UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MICHAEL BUCKNER et al.,

Plaintiffs,

v.

CONSOL ENERGY INC. et al., Civil Action No. 20-1148 (TJK) Defendants and Third-Party Plaintiffs, v.

E.I. DU PONT DE NEMOURS AND COM- PANY et al.,

Third-Party Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiffs are trustees of the United Mine Workers of America 1992 Benefit Plan. They

seek a declaratory judgment that Defendants—eight energy-industry companies—are failing to

fulfill their obligations to the plan under the Coal Act. Plaintiffs argue that Defendants are liable

for these obligations because Defendants are related to entities that are signatories to certain col-

lective bargaining agreements within the coal industry. Defendants, in turn, sued Third-Party De-

fendants, claiming that if Defendants are liable for these obligations, then these other parties are

as well because they are similarly related to those same signatories.

Third-Party Defendants move to dismiss Defendants’ complaint against them. They argue

the Court lacks subject-matter jurisdiction, Defendants have failed to state a claim, and that the

complaint against them is procedurally defective. The Court finds that it has subject-matter juris-

diction. But it also finds that Defendants have failed to state a claim because Third-Party Defend-

ants are insufficiently related to the corporate entity signatories to incur liability under the Coal Act. Thus, the Court will grant their motions and dismiss the Third-Party Complaint against them.

I. Background

A. Legal Background

The Coal Act’s comprehensive liability scheme “provides health benefits to coal industry

retirees.” See generally Holland ex rel. UMWA 1992 Benefit Plan v. Arch Coal, Inc.,

, 814 (D.C. Cir. 2020).1 It does so in several ways. First, it creates a combined fund to benefit

industry members who were entitled to benefits under collective-bargaining agreements operative

at the time of its enactment. See id.;

(e). Second, it imposes certain obligations

on coal companies. One of those obligations is that employers who offered “independent employer

plans” (“IEPs”) at the time of the Act’s enactment must keep doing so. See Arch Coal, 947 F.3d

at 814;

, 9712(b). This requirement continues “for as long as the [company]

remains in business.”

.

The Coal Act also created the UMWA 1992 Benefit Plan (“the Plan”) as a standalone

healthcare-benefits plan. See Arch Coal, 947 F.3d at 814. The Plan serves those “not covered” by

either the combined fund or an IEP. See id. In that sense, it is a coverage “backstop.” See Dist.

29, United Mine Workers of Am. v. United Mine Workers of Am. 1992 Benefit Plan,

(4th Cir. 1999). In ERISA terms, it is a multiemployer employee welfare benefit plan. See

(a)(2)(B)–(C);

(1), 1002(37).2

The Plan collects premiums for its beneficiaries from coal-industry employers and their

successors. See Holland v. Bibeau Constr. Co.,

(D.C. Cir. 2014). Thus, if an

1 Coal Industry Retiree Health Benefit Act of 1992,

19141–43,

, 3036–56 (Oct. 24, 1992), codified at 26 U.S.C. §§ 9701–22. 2 The Employee Retirement Income Security Act of 1974,

et seq.

2 employer’s qualifying retirees are enrolled in the Plan, then the employer incurs three forms of

liability. First, it must pay “a monthly per beneficiary premium.” See

(d)(1)(A).

Second, it must provide security in the amount of their portions of the “projected future cost . . .

of providing health benefits for eligible and potentially eligible beneficiaries.” See

§ 9712(d)(1)(B). Third—but conditional on the operation of another statute—it must pay “an ad-

ditional backstop premium” calculated by reference to their obligations under the other statute.

See id. § 9712(d)(1)(C); Arch Coal., 947 F.3d at 814; see also

. Companies

obligated to contribute to the Plan are “jointly and severally liable” for those amounts. See

(d)(4).

The above-described obligations are imposed by the Coal Act on two types of entities. See

Arch Coal, 947 F.3d at 814. The first are “last signatory operators.” A last signatory operator is

an entity that was party to a collective bargaining agreement effective when the Coal Act was

enacted, id., and is “the most recent coal industry employer of [a] retiree.”

(c)(4);

see also

§§ 9712(d)(1), 9712(d)(6). The second are entities “related . . . to a [last] signatory

operator.” See

(c)(2). Whether an entity qualifies as “related” is assessed “as of

July 20, 1992” according to statutory criteria discussed below. See

B. Factual Background

The relationships between the various entities is central to the Court’s resolution of the

instant motions.3 The Third-Party Complaint names as Third-Party Defendants (1) E. I. du Pont

de Nemours and Company (“EID”) and (2) three German companies that the Court will

3 The Court presumes these allegations in the operative complaints to be true.

3 collectively call “RWE.”4 In 1981, EID acquired a 100% interest in Consolidation Coal Company

(“Consolidation”)—the company at the center of this dispute—through one of its subsidiaries.

ECF No. 82 ¶¶ 27–29, 31. And in 1988, while it was still owned by EID, Consolidation signed a

qualifying collective bargaining agreement, thus becoming a last signatory operator with corre-

sponding obligations under the Coal Act. ECF No. 82 ¶ 30; ECF No. 32 ¶ 26.

In 1991, EID sold 50% of its interest in Consolidation “to form a joint venture with” RWE.

ECF No. 82 ¶ 31. The joint venture was incorporated under the name CONSOL Energy Inc. (“Old

CONSOL”),5 and in that process, Consolidation became a wholly owned subsidiary of the Old

CONSOL joint venture. Id. ¶ 32. Thus, as of July 20, 1992—the date relevant for determining

“related persons”—Consolidation was owned by Old CONSOL. See id. ¶¶ 46–48.

Old CONSOL lasted as a joint venture for about seven years. ECF No. 82 ¶¶ 32–34. Be-

tween 1998 and 1999, EID sold its interest in Old CONSOL to RWE, which then owned 94% of

the venture. Id. ¶ 33. And shortly after, Old CONSOL went public, terminating the joint venture.

Id. ¶ 34.

In 2013, Old CONSOL sold Consolidation to Ohio Valley Resources, Inc. in a stock-pur-

chase agreement. ECF No. 82 ¶ 38; ECF No. 32 ¶ 53. Ohio Valley was then a wholly owned

subsidiary of Murray Energy Corporation. ECF No. 32 ¶ 53. A few years later, in 2017, Old

CONSOL split into two new entities. ECF No. 82 ¶ 39. Part of it was spun off into a new corporate

entity called CONSOL, and the remainder became CNX Resources Corporation. Id. These two

entities—CONSOL and CNX Resources Corporation—along with six of CONSOL’s

4 These companies are RWE A.G., Rheinbraun A.G. (now RWE Power A.G.), and Rheinbraun U.S. GmbH (now RWE Power A.G.). 5 The Court uses this name to distinguish Old CONSOL from the named defendant CON- SOL, a later spinoff of Old CONSOL’s subsidiary CONSOL Mining Corp. ECF No. 82 ¶ 39. At the time of that spinoff, Old CONSOL changed its name to CNX. Id.

4 subsidiaries—are now Defendants/Third-Party Plaintiffs in this case. See ECF No. 32 ¶¶ 5–12.

When Consolidation was sold to Murray Energy Corporation (through its subsidiary: Ohio

Valley Resources), the stock-purchase agreement and the Coal Act required Murray Energy Cor-

poration to pay benefits to Consolidation’s eligible retirees through an IEP. ECF No. 82 ¶ 38; ECF

No. 32 ¶ 54. But Murray Energy Corporation and 98 of its affiliates filed for Chapter 11 bank-

ruptcy in 2019, which caused about 1,600 beneficiaries to be transferred to the Plan. See ECF No.

32 ¶¶ 56–57, 60. Because those beneficiaries were transferred to the Plan, Consolidation (as the

last signatory operator) and “related persons” to Consolidation, then became obligated to contrib-

ute to the Plan under the Coal Act. Id. ¶ 77.

C. Procedural History

In August 2020, Plaintiffs sued Defendants—CONSOL, six of its subsidiaries, and CNX—

as the corporate split-offs from Old CONSOL, arguing that they are “related persons” to Consoli-

dation and are therefore jointly and severally liable for Consolidation’s obligations under the Coal

Act.6 See ECF No. 32 ¶¶ 1, 41–62, 65, 67, 70, 74–75, 78. Specifically, they argue that Defendants

are obligated to (1) establish an IEP for the qualifying beneficiaries; (2) provide security to the

Plan as set forth in Section 9712(d)(1)(B); and (3) pay the monthly per beneficiary premiums to

the Plan for the beneficiaries who were transferred to it after the Murray Energy bankruptcy. See

id. ¶¶ 63–78. Defendants moved to dismiss for failure to state a claim, ECF Nos. 37, 42, but the

Court denied those motions after concluding that the alleged corporate relationships were suffi-

cient under the statutory criteria, ECF No. 65 at 15–19.

Defendants then filed the Third-Party Complaint against EID and RWE. See ECF No. 82

Plaintiffs also allege that Defendants are liable for contributions as “related persons” to 6

McElroy Coal Company, another last signatory operator under the Coal Act that was owned by Old CONSOL on July 20, 1992. ECF No. 82 ¶ 41.

5 ¶¶ 14–17. Defendants contend that because EID and RWE “were members or owners of a joint

venture that owned and operated Old CONSOL and its subsidiaries, including [Consolidation],”

id. ¶ 46, they are also “related persons” to Consolidation. Thus, Defendants allege, if they are

jointly and severally liable to Plaintiffs for Consolidation’s obligations, then EID and RWE are

also jointly and severally liable for those same obligations. Id. ¶ 47. EID and RWE now separately

move to dismiss the Third-Party Complaint. ECF Nos. 95 & 112. They collectively argue that the

Court lacks jurisdiction and that the Third-Party Complaint fails to state a claim and is procedurally

improper. Defendants oppose both motions. See ECF Nos. 102, 123. Plaintiffs also responded to

the motions for the limited purpose of establishing jurisdiction by arguing that they have standing

to bring their claims. ECF No. 101.

II. Legal Standards

A party invoking the Court’s subject-matter jurisdiction has the burden to establish it. Kok-

konen v. Guardian Life Ins. Co.,

(1994). Thus, a party asserting a claim must

demonstrate standing. Little v. Fenty,

, 166–67 (D.D.C. 2010). That burden

“grows heavier at each stage of the litigation.” Osborn v. Visa Inc.,

(D.C.

Cir. 2015). To survive a motion to dismiss, claimants need only allege a qualifying “injury result-

ing from [the defendants’] conduct.”

(quoting Lujan v. Defs. of Wildlife,

(1992)). The Court must “assume the truth of all material factual allegations in the complaint and

. . . grant[ ] [the claimants] the benefit of all inferences that can be derived from the facts alleged.”

Am. Nat’l Ins. Co. v. FDIC,

(D.C. Cir. 2011) (quotation omitted).

Still, factual allegations demand “closer scrutiny when resolving a Rule 12(b)(1) motion

than would be required for a Rule 12(b)(6) motion.” Tex. Low Income Hous. Info. Serv. v. Carson,

, 52 (D.D.C. 2019) (quotation omitted). The Court cannot “accept inferences

6 drawn by plaintiffs if such inferences are unsupported by the facts.” Trudeau v. FTC,

(D.C. Cir. 2006) (quotation omitted). The Court may consider the allegations in the

complaint, undisputed facts in the record, and, if necessary, its resolution of disputed facts. Coal.

for Underground Expansion v. Mineta,

(D.C. Cir. 2003). The party with the

burden to establish jurisdiction must do so “by a preponderance of the evidence.” See Moran v.

U.S. Capitol Police Bd.,

(D.D.C. 2011).

Under Rule 12(b)(6), a complaint must “contain sufficient factual matter . . . to state a claim

to relief that is plausible on its face.” Ashcroft v. Iqbal,

(2009) (quotation

omitted). A claim is plausible if “it contains factual allegations that, if proved, would allow the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Hurd v. District of Columbia,

(D.C. Cir. 2017) (quotation omitted). Again, the

Court must “accept all the well-pleaded factual allegations . . . as true and draw all reasonable

inferences from those allegations in [the claimant’s] favor.”

(quotation omitted). But it must

disregard “a legal conclusion couched as a factual allegation.” See Trudeau,

.

III. Analysis

EID and RWE collectively assert three grounds for dismissal. First, they contest the

Court’s subject-matter jurisdiction, arguing that there is no concrete injury, any injury that might

exists was self-inflicted, and that Defendants’ claims are unripe. See ECF No. 95-1 at 25–30; ECF

No. 112-1 at 15–16. Second, under Rule 12(b)(6), they argue that Defendants have not alleged

facts establishing that they are “related persons” under the Coal Act. See ECF No. 95-1 at 40– 45;

ECF No. 112-1 at 24–28. Third, under Rule 14, RWE contends that it was improperly impleaded.

ECF No. 112-1 at 16–23.

The Court finds that Plaintiffs plausibly allege a financial injury that is not self-inflicted,

7 and that Defendants’ third-party claims are constitutionally ripe. Thus, the Court has subject-

matter jurisdiction over their claims. That said, because the Court finds that EID and RWE are not

“related persons” under the Coal Act, it will grant their motions to dismiss.

A. The Court Has Subject-Matter Jurisdiction

As explained above, EID and RWE raise three jurisdictional challenges. First, EID chal-

lenges the concreteness of Plaintiffs’ asserted injury, arguing that it has been nullified by a recent

congressional funding guarantee. See ECF No. 95-1 at 25–29. Second, EID suggests that any

injury Plaintiffs have suffered is self-inflicted. See

at 29–30. Third, RWE contends that De-

fendants’ third-party claim is not constitutionally ripe. See ECF No. 112-1 at 15–16. As explained

below, none of their challenges succeed.

1. Plaintiffs Allege an Injury-In-Fact

To show standing at the pleading stage, Plaintiffs must “clearly allege facts demonstrating”

they have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of

the defendant[s], and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo,

Inc. v. Robins,

, 338 (2016) (alteration adopted). EID’s challenge focuses on the first

prong by arguing that Plaintiffs have suffered no real injury.7

An injury-in-fact is “‘an invasion of a legally protected interest’ that is ‘concrete and par-

ticularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, 578 U.S. at 339

(quoting Lujan,

). These requirements are the “irreducible constitutional minimum

of standing” and cannot be displaced by statute. See Lujan,

. Thus, a plaintiff does

7 EID does not challenge Plaintiffs’ showing on either the traceability or the redressability prongs of the standing inquiry, and the Court finds those prongs satisfied. Of course, Defendants’ failure to pay their alleged financial obligations is traceable to them. And a declaratory judgment that establishes financial rights and duties would substantially redress Plaintiffs’ financial injury. See, e.g., Phila. Indem. Ins. Co. v. Lexington Ins. Co.,

, 1335–36 (10th Cir. 2017).

8 not “automatically satisf[y] the injury-in-fact requirement whenever a statute grants [it a] statutory

right and purports to authorize [it] to sue.” TransUnion LLC v. Ramirez,

, 426 (2021)

(quoting Robins, 578 U.S. at 341).8

An injury is concrete if it is “real, and not abstract,” Robins, 578 U.S. at 340 (quotations

omitted), and is particular if it “affects the party asserting standing ‘in a personal and individual

way,’” Defs. of Wildlife v. Perciasepe,

(D.C. Cir. 2013) (quoting Lujan,

n.1). As for imminence, because Plaintiffs seek prospective relief in the form of a

declaratory judgment, they must show an “ongoing or future injury.” Arpaio v. Obama,

(D.C. Cir. 2015). Two alternative tests assess the imminence of future injuries; satisfying

either is enough to allege an injury-in-fact. Attias v. Carefirst, Inc.,

, 626–27 (D.C.

Cir. 2017). The first asks whether a “threatened injury” is “certainly impending,” rather than

merely “possible.” Clapper v. Amnesty Int’l USA,

(2013) (quotations and em-

phasis omitted). And the second test asks whether “there is a substantial risk that the harm will

occur.” Susan B. Anthony List v. Driehaus,

, 158 (2014) (quotation omitted).

Additionally, standing “is not dispensed in gross”; instead, it must be evaluated for “each

claim [a plaintiff] seeks to press.” Davis v. FEC,

(2008) (quotations omitted).

Plaintiffs assert three claims. Count One asks for Defendants to establish IEPs; Count Two asks

for Defendants to pay securities to the Plan; and Count Three asks for Defendants to pay the Plan

premiums. EID appears to paint with a broad brush, arguing that Plaintiffs “have no concrete stake

in the litigation.” ECF No. 95-1 at 26. But as explained below, their primary argument rests on

the fact that Congress has provided funding sufficient for the Plan to meet its obligations

8 For this reason, the Court’s prior determination that Plaintiffs’ operative complaint states a claim under the Coal Act does not automatically resolve the constitutional standing question. See ECF No. 65 at 10–11; contra ECF No. 102 at 11–12.

9 irrespective of the premiums it receives. Only Count Three, however, relates to the payment of

premiums. See ECF No. 32 ¶¶ 76–78. EID provides no good explanation as to how the congres-

sional funding would redress the unique monetary, administrative, and other harms stemming from

Counts One or Two. See, e.g.,

¶¶ 66–67 (alleging that Defendants have denied liability to

“provide benefits to eligible retirees and beneficiaries attributable to the Signatory Subsidiaries,”

requiring the Plan to do so in their stead); id. ¶ 74 (alleging that Defendants failed to post security

of $15,632,220 for 2020).9 Thus, EID’s standing challenge—at least as to this argument—only

concerns Count Three.10

As for Count Three, EID attacks the concreteness and imminence of Plaintiffs’ asserted

injury. But “[e]conomic harm . . . is a classic form of injury-in-fact.” Osborn v. Visa Inc.,

(D.C. Cir. 2015) (internal quotations omitted). And Defendants’ refusal to con-

tribute to the Plan as required by the Coal Act is such a harm. See ECF No. 32 ¶ 77. Still, EID

argues that Plaintiffs will not suffer any actual injury from Defendants’ failure to pay premiums

because Congress has established a backstop to fund any unaccounted-for Plan benefits. ECF No.

95-1 at 26. Thus, according to EID, the Plan “can pay its obligations regardless of whether it wins

or loses this case or receives any payment under the Coal Act from the Defendants (or derivatively,

from EID).” Id. at 27.

9 See also generally Arch Coal, 947 F.3d at 815 (A related person’s “providing benefits to retirees of its former subsidiaries per [26 U.S.C] § 9711” is distinct from “paying premiums to the 1992 Plan per § 9712(d)(1)(A),” which is also distinct from “provid[ing] security pursuant to § 9712(d)(1)(B).”); Holland v. CONSOL Energy Inc., No. 2:17-CV-2091 (TEJ),

, at *5 (S.D. W. Va. Sept. 10, 2018) (suggesting that the plaintiffs would have had standing if there were an “allegation that Consol ha[d] failed to provide the requisite security to the 1992 Plan”), aff’d,

(4th Cir. 2019). 10 EID also argues that the Plan caused itself injury because it returned over $10 million in security. ECF No. 95-1 at 29–30. This argument, admittedly, does address Count Two. As dis- cussed below, however, that argument also fails.

10 To be sure, Congress has appropriated money to pay the Plan’s unfunded obligations. See

(i)(1)(B), 1232(h)(1)(B), 1232(h)(2)(B);

(d)(1)(C).11 Under

this scheme, the Plan can request federal funds “in an amount equal to the difference between”

two figures. See

(h)(2)(B). The first is the amount Plan trustees “estimate will

be expended . . . during the next calendar year to provide the benefits required.”

§ 1232(h)(2)(B)(i). The second is the amount Plan trustees “estimate” the Plan “will receive dur-

ing the next calendar year” in monthly premiums, realization of security already posted, and rele-

vant payments from federal agencies. See id. § 1232(h)(2)(B)(ii). In short, the Plan can annually

request its estimate of the difference between the upcoming year’s cash outflows and inflows. The

Secretary of the Interior must then transfer that amount to the Plan “[a]s soon as practicable after

the beginning . . . of each fiscal year.” See id. § 1232(h)(1)(B). That amount is now uncapped.

See id. § 1232(i)(3)(C).

Despite this funding transfer backstop, Plaintiffs still suffer a constitutional injury for at

least two reasons: (1) these federal funding transfers will not necessarily cover Plaintiffs’ entire

economic injury; and (2) the difference in payment timing creates a separate cognizable injury.

First, even with the backstop of federal funding, there is a substantial risk that the Plan will

not be made whole. Plaintiffs’ alleged injury is Defendants’ failure to pay the Plan premiums.

Thus, the scope of the injury is the sum of the premiums owed by Defendants. The federal funding,

however, does not promise to reimburse the premiums dollar for dollar. So the Plan will not

11 Congress provided for these funds in several Coal Act amendments including: the Sur- face Mining Control and Reclamation Act Amendments of 2006,

div. C, tit. II, § 202,

, 3008 (Dec. 20, 2006); the Bipartisan American Miners Act of 2019 (“BAMA”),

div. M, § 102,

, 3091 (Dec. 20, 2019); and the American Miner Benefits Improvement Act of 2020,

div. Y,

, 2417 (Dec. 27, 2020). The Court’s description of the funding scheme pertains only to the present version of the statute.

11 necessarily receive the difference between the premiums it is owed and the premiums it expects to

receive. Instead, Congress only provides funds equal to the difference between the amount the

Plan expects to expend and the premiums it expects to receive, over a year’s time. See

(h)(2)(B). In other words, the Plan will only be reimbursed for its premium shortfalls up to

the point where it can pay its expected expenditures during that year. But if the Plan expects to

receive more in premiums than it expects to expend that year, then the backstop does not kick in.

Thus, as Plaintiffs point out, the size of the backstop could decrease because of a decline in how

much the Plan must pay out, even if the premiums Defendants allegedly must pay in stay the same.

See ECF No. 101 at 20. And even if that difference turns out to be small, financial deprivation, no

matter how slight, is a constitutional injury. Carpenters Indus. Council v. Zinke,

(D.C. Cir. 2017) (“A dollar of economic harm is still an injury-in-fact for standing purposes.”).

EID ignores this distinction by arguing that even if the Plan might receive more money

from the premiums than the federal funds, those federal transfers will enable it to “pay its obliga-

tions regardless of whether it wins or loses this case.” ECF No. 95-1 at 27. But the relevant

question is not whether the Plan can pay its obligations in a given year—it is whether the Coal Act

gives the Plan something just as beneficial to Plaintiffs as what they argue Defendants are on the

hook for. See Holland v. Murray, No. 21-cv-567 (TJK),

, at *4 (D.D.C. Mar.

27, 2023) (rejecting an analogous argument by comparing the relief sought with the asserted alter-

native benefit); Cutler v. HHS,

(D.C. Cir. 2015) (Evaluating standing at the

pleading stage requires an assumption that “the party asserting federal jurisdiction is correct on the

legal merits of [its] claim.”).

Second, even aside from any disparities between the federal transfers and the premiums

Defendants allegedly owe, the timing of the payments is another source of Plaintiffs’ constitutional

12 injury. As this Court has explained in a similar context, “money has time value” and so “delay in

. . . receipt of [money] . . . is an actual, tangible pecuniary injury.” See Holland,

, at *4 (quoting In re OPM Data Sec. Breach Litig.,

(D.C. Cir. 2019)).

Here, any backstop in federal funding the Plan might receive will be delayed as compared to the

premiums it is allegedly owed because the “[p]remiums are due monthly, whereas the amount of

federal funds to be transferred . . . is determined annually.” See ECF No. 101 at 21. Indeed, the

federal transfer is not subject to any specific due date; it must only be sent “[a]s soon as practicable

after the beginning of [each] fiscal year.” See

(h)(1)(B). Plaintiffs claim that

Defendants have already failed to pay more than $30 million in premiums. See ECF No. 101 at

13.12 And as they point out, if those shortfalls are not “immediately covered, . . . the Plan will be

deprived of money for some period,” even if those losses could eventually be recovered. See id.

at 21. Thus, even assuming all the Plan’s losses in premiums are recoverable via federal funding,

the delay in receipt of those federal funds is a separate, concrete injury in fact.

EID does not meaningfully address this issue. Instead, it argues that Plaintiffs did not

adequately allege a time-value-of-money injury in their complaint and may not now clarify the

nature of their injuries in response to a motion to dismiss. See ECF No. 104 at 12–13. Not so.

Plaintiffs have alleged that Defendants’ failure to pay the premiums will cause them injury, and

that is sufficient. Moreover, the possibility that the Plan will receive federal funds later than the

premiums is a reasonable inference from their allegations. Plaintiffs claim that Defendants “are

required to pay [the Plan] a monthly per beneficiary premium,” ECF No. 32 ¶ 77, while the timing

of the federal transfers is specified in the Coal Act; the mismatch is therefore readily apparent.

12 “Because [the third-party] defendants challenge [the] plaintiffs’ standing here, the Court may look to matters outside the pleadings . . . .” Scahill v. District of Columbia,

(D.D.C. 2017), aff’d,

(D.C. Cir. 2018).

13 EID effectively asks the Court to blind itself to the clear implications of Plaintiffs’ allegations as

compared to the relevant legal framework. See Coal. for Underground Expansion,

(noting that the Court can consider “undisputed facts evidenced in the record” in evaluating a

motion under Rule 12(b)(1)). Thus, contrary to EID’s suggestion, Plaintiffs argument that part of

their injury stems from the timing of the payments is not “wholly disconnected from the allega-

tions” in its complaint. See W. Virginia Ass'n of Cmty. Health Centers, Inc. v. Heckler,

, 1574 n.5 (D.C. Cir. 1984) (explaining that “it is not necessary that [a plaintiff] plead their

injury in terms of a legal conclusion” so long as they “adequately pleaded the facts giving rise to

their injury”). And to the extent EID rejects the possibility that the transfer’s timing will disad-

vantage the Plan, that “wrongly assumes facts in [its] favor at the complaint stage.” See In re

OPM,

.

EID also questions whether any injury is imminent. Plaintiffs have sufficiently alleged an

“ongoing or future injury” that is “certainly impending” and has a “substantial risk” of occurring.

As already explained, so long as Defendants refuse to pay the premiums, Plaintiffs are subject to

financial injury from both the potential difference between the premiums owed and the federal

funding received, and from the delay in receipt between the monthly premiums as compared to the

annual appropriations. This is not the kind of conjectural harm that might “only occur through the

happening of a series of contingent events” that courts have traditionally found insufficient for

standing. See Attias,

(referencing Clapper, 568 U.S. at 410–14). The harm does

not, for example, depend on a “series of independent actors . . . exercis[ing] their independent

judgment in a specific way.”

Rather, Defendants’ refusal to pay premiums, on its own terms,

creates a substantial risk of continuing future financial harm. Thus, Plaintiffs have plausibly al-

leged an injury-in-fact.

14 Neither TransUnion LLC v. Ramirez,

(2021), nor Thole v. U.S. Bank N.A.,

(2020), cited by EID, is to the contrary. Contra ECF No. 95-1 at 27–28. True,

the Court in Ramirez reaffirmed that Congress cannot simply pronounce an injury concrete and

thereby satisfy Article III. See 594 U.S. at 425–30. But it also recognized that the “most obvious”

concrete injuries are “traditional tangible harms, such as . . . monetary harms.” See id. at 425. And

as the Court has just explained, Plaintiffs face a substantial risk of monetary harm. As for Thole,

EID disregards the critical difference between claims brought by a plan and claims brought by its

beneficiaries. In Thole, the Court confronted the latter. See

. A beneficiary of

a defined-benefit plan receives “fixed” benefits that do “not change, regardless of how well or

poorly [a] plan is managed.”

Thus, as the Thole Court explained, alleged mismanagement that

does not plausibly threaten a plan’s ability to pay those benefits does not concretely harm benefi-

ciaries. See

at 1619–20. But as this Court explained in Murray, “[t]hat case says nothing about

injuries to plans themselves.”

, at *4.

2. Plaintiffs’ Injury Is Not Self-Inflicted

In the alternative, EID argues that even if the Plan is injured, any such injury is self-inflicted

and cannot therefore support Article III standing. See ECF No. 95-1 at 29. No doubt, self-inflicted

injuries—those created by the choice a plaintiff makes rather than the actions of a defendant—do

not qualify as injuries-in-fact. See Nat’l Fam. Plan. & Reprod. Health Ass’n, Inc. v. Gonzales,

(D.C. Cir. 2006); Nat’l Treasury Emps. Union v. United States,

(D.C. Cir. 1996). EID says that principle is relevant here because, as part of a settlement

arising from Murray Energy’s bankruptcy, the Plan returned $10 million in security. See ECF No.

95-1 at 16; 29–30. EID characterizes that act as self-infliction of the security-related injury Plain-

tiffs assert. See ECF No. 104 at 21.

For starters, this argument addresses only Plaintiffs’ claim for security, so it could only

15 apply to Count Two. But even if the argument were otherwise sound—and the Court does not

suggest that it is—it anyway covers only $10 million.13 Yet according to Plaintiffs, Defendants

owe the plan $15,632,220 in security, well more than what EID contends the plan returned. ECF

No. 32 ¶ 74. So Plaintiffs would retain a qualifying injury under Count Two even if a portion of

the Plan’s security-related damages is self-inflicted.14

3. The Third-Party Complaint’s Claims are Constitutionally Ripe

RWE also asserts a jurisdictional challenge against the Third-Party Complaint. It argues

that based on the contingent nature of Defendants’ third-party claims, they are constitutionally

unripe. See ECF No. 112-1 at 15–16. Not so.

The Court is doubtful that the doctrines of constitutional standing and constitutional ripe-

ness are distinct. Cf. Trump v. New York,

, 535–37 (2020) (describing the doctrines

as “related” and finding it unnecessary to distinguish between them). In any event, a future injury

that is imminent enough to confer standing will always satisfy the ripeness standard. Nat’l Treas-

ury Emps. Union,

. That is the case here.

RWE points out that Defendants base their contribution claim on “perceived damages” that

are “entirely contingent and hypothetical” on “future events”—“namely whether Plaintiffs prevail

13 Although it need not decide the issue, the Court is skeptical that EID’s argument has merit because Defendants are allegedly jointly and severally liable for Murray Energy’s Coal Act obligations, irrespective of any settlement between Murray Energy and the Plan.

(d)(4); cf. Arch Coal, 947 F.3d at 819–20 (holding that a company’s Coal Act “related per- son” obligations were not satisfied by the proceeds of a letter of credit that had been provided to the Plan on behalf of the company’s subsidiaries). 14 The $10 million in security that the Plan supposedly returned also does not come close to the more than $30 million in premiums that, according to Plaintiffs, Defendants owe the Plan. ECF No. 101 at 13, 23. But as already explained, the security and premiums owed under the Coal Act are distinct. See Arch Coal,947 F.3d at 815. Thus, any satisfaction of Defendants’ security obligations (or any self-injury as to security), would not satisfy (or eliminate) Defendants’ separate premium obligations.

16 in the underlying declaratory judgment action against Defendants.” See ECF No. 112-1 at 15–16

(quotation omitted). But in arguing that this makes the Third-Party Complaint defective, RWE

disregards Rule 14. As a leading federal-courts treatise puts it:

Rule 14 allows [a] defendant to implead one “who . . . may be liable” to the third- party plaintiff for all or part of the plaintiff’s claim against it. The words “may be liable” mean that defendant is permitted to join someone against whom a cause of action has not yet accrued, provided that the claim is contingent upon the success of plaintiff's action and will accrue when defendant’s liability is determined in the main action or plaintiff’s claim is satisfied. In this context, resort to impleader has the effect of accelerating the determination of the third-party defendant’s liability.

6 Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1451, Westlaw (3d ed.)

(database updated Apr. 2023) (footnote omitted).

Thus, the “problematic” feature of the Third-Party Complaint that RWE identifies is actu-

ally quite ordinary. “The vast weight of authority sides with the position that inchoate claims for

contribution may be brought under Rule 14.” Millers Cap. Ins., Co. v. Hydrofarm, Inc.,

, 217 n.10 (D.D.C. 2022) (quotation omitted); see also, e.g., Hecht v. Summerlin Life & Health

Ins. Co.,

(D. Nev. 2008) (permitting similarly contingent third-party

claims to go forward in an ERISA case). To the extent there is any tension between this well-

accepted authority and principles of standing or ripeness, it remains true that those principles have

not been applied to constitutionally invalidate claims brought under Rule 14’s explicit text.15

Thus, the Court declines to break new ground on this question. Like the injury at issue in

Millers Capital Insurance, Defendants’ asserted injury is “essentially imminent” because it will

materialize, if at all, in this very action. See 340 F.R.D. at 215 (citation omitted). So the Court

15 See Millers Cap. Ins., 340 F.R.D. at 215 (“[T]here is no evidence that the [Supreme] Court, the Judicial Conference, or Congress—all of whom hold the pen to the Federal Rules of Civil Procedure—have ever recommended altering Rule 14 (such as by removing the words ‘may be liable’) to reconcile the rule with the Court's standing jurisprudence.”).

17 finds no jurisdictional barrier to Defendants’ Third-Party Complaint, and it will deny RWE’s mo-

tion to dismiss as far as it asserts a lack of subject-matter jurisdiction for this reason.

B. Neither EID nor RWE is a Related Person under the Coal Act

Having established that the Court has subject-matter jurisdiction over this action, it now

turns to whether the Third-Party Complaint states a claim. EID and RWE both argue that they are

not “related person[s]” under

(c)(2) and therefore cannot be liable for Consolida-

tion’s obligations under the Coal Act. See No. 95-1 at 40–45; ECF No. 112-1 at 24–28. They are

right.

The Coal Act provides that any “related person” to a last signatory operator is jointly and

severally liable for that operator’s obligations to the plan. See

(d)(4). A “related

person” to a last signatory operator is any person (or successor in interest of such person) that, as

of July 20, 1992, (1) was “a member of the same controlled group of corporations” as the last

signatory operator; (2) was “a trade or business which is under common control” with the last

signatory operator; or (3) had a “partnership interest or joint venture with a signatory operator in

a business within the coal industry” and that “employed eligible beneficiaries.”

§ 9701(c)(2)(A). Defendants have not sufficiently alleged that EID or RWE fit into any of these

three categories.

First, Defendants neither allege nor argue that EID or RWE are “related persons” as a “trade

or business under common control” with Consolidation under

(c)(2)(A)(ii).

Second, Defendants do allege in the Third-Party Complaint that EID and RWE “are part

of the same controlled group” as Consolidation—to the extent Defendants are—“and thus are re-

lated persons as defined by the Coal Act.” See ECF No. 82 ¶ 47 (citing

(c)(2)).

But they do not explain why. A “controlled group of corporations” can be a “parent-subsidiary

group,” a “brother-sister controlled group,” or a “combined group.” See

(a)(1)–

18 (3). To state a claim under this theory, Defendants must plead facts that permit the Court to infer

which of those group types is present here. Cf. Div. 1181 Amalgamated Transit Union-N.Y. Emps.

Pension Fund v. D & A Bus Co.,

(E.D.N.Y. 2017) (requiring such facts

at the default-judgment stage). Here, the Court has nothing besides Defendants’ proffered legal

conclusion, which is not enough. See Trudeau,

; Iqbal, 556 U.S. at 663–64.

Besides, Defendants do not even attempt to defend that legal conclusion in response to

EID’s and RWE’s motions to dismiss. “It is well understood in this Circuit that . . . an opposition

to a motion to dismiss addressing only certain arguments raised by the [movant]” permits the Court

to “treat [unaddressed] arguments . . . as conceded.” Hill v. Garland, No. 19-cv-3389 (JEB),

, at *6 (D.D.C. Mar. 15, 2021) (citation omitted). Rather than argue that EID and

RWE are in the same controlled group as Consolidation, Defendants pivot to arguing that “there

are additional types of related persons under the Coal Act other than as a member of a controlled

group of corporations with a signatory subsidiary.” ECF No. 102 at 21 (emphasis added); see also

ECF No. 123 at 21–22 (relying on the argument only that RWE and EID had a joint venture under

Section 9701(c)(2)(A)(iii), but not explaining how RWE or EID were in the same controlled group

as a signatory subsidiary under Section 9701(c)(2)(A)(i)). The Court therefore treats as conceded

the argument that Defendants have failed to sufficiently allege a “controlled group” theory.

Third and finally, Defendants argue that EID and RWE are “related persons” based on their

joint venture. See ECF No. 102 at 21.16 However, the joint venture between EID and RWE was

16 It is not clear whether Defendants properly alleged this theory in the Third-Party Com- plaint. True, Defendants allege that EID and RWE “form[ed] a joint venture” and that they “were members or owners of a joint venture.” ECF No. 82 ¶¶ 31, 46. But they do not allege that either EID or RWE is a “related person” because of that joint venture. The sole “related person” allega- tion in the Third-Party Complaint is that EID and RWE “are part of the same controlled group,” which refers to language from

(c)(2)(i)—not (iii). Id. ¶ 47. Defendants rely on

19 not “with a signatory operator” and so cannot give rise to “related person” liability under

(c)(2)(A)(iii) (emphasis added). Defendants allege that, in 1991, EID and RWE formed a

joint venture with each other. See ECF No. 82 ¶ 31. To do so, EID and its subsidiary sold half of

their 100 percent interest in Consolidation and formed Old CONSOL.

¶¶ 31–32. Consolidation

then “became Old CONSOL’s subsidiary.” Id. ¶ 32. The Court thus understands the corporate

structure of the joint venture on the relevant date to resemble the following:

Joint Venture EID RWE (Old CONSOL)

Consolidation

As this illustration shows, EID and RWE were not in a joint venture “with” Consolidation,

the signatory subsidiary. See

(c)(2)(iii). Rather, EID and RWE entered into a

joint venture with each other. See ECF No. 82 ¶ 31; see also ECF No. 102 at 21 (arguing that EID

“was in a joint venture with RWE . . . to own Consolidat[ion]” (emphasis added)).17 And neither

that joint venture, nor the resulting corporate entity (Old CONSOL) was itself a last signatory

operator. Thus, Defendants fail to allege an essential element of liability.

Defendants try to evade the Coal Act’s plain text by citing Holland v. High Power Energy,

(S.D. W. Va. 2000). That case is inapposite. There, the plaintiffs alleged that

the joint venture theory of relatedness for the first time in their responses to EID’s and RWE’s motions to dismiss. See ECF No. 102 at 21–23; ECF No. 123 at 21–22. The Court need not decide whether this pleading defect warrants dismissal because, as discussed below, the joint venture theory fails anyway, even as described in their briefing. 17 Defendants’ brief refers instead to “Consolidated Coal.” ECF No. 102 at 21. The Court assumes they intended to refer to Consolidation, as “Consolidated Coal” is not a corporate entity referenced anywhere in any operative pleading.

20 one of the defendants—Pratt—was a “related person” to the relevant signatory operator, High

Power.

. Pratt pushed back, at least as to § 9701(c)(2)(A)(iii), arguing that it “did not

form a joint venture with High Power, but rather formed High Power as a joint venture with Geu-

pel,” a separate company. Id. at 744–45 (emphasis added). Thus, the corporate structure in that

case, per Pratt, looked like this:

Joint Venture Pratt Geupel (High Power)

The High Power court rejected Pratt’s argument because, though “the statute could be

read” that way, it thought “[s]uch a reading . . . too narrow and restrictive.” Id. at 745. Lacking

definitions of “partnership” and “joint venture” in the Coal Act itself, the court turned to guidance

in the Internal Revenue Code and in West Virginia law. Id. It found under both that a member in

a joint venture is the equivalent of a partner in a partnership. Id. at 745–46. And it was “undisputed

that Pratt [held] a 25% interest in the High Power joint venture.” Id. at 746. Applying those

principles, the court held that “Pratt, as a member of the High Power joint venture, ha[d] the equiv-

alent of a 25% general partnership interest in and ‘with’ the joint venture or partnership of High

Power, the last signatory operator, and [was] a related person, with joint and several liability, as

defined under § 9701(c)(2)(A)(iii) of the Coal Act.” Id.

Even assuming the Court agreed with High Power’s analysis, based in part on West Vir-

ginia law, the alleged corporate relationships here are materially different.18 For High Power to

18 The Court also notes its skepticism of the reasoning in High Power. The court there explained that “having a partnership interest or joint venture” under § 9701(c)(2)(A)(iii) means being a member of an organization “through or by means of which any business, financial opera- tion, or venture is carried on.” High Power Energy, 98 F. Supp. 2d at 744–45. High Power was the company formed by the joint venture, but it was not a member of the joint venture itself. In- deed, between Pratt’s 25% interest in the joint venture and Geupel’s 75% interest, there was no interest left for High Power to own. Id. at 743. Thus, Pratt did not have a joint venture “with”

21 be analogous, Defendants would have had to allege that (1) EID and RWE formed a joint venture

“in and ‘with’” Old CONSOL, and (2) that Old CONSOL was a last signatory operator. See High

Power,

. But at most, Defendants’ allegations show only the first condition.

See ECF No. 82 ¶ 32. On the second, their argument that EID “had a 50% ownership interest ‘in

and with’ the joint venture that owned the alleged signatory operator, Consolidation,” confirms

that Defendants go one step further than even High Power would allow. See ECF No. 102 at 22

(emphasis added). Ultimately, Old CONSOL (the joint venture) itself, not EID or RWE, owned

Consolidation, the signatory subsidiary. Thus, EID and RWE did not form a joint venture “with”

Consolidation, even if, under the logic of High Power, they were in a joint venture “in and ‘with’”

Old CONSOL.

Defendants point to the Court’s earlier opinion in which it found Plaintiffs’ “related per-

son” allegations enough to state a claim. They suggest that the “related person” allegations in the

Third-Party Complaint are like those in Plaintiffs’ complaint. ECF No. 123 at 20. Not so. De-

fendants ignore that the Court’s earlier conclusion depended on its view that, “[s]o long as any of

the[ ] . . . routes to ‘related person’ status for each of these defendants is supported by factual

allegations that make that [route] plausible, Plaintiffs have stated a claim that they each qualify

as ‘related persons.’” Holland v. Consol Energy Inc., No. 20-cv-1148 (TJK),

,

at *8 (emphasis added). And the Court found that Plaintiffs’ “modest factual allegations suffice.”

But here, Defendants’ allegations on this point are not even modest—they do not exist. The

only relevant allegation about EID’s and RWE’s “related person” status—the joint venture the-

ory—does not plausibly allege facts sufficient to meet the requirements of 26 U.S.C.

High Power, but instead “with” Geupel “in” High Power. But the definition of a “related person” under § 9701(c)(2)(A)(iii) only extends to a person who has a joint venture “with” a signatory operator, not “in” a signatory operator.

22 § 9701(c)(2)(iii). Instead, as explained above, those allegations confirm that neither EID nor RWE

are related persons under any path outlined in

(c)(2). As a result, the Court will

grant EID’s and RWE’s motions to dismiss for failure to state a claim.

IV. Conclusion and Order

For all these reasons, it is hereby ORDERED that EID’s and RWE’s motions to dismiss

the Third-Party Complaint, ECF Nos. 95 and 112, are GRANTED. It is further ORDERED that

Defendants’ Third-Party Complaint, ECF No. 82, is DISMISSED.

SO ORDERED.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: May 23, 2024

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