UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARY HELEN COAL CORPORATION, a Virginia Corporation, Plaintiff-Appellant,

v.

MARTY D. HUDSON; MICHAEL H. HOLLAND, Trustees of the United Mine Workers of America Combined Benefit Fund and Trustees of the 1992 United Mine Workers of America Benefit Plan; No. 97-2331 THOMAS O. S. RAND; ELLIOTT A. SEGAL; CARLTON R. SICKLES; GAIL R. WILENSKY; WILLIAM P. HOBGOOD, Trustees of the United Mine Workers of America Combined Benefit Fund; THOMAS F. CONNORS; ROBERT WALLACE, Trustees of the 1992 United Mine Workers of America Benefit Plan, Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. (CA-97-71-3)

Argued: January 27, 1998

Decided: September 24, 1998

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

_________________________________________________________________ Reversed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Patrick Michael McSweeney, MCSWEENEY, BURTCH & CRUMP, P.C., Richmond, Virginia, for Appellant. Peter Buscemi, MORGAN, LEWIS & BOCKIUS, Washington, D.C., for Appellees. ON BRIEF: William B. Ellis, John L. Marshall, Jr., MCSWEENEY, BURTCH & CRUMP, P.C., Richmond, Virginia; Robert H. Bork, Washington, D.C., for Appellant. John Mills Barr, MORGAN, LEWIS & BOCKIUS, Washington, D.C.; David W. Allen, Office of the General Counsel, UMWA HEALTH & RETIREMENT FUNDS, Washington, D.C.; John R. Mooney, MOONEY, GREEN, BAKER, GIBSON & SAINDON, P.C., Washington, D.C.; Samuel M. Brock, III, MAYS & VALENTINE, Richmond, Virginia, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

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OPINION

PER CURIAM:

Mary Helen Coal Corporation ("Mary Helen") appeals a final order of the district court granting summary judgment to the appellees on Mary Helen's claim that the Coal Industry Retiree Benefit Act of 1992,

, as applied to Mary Helen, violates the Due Process and Takings Clauses of the Fifth Amendment. Following briefing and oral argument, we ordered that the case be held in abey- ance pending argument and decision by the Supreme Court in Eastern Enters. v. Apfel,

(1998). On June 25, 1998, the Supreme Court issued a decision in Eastern in which five Justices agreed that the Coal Act was unconstitutional as applied to Eastern Enterprises. Because the case at bar is materially indistinguishable from Eastern, we grant Mary Helen's motion for summary reversal

2 pursuant to Fourth Circuit Rule 27(g), and remand the case to the dis- trict court for further proceedings. Also outstanding are Mary Helen's motion to strike portions of the appellees' brief, which is hereby granted, and appellees' motion to supplement the record on appeal, which is denied.

REVERSED

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