BARNHART, COMMISSIONER OF SOCIAL SECURITY v. PEABODY COAL CO. et al.

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149 OCTOBER TERM, 2002
Syllabus
BARNHART, COMMISSIONER OF SOCIAL SECURITY
v. PEABODY COAL CO. et al.
certiorari to the united states court of appeals for
the sixth circuit
No. 01–705. Argued October 8, 2002—Decided January 15, 2003*
Under the Coal Industry Retiree Health Benefit Act of 1992 (Coal Act or
Act), the Commissioner of Social Security “shall, before October 1,
1993,” assign each coal industry retiree eligible for benefits under the
Act to an extant operating company—a “signatory operator”—or a re-
lated entity, which shall then be responsible for funding the beneficiary’s
benefits, 26 U. S. C. § 9706(a). Assignment to a signatory operator
binds the operator to pay an annual premium to the United Mine Work-
ers of America Combined Benefit Fund (Combined Fund), which admin-
isters the benefits. The premium has up to three components, a health
benefit premium, a death benefit premium, and a premium for retirees
who are not assigned to a particular operator, but whose benefits are
paid from the Combined Fund as if they were assigned. An important
object of the Coal Act was providing stable funding for the health bene-
fits of such “orphan retirees.” Although signatory operators will only
be required to pay an unassigned beneficiaries premium if funding from
the United Mine Workers of America 1950 Pension Plan (UMWA Pen-
sion Plan) and the Abandoned Mine Land Reclamation Fund (AML
Fund) runs out, each signatory operator’s unassigned beneficiaries pre-
mium is based on the number of its assigned beneficiaries, such that the
signatory with the most assigned retirees would be required to cover
the greatest share of the benefits payable to unassigned beneficiaries.
In two separate actions before different District Courts, respondent
companies challenged initial assignments made to them after the Octo-
ber 1, 1993, deadline, claiming that the date set a time limit on the
Commissioner’s assignment power, so that a beneficiary not assigned on
that date must be left unassigned for life. If the challenged assign-
ments are void, the corresponding benefits must be financed by transfers
from the UMWA Pension Plan, the AML Fund, and, if necessary, unas-
signed beneficiaries premiums paid by signatory operators to whom
*Together with Barnhart, Commissioner of Social Security v. Bellaire
Corp. et al. (see this Court’s Rule 12.4), and No. 01–715, Holland et al. v.
Bellaire Corp. et al., also on certiorari to the same court.

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150 BARNHART v. PEABODY COAL CO.
Syllabus
timely assignments were made. The companies obtained summary
judgments, and the Sixth Circuit affirmed.
Held: Initial assignments made after October 1, 1993, are valid despite
their untimeliness. Pp. 157–172.
(a) The companies’ contention that the Commissioner’s failure is “ju-
risdictional,” so that affected beneficiaries may never be assigned and
their former employers may go scot free, is as unsupportable as it is
counterintuitive. Pp. 157–171.
(1) This Court has rejected an argument comparable to the compa-
nies’ position that couching the duty in terms of the mandatory “shall”
together with a specific deadline leaves the Commissioner with no au-
thority to make an initial assignment on or after October 1, 1993. In
Brock v. Pierce County, 476 U. S. 253, the Court found that the Secre-
tary of Labor’s 120-day deadline to issue a final determination on a com-
plaint of federal grant fund misuse was meant to spur him to action, not
limit the scope of his authority, so that his untimely action was valid.
Nor, since Brock, has this Court ever construed a provision that the
Government “shall” act within a specified time, without more, as a juris-
dictional limit precluding action later. If a statute does not specify a
consequence for noncompliance with statutory timing provisions, federal
courts will not ordinarily impose their own coercive sanction. United
States v. James Daniel Good Real Property, 510 U. S. 43, 63. Hence
the oddity of a claim at this date that late official action should shift
financial burdens from otherwise responsible private purses to the pub-
lic fisc, let alone siphon money from funds set aside for a different public
purpose, like the AML Fund for land reclamation. The point would be
the same even if Brock were the only case on the subject. The Coal
Act was passed six years after Brock, when Congress was presumably
aware that the Court does not readily infer congressional intent to limit
an agency’s power to finish a mandatory job merely from a specification
to act by a certain time. Nothing more limiting than “shall” is to be
found in the Coal Act: no express language supports the companies,
while structure, purpose, and legislative history go against them.
Structural clues support the Commissioner in the Act’s other instances
of combining “shall” with a specific date that could not possibly be read
to prohibit action outside the statutory period. See §§ 9705(a)(1),
9702(a)(1), 9704(h). In each of these instances, a conclusion is based on
plausibility grounds: had Congress meant to set a counterintuitive limit
on authority to act, it would have said more than it did, and would surely
not have couched its intent in language Brock had already held to lack
any clear jurisdictional significance. Pp. 157–163.

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(2) The result of appealing to plausibility is not affected by either
of the other textual features that the companies argue indicate inability
to assign beneficiaries after October 1, 1993. Pp. 163–171.
(i) The provision for unassigned beneficiary status, § 9704(d), can-
not be characterized as the specification of a “consequence” for failure
to assign a beneficiary to an operator or related person. It speaks not
in terms of the Commissioner’s failure to assign beneficiaries but simply
of “beneficiaries who are not assigned.” The most obvious reason for
such unassigned status is a former employer’s disappearance. This is
not to say that a failure of timely assignment does not also leave a
beneficiary “unassigned.” It simply means that unassigned status has
no significance peculiar to failure of timely assignment. In addition, to
the extent that unassigned status is a consequence of mere untimeliness,
the most obvious reason for specifying that consequence is not a sup-
posed desire for finality but a default rule telling the Social Security
Administration what funding source to use in the absence of any other.
It is unrealistic to think that Congress understood unassigned status as
an enduring consequence of uncompleted work, for nothing indicates
that it foresaw that some beneficiaries matchable with operators still in
business might not be assigned by the deadline. In the one instance
where Congress clearly weighed finality on October 1, 1993, against ac-
curacy of initial assignments, accuracy won, see §§ 9704(d), (f); and the
companies’ attempts to limit this apparent preference for accuracy fail.
Pp. 163–169.
(ii) The provision that an operator’s contribution for the benefit
of the unassigned shall be calculated based on “assignments as of Octo-
ber 1, 1993,” § 9704(f)(1), does not mean that an assigned operator’s per-
centage of potential liability for the benefit of the unassigned is fixed
according to the assignments made at that date. “[A]s of ” need not
mean, as the companies contend, “as assignments actually stand” on that
date, but can mean assignments as they shall be on that date, assuming
the Commissioner complies with Congress’s command. Since there is
no “plain” reading, there is nothing left of this “as of ” argument except
its stress that the applicable percentage can be modified only in accord-
ance with exceptions for initial error or an assignee operator’s demise.
And the enunciation of two exceptions does not imply the exclusion of a
third when there is no reason to think that Congress considered such
an exclusion and there is good reason to conclude that Congress did not
foresee a failure to make timely assignments. Pp. 170–171.
(b) The Coal Act was designed to allocate the greatest number of
beneficiaries to a prior responsible operator. The way to reach this
objective is to read the statutory date as a spur to prompt action, not
as a bar to tardy completion of the business of ensuring that benefits

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152 BARNHART v. PEABODY COAL CO.
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are funded, as much as possible, by those principally responsible.
Pp. 171–172.
14 Fed. Appx. 393 (first judgment) and 424 (second judgment), reversed.
Souter, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, Kennedy, Ginsburg, and Breyer, JJ., joined.
Scalia, J., filed a dissenting opinion, in which O’Connor and Thomas, JJ.,
joined, post, p. 172. Thomas, J., filed a dissenting opinion, post, p. 184.
Barbara B. McDowell argued the cause for petitioner in
No. 01–705. On the briefs were Solicitor General Olson,
Assistant Attorney General McCallum, Deputy Solicitor
General Kneedler, Paul R. Q. Wolfson, William Kanter, and
Jeffrey Clair.
Peter Buscemi argued the cause for petitioners in
No. 01–715. With him on the briefs were John R. Mooney
and David W. Allen.
John G. Roberts, Jr., argued the cause for Peabody Coal
Co. et al., respondents in No. 01–705. With him on the brief
were Lorane F. Hebert and W. Gregory Mott. Jeffrey S.
Sutton argued the cause for Bellaire Corp. et al., respond-
ents in both cases. With him on the brief were Brian G.
Selden, Louis A. Chaiten, and Thomas A. Smock.†
Justice Souter delivered the opinion of the Court.
The Coal Industry Retiree Health Benefit Act of 1992
(Coal Act or Act) includes the present 26 U. S. C. § 9706(a),
providing generally that the Commissioner of Social Security
“shall, before October 1, 1993,” assign each coal industry re-
tiree eligible for benefits to an extant operating company or
a “related” entity, which shall then be responsible for funding
the assigned beneficiary’s benefits. The question is whether
an initial assignment made after that date is valid despite its
untimeliness. We hold that it is.
†Mary Lou Smith filed a brief for Elgin National Industries, Inc., as
amicus curiae urging affirmance.

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Opinion of the Court
I
We have spoken about portions of the Coal Act in two
recent cases, Barnhart v. Sigmon Coal Co., 534 U. S. 438
(2002), and Eastern Enterprises v. Apfel, 524 U. S. 498
(1998), the first of which sketches the Act’s history, 534 U. S.,
at 442–447. Here, it is enough to recall that in its current
form the Act requires the Commissioner to assign, where
possible, every coal industry retiree to a “signatory opera-
tor,” defined as a signatory of a coal wage agreement speci-
fied in § 9701(b)(1). §§ 9701(c)(1), 9706(a). An assignment
should turn on a retiree’s employment history with a particu-
lar operator, § 9706(a), unless an appropriate signatory is no
longer in business, in which case the proper assignee is a
“related person” of that operator, defined in terms of cor-
porate associations and relationships not in issue here,
§ 9701(c)(2).1 The Act recognizes that some retirees will be
“unassigned.” § 9704(d).
Assignment to a signatory operator binds the operator to
pay an annual premium to the United Mine Workers of
America Combined Benefit Fund, established under the Act
to administer benefits. § 9702. The premium has up to
three components, starting with a “health benefit premium,”
computed by multiplying the number of assigned retirees by
the year’s “per beneficiary” premium, set by the Commis-
sioner and based on the Combined Fund’s health benefit ex-
penses for the prior year, adjusted for changes in the Con-
sumer Price Index. § 9704(b). The second element is a
“death benefit premium” for projected benefits to the retir-
ees’ survivors, the premium being the operator’s share of
“the amount, actuarially determined, which the Combined
Fund will be required to pay during the plan year for death
benefits coverage.” § 9704(c).
1 The Coal Act’s definition of “related persons” was the subject of our
opinion last Term in Barnhart v. Sigmon Coal Co., 534 U. S. 438 (2002).
For simplicity, we will not refer to related persons separately in the bal-
ance of this opinion.

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A possible third constituent of the premium is for retirees
who are not assigned to a particular operator, whose health
and death benefits are nonetheless paid from the Combined
Fund as if they were assigned beneficiaries. Before passage
of the Coal Act, many operators withdrew from coal wage
agreements, shifting the costs of paying for their retirees’
benefits to the remaining signatories, Sigmon Coal Co.,
supra, at 444, and an important object of the Coal Act was
providing stable funding for the health benefits of these “or-
phan retirees,” House Committee on Ways and Means, De-
velopment and Implementation of the Coal Industry Retiree
Health Benefit Act of 1992, 104th Cong., 1st Sess., 1 (Comm.
Print 1995) (hereinafter Coal Act Implementation). See En-
ergy Policy Act of 1992, Pub. L. 102–486, § 19142, 106 Stat.
3037 (intent to “stabilize plan funding” and “provide for the
continuation of a privately financed self-sufficient program”).
Before signatory operators may be compelled to contribute
for the benefit of unassigned beneficiaries, however, funding
from two other sources must run out. The United Mine
Workers of America 1950 Pension Plan (UMWA Pension
Plan) was required to make three substantial payments to
the Combined Fund for this purpose on February 1, 1993,
October 1, 1993, and October 1, 1994. § 9705(a)(1). The Act
also calls for yearly payments to the Combined Fund from
the Abandoned Mine Land Reclamation Fund (AML Fund),
established for reclamation and restoration of land and water
resources degraded by coal mining. 30 U. S. C. § 1231(c).
Annual transfers from this AML Fund are limited to the
greater of $70 million and the annual interest earned by the
fund, and are subject to an aggregate limit equal to the
amount of interest earned on the AML Fund between Sep-
tember 30, 1992, and October 1, 1995. §§ 1232(h)(2), (3)(B).
So far, these transfers from the UMWA Pension Plan and
the AML Fund have covered the benefits of all unassigned
beneficiaries. If they fall short, however, the third source
comes into play (and the third element of an operator’s Com-

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bined Fund premium becomes actual): all assignee operators
(that is, operators with assigned retirees) will have to pay an
“unassigned beneficiaries premium,” being their applicable
percentage portion of the amount needed to pay annual bene-
fits for the unassigned. An operator’s “applicable percent-
age” is defined as “the percentage determined by dividing
the number of eligible beneficiaries assigned under section
9706 to such operator by the total number of eligible benefi-
ciaries assigned under section 9706 to all such operators (de-
termined on the basis of assignments as of October 1, 1993).”
26 U. S. C. § 9704(f)(1). The signatory with the most as-
signed retirees thus would cover the greatest share of the
benefits payable to the unassigned (as well as their spouses
and certain dependants).2
II
Although § 9706 provides that the Commissioner “shall”
complete all assignments before October 1, 1993, the Com-
missioner did not, and she now estimates that some 10,000
beneficiaries were first assigned to signatory operators after
the statutory date. The parties disagree on the reason the
Commissioner failed to meet the deadline, but that dispute
need not be resolved here.3
2 According to a 1995 congressional Report, the total premium for a sin-
gle beneficiary was $2,349.38 for the 1995 fiscal year. This figure includes
only the health and death benefit premiums, since no unassigned benefici-
aries premium has yet been charged. Coal Act Implementation 32–33.
The 2002 per-beneficiary premium was approximately $2,725. General
Accounting Office Report No. 02–243, Retired Coal Miners’ Health Benefit
Funds: Financial Challenges Continue 8 (Apr. 2002).
3 The Commissioner’s proffered reason for the delay is that the Social
Security Administration (SSA) was not permitted to expend appropriated
funds to commence work on assignments until July 13, 1993, when Con-
gress enacted the Supplemental Appropriations Act of 1993, Pub. L. 103–
50, 107 Stat. 254. The Commissioner also states that the task of research-
ing employment records for approximately 80,000 coal industry workers
in order to determine the appropriate signatory operators was monumen-
tal and could not have been completed by October 1, 1993, without addi-
tional resources. The respondent companies counter that the Acting

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156 BARNHART v. PEABODY COAL CO.
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After October 1, 1993, the Commissioner assigned 330 ben-
eficiaries to respondents Peabody Coal Company and East-
ern Associated Coal Corp., and a total of 270 beneficiaries to
respondents Bellaire Corporation, NACCO Industries, Inc.,
and The North American Coal Corporation. These compa-
nies challenged the assignments in two separate actions be-
fore different District Courts, claiming that the statutory
date sets a time limit on the Commissioner’s power to assign,
so that a beneficiary not assigned on October 1, 1993 (and
the beneficiary’s eligible dependants) must be left unassigned
for life. If the respondent companies are right, the chal-
lenged assignments are void and the corresponding benefits
must be financed not by them, but by the transfers from the
UMWA Pension Plan and the AML Fund and, if necessary,
by unassigned beneficiary premiums paid by other signatory
operators to whom timely assignments were made.
The Commissioner denied that Congress intended the
Commissioner’s tardiness in assignments to impose a perma-
nent charge on the public AML Fund, otherwise earmarked
for reclamation, or to raise the threat of permanently heavier
financial burdens on companies that happened to get assign-
ments before October 1, 1993. The Commissioner argued
that Congress primarily intended coal operators to pay for
their own retirees. The trustees of the Combined Fund in-
Commissioner assured Congress less than a month before the statutory
date that SSA would meet its “statutory responsibility” to complete the
assignments on time. Hearing on Provisions Relating to the Health Ben-
efits of Retired Coal Miners before the House Ways and Means Committee,
103d Cong., 1st Sess., 26 (1993) (hereinafter 1993 Coal Act Hearing), Ser.
No. 103–59, p. 26 (Comm. Print 1994) (statement of Acting Commissioner
Thompson). The same representative informed Congress in 1995 that
SSA had “completed the process of making the initial assignment decisions
by October 1, 1993, as required by law.” Hearing on the Coal Industry
Retiree Health Benefit Act of 1992 before the Subcommittee on Oversight
of the House Committee on Ways and Means, 104th Cong., 1st Sess., 23
(1995), Ser. No. 104–67, p. 23 (1997) (statement of Principal Deputy Com-
missioner Thompson).

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tervened in one of the cases and took the Commissioner’s
view that initial assignments made after September 30, 1993,
are valid.4
The companies obtained summary judgments in each case,
on the authority of Dixie Fuel Co. v. Commissioner of Social
Security, 171 F. 3d 1052 (CA6 1999), which went against the
Commissioner on the issue here. The United States Court
of Appeals for the Sixth Circuit affirmed in two opinions like-
wise following Dixie Fuel—Peabody Coal Co. v. Massanari,
14 Fed. Appx. 393 (2001), and Bellaire Corp. v. Massanari,
14 Fed. Appx. 424 (2001)—but conflicting with the Fourth
Circuit’s holding in Holland v. Pardee Coal Co., 269 F. 3d 424
(2001). We granted certiorari to resolve the conflict,5 534
U. S. 1112 (2002), and now reverse.
III
It misses the point simply to argue that the October 1,
1993, date was “mandatory,” “imperative,” or a “deadline,”
as of course it was, however unrealistic the mandate may
have been. The Commissioner had no discretion to choose
to leave assignments until after the prescribed date, and the
assignments in issue here represent a default on a statutory
duty, though it may well be a wholly blameless one. But the
failure to act on schedule merely raises the real question,
which is what the consequence of tardiness should be. The
respondent companies call the failure “jurisdictional,” such
that the affected beneficiaries (like truly orphan beneficiar-
ies) may never be assigned, but instead must be permanent
4 The General Accounting Office estimated in 2000 that invalidation of
assignments made after September 30, 1993, could require the Combined
Fund to refund $57 million in premium payments. Letter of Gloria L.
Jarmon to Hon. William V. Roth, Jr., Senate Committee on Finance 2
(Aug. 15, 2000), http://www.gao.gov/new.items/ai00267r.pdf (as visited Jan.
9, 2003) (available in Clerk of Court’s case file).
5 After the grant of certiorari, the United States Court of Appeals
for the Third Circuit came down on the side of the Fourth Circuit. See
Shenango Inc. v. Apfel, 307 F. 3d 174 (2002).

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wards of the UMWA Pension Plan, the AML Fund, and, po-
tentially, of coal operators without prior relationship to these
beneficiaries. The companies, in other words, say that as to
tardily assigned beneficiaries who were, perhaps, formerly
their own employees, they go scot free. We think the claim
is as unsupportable as it is counterintuitive.
A
First there is the companies’ position that couching the
duty in terms of the mandatory “shall” together with a spe-
cific deadline leaves the Commissioner with no authority to
make an initial assignment on or after October 1, 1993. We
rejected a comparable argument in Brock v. Pierce County,
476 U. S. 253 (1986), dealing with the power of the Secretary
of Labor to audit a grant recipient under a provision that he
“ ‘shall’ issue a final determination . . . within 120 days” of
receiving a complaint alleging misuse of federal grant funds.
Id., at 255. Like the Court of Appeals here, the Ninth Cir-
cuit in Brock thought the mandate and deadline together im-
plied that Congress “had intended to prevent the Secretary
from acting” after the statutory period, id., at 257. We, on
the contrary, expressed reluctance “to conclude that every
failure of an agency to observe a procedural requirement
voids subsequent agency action, especially when important
public rights are at stake,” id., at 260, and reversed. As in
this litigation, the Secretary’s responsibility in Brock was
“substantial,” the “ability to complete it within 120 days
[was] subject to factors beyond [the Secretary’s] control,” and
“the Secretary’s delay, under respondent’s theory, would
prejudice the rights of the taxpaying public.” Id., at 261.
We accordingly read the 120-day provision as meant “to spur
the Secretary to action, not to limit the scope of his author-
ity,” so that untimely action was still valid. Id., at 265.
Nor, since Brock, have we ever construed a provision that
the Government “shall” act within a specified time, without
more, as a jurisdictional limit precluding action later. Thus,

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a provision that a detention hearing “ ‘shall be held immedi-
ately upon the [detainee’s] first appearance before the judi-
cial officer’ ” did not bar detention after a tardy hearing,
United States v. Montalvo-Murillo, 495 U. S. 711, 714 (1990)
(quoting 18 U. S. C. § 3142(f)), and a mandate that the Secre-
tary of Health and Human Services “ ‘shall report’ ” within a
certain time did “not mean that [the] official lacked power to
act beyond it,” Regions Hospital v. Shalala, 522 U. S. 448,
459, n. 3 (1998).
We have summed up this way: “if a statute does not spec-
ify a consequence for noncompliance with statutory timing
provisions, the federal courts will not in the ordinary course
impose their own coercive sanction.” United States v.
James Daniel Good Real Property, 510 U. S. 43, 63 (1993).6
6 No one could disagree with Justice Scalia that “[w]hen a power is
conferred for a limited time, the automatic consequence of the expiration
of that time is the expiration of the power,” post, at 174–175 (dissenting
opinion), but his assumption that the Commissioner’s power to assign re-
tirees was “conferred for a limited time” assumes away the very question
to be decided. Justice Scalia’s dissent is an elaboration on this circular-
ity, forever returning as it must to his postulate that § 9706(a) constitutes
a “time-limited mandate” that “expired” on the statutory date. Post,
at 177, 178.
Justice Scalia’s closest approach to a nonconclusory justification for
his position is the assertion of an entirely formal interpretive rule that a
date figuring in the same statutory subsection as the creation of a manda-
tory obligation ipso facto negates any power of tardy performance. Post,
at 176–177. Justice Scalia cites no authority for his formalism, which
is contradicted by United States v. Montalvo-Murillo, 495 U. S. 711 (1990),
where a single statutory subsection provided that a judicial officer “shall
hold a hearing” and that “[t]he hearing shall be held immediately upon the
person’s first appearance before the judicial officer.” Id., at 714 (quoting
18 U. S. C. § 3142(f)). Conversely, Brock v. Pierce County, 476 U. S. 253
(1986), United States v. James Daniel Good Real Property, 510 U. S. 43
(1993), and Regions Hospital v. Shalala, 522 U. S. 448 (1998), ascribed no
significance to the formal placement of the time limitation. One can only
ask why a statute providing that “The obligor shall perform its duty be-
fore October 1, 1993,” should be thought to differ fundamentally from one
providing that “(i) The obligor shall perform its duty. (ii) The obligor’s

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Hence the oddity at this date of a claim that late official
action should shift financial burdens from otherwise respon-
sible private purses to the public fisc, let alone siphon money
from funds set aside expressly for a different public purpose,
like the AML Fund for land reclamation. The point would
be the same, however, even if Brock were the only case on
the subject. The Coal Act was adopted six years after
Brock came down, when Congress was presumably aware
that we do not readily infer congressional intent to limit an
agency’s power to get a mandatory job done merely from a
specification to act by a certain time. See United States v.
Wells, 519 U. S. 482, 495 (1997).7 The Brock example conse-
duty shall be performed before October 1, 1993.” The accepted fact is
that some time limits are jurisdictional even though expressed in a sepa-
rate statutory section from jurisdictional grants, see, e. g., 28 U. S. C.
§ 1291 (providing that the courts of appeals “shall have jurisdiction of ap-
peals from all final decisions of the district courts of the United States”);
§ 2107 (providing that notice of appeal in civil cases must be filed “within
thirty days after the entry of such judgment”); Browder v. Director, Dept.
of Corrections of Ill., 434 U. S. 257, 264 (1978) (stating that the limitation
in § 2107 is “ ‘mandatory and jurisdictional’ ” (citation omitted)), while oth-
ers are not, even when incorporated into the jurisdictional provision, see,
e. g., Montalvo-Murillo, supra. Formalistic rules do not account for the
difference, which is explained by contextual and historical indications of
what Congress meant to accomplish. Here that intent is revealed in sev-
eral obvious ways: in rules that define an operator’s liability in terms of
employment history, see § 9706(a), in appellate rights to test the appropri-
ateness of an initial assignment, see infra, at 167, and in the expressed
understanding that the companies that got the benefit of a worker’s labor
should pay for the worker’s benefits, see infra, at 164–166. What else,
after all, would anyone naturally expect? As opposed to the sensible indi-
cations that the initial assignment deadline was not meant to be jurisdic-
tional, Justice Scalia’s new formal rule would thwart the statute’s object
and relieve the respondent companies of all responsibility, which other,
less lucky operators might be required to shoulder. There undoubtedly
was much political compromise in the development of the Coal Act, but
politics does not justify turning the process of initial assignment into a
game of chance.
7 The respondent companies attempt to distinguish Brock because we
noted in that case that an aggrieved party could sue under the Administra-
tive Procedure Act to “ ‘compel agency action unlawfully withheld or un-

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quently has to mean that a statute directing official action
needs more than a mandatory “shall” before the grant of
power can sensibly be read to expire when the job is sup-
posed to be done. Nothing so limiting, however, is to be
found in the Coal Act: no express language supports the com-
panies, while structure, purpose, and legislative history go
against them.
Structural clues support the Commissioner in the Coal
Act’s other instances of combining the word “shall” with a
specific date that could not possibly be read to prohibit ac-
tion outside the statutory period. Congress, for example,
provided that the UMWA Pension Plan “shall transfer to
the Combined Fund” installments of $70 million on Febru-
ary 1, 1993, on October 1, 1993, and on October 1, 1994.
§ 9705(a)(1). It could not be that a failure to make a transfer
on one of those precise dates, for whatever reason, would
have left the UMWA Pension Plan with no authority to make
the payment; October 1, 1994, was not even a business day.
Or consider the Act’s mandatory provisions that the trustees
of the Combined Fund “shall” be designated no later than
60 days from the enactment date, § 9702(a)(1), and that the
designated trustees “shall, not later than 60 days after the
enactment date,” give the Commissioner certain information
about benefits, § 9704(h). No one could seriously argue that
the entire scheme would have been nullified if appointments
had been left to the 61st day, or that trustees (whose appoint-
reasonably delayed,’ ” 476 U. S., at 260, n. 7 (quoting 5 U. S. C. § 706(1)).
The companies assert that no such remedy would have applied to the Com-
missioner’s duty under § 9706(a). Whether or not this is the case, the
companies do not argue that they were aggrieved by the failure to assign
retirees by the statutory date. On the contrary, they temporarily avoided
payment of premium amounts for which they would indisputably have
been liable had the assignments been timely made. It therefore does not
appear that there was a need to provide operators “with any remedy at
all—much less the drastic remedy respondent[s] see[k] in this case—for
the [Commissioner’s] failure to meet the [October 1, 1993] deadline.” 476
U. S., at 260, n. 7.

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162 BARNHART v. PEABODY COAL CO.
Opinion of the Court
ments could properly have been left to the 60th day) were
powerless to divulge information to the SSA after the 60-day
period had expired.8
8 Justice Scalia concedes that his theory should not extend so far as
to limit the UMWA Pension Plan’s duty to transfer funds to the Combined
Fund to the particular dates in § 9705(a)(1). Justice Scalia attempts to
avoid such an outcome by assuming, without basis, that the “UMWA Pen-
sion Plan has the power to transfer funds” to the Combined Fund in the
absence of the authorization in § 9705(a)(1). Post, at 176 (dissenting opin-
ion). Justice Scalia’s confidence is misplaced. Prior to the Coal Act’s
enactment, the Vice Chairman of the Secretary of Labor’s Coal Commis-
sion testified before Congress that legislative authorization was needed
for such a transfer to occur: “One of the things that concerned the Commis-
sion was, first of all, our understanding of the present state of law under
the Employee Retirement Income Security Act. Under that Act it is not
within the power of any of the participants or signatories to transfer a
pension surplus to a benefit fund. That is one of the reasons for the rec-
ommendation that a transfer be authorized.” Hearing before the Sub-
committee on Medicare and Long-Term Care of the Senate Committee on
Finance, 102d Cong., 1st Sess., 13 (1991) (statement of Coal Commission
Vice Chairman Perritt). It appears, then, that § 9705(a)(1) provides both
the UMWA Pension Plan’s power to act and a time limit, which according
to Justice Scalia would render action on any other date ultra vires, a
result that even the dissent does not embrace.
Justice Scalia thinks it “debatable” that the power to appoint initial
trustees survives the deadline in § 9702(a)(1). Post, at 177. In order to
avoid the embarrassment of concluding that tardiness would remove all
authority to appoint the initial trustees, which would render the Act a
dead letter, he suggests that an initial trustee could be appointed under
§ 9702(b)(2), even though that provision applies only to appointment of a
“successor trustee” to be made “in the same manner as the trustee being
succeeded,” whereas an initial trustee does not “succeed” anyone. The
extreme implausibility of Justice Scalia’s suggested reading of
§ 9702(b)(2) points up the unreasonableness of placing a jurisdictional gloss
on the § 9706(a) time limitation. It is impossible to believe that Congress
meant its Herculean effort to resolve the coal industry benefit crisis to
come to absolutely nothing if trustees were designated late.
There is a basic lesson to be learned from Justice Scalia’s contortions
to avoid the untoward results flowing from his formalistic theory that time
limits on mandatory official action are always jurisdictional when they

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In each of these instances, we draw a conclusion on
grounds of plausibility: if Congress had meant to set a coun-
terintuitive limit on authority to act, it would have said more
than it did, and would surely not have couched its intent in
language Brock had already held to lack any clear jurisdic-
tional significance. The same may be said here.
B
Nor do we think the result of appealing to plausibility is
affected by either of two other textual features that the com-
panies take as indicating inability to assign beneficiaries
after the statutory date: the provision for unassigned bene-
ficiary status itself, and the provision that an operator’s
contribution for the benefit of the unassigned shall be calcu-
lated “on the basis of assignments as of October 1, 1993.”
§§ 9704(f)(1), (2).
1
The companies characterize the provision for unassigned
beneficiaries as the specification of a “consequence” for fail-
ure to assign a beneficiary to an operator or related person.
Cf. Brock, 476 U. S., at 259. Specifying this consequence of
failure, they say, shows that the failure must be governed by
the consequence provided, not corrected by a tardy assign-
ment corresponding to one that should have been made ear-
lier. The specified consequence, in other words, reflects a
legislative preference for finality over accurate initial assign-
ments and creates a right on the part of the companies to
rely permanently on the state of affairs as they were on
October 1, 1993. We think this line of reasoning is unsound
at every step.
To begin with, whatever might be inferable from the fact
that a specific provision addressed the failure to make a
occur in an authorizing provision. The lesson is that something is very
wrong with the theory.

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164 BARNHART v. PEABODY COAL CO.
Opinion of the Court
timely assignment, the part of the Act referring to “unas-
signed” beneficiaries is not any such provision. The Act
speaks of the beneficiaries not in terms of the Commission-
er’s failure to assign them in time, but simply as “beneficiar-
ies who are not assigned.” § 9704(d). The most obvious
reason for beneficiaries’ being unassigned, in fact, is the dis-
appearance of a beneficiary’s former employer, leaving no
signatory operator for assignment under § 9706(a). This is
not to say that failure of timely assignment does not also
leave a beneficiary “unassigned” under the Act. It simply
means that unassigned status has no significance peculiar to
failure of timely assignment.
Second, to the extent that “unassigned” status is a conse-
quence of mere untimeliness, there would be a far more obvi-
ous reason for specifying that consequence than a supposed
desire for finality.9 On its face, the provision for a benefi-
ciary left out through tardiness functions simply as a default
rule to provide coverage under the new regime required to
be in place by October 1, 1993; there had to be some source
of funding for every beneficiary by then, and provisions for
the “unassigned” employees tell the SSA what the source
will be in the absence of any other. But we do not read a
provision apparently made for want of something better as
an absolute command to forgo something better for all time.
In fact, it is unrealistic to think that Congress understood
unassigned status as an enduring “consequence” of uncom-
pleted work, for nothing indicates that Congress even fore-
saw that some beneficiaries matchable with operators still in
9 Many “consequences,” of course, are intended to induce an obligated
person to take untimely action rather than bar that action altogether.
Section 9704(i)(1)(C), for example, denies certain tax deductions to opera-
tors who fail to make contributions during specified periods, and § 9707(a)
provides a penalty for operators who fail to pay premiums on time. The
first consequence is eliminated when the operator takes action that is nec-
essarily untimely, and the second penalty ceases to run when the premi-
ums are paid, albeit out of time.

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business might not be assigned before October 1, 1993. As
the companies themselves point out, the Commissioner led
Congress to believe as late as 1995 that all possible assign-
ments had been made on time, see n. 3, supra, and such little
legislative history as there is on the point tends to show that
Congress assumed that any assignments that could be made
at all (say, to an operator still in business) would be made on
time. On October 8, 1992, on the heels of the Conference
Committee Report on the Act and just before the vote in
the Senate adopting the Act, Senator Wallop gave a detailed
explanation of the Coal Act’s provisions for unassigned bene-
ficiaries, which assumed that the “unassigned” would be
true orphans:
“As a practical matter, not all beneficiaries can be as-
signed to a specific last signatory operator, related per-
son or assigned operator for payment purposes. This is
because in some instances, none of those persons remain
in business, even as defined to include non-mining re-
lated businesses. Thus, provisions are made for unas-
signed beneficiary premiums.” 138 Cong. Rec. 34003
(1992).
The Senator’s report says that the transfer to the Combined
Fund from the UMWA Pension Plan and AML Fund would
be made because “unassigned beneficiaries were not em-
ployed by the assigned operators at the time of their
retirement . . . . [I]f no operator remains in business under
the formulations described above, that retiree becomes an
unassigned beneficiary. . . . [The Coal Act’s] purpose is to
assure that any beneficiary, once assigned, remains the re-
sponsibility of a particular operator, and that the number of
unassigned beneficiaries is kept to an absolute minimum.”
Ibid.10 It seems not to have crossed Congress’s mind that
10 Postenactment statements, though entitled to less weight, are to the
same effect. At a hearing before the House Committee of Ways and
Means on September 9, 1993, one member asked whether SSA had estab-

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166 BARNHART v. PEABODY COAL CO.
Opinion of the Court
the category of the “unassigned” would include beneficiaries,
let alone a lot of beneficiaries, who could be connected with
an operator, albeit late. Providing a consequence of default
was apparently just happenstance.11
Congress plainly did, however, weigh finality on October
1, 1993, against accuracy of initial assignments in one circum-
stance, and accuracy won. Section 9704(d) speaks of “bene-
ficiaries who are not assigned . . . for [any] plan year,” sug-
lished procedures “to assure that beneficiaries are not improperly desig-
nated as unassigned.” The Acting Commissioner of Social Security re-
sponded that employee training “emphasized that the intent of the Coal
Act was to assign miners to mine operators if at all possible.” 1993 Coal
Act Hearing 46 (statements of Rep. Johnson and Acting Commissioner
Thompson). The record of the hearing also contains a statement by the
committee chairman that the Act required operators to “pay for their own
retirees, and to assume a proportionate share of the liability for true ‘or-
phans’—retirees whose companies are no longer in existence and cannot
pay for the benefits.” Id., at 85. At no point did any witness suggest
that the unassigned beneficiary system was intended for miners who could
be assigned but were not assigned before October 1, 1993, or that such
miners would remain unassigned in perpetuity in order to protect the
status quo on that date.
11 The respondent companies cite a postenactment statement by Repre-
sentative Johnson that Congress had an obligation to “make sure that
companies . . . have time to figure out their liability and prepare to deal
with it.” Id., at 42. The Representative’s comment did not purport to
interpret the Coal Act as adopted, however, but was made in discussing
whether “there should be some resolution passed” to give coal operators
more time to prepare for their Coal Act obligations. Ibid.
One statement in Senator Wallop’s preenactment report, which the com-
panies do not cite, indicates an understanding that assignments would be
fixed after October 1, 1993. See 138 Cong. Rec. 34003 (1992) (“[T]he per-
centage of the unassigned beneficiary premiums allocable to each assigned
operator on October 1, 1993 will remain fixed in future years”). As dis-
cussed, however, there is no indication that Congress foresaw that the
Commissioner would be unable to complete assignments by the statutory
date. A general statement made on the assumption that all assignments
that could ever be made would be made before October 1, 1993, does not
show a legislative preference for finality over accuracy now that that as-
sumption has proven incorrect.

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Opinion of the Court
gesting that assignment status may change from year to
year. One way it may change is by correcting an erroneous
assignment. Under the Act, an operator getting notice of
an assignment has 30 days to request information regarding
the basis of the assignment and then 30 days from receipt of
that information to ask for reconsideration. §§ 9706(f)(1)–
(2). If the Commissioner finds error, the Combined Fund
trustees will fix it by reducing premiums and refunding any
overpayments. § 9706(f)(3)(A)(i); see also § 9706(f)(3)(A)(ii).
Nothing is said about finality on October 1, 1993, and no time
limit whatever is imposed on the Commissioner’s authority
to reassign. The companies concede, as they must, that the
statute permits reassignment after October 1, 1993.
The companies do, however, try to limit the apparent pref-
erence for accuracy by arguing that one feature of this provi-
sion for reconsideration in § 9706(f) implicitly supports them;
this specific and isolated exception to an otherwise unequivo-
cal bar to assignments after the statutory date suggests,
they say, that the bar is otherwise absolute. Again, we
think no such conclusion follows.
First, the argument is circular; it assumes that the avail-
ability of the § 9706(f) reconsideration process with no time
limit is an exception to a bar on all assignment activity im-
posed by the October 1, 1993, time limit of § 9706(a). But
the question, after all, is whether the October 1, 1993, man-
date is in fact a bar. Section 9706(f) does not say it is, and
nothing in that provision suggests it was enacted as an ex-
ception to the October 1, 1993, date. It has no language
about operating notwithstanding the date specified in
§ 9706(a); on the contrary, it states that reassignment will be
made “under subsection (a),” § 9706(f)(3)(A)(ii). But if the
authority to reassign is contained in § 9706(a), then § 9706(f)
is reasonably read not as lifting a jurisdictional time bar but
simply as specifying a procedure for an aggrieved operator
to follow in requesting the Commissioner to exercise the as-
signment power contained in § 9706(a) all along. In the com-

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168 BARNHART v. PEABODY COAL CO.
Opinion of the Court
bined operation of the two subsections, there is thus no im-
plication that the Commissioner is powerless to make an
initial assignment to an operator after the specified date; any
suggestion goes the other way.
Second, there is no reason to read the provision in § 9706(f)
for correction of erroneous assignments as implying that the
Commissioner should not employ her § 9706(a) authority to
make a tardy initial assignment in a situation like this. We
do not read the enumeration of one case to exclude another
unless it is fair to suppose that Congress considered the un-
named possibility and meant to say no to it. United Domin-
ion Industries, Inc. v. United States, 532 U. S. 822, 836
(2001). As we have held repeatedly, the canon expressio
unius est exclusio alterius does not apply to every statutory
listing or grouping; it has force only when the items ex-
pressed are members of an “associated group or series,” jus-
tifying the inference that items not mentioned were excluded
by deliberate choice, not inadvertence. United States v.
Vonn, 535 U. S. 55, 65 (2002). We explained this point as
recently as last Term’s unanimous opinion in Chevron
U. S. A. Inc. v. Echazabal, 536 U. S. 73, 81 (2002):
“Just as statutory language suggesting exclusiveness is
missing, so is that essential extrastatutory ingredient of
an expression-exclusion demonstration, the series of
terms from which an omission bespeaks a negative im-
plication. The canon depends on identifying a series of
two or more terms or things that should be understood
to go hand in hand, which [is] abridged in circumstances
supporting a sensible inference that the term left out
must have been meant to be excluded. E. Crawford,
Construction of Statutes 337 (1940) (expressio unius
‘ “properly applies only when in the natural association
of ideas in the mind of the reader that which is ex-
pressed is so set over by way of strong contrast to that
which is omitted that the contrast enforces the affirma-
tive inference” ’ (quoting State ex rel. Curtis v. De Corps,

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169 Cite as: 537 U. S. 149 (2003)
Opinion of the Court
134 Ohio St. 295, 299, 16 N. E. 2d 459, 462 (1938)));
United States v. Vonn, supra.”
As in Echazabal, respondents here fail to show any reason
that Congress would have considered reassignments after
appeal “to go hand in hand” with tardy initial assignments.
Since Congress apparently never thought that initial assign-
ments would be late, see supra, at 164–167, the better infer-
ence is that what we face here is nothing more than a case
unprovided for.12
12 There is, of course, no “ ‘case unprovided for’ exception” to the ex-
pressio unius canon, post, at 181 (Scalia, J., dissenting). It is merely
that the canon does not tell us that a case was provided for by negative
implication unless an item unmentioned would normally be associated with
items listed.
The companies emphasize that § 9704(f)(2)(B) requires that beneficiaries
whose operator goes out of business must be treated as unassigned and
cannot be reassigned. Even assuming that a provision that goes to the
definition of “applicable percentage” and does not directly implicate as-
signments has the effect the companies suggest, the most that could be
said is that Congress wished to identify the first, most responsible opera-
tor for a given retiree, and not to follow that with a second assignment to
a less responsible operator if the initial assigned operator left the business.
This interest does not indicate an object of date-specific finality over accu-
racy in the first assignment; on the contrary, it opts for finality only once
an accurate initial assignment has been made. In the absence of a more
exact explanation for this arrangement, we suppose the explanation is
good political horse trading. But provisions that by their terms govern
after the initial assignment is made tell us nothing about the period in
which an initial assignment may be made. In fact, the permissibility
under § 9706(f) of postappeal reassignment after October 1, 1993, makes
plain that Congress was not “insisting upon as perfect a matchup as possi-
ble up to October 1, 1993, and then prohibiting future changes, both by way
of initial assignment or otherwise,” post, at 183 (Scalia, J., dissenting),
as Justice Scalia himself agrees. On the contrary, the reassignment
provision indicates that a system of accuracy “in initial assignments,
whether made before the deadline or afterward,” is precisely what the Act
envisions. Ibid. Here, as throughout this opinion, “accuracy” refers not
to an elusive system of “perfect fairness,” ibid., but to assignments by the
Commissioner following the scheme set out in §§ 9706(a)(1)–(3).

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170 BARNHART v. PEABODY COAL CO.
Opinion of the Court
2
The remaining textual argument for the companies’ side
rests on the definition of an operator’s “applicable percent-
age” of the overall obligation of all assignee operators (or
related persons) to fund benefits for the unassigned. Under
§ 9704(f)(1), it is defined as the percentage of the operator’s
own assigned beneficiaries among all assigned beneficiaries
“determined on the basis of assignments as of October 1,
1993” (parenthesis omitted). The companies argue that the
specification “as of ” October 1, 1993, means that an assigned
operator’s percentage of potential liability for the benefit of
the unassigned is fixed according to the assignments made
at that date, subject only to specific exceptions set out in
§ 9704(f)(2), requiring a change in the percentage when erro-
neously assigned retirees are reassigned or assignee opera-
tors go out of business. The companies contend that their
position rests on plain meaning: “as of ” the date means “as
assignments actually stand” on the date. Yet the words “as
of,” as used in the statute, can be read another way: since
Congress required that all possible assignments be complete
on October 1, 1993, see § 9706(a), it is equally fair to read
assignments “as of ” that date to mean “assignments as they
shall be on that date, assuming the Commissioner complies
with our command.” The companies’ reading is hospitable
to early finality of assignments, while the alternative favors
completeness and accuracy before finality prevails.
Once it is seen that there is no “plain” reading, however,
there is nothing left of the “as of ” argument except its stress
that the applicable percentage can be modified only in ac-
cordance with the two exceptions recognizing changes for
initial error or the demise of an assignee operator. The an-
swer to this point, of course, has already been given. The
enunciation of two exceptions does not imply an exclusion of
a third unless there is reason to think the third was at least
considered, whereas there is good reason to conclude that
when Congress adopted the language in question it did not

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171 Cite as: 537 U. S. 149 (2003)
Opinion of the Court
foresee a failure to make timely assignments. See supra, at
168–169. The phrase “as of ” cannot be read to govern a
situation that Congress clearly did not contemplate,13 nor
does it require the absolute finality of assignments urged by
the companies.
IV
This much is certain: the Coal Act rests on Congress’s
stated finding that it was necessary to “identify persons most
responsible for plan liabilities,” and on its express desire to
“provide for the continuation of a privately financed self-
sufficient program for the delivery of health care benefits,”
Energy Policy Act of 1992, Pub. L. 102–486, § 19142, 106 Stat.
3037.14 In the words of Senator Wallop’s report delivered
shortly before enactment, the statute is “designed to allocate
the greatest number of beneficiaries in the Plans to a prior
13 The same may be said of the provision for an initial trustee to serve
until November 1, 1993, § 9702(b)(3)(B), contrary to Justice Scalia’s view.
Post, at 182 (dissenting opinion).
14 Under the respondent companies’ view, if the transfers from the AML
Fund prove insufficient to cover the benefits of all unassigned beneficiar-
ies, an operator that received no assignments prior to October 1, 1993,
would not have to contribute a penny to the unassigned beneficiary pool—
solely due to the Commissioner’s fortuitous failure to make all assignments
by the statutory deadline. At the same time, operators that received full
assignments prior to October 1, 1993, would be forced to cover more than
their fair share of unassigned beneficiaries’ premiums.
Although Justice Scalia sees the Act as rife with “seemingly unfair
and inequitable provisions,” ibid. (dissenting opinion), even his view is no
reason to assume that Congress meant contested provisions to be con-
strued in the most unfair and inequitable manner possible. In any event,
Justice Scalia’s citation of § 9704(f)(2)(B) does not help his position. It
provides a clear statutory solution to a problem Congress anticipated: the
end of an assigned operator’s business. Had Congress propounded a re-
sponse to the issue now before us as clear as § 9704(f)(2)(B), there would
doubtless have been no split in the Courts of Appeals and no cases for us
to review. Given the absence of an express provision, the statute’s goals
are best served by treating operators the way Congress intended them to
be treated, that is, by allowing the Commissioner to identify the operators
most responsible.

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172 BARNHART v. PEABODY COAL CO.
Scalia, J., dissenting
responsible operator. For this reason, definitions are in-
tended by the drafters to be given broad interpretation to
accomplish this goal.” 138 Cong. Rec. 34001 (1992).15 To
accept the companies’ argument that the specified date for
action is jurisdictional would be to read the Act so as to
allocate not the greatest, but the least, number of beneficiar-
ies to a responsible operator. The way to reach the congres-
sional objective, however, is to read the statutory date as a
spur to prompt action, not as a bar to tardy completion of
the business of ensuring that benefits are funded, as much
as possible, by those identified by Congress as principally
responsible.
The judgments of the Court of Appeals in both cases are
accordingly
Reversed.
Justice Scalia, with whom Justice O’Connor and
Justice Thomas join, dissenting.
The Court’s holding today confers upon the Commissioner
of Social Security an unexpiring power to assign retired coal
miners to signatory operators under 26 U. S. C. § 9706(a). In
my view, this disposition is irreconcilable with the text and
structure of the Coal Industry Retiree Health Benefit Act of
1992 (Coal Act or Act), and finds no support in our prece-
dents. I respectfully dissent.
I
The respondents contend that the Commissioner improp-
erly assigned them responsibility for 600 coal miners under
§ 9706(a). Section 9706(a) provides, in pertinent part:
15 A Congressional Research Service report dated shortly before the en-
actment likewise states that the Act envisioned that “[w]herever possible,
responsibility for individual beneficiaries would be assigned . . . to a previ-
ous employer still in business.” Coal Industry: Use of Abandoned Mine
Reclamation Fund Monies for UMWA “Orphan Retiree” Health Benefits
(Sept. 10, 1992), reprinted in 138 Cong. Rec., at 34005.

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173 Cite as: 537 U. S. 149 (2003)
Scalia, J., dissenting
“[T]he Commissioner of Social Security shall, before
October 1, 1993, assign each coal industry retiree who
is an eligible beneficiary to a signatory operator which
(or any related person with respect to which) remains
in business in the following order:
“(1) First, to the signatory operator which—
“(A) was a signatory to the 1978 coal wage agreement
or any subsequent coal wage agreement, and
“(B) was the most recent signatory operator to employ
the coal industry retiree in the coal industry for at least
2 years.
“(2) Second, if the retiree is not assigned under para-
graph (1), to the signatory operator which—
“(A) was a signatory to the 1978 coal wage agreement
or any subsequent coal wage agreement, and
“(B) was the most recent signatory operator to employ
the coal industry retiree in the coal industry.
“(3) Third, if the retiree is not assigned under para-
graph (1) or (2), to the signatory operator which em-
ployed the coal industry retiree in the coal industry for
a longer period of time than any other signatory opera-
tor prior to the effective date of the 1978 coal wage
agreement.”
The Commissioner failed to complete the task of assigning
each eligible beneficiary to a signatory operator before Octo-
ber 1, 1993. As a result, many eligible beneficiaries were
“unassigned,” and their benefits were financed, for a time,
by the United Mine Workers of America 1950 Pension Plan
(UMWA Pension Plan) and the Abandoned Mine Land Recla-
mation Fund. See §§ 9705(a)(3)(B), 9705(b)(2).
The Commissioner blames her failure to meet the statu-
tory deadline on the “magnitude of the task” and the lack
of appropriated funds. Brief for Petitioners Trustees of
the UMWA Combined Benefit Fund 15. It should not be
thought, however, that these cases are about letting the

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174 BARNHART v. PEABODY COAL CO.
Scalia, J., dissenting
Commissioner complete a little unfinished business that
barely missed the deadline. They concern some 600 post-
October 1, 1993, assignments to these respondents, the vast
majority of which were made between 1995 and 1997, years
after the statutory deadline had passed. App. 98–121. Re-
spondents contend that these assignments are unlawful, and
unless Congress has conferred upon the Commissioner the
power that she claims—an unexpiring authority to assign
eligible beneficiaries to signatory operators—the respond-
ents must prevail. Section 9706(a) does not provide such an
expansive power, and the other provisions of the Act con-
firm this.
II
It is well established that an agency’s power to regulate
private entities must be grounded in a statutory grant of
authority from Congress. See FDA v. Brown & William-
son Tobacco Corp., 529 U. S. 120, 161 (2000); Bowen v.
Georgetown Univ. Hospital, 488 U. S. 204, 208 (1988); Louisi-
ana Pub. Serv. Comm’n v. FCC, 476 U. S. 355, 374 (1986).
This principle has special importance with respect to the ex-
traordinary power the Commissioner asserts here: to compel
coal companies to pay miners (and their families) health ben-
efits that they never contracted to pay. We have held that
the Commissioner’s use of this power under § 9706(a), even
when exercised before October 1, 1993, violates the Constitu-
tion to the extent it imposes severe retroactive liability on
certain coal companies. See Eastern Enterprises v. Apfel,
524 U. S. 498 (1998). When an agency exercises a power
that so tests constitutional limits, we have all the more obli-
gation to assure that it is rooted in the text of a statute.
The Court holds that the Commissioner retains the power
to act after October 1, 1993, because Congress did not “ ‘spec-
ify a consequence for noncompliance’ ” with the statutory
deadline. Ante, at 159. This makes no sense. When a
power is conferred for a limited time, the automatic conse-
quence of the expiration of that time is the expiration of the

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175 Cite as: 537 U. S. 149 (2003)
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power. If a landowner authorizes someone to cut Christmas
trees “before December 15,” there is no doubt what happens
when December 15 passes: The authority to cut terminates.
And the situation is not changed when the authorization is
combined with a mandate—as when the landowner enters a
contract which says that the other party “shall cut all Christ-
mas trees on the property before December 15.” Even if
time were not of the essence of that contract (as it is of the
essence of § 9706(a), for reasons I shall discuss in Part III,
infra) no one would think that the contractor had continuing
authority—not just for a few more days or weeks—but per-
petually, to harvest trees.1
The Court points out, ante, at 161–162, that three other
provisions of the Coal Act combine the word “shall” with a
statutory deadline that in its view is extendible:
(1) Section 9705(a)(1)(A) states that the UMWA Pen-
sion Plan “shall transfer to the Combined Fund . . .
$70,000,000 on February 1, 1993”;
(2) § 9704(h) says the trustees for the Combined Fund
“shall, not later than 60 days” after the enactment date,
1 This interpretation of § 9706(a) does not “assum[e] away the very ques-
tion to be decided,” as the Court accuses, ante, at 159, n. 6. It is no
assumption at all, but rather the consequence of the proposition that the
scope of an agency’s power is determined by the text of the statutory
grant of authority. Because § 9706(a)’s power to “assign . . . eligible bene-
ficiar[ies]” is prefaced by the phrase “before October 1, 1993,” the statu-
tory date is intertwined with the grant of authority; it is part of the very
definition of the Commissioner’s power. If the statute provided that the
Commissioner “shall, on or after October 1, 1993,” assign each eligible
beneficiary to a signatory operator, it would surely be beyond dispute that
pre-October 1, 1993, assignments were ineffective. No different conclu-
sion should obtain here, where the temporal scope of the Commissioner’s
authority is likewise defined according to a clear and unambiguous date.
If this is (as the Court charges) “formalism,” ibid., it is only because lan-
guage is a matter of form. Here the form that Congress chose presump-
tively represents the political compromise that Congress arrived at.

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176 BARNHART v. PEABODY COAL CO.
Scalia, J., dissenting
furnish certain information regarding benefits to the
Commissioner; and
(3) § 9702(a)(1) provides that certain individuals de-
scribed in § 9702(b)(1) “shall designate” the trustees for
the Combined Fund “not later than 60 days . . . after the
enactment date.”
I agree that the actions mandated by the first two of these
deadlines can be taken after the deadlines have expired
(though perhaps not forever after, which is what the Court
claims for the deadline of § 9706(a)). The reason that is so,
however, does not at all apply to § 9706(a). In those provi-
sions, the power to do what is mandated does not stem from
the mere implication of the mandate itself. The private
entities involved have the power to do what is prescribed,
quite apart from the statutory command that they do it by a
certain date: The UMWA Pension Plan has the power to
transfer funds,2 and the trustees of the Combined Fund have
the power to provide the specified information, whether the
statute commands that they do so or not. The only question
2 Private entities, unlike administrative agencies, do not need authoriza-
tion from Congress in order to act—they have the power to take all action
within the scope of their charter, unless and until the law forbids it. The
Court suggests that the Employee Retirement Income Security Act of
1974 (ERISA) may actually forbid the UMWA Pension Plan from transfer-
ring its pension surplus to the benefit fund. Ante, at 162–163, n. 8. But
if this is true, that does not convert § 9705(a)(1) into a power-conferring
statutory provision in the mold of § 9706(a). It instead means that the
UMWA Pension Plan is subject to contradictory statutory mandates, and
the relevant question becomes whether, and to what extent, § 9705(a)(1)
implicitly repealed the provisions of ERISA as applied to the UMWA Pen-
sion Plan. Resolving that question would be no small task, given our
disinclination to find implied repeals, see Morton v. Mancari, 417 U. S.
535, 551 (1974), and I will not speculate on it. Instead, I am content to
go along with the Court’s assumption that nothing in § 9705(a)(1), or in the
rest of the Coal Act, prevents the UMWA Pension Plan from transferring
money to the Combined Fund after the statutory deadline, and to empha-
size that nothing in this concession lends support to the Court’s interpre-
tation of § 9706(a).

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177 Cite as: 537 U. S. 149 (2003)
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is whether the late exercise of an unquestionably authorized
act will produce the consequences that the statute says will
follow from a timely exercise of that act. It is as though, to
pursue the tree-harvesting analogy, a contract provided that
the landowner will harvest and deliver trees by December
15; even after December 15 passes, he can surely harvest and
deliver trees, and the only issue is whether the December 15
date is so central to the contract that late delivery does not
have the contractual consequence of requiring the other
side’s counterperformance. The Commissioner of Social Se-
curity, by contrast, being not a private entity but a creature
of Congress, has no authority to assign beneficiaries to oper-
ators except insofar as such authority is implicit in the man-
date; but the mandate (and hence the implicit authority) ex-
pired on October 1, 1993.
The last of these three provisions does confer a power that
is not otherwise available to the private entities involved:
the power to appoint initial trustees to the board of the Com-
bined Fund. I do not, however, think it as clear as the
Court does—indeed, I think it quite debatable—whether
that power survives the deadline. If it be thought utterly
essential that all the trustees be in place, it seems to me just
as reasonable to interpret the provision for appointment of
successor trustees (§ 9702(b)(2)) to include the power to fill
vacancies arising from initial failure to appoint, as to inter-
pret the initial appointment power to extend beyond its spec-
ified termination date. The provision surely does not estab-
lish the Court’s proposition that time-limited mandates
include continuing authority.
III
None of the cases on which the Court relies is even re-
motely in point. In Brock v. Pierce County, 476 U. S. 253
(1986), the agency action in question was authorized by an
explicit statutory grant of authority, separate and apart from
the provision that contained the time-limited mandate.

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178 BARNHART v. PEABODY COAL CO.
Scalia, J., dissenting
Title 29 U. S. C. § 816(d)(1) (1976 ed., Supp. V) (now repealed)
gave the Secretary of Labor “authority to . . . order such
sanctions or corrective actions as are appropriate.” An-
other provision of the statute, former § 816(b), required the
Secretary, when investigating a complaint that a recipient is
misusing funds, to “make the final determination . . . regard-
ing the truth of the allegation . . . not later than 120 days
after receiving the complaint.” We held that the Secre-
tary’s failure to meet the 120-day deadline did not prevent
him from ordering repayment of misspent funds. Respond-
ent had not, we said, shown anything that caused the Secre-
tary to “lose its power to act,” 476 U. S., at 260 (emphasis
added). Here, by contrast, the Commissioner never had
power to act apart from the mandate, which expired after
October 1, 1993.
In United States v. James Daniel Good Real Property, 510
U. S. 43 (1993), federal statutes authorized the Government
to bring a forfeiture action within a 5-year limitation period.
21 U. S. C. § 881(a)(7); 19 U. S. C. § 1621. We held that that
power was not revoked by the Government’s failure to com-
ply with some of the separate “internal timing requirements”
set forth in §§ 1602–1604. Because those provisions failed to
specify a consequence for noncompliance, we refused to “im-
pose [our] own coercive sanction” of terminating the Govern-
ment’s authority to bring a forfeiture action. James Daniel
Good, supra, at 63. The authorization separate from the
defaulted obligation was not affected. There is no author-
ization separate from the defaulted obligation here.
In United States v. Montalvo-Murillo, 495 U. S. 711 (1990),
the statute at issue, 18 U. S. C. § 3142(e), gave courts power
to order pretrial detention “after a hearing pursuant to the
provisions of subsection (f) of this section.” One of those
provisions was that the hearing “shall be held immediately
upon the person’s first appearance before the judicial
officer . . . .” § 3142(f). The court had failed to hold a hear-
ing immediately upon the respondent’s first appearance, yet

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179 Cite as: 537 U. S. 149 (2003)
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we held that the authority to order pretrial detention was
unaffected. As we explained: “It is conceivable that some
combination of procedural irregularities could render a de-
tention hearing so flawed that it would not constitute ‘a hear-
ing pursuant to the provisions of subsection (f)’ for purposes
of § 3142(e),” 495 U. S., at 717 (emphasis added), but the mere
failure to comply with the first-appearance requirement did
not alone have that effect. Once again, the case holds that
an authorization separate from the defaulted obligation is
not affected; and there is no authorization separate from the
defaulted obligation here.
The contrast between these cases and the present ones
demonstrates why the Court’s extended discussion of
whether Congress specified consequences for the Commis-
sioner’s failure to comply with the October 1 deadline, ante,
at 163–164, is quite beside the point. A specification of ter-
mination of authority may be needed where there is a sepa-
rate authorization to be canceled; it is utterly superfluous
where the only authorization is contained in the time-limited
mandate that has expired.
IV
That the Commissioner lacks authority to assign eligible
beneficiaries after the statutory deadline is confirmed by
other provisions of the Coal Act that are otherwise ren-
dered incoherent.
A
The calculation of “death benefit premiums” and “unas-
signed beneficiaries premiums” owed by coal operators is
based on an assigned operator’s “applicable percentage,”
which is defined in § 9704(f) as “the percentage determined
by dividing the number of eligible beneficiaries assigned
under section 9706 to such operator by the total number of
eligible beneficiaries assigned under section 9706 to all such
operators (determined on the basis of assignments as of Oc-
tober 1, 1993).” (Emphasis added.) The statute specifies

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180 BARNHART v. PEABODY COAL CO.
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only two circumstances in which adjustments may be made
to an assigned operator’s “applicable percentage”: (1) when
changes to the assignments “as of October 1, 1993,” re-
sult from the appeals process set out in § 9706(f), see
§ 9704(f)(2)(A); and (2) when an assigned operator goes out
of business, see § 9704(f)(2)(B). No provision allows adjust-
ments to account for post-October 1, 1993, initial assign-
ments. This is perfectly consistent with the view that the
§ 9706(a) power to assign does not extend beyond October 1,
1993; it is incompatible with the Court’s holding to the
contrary.
The Court’s response to this structural dilemma is nothing
short of astonishing. The Court concludes that the applica-
ble percentage based on assignments as of October 1, 1993,
may be adjusted to account for the subsequent initial assign-
ments, notwithstanding the statutory command that the ap-
plicable percentage be determined “on the basis of assign-
ments as of October 1, 1993,” and notwithstanding the
statute’s provision of two, and only two, exceptions to this
command that do not include post-October 1, 1993, initial as-
signments. “The enunciation of two exceptions,” the Court
says, “does not imply an exclusion of a third unless there is
reason to think the third was at least considered.” Ante,
at 170. Here, “[s]ince Congress apparently never thought
that initial assignments would be late, . . . the better infer-
ence is that what we face . . . is nothing more than a case
unprovided for.” Ante, at 169 (referred to ante, at 170–171).
This is an unheard-of limitation upon the accepted principle
of construction inclusio unius, exclusio alterius. See, e. g.,
O’Melveny & Myers v. FDIC, 512 U. S. 79, 86 (1994); Leather-
man v. Tarrant County Narcotics Intelligence and Coordi-
nation Unit, 507 U. S. 163, 168 (1993). It is also an absurd
limitation, since it means that the more unimaginable an
unlisted item is, the more likely it is not to be excluded.
Does this new maxim mean, for example, that exceptions to
the hearsay rule beyond those set forth in the Federal Rules

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181 Cite as: 537 U. S. 149 (2003)
Scalia, J., dissenting
of Evidence must be recognized if it is unlikely that Congress
(or perhaps the Rules committee) “considered” those un-
named exceptions? Our cases do not support such a propo-
sition. See, e. g., Williamson v. United States, 512 U. S. 594
(1994); United States v. Salerno, 505 U. S. 317 (1992).3
There is no more reason to make a “case unprovided for”
exception to the clear import of an exclusive listing than
there is to make such an exception to any other clear textual
disposition. In a way, therefore, the Court’s treatment of
this issue has ample precedent—in those many wrongly de-
cided cases that replace what the legislature said with what
courts think the legislature would have said (i. e., in the
judges’ estimation should have said) if it had only “consid-
ered” unanticipated consequences of what it did say (of which
the courts disapprove). In any event, the relevant question
here is not whether § 9704(f)(2) excludes other grounds
for adjustments to the applicable percentage, but rather
whether anything in the statute affirmatively authorizes
them. The answer to that question is no—an answer that
should not surprise the Court, given its acknowledgment
that Congress “did not foresee a failure to make timely as-
signments.” Ante, at 170–171.
3 The most enduring consequence of today’s opinion may well be its gut-
ting of the ancient canon of construction. It speaks volumes about the
dearth of precedent for the Court’s position that the principal case it relies
upon, ante, at 168–169, is Chevron U. S. A. Inc. v. Echazabal, 536 U. S.
73 (2002). The express language of the statute interpreted in that case
demonstrated that the single enumerated example of a “qualification
standard” was illustrative rather than exhaustive: “The term ‘qualification
standards’ may include a requirement that an individual shall not pose
any direct threat to the health or safety of other individuals in the work-
place.” 42 U. S. C. § 12113(b) (emphasis added). Little wonder that the
Court did not find in that text “an omission [that] bespeaks a negative
implication,” 536 U. S., at 81. And of course the opinion said nothing
about the requirement (central to the Court’s analysis today) that it be
“fair to suppose that Congress considered the unnamed possibility,” ante,
at 168.

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182 BARNHART v. PEABODY COAL CO.
Scalia, J., dissenting
B
Post-October 1, 1993, initial assignments can also not be
reconciled with the Coal Act’s provisions regarding appoint-
ments to the board of trustees. Section 9702(b)(1)(B) estab-
lishes for the Combined Fund a board of seven members, one
of whom is to be “designated by the three employers . . . who
have been assigned the greatest number of eligible benefici-
aries under section 9706.” The Act provides for an “initial
trustee” to fill this position pending completion of the assign-
ment process, but § 9702(b)(3)(B) permits this initial trustee
to serve only “until November 1, 1993.” It is evident, there-
fore, that the “three employers . . . who have been assigned
the greatest number of eligible beneficiaries under section
9706” must be known by November 1, 1993. It is simply
inconceivable that the three appointing employers were to be
unknown (and the post left unfilled) until the Commissioner
completes an open-ended assignment process—whenever
that might be; or that the designated trustee is constantly to
change, as the identity of the “three employers . . . who have
been assigned the greatest number of eligible beneficiaries
under section 9706” constantly changes.
V
At bottom, the Court’s reading of the Coal Act—its confi-
dent filling in of provisions to cover “cases not provided
for”—rests upon its perception that the statute’s overriding
goal is accuracy in assignments. That is a foundation of
sand. The Coal Act is demonstrably not a scheme that re-
quires, or even attempts to require, a perfect match between
each beneficiary and the coal operator most responsible for
that beneficiary’s health care. It provides, at best, rough
justice; seemingly unfair and inequitable provisions abound.
When, for example, an operator goes out of business,
§ 9704(f)(2)(B) provides that beneficiaries previously as-
signed to that operator must go into the unassigned pool for
purposes of calculating the “applicable percentage.” It

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183 Cite as: 537 U. S. 149 (2003)
Scalia, J., dissenting
makes no provision for them to be reassigned to another
operator, even if another operator might qualify under
§§ 9706(a)(1)–(3). That is hardly compatible with a scheme
that is keen on “accuracy of assignments,” and that envisions
perpetual assignment authority in the Commissioner.
To account for the existence of § 9704(f)(2)(B), the Court
retreats to the more nuanced position that the Coal Act pre-
fers accuracy over finality only “in the first assignment,”
ante, at 169, n. 12. Why it should have this strange prefer-
ence for perfection in virgin assignments is a mystery. One
might understand insisting upon as perfect a matchup as pos-
sible up to October 1, 1993, and then prohibiting future
changes, both by way of initial assignment or otherwise; that
would assure an initial system that is as near perfect as pos-
sible, but abstain from future adjustments that upset expec-
tations and render sales of companies more difficult. But
what is the conceivable reason for insistence upon perfection
in initial assignments, whether made before the deadline or
afterward? 4 As it is, however, the Act does not insist upon
accuracy in initial assignments, not even in those made be-
fore the deadline. For each assigned beneficiary, only one
signatory operator is held responsible for health benefits,
even if that miner had worked for other signatory operators
that should in perfect fairness share the responsibility.
The reality is that the Coal Act reflects a compromise be-
tween the goals of perfection in assignments and finality. It
provides some accuracy in initial assignments along with
4 The Court points to § 9706(f)’s review process in support of its view
that the Coal Act envisions “accuracy ‘in inital assignments, whether made
before the deadline or afterward.’ ” Ante, at 169, n. 12 (emphasis de-
leted). In fact it shows the opposite—reflecting the statute’s tradeoffs
between the competing objectives of accuracy in assignments and finality.
Sections 9706(f)(1) and (f)(2) provide time limits for coal operators to re-
quest reconsideration by the Commissioner; errors discovered after these
time limits have passed are forever closed from correction. (Unless, of
course, the Court chooses, in the interest of accuracy in assignments, to
ignore those time limits, just as it has ignored the time limit of § 9706(a).)

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184 BARNHART v. PEABODY COAL CO.
Thomas, J., dissenting
some repose to signatory operators, who are given full notice
of their obligations by October 1, 1993, and can plan their
business accordingly without the surprise of new (and retro-
active) liabilities imposed by the Commissioner. It is naive
for the Court to rely on guesses as to what Congress would
have wanted in legislation as complicated as this, the culmi-
nation of a long, drawn-out legislative battle in which, as we
put it in Barnhart v. Sigmon Coal Co., 534 U. S. 438, 461
(2002), “highly interested parties attempt[ed] to pull the pro-
visions in different directions.” The best way to be faithful
to the resulting compromise is to follow the statute’s text, as
I have done above—not to impute to Congress one statutory
objective favored by the majority of this Court at the ex-
pense of other, equally plausible, statutory objectives.
* * *
I think it clear from the text of § 9706(a) and other pro-
visions of the Coal Act that the Commissioner lacks author-
ity to assign eligible beneficiaries to signatory operators on
or after October 1, 1993. I respectfully dissent from the
Court’s judgment to the contrary.
Justice Thomas, dissenting.
I fully agree with Justice Scalia’s analysis in these cases
and, accordingly, join his opinion. I write separately, how-
ever, to reiterate a seemingly obvious rule: Unless Congress
explicitly states otherwise, “we construe a statutory term in
accordance with its ordinary or natural meaning.” FDIC v.
Meyer, 510 U. S. 471, 476 (1994). Thus, absent a congres-
sional directive to the contrary, “shall” must be construed as
a mandatory command, see American Heritage Dictionary
1598 (4th ed. 2000) (defining “shall” as (1)a. “Something that
will take place or exist in the future . . . . b. Something, such
as an order, promise, requirement, or obligation: You shall
leave now. He shall answer for his misdeeds. The penalty
shall not exceed two years in prison”). If Congress desires

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185 Cite as: 537 U. S. 149 (2003)
Thomas, J., dissenting
for this Court to give “shall” a nonmandatory meaning, it
must say so explicitly by specifying the consequences for
noncompliance or explicitly defining the term “shall” to mean
something other than a mandatory directive. Indeed, Con-
gress is perfectly free to signify the hortatory nature of its
wishes by choosing among a wide array of words that do,
in fact, carry such meaning; “should,” “preferably,” and “if
possible” readily come to mind.
Given the foregoing, I disagree with Brock v. Pierce
County, 476 U. S. 253 (1986), and its progeny, to the extent
they are taken, perhaps erroneously, see ante, at 177–179
(Scalia, J., dissenting), to suggest that (1) “shall” is not man-
datory and that (2) a failure to specify a consequence for
noncompliance preserves the power to act in the face of such
noncompliance, even where, as here, the grant of authority
to act is coterminous with the mandatory command. I fail
to see any reason for eviscerating the clear meaning of
“shall,” other than the impermissible goal of saving Congress
from its own choices in the name of achieving better policy.
But Article III does not vest judges with the authority to
rectify those congressional decisions that we view as
imprudent.
I also note that, under the Court’s current interpretive
approach, there is no penalty at all for failing to comply
with a duty if Congress does not specify consequences for
noncompliance. The result is most irrational: If Congress
indicates a lesser penalty for noncompliance (i. e., less than a
loss of power to act), we will administer it; but if there is
no lesser penalty and “shall” stands on its own, we will let
government officials shirk their duty with impunity.
Rather than depriving the term “shall” of its ordinary
meaning, I would apply the term as a mandatory directive
to the Commissioner. The conclusion then is obvious: The
Commissioner has no power to make initial assignments
after October 1, 1993.