination of this Agreement.” Id. at 43.

The coal industry came under severe financial pressure soon after the bargaining agreement

took effect. As a result of the dire economic situation, CONSOL initiated a comprehensive-cost-

reduction initiative. See Defs.’s Statement of Undisputed Material Facts (“Defs.’s SUMF”), ECF

No. 155-1 at ¶ 25. In 2016, CONSOL, speaking on behalf of signatory subsidiaries (including the

3 signatories that are parties in this case), met with Union officials to discuss potential changes to

the health benefit plans. Id. ¶ 28. CONSOL and the subsidiaries proposed “transitioning the

approximately 2,000 Medicare-eligible retirees and dependents to individualized Medicare

Supplement plans whose premiums would be paid from Health Reimbursement Accounts.” Id. ¶

29.

Later in 2016, CONSOL sent a letter to Union retirees referencing the initiation of benefit

discussions with the Union. Id. ¶ 32. The letter stated that CONSOL and the subsidiaries had

“initiated discussions with the [Union] regarding new options for providing healthcare benefits,”

and promised that “[i]n all events, we will continue to communicate with you in the coming months

about this very important matter before any changes are implemented.” Compl., ECF No. 1-2 at

2. In a follow-up letter sent a couple months later, CONSOL stated that “changes to the healthcare

programs provided by CONSOL’s subsidiaries under the [agreement]” were under consideration

given the dire economic circumstances the coal industry found itself in. Compl., ECF No. 1-3 at

1. The letter added that CONSOL and the subsidiaries had “recently provided a proposal to

[Union] leadership that details such a plan, and we look forward to discussing these options with

them so that we can continue to provide access to quality healthcare despite the harsh realities that

confront our industry.” Id. at 2.

Soon after receiving the second letter, Richard Fink, a retired coal miner and a participant

in the subsidiaries’ health plan, submitted to the arbitration panel, with the aid of the Union, ROD

No. 11-0143. See Defs.’s SUMF ¶¶ 42, 44. Fink’s ROD stated: “CONSOL sent a letter to its []

retirees reflecting its intention to modify their benefits upon the termination of the 2011”

bargaining agreement. See Fink’s ROD, ECF No. 147-2 at 2. The letter also noted that the

bargaining agreement provided that post-termination modifications of benefits “may only be

4 implemented by agreement with the” Union. Id. And it requested an order from the arbitration

panel forcing CONSOL to “notify its retirees that it cannot make any changes in their benefits

without the agreement of the [Union].” Id.

The arbitration panel issued its decision roughly a year later. See Op. for ROD No. 11-

0143, ECF No. 147-1 at 2. The panel first concluded that it possessed jurisdiction over the ROD

because “it involves a dispute arising under the [bargaining agreement] and a dispute that concerns

provisions of the [agreement] that apply after [its] expiration.” Id. at 7. It next decided that neither

CONSOL nor the subsidiaries could “make [] changes unilaterally” to the retirees’ health plans.

Id. at 9. Instead, “any modification or changes [] must be made only upon joint agreement.” Id.

at 11. The panel acknowledged that no employer had made changes to any plan. Id. Yet it

concluded that the proposed changes described in the letter would “not provide the level of health

benefits as mandated in the 2011 [agreement].” Id.

Soon after the panel released its decision, CONSOL spun-off its coal business, cutting ties

with many of its subsidiaries, to form a new publicly traded company. See Defs.’s SUMF ¶ 57.

Under the name CNX, the newly formed company concentrates on oil and gas exploration,

development, and distribution rather than on coal excavation. Id. ¶ 58. CNX has never employed

Union-represented-coal miners, has never made contributions to any retirees’ health benefit plan,

and has never served as an administrator of any health plan. Id. ¶¶ 58–62.

In late October 2017, the Union sought to confirm the arbitration award in a pending

lawsuit filed in the Southern District of West Virginia. See Transfer Op. at 6–10. The subsidiaries

responded to the arbitration decision in two ways: first, they moved to dismiss the Union’s Second

Amended Complaint for lack of jurisdiction, See Subsidiaries’ Mot. to Dismiss Pls.’ 2d Am.

Compl., ECF No. 98; and second, they filed a lawsuit in the Western District of Pennsylvania to

5 vacate the arbitration award, Helvetia Coal Co. v. United Mine Workers of Am., Int’l Union, No.

1:20-cv-01476, Compl., ECF No. 1. The Western District of Pennsylvania transferred the action

seeking vacatur to the Southern District of West Virginia, which consolidated the cases, see

Transfer Op. at 55–57; declined to exercise personal jurisdiction over the subsidiaries, id. at 47–

49; and transferred the consolidated cases to this District, id. at 59–63.

With discovery complete, and after the Court permitted the Union to amend its complaint

a third time, the Parties filed various dispositive motions. The Union seeks to enforce the

arbitration award against CNX and the subsidiaries. See Pls.’s Mot. for Summ. J., ECF No. 153.

The subsidiaries seek to vacate the award, contending the arbitration panel exceeded its authority

under the plain language of the bargaining agreement. See Defs.’s Cross Mot. for Summ. J., ECF

No. 155; Pls.’s Mem. in Opp’n to Defs.’s Cross-Mot. for Summ. J., ECF No. 158; Defs.’s Answer

at 20. And CNX moves to dismiss for lack of jurisdiction, arguing that the Union has failed to

plead a cognizable, actual controversy against it. See Defs.’s Mot. to Dismiss, ECF No. 154.

The Arbitrability of the Fink ROD

For over half a century, the Supreme Court has “applied a very deferential standard for

judicial review of labor arbitration decisions.” Nat’l Postal Mail Handlers Union v. Am. Postal

Workers Union,

(D.C. Cir. 2009) (Kavanaugh, J.). “In 1960, the Supreme Court

issued three decisions designed to end the federal courts’ hostility to labor-arbitration awards.”

Michigan Fam. Res., Inc. v. Serv. Emps. Int’l Union Loc. 517M,

(6th Cir. 2007).

6 In what is known today as the Steelworkers Trilogy, the Supreme Court established ground rules

for the review of arbitration awards.1 Two of those ground rules are relevant here.2

First, courts rather than arbitrators determine whether a collective bargaining agreement

requires that a dispute be resolved through arbitration. See United Steelworkers v. Warrior & Gulf

Navigation Co.,

(1960). That rule governs because arbitration “is a matter of contract

and a party cannot be required to submit to arbitration any dispute which he has not agreed so to

submit.” Livadas v. Bradshaw,

, 124 n.17 (1994) (quotation omitted). An arbitration

panel therefore has “authority to resolve disputes only because the parties have agreed in advance

to submit such grievances to arbitration.” AT&T Techs., Inc. v. Commc’ns Workers of Am.,

, 648–49 (1986).3

Second, where the bargaining agreement provides that a dispute should be submitted to

arbitration, the courts have very limited authority in reviewing the merits of a particular dispute.

See United Steelworkers of America v. American Mfg. Co.,

(1960). To do so would

usurp the role of the arbitrators. That principle holds true even in face of “allegations that the

1 Courts have recognized that ROD opinions count as arbitration awards in circumstances similar to the one at hand. See Parsons v. Power Mountain Coal Co.,

(4th Cir. 2010) (Wilkinson, J.) (“This court has previously recognized that ROD opinions, issued under the authority of the NBCWAs, are arbitration awards.”). 2 The subsidiaries challenge an arbitration decision. As such, the Federal Arbitration Act governs this case. See

; Cir. City Stores, Inc. v. Adams,

(2001). The FAA authorizes a court to vacate an arbitration panel’s decision only in narrow circumstances. See First Options of Chicago, Inc. v. Kaplan,

(1995); Kanuth v. Prescott, Ball & Turben, Inc.,

(D.C. Cir. 1991) (“Courts have recognized that judicial review of arbitral awards is extremely limited.”). This case also involves a collective bargaining agreement, which means that the Labor Management Relations Act of 1947 governs the dispute too. See

, et seq. The subsidiaries appear to have conceded that the Court has statutory jurisdiction under the LMRA to entertain this case. See Defs.’s Mem. in Opp’n to Sum. J., ECF No. 159 at 7 (“The [Union] may invoke § 301 of the LMRA as a jurisdictional basis for bringing an action in federal court challenging whether changes to the manner in which the signatory Defendants provide benefits to their retirees post-expiration violates the terms of the expired 2011 Agreement.”). Indeed, the subsidiaries confirmed the concession at the hearing held for this matter. See Minute Order September 13, 2021. 3 A court will defer to an arbitrator’s decision about whether the parties had to arbitrate a particular grievance only where the collective bargaining agreement “clearly and unmistakably” grants the arbitrator the authority to make that call. KenAmerican Resources, Inc. v. Int’l Union, United Mine Workers of Am.,

(D.C. Cir. 1996). The collective bargaining agreement in this case does not clearly and unmistakably do so here, and the Union does not contend otherwise.

7 [arbitration] decision rests on factual errors or misinterprets the parties’ agreement.” Major

League Baseball Players Ass’n v. Garvey,

(2001) (per curiam). A court will

therefore uphold an arbitration decision so long as it “draws its essence from the collective

bargaining agreement.” United Steelworkers of Am. v. Enter. Wheel & Car Corp.,

(1960). A decision draws its essence from the bargaining agreement when the arbitrator was

“even arguably construing or applying the contract and acting within the scope of his authority.”

Garvey,

(quotation omitted); Nat’l Postal Mail Handlers Union,

(Kavanaugh, J.) (holding that a decision draws its essence from the bargaining agreement if the

“arbitrator premised his award on his construction of the contract”) (quotation omitted). An

arbitration award does not draw its essence from the contract when the arbitrators dispense their

“own brand of industrial justice” rather than apply the provisions of the bargaining agreement.

United Steelworkers of Am. v. Enter. Wheel & Car Corp.,

(1960). An

“arbitration award that fails to draw its essence from the collective bargaining agreement cannot

stand.” Madison Hotel v. Hotel & Rest. Employees, Local 25, AFL-CIO,

(D.C.

Cir. 1998).

The arbitration panel not only possessed the authority to arbitrate the Fink ROD, but it also

rendered a decision that drew its essence from the collective bargaining agreement.

Recall that Article XX(c)(3)(i) of the bargaining agreement placed an obligation on the

signatory employers to provide health care benefits to plan participants: “Each signatory Employer

shall establish and maintain an Employee benefit plan to provide . . . health and other non-pension

benefits for its Employees covered by this agreement.” See The CBA, ECF No. 1-1 at 18. Recall,

too, that Article XX Section (c) prohibited the signatory employers from unilaterally changing

benefits: “The benefits and benefit levels . . . may be jointly amended or modified in any manner

8 at any time after the expiration or termination of this Agreement.” Id. at 43. And recall that Article

XX Section (e) committed all disputes arising under the health plans to an arbitration panel for

final and binding determination: “Disputes arising out of this Agreement . . . shall be referred to

the [arbitration panel, which] shall develop procedures for the resolution of such disputes. In the

event the [panel] decide[s] such dispute, such decision . . . shall be final and binding on the parties.”

Id. at 36.

Those provisions, taken together, show that the arbitration panel had the authority to

arbitrate this dispute. Though the Court does not defer to the arbitration panel’s determination that

it could arbitrate the matter, the panel’s explanation goes a long way toward confirming the panel’s

authority to arbitrate the Fink ROD.4

Relying on the text of the bargaining agreement, the panel determined that it had

jurisdiction because the ROD “involves a dispute arising under the [bargaining agreement] and a

dispute that concerns provisions of the [bargaining agreement] that apply after [its] expiration.”

See Op. for ROD No. 11-0143, ECF 147-1 at 7. The panel also concluded that “a dispute over

post-expiration changes to [health benefit levels] is subject to ROD jurisdiction because the dispute

arises under the [bargaining agreement] and concerns a provision of the [health benefit plan] that

addresses the procedure by which benefits and benefit levels may be modified after contract

expiration.” Id. at 8. And the arbitration panel’s ruling notes that the plain language of bargaining

agreement reserves “disputes” and “any disputes” arising under to the arbitration panel for

4 Where “a party to an arbitration proceeding challenges the arbitrator’s authority to decide a particular issue, the “threshold question of arbitrability is one of law, and a reviewing court is obligated to make its own determination of the issue.” Davis v. Chevy Chase Fin. Ltd.,

, 166–67 (D.C. Cir. 1981); Solvay Pharms., Inc. v. Duramed Pharms., Inc.,

(6th Cir. 2006). A court’s “decision may, of course, be informed by the arbitrator’s resolution of the arbitrability question,” and “where the scope of arbitration is fairly debatable or reasonably in doubt, the arbitrator’s assumption of jurisdiction should be upheld.” Davis,

(quotation omitted).

9 resolution. The Court, like the panel, concludes that the subsidiaries and the plan participants

agreed to arbitrate the dispute at issue in this case.

Having concluded that the panel had the authority to decide the Fink ROD, the Court also

holds that its decision drew its essence from the bargaining agreement. In other words, this is not

a case where the panel’s “words reveal that [it] has gone beyond interpreting and applying the

parties’ agreement.” See Preeminent Protective Servs., Inc. v. Serv. Employees Int’l Union, Local

32BJ,

(D.D.C. 2018) (quoting Hay Adams Hotel LLC v. Hotel & Rest.

Emps., Local 25, Unite Here Int’l Union, No. 06-968,

, at *5 (D.D.C. May 9,

2007)). This case, at the very least, presents a situation where the award “stemmed from a

colorable interpretation of the parties’ [agreement],” which means that the panel drew the

“essence” of its decision from the agreement. Commc’ns Workers of Am., AFL-CIO v. Sw. Bell

Tel. Co.,

, 830 (5th Cir. 2020).

The arbitration panel articulated its review of the background facts, including arguments

for and against arbitration. See Op. for ROD No. 11-0143, ECF 147-1. It then considered the

pertinent provisions of the bargaining agreement with respect to the substantive dispute.

And

it engaged in a considerable exposition of the proposed changes and how the proposed changes

would affect the health benefit levels of plan participants.

All that, considered together, leads

to the conclusion that the decision drew its essence from the bargaining agreement.

The subsidiaries challenge this conclusion by arguing that the ROD process exists for

individual plan participants to adjudicate disputes about a denial of benefits rather than for claims

for prospective relief made by numerous participants. To put it differently, the subsidiaries argue

that the ROD procedure establishes nothing other than an abbreviated, second-level review of

benefit denial disputes between employees and retirees and their employer. The process was not,

10 according to the subsidiaries, created to address hypothetical disputes or to resolve collective

bargaining disputes between the Union and the employers, which means that the employers never

agreed to arbitrate the Fink ROD. Yet the broad language of the bargaining agreement, together

with past practice, foreclose the subsidiaries’ challenge.

That language is broad and general does not mean that it is ambiguous. See Robinson v.

Shell Oil Co.,

(1997); see Arizona v. Tohono O’odham Nation,

(9th Cir. 2016) (“[A] word or phrase is not ambiguous just because it has a broad general

meaning.”). Here, the plain language of the bargaining agreement reserves “disputes” and “any

disputes” arising under the agreement with respect to health benefit plans to the arbitration panel

for resolution. The language does not make reference to the subsidiaries’ perceived limitation of

the ROD process to a single claimant at a time, or to the arbitration panel not deciding forward-

looking questions. Rather, the broad references found in the bargaining agreement create space

for plan participants to utilize the ROD process to dispute the signatory employers’ stated intent

to modify or terminate the health benefit plans.

Past practice also supports the decision to arbitrate. In particular, the Union has pointed to

past examples in which the panel decided disputes implicating groups of employees rather just a

single employee who has been denied a benefit. Consider ROD No. 84-523, which involved

multiple employees raising a grievance before the arbitration panel. Def.’s Mem. in Opp’n to

Pls.’s Mot. for Summ. J., ECF No. 158-2, Ex. 1A. Other examples exist, too. See

at Ex 1B;

see also

at Ex. 1C. The availability of the ROD procedure to groups of employees to enforce

their collective right to health benefits furthers the ROD mechanism’s fundamental purpose of

ensuring that the panel’s determinations have consistent and broad application.

11 The subsidiaries also contend that, following expiration of the bargaining agreement, their

only extant contractual obligation was to provide post-expiration health benefits to eligible

participants. As the employers see it, nothing in the expired agreement required the companies to

retain the ROD procedures after its expiration, which means that the Fink ROD decision cannot

draw its essence from the agreement because the panel read into the expired agreement an

obligation to submit to the panel’s authority.

The Supreme Court has made clear that even absent an explicit agreement certain grievance

procedures continue post-expiration: “a post expiration grievance can be said to arise under the

contract only where it involves facts and occurrences that arise before expiration, where a post

expiration action infringes a right that accrued or vested under the agreement, or where, under the

normal principles of contract interpretation, the disputed contractual right survives expiration of

the remainder of the agreement.” Litton Fin. Printing Div., a Div. of Litton Bus. Sys., Inc. v.

N.L.R.B.,

(1991); Int’l Bhd. of Elec. Workers, Loc. 1200 v. Detroit Free Press,

Inc.,

(D.C. Cir. 2014). And in cases where the “collective-bargaining agreement

provides in explicit terms that certain benefits continue after the agreement’s expiration, disputes

as to such continuing benefits may be found to arise under the agreement, and so become subject

to the contract’s arbitration provisions.” Litton, 501 U.S. at 207–08; Detroit Typographical Union

v. Detroit Newspaper Agency,

(6th Cir. 2002). Whether a post-expiration

grievance procedure survives expiration is therefore “like so much else in this area, a matter of

basic contract law,” making the key question “whether the parties agreed to arbitrate this dispute.”

United Steel, Paper And Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int’l

Union AFL-CIO/CLC, Loc. No. 850L v. Cont’l Tire N. Am., Inc.,

(4th Cir. 2009)

(Wilkinson, J.).

12 The bargaining agreement states in broad terms that: “Disputes arising under this

Agreement . . . shall be referred to the [arbitration panel] . . . . [And that] [p]recedent under the

resolution of disputes mechanism previously in place shall remain in effect, and the panel shall be

required to cooperate to assure the consistent interpretation of provisions under the Employer Plans

under this Article.” See The CBA, ECF No. 1-1 at 36. And Article XX Section (c) provides that:

“The benefits and benefit levels . . . may be jointly amended or modified in any manner at any

time after the expiration or termination of this Agreement.” Id. at 43. That language, taken

together, indicates that a dispute such as Fink’s ROD may be arbitrated post-expiration. United

Parcel Serv., Inc. v. Union De Tronquistas De Puerto Rico, Loc. 901,

(1st Cir.

2005) (“We find no evidence in these provisions—clear or otherwise—that the parties agreed to

depart from the presumption that matters arising under a particular collective bargaining agreement

will remain arbitrable even after the contract has terminated.”). The arbitration panel also relied

on precedent under the resolution of dispute mechanism, including examples of the arbitration

panel asserting ROD jurisdiction after the expiration of a bargaining agreement in the 1980s. See

Op. for ROD No. 11-0143, ECF No. 147-1 at 8. And the bargaining agreement specifies that

health benefits would survive expiration. See The CBA, ECF No. 1-1 at 18, 43.

The Court therefore will not vacate the arbitration award. See Parsons,

(“Lest we risk the disruption of the carefully negotiated rules governing labor-management

relations within the coal industry, we decline to second-guess the judgment of arbitrators

interpreting a complicated collective bargaining scheme comprised of interwoven agreements.”).

Article III Standing as to CNX

As a result of the corporate spinoff and having no authority over the future of any health

benefit plan, CNX contends that the Court lacks subject-matter jurisdiction over claims against it

13 because supervening events have rendered it impossible for the company to repudiate or violate

the arbitration award. Def.’s Mot. to Dismiss, ECF No. 154-2 at 6–7, 13.

The Constitution of the United States limits the “judicial Power” to resolving “Cases” and

“Controversies.” U.S. Const. art. III, § 2. To satisfy the case-or-controversy requirement, a

plaintiff must show that she has “suffered an injury in fact,” that the defendant can remedy the

harm, and that a live dispute exists. Spokeo, Inc. v. Robins,

(2016);

TransUnion LLC v. Ramirez,

(2021). As to the third imperative, a claim is

not “amenable to . . . the judicial process,” Steel Co. v. Citizens for a Better Env’t,

(1998), when it turns on “contingent future events that may not occur as anticipated, or indeed

may not occur at all,” Trump v. New York,

, 535 (2020) (per curiam) (quoting Texas

v. United States,

(1998)), and when no hardship results from a court withholding

consideration of the claim, Abbott Lab’ys v. Gardner,

(1967)); see also

OverDrive Inc. v. Open E-Book F.,

, 958 (6th Cir. 2021) (suggesting that “the second

inquiry [should] merge into the first”).

The Court lacks subject-matter jurisdiction over CNX because there is no live case or

controversy between the Union (or Fink) and CNX. If CNX tried tomorrow to revisit, overhaul,

or restructure the health benefit plans it would have no power to do so. CNX severed all ties with

the subsidiaries; it has no legal, practical, or operational ability to either comply with or violate the

arbitration award; nor may it alter the level or duration of the health care afforded to the plan

participants. Binding CNX to the arbitration award therefore would not change the status quo nor

would it redress any alleged harm suffered by the Union or its members.

The Union fights this conclusion by recommending that the Court adopt the findings of the

transferor court, which, the Union argues, included the determination that the case-or-controversy

14 requirement had been met with regards to CNX. See Pls.’s Mem. in Opp’n to Def.’s Mot. to

Dismiss, ECF No. 157 at 9. That argument, however, fails for three reasons. First, the transferor

court did not decide whether the case-or-controversy requirement had been met regarding claims

against CNX. That court instead decided that it possessed statutory jurisdiction under § 301 of the

Labor Management Relations Act over the spun-off corporation. See International Union, UMWA

v. Consol Energy, Inc.,

(S.D. W. Va. 2017); see also Transferor Op. at

16 (“Like it has already done once previously, . . . the court upholds its prior ruling on this issue

and finds that there is subject matter jurisdiction over CONSOL on the LMRA claim.”). Second,

even assuming that the transferor court decided the case-or-controversy question with regards to

CNX (which it did not), this Court is not bound by the discretionary law-of-the-case doctrine.

Christianson v. Colt Indus. Operating Corp.,

(1988).5 Third, whether a plaintiff

has satisfied the case-or-controversy requirement with regard to a specific defendant remains a

live question throughout all stages of litigation, including after a case has been transferred.

Already, LLC v. Nike, Inc.,

, 90–91 (2013) (stating that “an actual controversy must

exist not only at the time the complaint is filed, but through all stages of the litigation”).

One last point. Though the Court recognizes the bedrock principle of corporate

separateness, see United States v. Best Foods,

(1998), it does not turn a blind eye to

corporate shenanigans used from time to time to shield one company from a related (or former)

5 “Although failure to adhere to the law of the case doctrine may in some cases constitute abuse of discretion, adherence to the doctrine is not mandatory.” Moore v. Hartman,

, 256 n.6 (D.D.C. 2004). Courts should as a general practice, however, follow the law-of-the-case doctrine even “it does not limit the tribunal’s power.” Arizona v. California,

(1983); Sloan v. Urb. Title Servs., Inc.,

, 224 (D.D.C. 2011).

15 company’s liability, Dole Food Co. v. Patrickson,

(2003). No allegations of

fraud surround the spinoff of CONSOL’s subsidiaries nor CONSOL’s evolution into CNX. But

allegations may change going forward. And cutting tie with subsidiaries to evade financial liability

may give rise to claims in some instances. RTC Mortg. Tr. 1995-S/N1 v. Sopher,

(S.D.N.Y. 2001); Scarff Bros., Inc. v. Bischer Farms, Inc.,

(6th

Cir. 2010).

Confirmation of the Award

For the reasons set forth above, the Court will not vacate the award, but it also cannot

enforce it against CNX. But can the award be enforced against the subsidiaries? All agree that

the grievant who filed the ROD (Fink) did not allege a loss of any benefit. Fink instead challenged

the signatory employers’ ability to unilaterally alter the health benefit levels of plan participants.

Although the Court has decided that the arbitration panel had the authority to issue the decision it

did, and that the panel’s decision drew its essence from the bargaining agreement, the Court

declines to confirm the award based on the current briefing.

In particular, it is unclear how Fink, the Union, or any of the plan participants has standing

to seek confirmation of the arbitration award. The subsidiaries have not altered health benefit

levels. And neither the Union nor Fink have yet pointed to case law demonstrating that Article III

injury arises merely from an arbitration award going unconfirmed.

The Court therefore requests additional briefing on two issues. The first is whether Fink,

the Union, or any of the plan participants presently has Article III standing to seek confirmation

of the arbitration award. The second and related question is whether Fink, the Union, or any of

the plan participants would have standing to seek confirmation of the arbitration in the event the

16 subsidiaries take steps inconsistent with the award. Stated differently, can the Court confirm the

award at some future time in the event a harm arises from the subsidiaries’ conduct?

Conclusion

For the foregoing reasons, CNX’s motion to dismiss for lack of jurisdiction is GRANTED.

The subsidiaries’ cross-motion for summary judgment is DENIED without prejudice, and the

Union’s motion for summary judgment is DENIED without prejudice. The Court will resolve

those motions after receiving the Parties’ supplemental briefing. An Order will be entered

contemporaneously with this Memorandum Opinion.

It is so ORDERED.

DATE: September 30, 2021 CARL J. NICHOLS United States District Judge

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