dissenting:
Under the Coal Industry Retiree Health Benefits Act of 1992, the retirees from Fawn Mining Corporation will receive benefits from either the “Combined Fund” or the “1992 Plan”; we deal here only with which fund, and therefore which mining company, bears the expense. Among the persons who under the Act are to receive benefits from the Combined Fund are those who “on July 20, 1992, [were] eligible to receive, and receiving, benefits” from specified predecessor plans. 26 U.S.C. § 9703(f) (emphasis added). On July 20, 1992 the retirees from Fawn Mining did not literally satisfy those criteria because the administrator of the relevant predecessor plan, the “1974 Plan”, had resisted them applications. But on October 1, 1992, litigation over the retirees’ rights under the 1974 Plan culminated in a court order entitling them to benefits retroactive to October 15, 1991, well before the July 20, 1992 cut-off date. As applied to this unusual and presumably unanticipated set of facts, the term “receiving benefits” does not seem to me to have the “clear meaning” that the majority discerns. Maj.Op. at 6. As I see it, the statute simply does not speak in any direct way to the situation at hand.
No party to this litigation urges a truly literal interpretation of the word “receiving.” All agree that a retiree may qualify even though he neither received a benefit payment on July 20, 1992 (the super-literal meaning) nor even received a benefit payment before that date. The most that is required in anyone’s view is to have applied and been enrolled.
Moreover, contrary to appellees’ view, it is quite possible to give independent force to each of the statute’s twin requirements — that an employee be “eligible to receive” and “receiving” benefits from a predecessor plan on July 20, 1992 — and yet sustain payments to the Fawn retirees out of the Combined Fund. The “receiving” requirement can sensibly be read to exclude retirees who, while eligible for benefits, had not applied for them by the relevant date. (Indeed, that is precisely the meaning suggested by the legislative history, as discussed below.)
*524As the text seems to me ambiguous enough reasonably to permit a construction embracing retirees who were eligible and would have been enrolled but for a later-corrected administrative error, we may turn to the legislative history. See Burlington N. R.R. v. Oklahoma Tax Comm’n, 481 U.S. 454, 461, 107 S.Ct. 1855, 1859, 95 L.Ed.2d 404 (1987); Am. Fed’n of Gov’t Employees v. FLRA 46 F.3d 73, 77 (D.C.Cir.1995). Senator Rockefeller, sponsor of the Act, explained the “receiving benefits” requirement on the floor as follows:
At various places in the bill, ... individuals must be receiving benefits by certain dates ... in order to be entitled to benefits under the bill. For purposes of these provisions, an individual is considered to he receiving benefits ... if he is fully eligible for and has applied for benefits. An individual will not be considered ineligible for benefits merely because he has [not] yet been determined to be eligible.
138 Cong.Rec. 17,634-35 (1992) (emphasis added). This statement fits the Fawn retirees’ situation quite well; it suggests that they are not to be denied benefits from the Combined Fund simply because, on July 20, 1992, the predecessor plan from which they ultimately received benefits for the period including July 20 had not yet accepted responsibility for these payments.
Appellees respond by pointing to a statement in the “Findings and Declaration of Policy” section of the House-Senate conference report on the Act to the effect that eligibility for benefits under § 9703(f) is “limited to those individuals actually receiving benefits from the [predecessor plans] on July 20, 1992.” 138 Cong.Rec. 17,603 (1992). This statement simply supplements the statutory language with the word “actually”; it does not directly confront the problem of persons who are eligible and apply for benefits but whose applications, for some reason (here evidently legal error), have not been timely accepted. Senator Rockefeller’s statement does address just that class of persons and appears to be an entirely reasonable view of the statutory language.
There remains one wrinkle. It is unclear whether all of the Fawn retirees actually applied to the 1974 Plan for benefits, as opposed to merely being eligible for benefits. Though the record is murky on the point, the parties appear to agree that some Fawn employees did in fact apply. To the extent that others did not, Fawn suggests, and no one else disputes, that the posture of the 1974 Plan in refusing to pay the Fawn retirees’ benefits (prior to the October 1, 1992 court order) made applying for benefits an obviously futile exercise. Moreover, the Fawn beneficiaries appear all to have been represented in the lawsuit that ultimately yielded the October 1, 1992 order awarding them retroactive benefits under the 1974 Plan, and thus they all had made a legal claim to enrollment. That seems to me enough to qualify as having applied.
Accordingly, I would reverse the judgment of the district court and grant appellants’ motion for summary judgment.