"We do not believe that we should defer to the [agency's] change of policy in the absence of [a reasoned analysis by the agency]."
How later courts described this case
- "We do not believe that we should defer to the [agency's] change of policy in the absence of [a reasoned analysis by the agency]."
- refusing to defer to agency view in absence of "any explanation for how [court] might find support for the [agency's] position in the language of the regulation"
- preponderance standard for §§ (a)(1), (2), and (3) invocations
- rejecting deference arguments due to inconsistent agency interpretation of statute
Written by the judges who cited it.
The opinion
OPINION SUR DENIAL OF PANEL REHEARING
BECKER, J., Circuit Judge.
Both the Director of the Office of Workers’ Compensation and National Mines, Inc. have petitioned for rehearing in this case. In doing so, they cite for the first time on this appeal a number of decisions of the Benefits Review Board (BRB) and of federal courts in support of the contention that the Director has consistently advocated the balancing approach to invocation of the interim presumption that this panel has rejected. 1
The new citations do not clearly relate to the Director’s understanding of 20 C.F.R. § 718 — many of the citations actually deal with Part B benefits under 20 C.F.R. § 410 . Moreover, it is not a simple matter for us to divine the Director’s position from judicial or agency decisions, and the briefs in the cases relied on by the parties to show the Director’s “consistent position” are not readily accessible to us. However, the newly supplied citations do suggest that the agency has not recently reversed its position. Our discussion of agency deference, which was predicated in part on a reversal of agency position, may therefore have been off the mark.
Even if the agency has consistently interpreted the regulation in the manner advocated by Respondents — and we still find this view difficult to square with the comments of the Secretary when promulgating the regulation, see 43 Fed.Reg. 36771, 36826 (1978) — we continue to reject that interpretation as inconsistent with the regulation. For regulations to have significance, we must recognize limits on the malleability of words. As we interpret the regulation, we find no ambiguity. Only if we follow the Director and read the regulation to require complex shifting of different kinds of presumptions must we imply language that simply is not present.
As we explained in our panel opinion, the interpretation expressed by Judge Phillips in Stapleton v. Westmoreland Coal Co., 785 F.2d 424 (4th Cir.1986), ce rt. granted sub nom. Mullins Coal Co. of Virginia v. Director, O.W.C.P., — U.S. —, 107 S.Ct. 871 , 93 L.Ed.2d 826 (1987), now endorsed by the Director, provides that some facts may be proved by some kinds of medical evidence without possibility of rebuttal by other kinds of medical evidence. Such a view is at least strongly in tension with the statutory requirement that benefits decisions be based on all the relevant evidence. Such a view is also difficult to square with the Secretary of Labor’s comments in explaining why all relevant evidence must be considered in rebutting the presumption. The Secretary stated that the Department does not “have authority to exclude any relevant evidence from consideration in connection with any case.” 43 Fed. at 36826.
Finally, we are unpersuaded by the predictions in terrorem about the impact of our decision. Under our holding, and under the plain language of the regulation, the weighing of evidence that does not occur before invoking the presumption simply occurs at the rebuttal stage. All relevant evidence must be considered at that point, and the mine operators may rebut on the basis of all the grounds provided by § 727.203(b). 2
In any event, the Supreme Court has granted certiorari in Stapleton and will determine the proper interpretation of the regulation.
The petition for rehearing will be denied.
. In the panel opinion, supra at 1002, we relied on the BRB’s decision in Stiner v. Bethlehem Mines Corp., 3 B.L.R. 1-487 (1981), as indicating a view of 28 C.F.R. § 727.203 contrary to that advocated by the Director here.
. Our holding actually provides a coal mine operator more grounds for rebutting a presumption than recognized under the interpretation of the Director, advocated through Judge Phillips’ opinion in Stapleton . The only burden our interpretation imposes on the coal mine operator is the burden of persuasion once the miner has introduced qualifying evidence under § 727.-203(a). In light of the strict, qualifying standards evidence must satisfy to invoke the pre *1005 sumption, such a shifting of the burdens represents a rational shifting of the risk of error. As the Secretary stated when promulgating the regulations: “The Act embodies the principle that doubt is to be resolved in favor of the claimant, and that principle plays an important role in claims determinations both under the interim presumption and otherwise.” 43 Fed.Reg. at 36826.