Appendix — Usery v. Turner Elkhorn Mining Co.

Supreme Court brief1976

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APPENDIX f 8 1375

————— +— —

r “A a

In Tue

Supreme Court of the United States

Ocroper Term, 1974

Nos. 74-1302 and 74-1316

Consolidated

JOHN T. DUNLOP, Secretary of the United States

Department of Labor, et al.,

Defendants-A ppellants,

TURNER ELKHORN MINING COMPANY, et al.,

Plavntiffs-Appellees

TURNER ELKHORN MINING COMPANY, et al.,

Plaintiff s-Appellants,

JOHN T. DUNLOP, Secretary of the United States

Department of Labor, et al.,

Defendants-Appellees

Appeals from the United States District Court

for the Eastern District of Kentucky

NO. 74-1302 FILED APRIL 16, 1975

JURISDICTION NOTED JUNE 9, 1975

NO. 74.1316 FILED APRIL 18, 1975

JURISDICTION NOTED JUNE 9, 19756

Midwest Law Printing Co., Chicago 60601, Financial 63988

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TABLE OF CONTENTS

PAGE

Docket Entries ............ re a ae eT Te aT 1

Complaint for Injunction and Declaratory Relief... 11

Answer to Complaint —.......... iiceiitiialiiaiiadeihttiy “aE

Plaintiff's Motion for Summary Judgment —................. 29

Affidavit of J. Huell Briscoe 2000020 cccceecceeeeeee. 31

Affidavit of George W. Wright ....... a en eK ee . oO

Motion to Strike Affidavits and Other Documents in

Support of Plaintiff’s Motion for Summary Judg-

Motion to Dismiss and Cross-Motion for Summary

Affidavit of Nancy Snyder 220000222220 eeceeceeeeeeeee 4

Memorandum Opinion and Judgment Order of the

United States District Court for the Kastern Dis-

trict of Kentucky at Pikeville In Civil Action No.

Defendants’ Motion to Amend Judgment, Filed in the

United States District Court for the Eastern Dis-

trict of Kentucky at Pikeville in Civil Action No.

EEE > ebsceustdnenpeiatescdsehadicheaaesnirsicaeneteiliimmbadibitenitintiidiabtniiaiiedeelas a 45

Order of the United States District Court for the East-

ern District of Kentucky at Pikeville in Civil Action

No. 1761 Overruling Defendants’ Motion to Amend

II cctcuiddnicsutiantibinindaitiitniimisienniaetis nsiaciiieiiabiatiaidiniddian 46

Order of the Supreme Court of the United States

Noting Probable Jurisdiction and Consolidating

Cases . iiteiaselieniaiihaapeaila ean iiabaattitenlaiints 4h

Civil Action No. 1761

In The

UNITED STATES DISTRICT COURT

For the Eastern District of Kentucky

at Pikeville

TURNER ELKHORN MINING COMPANY, a Kentucky corporation;

SOUTH-EAST COAL COMPANY, a Kentucky corporation; RUSSELL

FORK COAL COMPANY, a West Virginia corporation; PEABODY COAL

COMPANY, a Delaware corporation; ZEIGLER COAL COMPANY, an

lilinols corporation; ALABAMA BY-PRODUCTS CORPORATION, a Del-

aware corporation; AMHERST COAL COMPANY, a West Virginia cor-

poration; ARCH MINERAL CORPORATION, a Delaware corporation;

CF&1 STEEL CORPORATION, a Colorado corporation; CANNELTON

INDUSTRIES, INC., a West Virginia corporation; CARBON FUEL COM-

PANY, a West Virginia corporation; CENTRAL OHIO COAL COMPANY,

an Ohlo corporation; FREEMAN COAL MINING COMPANY, Division of

Material Service Corporation, a Delaware corporation; HAWLEY COAL

MINING CORPORATION, a West Virginia corporation; IMPERIAL COL-

LIERY COMPANY, a West Virginia corporation; KESSLER COALS,

INC., a Weat Virginia corporation; MEARS COAL, COMPANY, a Pennayl-

vania corporation; MILBURN COLLIERY COMPANY, a West Virginia

corporation; OLD BEN COAL CORPORATION, a Delaware corporation;

OMAR MINING COMPANY, a West Virginia corporation; SLAB FORK

COAL COMPANY, a West Virginia corporation; THE NORTH AMER-

ICAN COAL CORPORATION, an Ohio corporation, seen

intiffs,

va.

PETER J. BRENNAN, Secretary of the United States Department of

Labor, an Agency of the Federal Government, and CASPAR W. WEIN-

BERGER, Secretary of the United States Department of Health, Educa.

tlon and Welfare, an Agency of the Federal Government,

Defendants.

Before a Three-Judge District Court, The Hons. Plerce Lively,

Circuit Judge, H. David Hermansdorfer and

Bernard T. Moynahan, Jr., District Judges, Presiding

Docket Entries

Votume One

1. COMPLAINT filed. 88-73

2. SUMMONS, with Marshal’s Return, filed.

(Executed 8/8/73) 9-10-73

10.

16.

17.

18.

19,

20.

DESIGNATION of Three Judge Panel

filed.

FIRST REQUEST of plffs for production

of documents filed.

FIRST SET OF INTERROGATORIES of

pliffs directed to deft BRENNAN filed.

MOTION of plffs to convene Three-Judge

Court filed.

MEMORANDUM of piffs in support of mo-

tion to convene Three-Judge Court filed.

NOTICE of hearing on pliffs’ motion to con-

vene Three-Judge Court at court’s con-

venience filed.

ANSWER of defts filed.

ANSWER of deft WEINBERGER to plffs’

first request for production of documents

filed.

ANSWER of deft BRENNAN to plffs’ first

request for production of documents filed.

ANSWERS of deft BRENNAN to plffs’

first set of Interrogatories filed.

OBJECTIONS of deft BRENNAN to plffs’

first request for production of documents

filed.

MEMORANDUM of deft BRENNAN in

support of objections to plffs’ first request

for production of documents filed.

. OBJECTIONS of deft BRENNAN to plffs’

first set of Interrogatories filed.

. MEMORANDUM of deft BRENNAN in

support of objections to pliffs’ first set of

Interrogatories filed.

9-20-73

9-27-73

10-1-78

10-3-73

10-83-73

10-3-73

10-9-73

11-12-73

11-12-75

11-12-73

26.

FIRST REQUEST of pliffs for Admission

of Fact filed.

SECOND SET OF INTERROGATORIES

of pliffs filed.

MOTION of deft WEINBERGER to dis-

miss action as to See., H.E.W., or in the

alternative to drop See. H.E.W. as a mis-

joined party filed.

MEMORANDUM of deft WEINBERGER

in support of motion to dismiss action as

to See., H.E.W., ete. filed.

MEMORANDUM of plffs in opposition to

deft WEINBERGER’S motion to be dis-

missed as party defendant filed.

MOTION of pliffs to compel defts to produce

documents and answer Interrogatories

filed.

MEMORANDUM of plffs in support of mo-

tion to compel defts to produce documents

and answer interrogatories filed.

NOTICE of plffs for hearing on motion to

compel defts to produce documents, ete.

at court’s convenience.

. . 7

| Entries Nos. 31 through 52 note the filing of

interrogatories directed to each of the

plaintiffs by the Defendant Brennan

which subsequently were withdrawn |

Votume Two

ORDER: Motion of deft WEINBERGER

assigned for hearing at Catlettsburg on

1/21/74 at 4:00 P.M.

11-21-73

11-23-73

12-3-73

12-12-73

57.

59.

61.

iin

REPLY MEMORANDUM of deft WEIN-

BERGER in support of motion to dis-

miss See., H.E.W. as party deft filed.

NOTICE of plffs that on 1/21/74 plffs will

request court to entertain argument and

render decision on plffs’ motion to com-

pel defts to produce documents & answer

interrogatories.

ANSWERS of defts to plffs Second Set of

Interrogatories TENDERED.

OBJECTIONS of defts to plffs’ Second Set

of Interrogatories TENDERED.

MEMORANDUM of defts in support of ob-

jections to plffs’ second set of Interroga-

tories TENDERED.

STATEMENT of defts in response to plffs’

first request for admissions of fact TEN.

DERED

ORDER: HEARING AT CATLETTS-

BURG on 1/21/74: court took motion of

deft WEINBERGER to be dismissed as

party defendant under advisement.

MOTION of defts for stay of proceedings

filed.

62. NOTICE of defts of hearing on motion fer

stay at court’s convenience filed.

63. STATEMENT of Points & (Authorities of

6A.

defts in support of motion for stay of pro-

ceedings filed, with Exhibits A & B.

MOTION of plffs for summary judgment

filed.

64a. AFFIDAVIT of J. Huell Briseoe filed.

64b. Document Re William Thompson, et al.

64c. Document Re William Thompson.

1-8-74

1-16-74

1-21-74

1-22-74

2-7-74

27-74

2-7-74

2-15-74

$e — =

—h—

6Ad. Document Re Claude Pennington.

(Ae. Document Re Cecil Purnell.

64f. Document Re Andrew Smith.

64g. Document Re Alva A. Libby.

64h. Document Re Craig Fulton.

65. MEMORANDUM of piffs in support of mo-

tion for suramary judgment filed.

65a. APPENDIX to plffs’ memorandum in sup-

port of motion for summary judgment

filed.

66. MEMORANDUM of plffs in opposition to

defts’ motion for a stay of proceedings

filed.

67. ORDER: Assigned for hearing on all pend-

ing motions on 3/4/74.

69. MOTION of plffs for leave to file supple-

mental affidavit in support of motion for

summary judgment filed.

70. AFFIDAVIT of George W. Wright TEN-

DERED.

71. MOTION of defts to file Exhibit A in sup-

port of motion for extension of time filed.

72. Exhibit A—Copy Opinion in National Inde-

pendent Coal Operator’s Association, et al

vs: Brennan and Association of Bitumi-

nous Contractors, Inc., et al v. Brennan

TENDERED.

73. ORDER: HEARING ON ALL PENDING

MOTIONS ON MARCH 4, 1974; defts’

motion for a stay of proceedings sus-

tained; stay effective until 4/22/74 except

that defts shall file their response to plffs’

motion for summary judgment no later

than 20 days from date of this order.

2-15-74

2-19-74

2-20-74

2-21-74

2-27-74

2-28-74

3-5-74

75. ORDER: defts given to & including 4/10/74

to file response to pliffs’ motion for sum-

mary judginent.

Votume Tree

76. MOTION of defts to strike affidavits and

other documents in support of plffs’ mo-

tion for summary judgment filed.

77. STATEMENT OF POINTS & AUTHOR-

ITLES of defts in support of motion to

strike filed.

78. MOTION of defts to dismiss and cross-mo-

tion for summary judgment filed.

78a. Copy of decision of three-judge court in Na-

tional Independent Coal Operator’s As-

sociation, et al v. Brennan, Civil Action

No. 1711-13 (D.C. 2/21/74).

79. MEMORANDUM of defts in support of mo-

tion to dismiss and cross-motion for sum-

mary judgment filed.

79a. Exhibits of deft.

80. NOTICE of defts for hearing on motion to

dismiss & cross-motion for summary judg-

ment, motion to strike affidavits & other

documents in support of plffs’ motion

for summary judgment at court’s con-

venience.

>. > 7

82. TRANSCRIPT of hearing at Catlettsburg

on 1/21/74 filed by Official Reporter.

. . 7

84. ORDER: all proceedings stayed pending ap-

peal in National Independent Coal Opera-

tors Association, et al v. Brennan.

3-18-74

4-10-74

4-25-74

5-2-74

= x

85. MEMORANDUM of pliffs in response to

defts’ motion to dismiss, cross-motion for

summary judgment and motion to strike

TENDERED.

86. MOTION of pliffs to vacate stay and appli-

cation for preliminary injunction filed.

87. MEMORANDUM of plffs in support of

plffs’ motion to vacate stay and applica-

tion for preliminary injunction filed.

88. NOTICE of plffs for hearing on foregoing

motions at court’s convenience filed.

91. TRANSCRIPT of Hearing at Pikeville on

3/4/74 filed by Official Reporter.

92. STATEMENT of defts in opposition to

plffs’ motion to vacate stay filed.

93. MEMORANDUM of defts in opposition to

piffs’ motion to vacate stay filed.

94. STATEMENT of defts in opposition to

plffs’ application for preliminary injune-

tion filed.

95. MEMORANDUM of defts in opposition to

piffs’ application for preliminary injune-

tion filed.

96. MOTION of pliffs for hearing on their mo-

tion to vacate stay and application for

preliminary injunction at earliest possible

time filed.

97. REPLY MEMORANDUM of plffs in sup-

port of motion to vacate stay and appli-

tion for preliminary injunction filed.

98. ORDER: Assigned for hearing at Catletts-

burg on 9/24/74 at 1 PM on plffs’ motion

to vacate stay.

5-10-74

5-31-74

6-10-74

6-20-74

6-21-74

7-3-74

9-6-74

99. MOTION of plffs for temporary restraining

order filed.

99a. AFFIDAVIT of E. T. Brown, Jr. filed.

99b. NOTICE of hearing on foregoing motion at

Catlettsburg on 9/24/74 filed.

100. MOTION of defts to strike plffs’ applica-

tion for temporary restraining order filed.

101. STATEMENT of defts in support of con-

tinuance of stay order and in opposition to

plffs’ motion to vacate stay order filed.

10la. AFFIDAVIT of Frank H. Easterbrook

filed.

102. STATEMENT of defts in opposition to

piffs’ motion for temporary restraining

order filed.

102a. AFFIDAVIT of Naney Snyder filed.

103. MEMORANDUM of defts in opposition to

piffs’ motion for temporary restraining

order filed.

Votume Four

104. ORDER: HEARING AT CATLETTS-

BURG on 9/24/74; Assigned for hearing

before three-judge court at Lexington on

10/4/74 at 2 PM.

105. SUPPLEMENTAL STATEMENT of defts

in support of motion to strike filed.

105a. Copy Opinion Larry William Kelly, et al

v. Brennan (Civil 74450, D.Ore. 9/13/

74).

106. SUPPLEMENTAL BRIEF of defts in sup-

port of motion to dismiss & cross-motion

for summary judgment filed.

106a. Brief of Appellee, National Independent

Coal Operator’s Association v. Brennan,

Sup. Court No. 73-1902, Oct. Term, 1974.

9-18-74

9-24-74

)-24-74

9-24-74

{)-24-74

9-24-74

9-25-74

10-4-74

107. ORDER: HEARING AT LEXINGTON on

10/4/74 before three-judge panel; matter

taken under advisement; all pending mo-

tions held in abeyance.

112. MEMORANDUM OPINION of three-judge

court filed.

113. ORDER: (1) Lrrebuttable presumption set

forth in 30 USC 921(e)(3) and the limita-

tion of evidence necessary to rebut the

presumption created by 30 USC 921(c) (4)

are violative of the U.S. Constitution; (2)

Sec. of Labor shall no longer seek to apply

the irrebuttable presumption made by 30

USC 921(¢)(3) or to limit evidence in re-

buttal to the presumption created in 30

USC 921(¢)(4); (3) all other provisions

of the Act which have been considered

are permissible under the Fed. Const.;

(4) all matters raised in the pleading out-

side the jurisdiction of the three-judge

court are retained for consideration by re-

questing judge.

114. MOTION of defts to amend the judgment

filed.

115. MOTION of plffs to set for hearing issues

raised but not resolved by 11/19/74 deei-

sion of three-judge court filed.

116. OBJECTIONS of plffs to defts’ motion to

amend judgment filed.

117. ORDER: defts’ motion to amend judgment

overruled; this ruling may be considered

a rule under Rule 54(b), FRCP, for pur-

poses of appeal.

118. MOTION of defts for a stay pending recon-

sideration or appeal filed’

10-8-74

11-19-74

12-2-74

12-12-74

12-13-74

12-17-74

12-26-74

—_|

119. MEMORANDUM of defts in support of mo-

tion for a stay pending reconsideration or

appeal filed. 12-26-74

7. 7 .

121. SUPPLEMENTAL MEMORANDUM of

defts in support of motion to dismiss

& cross-motion for summary judgment

filed. 12-26-74

122. MOTION of plffs for leave to file response

to defts’ motion for stay pending appeal

and defts’ supplemental memorandum in

support of their motion to dismiss filed. 1-9-75

123. MEMORANDUM of plffs in opposition to

defts’ motion for stay pending appeal

filed. 1-10-75

123a. Document: Re—William Norman.

123b. Document: Re—-James W. Nahas.

123¢. Document : Re—Wedsel Toppings.

* * >

126. NOTICE OF APPEAL filed by defts. 1-16-75

127. NOTICE OF APPEAL filed by plffs. 1-20-75

128. RESPONSE of plffs to defts’ supplemental

memorandum in support of their motion.

to dismiss & motion for summary judg-

ment TENDERED. 1-20-75 -

129. MEMORANDUM OPINION & ORDER:

defts’ motion for stay of the injunction is-

sued on 11/20/74 is overruled. 1-22-75

DEPOSITIONS FILED

DEPOSITION NO. 1—Nancy Snyder, filed Jan. 21, 1974

DEPOSITION NO. 2—National Council on Compensation

Insurance by GEORGE F. REALL filed Feb. 25,

1974

[Jurat omitted in printing]

afin

Civil Action No. 1761

In The

UNITED STATES DISTRICT COURT

For the Eastern District of Kentucky

at Pikeville

[Title omitted in printing]

Complaint For Injunction

And Declaratory Relief

Jurisdiction

1. This is a civil action arising under the Constitution

and laws of the United States. The matter in controversy

exceeds the value of $10,000.00, exclusive of interest and

costs. The Court’s jurisdiction is invoked pursuant to

Section 1331 of Title 28 of the United States Code.

2. Plaintiffs seek to enjoin implementation and en-

forcement of Part C of Title IV of the Federal Coal Mine

Health and Safety Act of 1969 (83 Stat. 742, 30 U.S.C.

§§901, ef seq., as amended, May 19, 1972, Pub. L. 92-303,

86 Stat. 150) on the ground that said statute on its face

and as applied by the Defendants violates rights secured

to Plaintiffs by the Constitution of the United States.

Plaintiffs also seek declaratory relief concerning the prop-

er interpretation of certain provisions of said statute.

3. Convocation of a three-judge court is required in

this action by and pursuant to Sections 2282 and 2284 of

Title 28 of the United States Code.

Parties

1. Plaintiffs are corporations organized for the pur-

pose, inter alia, of engaging in the business of mining coal.

Plaintiffs’ names, states of incorporation, principal places

of business, and the states in which they are conducting

coal mining operations are:

—_|,

Maino oot or a ey 4 tines to

Turner Elkhorn Ky. Drift, Ky. Ky.

Mining Company

South-East Coal Ky. Paintaville, Ky. Ky.

Company

Russell Fork Coal w.va Elkhorn City, Ky. Ky.

Company

Peabody Coal Del St. Louis, Mo. Ky.,Ala.,Ariz.,

Company Ark.,Colo.,Ind.,

TL,Ohio,Okla.,

Mo.,Mont.,Utah

Zeigler Coal I. Chieago, Tl. Ky., Ti.

Company

Alabama By-Products Del. Birmingham, Ala. Ala

Corporation ;

Amherst Coal W.Va. Port Amberst. W.Va

Company WVa

Arch Mineral Del. St. Louis, Mo. Ala.,Tll.,Wyo.

Corporation

CF&I Steel Corporation Colo. Pueblo, Colo. Colo.

Cannelton Industries, W.Va. Cannelton, W.Va. Ww Va.

Inc. ,

Carbon Fuel Company W.Va. Charleston, W.Va. W.Va.

Central Ohio Coal Ohio Cumberland, Ohio Ohio

Company

Freeman Coa! Mining Del. Chicago, Tl. TH.

Company, Division of

Material §

Corporation

Hawley Coal Mining W.Va. Keystone, W.Va. W.Va

Corporation

Imperiai Colliery W.Va. Lynchburg, Va. wWva

Company

Keesler Coals, W.Va. Whitesville, W.Va. W.Va.

Ine.

Mears Coa) Company Pa. Marion Center, Pa. Pa.

Milburn Colliery W.Va. Lynchburg, Va. W.Va.

Company

Old Ben Coal Del. Chieago, Ii. TH,Ind.,Va.

Corporation

Omar Mining w.va. Madison, W.Va. w.va |

Company

Slab Fork Coal W.Va. Slab Fork, W.Va. W.Va.

Company

The North American Ohio Cleveland, Ohio Ohio,Pa.N.D.

anfitins

2. Defendant Peter J. Brennan is Secretary of the

United States Department of Labor, and is named as a

Defendant herein in his capacity as an officer of the United

States.

3. Defendant Caspar W. Weinberger is Secretary of the

United States Department of Health, Education and Wel-

fare, and is named as a Defendant herein in his capacity

as an officer of the United States.

COUNT 1

1. Plaintiffs presently are engaged in the mining of

coal at numerous mining sites in seventeen states. To-

gether, Plaintiffs employ over 28,000 miners and produce

approximately 134,300,000 tons of coal each year. Each of

the Plaintiffs is subject to present and future obligations

and liabilities created and imposed upon them by Title TV

of the Federal Coal Mine Health and Safety Act of 1969,

83 Stat. 742, 30 U.S.C. §§ 901, et seq., as amended by the

Black Lung Benefits Act of 1972, Public Law 92-303, 86

Stat. 150, a true and correct copy of which is attached

hereto as Exhibit A.

2. The Federal Coal Mine Health and Safety Act of

1969 was enacted to establish stringent health and safety

standards for underground coal mines, especially with re-

spect to dust conditions prolonged exposure to which over

many years may contribute to development of a chronic

respiratory disease known as coal workers’ pneumoconio-

sis. In addition to specifying numerous health and safety

standards to govern mining operations, Congress, in Title

IV of the Act, as amended by the Black Lung Benefits Act

of 1972, created a program of economic relief for miners

and former miners who have contracted respiratory ail-

ments which are presumed to be coal workers’ pneumoconio-

alii

sis and who are presumed to be, or are found to be, “totally

disabled”—as that term is defined in the Act—by coal work-

ers’ pneumoconiosis, and the surviving dependents of min-

ers and former miners who have died of the disease, or who

are presumed to have been “totally disabled” by the dis-

ease at the time of their deaths.

3. Under said Title IV, the Federal Government,

through the Department of Health, Education and Wel-

fare, is required to pay life-time benefits to such persons

who have filed claims therefor during the period Decem-

ber 30, 1969 through June 30, 1973. During the period July

1, 1973 through December 31, 1973, the benefits program

is to be administered by both of the Defendants herein,

pursuant to Regulations jointly promulgated by them. Be-

ginning January 1, 1974, Plaintiffs and all other coal

mine operators will be liable under the law for payment

of such benefits to such persons who have filed claims since

June 30, 1973, as well as those who file claims after De-

cember 31, 1973. This liability is to be enforeed by the

Defendant Secretary of Labor, unless the claimant resides

in a state that has enacted a workmen’s compensation stat-

ute recognized by said Defendant as affording coverage and

benefits equivalent to those of the federal law. At the time

of filing of this complaint no state’s law had been so ree-

ognized by said Defendant.

4. Under said Title [V, Plaintiffs will be held liable to

pay benefits not only to their present and future employees

who become disabled by coal workers’ pneumoconiosis aris-

ing out of their employment, but also to: (a) persons not

now employed as mine workers who were formerly em-

ployed by them, either before or after enactment of the

law; (b) persons formerly employed by them before or

after enactment of the law, who are now employed by

affine

other mine operators; (c) the former and present em-

ployees of any mine acquired by them since December 30,

1969; (d) the surviving wife, children, parents, brothers

or sisters of the persons described in (a), (b) and (ce)

above, whether or net such persons died while in their

employ either before or after enactment of the law, or were

receiving benefits under the law at the time of death.

5. The seope of the benefits provided for under said

Title [V as administered by Defendants is such that each

claim allowed against a coal mine operator will represent

a potential liability having a present value of approxi-

mately sixty to ninety thousand dollars, which amounts to

an industry-wide potential cost under the benefits pro-

gram of approximately two to five dollars per ton of coal

at an annual production of 600 million tons.

6. Under Section 423 of said Title IV, all present and

former coal mine operators are required to secure the pay-

ment of benefits for which they are liable under the law by

either qualifying as a self-insurer in accordance with reg-

ulations established by the Defendant Secretary of Labor,

or by insuring the payment of such benefits with an in-

surance carrier or state fund.

7. The cost of insuring or self-insuring the payment of

such benefits as required by said Section 423 is prohibitive

for substantial numbers of coal mine operators. Plaintiffs

are informed and do believe that some coal mine operators

are financially incapable of self-insuring said liability, and

that some of said coal mine operators have or will be re-

quired to cease doing business as a direct result of their

inability to comply with the provisions of said Section 423,

or as an indirect result of the onerous economic burdens

imposed upon them by said Title IV.

nition,

8. The new liabilities created by said Title IV directly

and indirectly will cause Plaintiffs immediate substantial

and irreparable injury, for which they have no adequate

remedy at law, and will have a seriously adverse impact

upon the economy of the coal mining industry and the na-

tion’s energy resources generally.

9. The liability thus imposed upon Plaintiffs is to com-

pensate miners or their survivors for disabilities incurred

prior to the enactment of the law under coal production

conditions and coal marketing conditions that did not and

could not have reflected such potential liability. The im-

position of such liability upon Plaintiffs is a manifestly

arbitrary and unreasonable means for providing economic

relief to past victims of coal workers’ pneumoconiosis and

therefore deprives Plaintiffs of the fundamental fairness

and equal protection of law guaranteed them by the Fifth

Amendment to the United States Constitution.

10. The matters herein alleged are the subject of a

present and actual controversy between Plaintiffs and De-

fendants. Plaintiffs are without an adequate remedy at law

for the substantial and irreparable injury with which they

are threatened and require interlocutory injunctive relief

to protect and preserve their rights. The granting of such

relief would not interfere with the continuing processing

and payment of claims by Defendant Secretary of Labor

under Part C of said Title IV, beeause said Defendant

expressly is required to pay such claims out of Federal

funds, pursuant to the mandate of Clause (2) of Seetion

424 of said Part, which provides that in cases where “. . .

there is no operator who was required to secure the pay-

ment of such benefits, the Secretary shall pay such miner,

or such widow, child, parent, brother or sister the benefits

to which he or she is so entitled.”

—17—

Wherefore, Plaintiffs pray that this Court grant them

interlocutory and permanent injunctive relief restraining

the Defendants, and each of them, and their agents and

successors, from implementing and/or enforcing against

Plaintiffs the provisions of Part C of Title LV of the Coal

Mine Health and Safety Act of 1969, as amended by the

Black Lung Benefits Act of 1972, ineluding but not lim-

ited to: (1) the provision of Section 422 of said Part C

imposing liability upon Plaintiffs for the payment of bene-

fits provided for under said law; and (2) the provisions

of Section 423 of said Part C requiring Plaintiffs to secure

payment of said benefits through insurance or self-insur-

ance; and that the Court enter its order expressly direet-

ing the Defendant Secretary of Labor to pay benefits upon

all claims heretofore and hereafter allowed by him under

said Part C pursuant to the mandate of Clause (2) of

Section 424 of said Part.

COUNT II

1-8. Plaintiffs repeat and reallege Paragraphs | through

8 of Count I as Paragraphs 1 through 8 of this Count IT

as though fully set forth herein.

9. Claims filed against coal mine operators under Part

C of said Title TV are to be adjudicated upon the basis of

certain presumptions established in Section 411(¢c) of Part

B, which provides in relevant part that:

“(1) if a miner who is suffering or suffered from

pneumoconiosis was employed for ten years or

more in one or more coal mines there shall be

a rebuttable presumption that this pneumoconio-

sis arose out of such employment;

(2) if a deceased miner was employed for ten years

or more in one or more coal mines and died from

a respirable disease there shall be a rebuttable

presumption that his death was due to pneu-

moconiosis ;

eo e eo

(4) If a miner was employed for fifteen years or

more in one or more underground coal mines,

and if there is a chest roentgenogram submitted

in connection with such miner’s, his widow’s, his

child’s, his parent’s, his brother’s, his sister’s or

his uependent’s claim under this title and it is

interpreted as negative ..., and if other evi-

dence demonstrates the existence of a totally

disabling respiratory or pulmonary impairment,

then there shall be a rebuttable presumption

that such miner is totally disabled due to pneu-

moconiosis, that his death was due to pneu-

moconiosis, or that at the time of his death

he was totally disabled by pneumoconiosis. * * *”

10. Although termed “rebuttable” presumptions on the

face of the statute, the presumptions established in Clauses

(2) and (4) of said Section 411(c), as applied by Defend-

ants, are in fact irrebuttable, because there is no prac-

tical method of rebutting such presumptions in the vast

majority of cases in which they will operate against Plain-

tiffs.

11. Whether considered to be “rebuttable” or “irre-

buttable”, the presumptions established by said Clauses (2)

and (4) are arbitrary and irrational bases upon which to

predicate coal mine operators’ liability for any and all

claims for which they are made responsible under Part

C, because there is no rational connection between the

facts to be proved to invoke the presumptions and the ulti-

mate facts to be presumed.

12. The ten-year presumptions established by Clauses

(1) and (2) of said Section 411(¢) are arbitrary and ir-

rational as applied to claims arising in whole or part out

afin

of periods of employment during which dust regulations

established by the Coal Mine Health and Safety Act of

1969 are in force, because the facts to be proved to in-

voke said presumptions have no rational connection to

the ultimate fact to be presumed.

13. Application of said presumptions in the adjudication

of claims for which Plaintiffs may be held liable under

Part C of said Title IV will expose Plaintiffs to liability

for the payment of benefits to substantial numbers of min-

ere or their survivors: (1) who are not or were not in fact

totally disabled by a respirable disease, (2) who suffer or

suffered from a respirable disease other than pneumoconio-

sis, or (3) who did not develop pneumoconiosis as a result

of employment in mining, all in violation of Plaintiffs’

right to due process of law under the Fifth Amendment

to the United States Constitution.

14. The matters herein alleged are the subject of a

present and actual controversy between Plaintiffs and De-

fendants. Plaintiffs are without an adequate remedy at

law for the substantial and irreparable injury with which

they are threatened, and require interlocutory injunctive

relief to protect and preserve their rights. The granting

of such relief would not interfere with the continuing

processing and payment of claims by Defendant Secretary

of Labor under Part C of said Title IV, because said De-

fendant expressly is required to pay such claims out of

Federal funds, pursuant to the mandate of Clause (2) of

Section 424 of said Part, which provides that in cases

where “. . . there is no operator who was required to

secure the payment of such benefits, the Secretary shall

pay such miner, or such widow, child, parent, brother or

sister the benefits to which he or she is so entitled.”

—_ =

Wherefore, Plaintiffs pray that this Court grant them

interlocutory and permanent injunctive relief restraining

the Defendants, and each of them, and their agents and sue-

cessors, from imposing liability upon Plaintiffs for pay-

ment of benefits on all claims allowed under Part C of said

Title [V upon the basis of facts presumed pursuant to the

provisions of Clauses (2) and (4) of Section 411(e) of

Part B of said Title, and from imposing such liability upon

the basis of facts presumed pursuant to Clauses (1) and

(2) of said Section in cases where the claim arises in

whole or part out of periods of employment subsequent to

the effective date of the dust control requirements of the

Coal Mine Health and Safety Act of 1969, and that this

Court enter its order expressly directing the Defendant

Secretary of Labor to pay benefits upon all claims hereto-

fore and hereafter allowed by him under said Part C pur-

suant to the mandate of Clause (2) of Section 424 of said

Part.

COUNT Ill

1-8. Plaintiffs repeat and reallege Paragraphs | through

8 of Count I as Paragraphs 1 through 8 of this Count ITT,

as though fully set forth herein.

9. Section 422(h) of said Title [IV directs the Defendant

Secretary of Labor to establish by regulations :

“. . standards, which may inelude appropriate pre-

sumptions, for determining whether pneumoconiosis

arose out of employment in a particular coal mine or

mines. The Secretary may also, by regulation, estab-

lish standards for apportioning liability for benefits

under this subsection among more than one operator,

where such apportionment is appropriate.”

Pursuant to said Section 422(h), said Defendant has pro-

mulgated regulations designated as Subpart D of Part

online

725 of Subchapter B of Chapter VI of Title 20 of the

Code of Federai Regulations, effective November 30, 1972.

10. In Section 725.311 of said Subpart D (20 CFR

725.311) said Defendant has established an irrebuttable

presumption that a miner’s work-related pneumoconiosis

arose in whole or in part sufficiently to occasion liability,

out of his employment with the coal mine operator for

whom he most recently worked a cumulative year, and

such operator accordingly is to be liable for payment, and

securing through insurance or self-insurance the payment

of the benefits awarded the miner, if the operator is fi-

nancially capable of doing so. If that operator is not so

capable, the presumption applies against the operator by

whom the miner was employed the next-most recent cumu-

lative year, until a “responsible operator”, if any, is found.

11. Said presumptions are arbitrary and irrational, and

are not “appropriate” presumptions within the meaning

of Section 422(h) of said Title IV, because: (a) there is

no rational connection between a miner’s most recent one-

year cumulative employment by a particular operator and

development in the miner of coal worker’s pneumoconiosis ;

and (b) there is no rational connection between a coal mine

operator’s financial ability to insure payment of said bene-

fits, and the development of said disease in said miner.

12. Enforcement of said presumptions against Plain-

tiffs will result in imposition of liability upon them for

payment of benefits without due process of law, in vio-

lation of rights secured to them by the Fifth Amendment

to the United States Constitution. ,

13. The matters herein alleged are the subject of a

present and actual controversy between Plaintiffs and De-

fendants. Plaintiffs are without an adequate remedy at

—99

law for the substantial and irreparable injury with which

they are threatened, and require interlocutory injunctive

relief to protect and preserve their rights. The granting of

such relief would not interfere with the continuing proc-

essing and payment of claims by Defendant Secretary of

Labor under Part C of said Title TV, because said De-

fendant expressly is required to pay such claims out of Fed-

eral funds, pursuant to the mandate of Clause (2) of See-

tion 424 of said Part, which provides that in cases where

“.. there is no operator who was required to secure the

payment of such benefits, the Secretary shall pay such min-

er, or such widow, child, parent, brother or sister the bene-

fits to which he or she is so entitled.”

Wherefore, Plaintiffs pray that this Court—

A. Declare 20 CFR §725.311 void and of no effect as in

excess of and contrary to the authority delegated the De-

fendant Secretary of Labor by Section 422(h) of said Title

IV, and grant Plaintiffs interlocutory and permanent in-

junctive relief restraining said Defendant, his agents and

successors from enforcing liability against Plaintiffs for

the payment of any and all claims adjudicated pursuant to

such Regulation ;

B. In the alternative, if this Court should find that said

Defendant was acting pursuant to authority granted him

under Section 422(h) of said Title [TV in promulgating 20

CFR §725.311, Plaintiffs pray that this Court declare said

Section 422(h) void and of no effect as inconsistent with

rights secured to Plaintiffs by the Fifth Amendment to the

United States Constitution, and grant the Plaintiffs the

injunctive relief prayed for in Paragraph A above; and

C. Enter its order expressly directing said Defendant

to pay benefits upon all claims heretofore and hereafter al-

lowed by him under Part C of Title TV pursuant to the

mandate of Clause (2) of Section 424 of said Part.

COUNT IV

1-8. Plaintiffs repeat and reallege Paragraphs | through

8 of Count I as Paragraphs 1 through 8 of this Count IV,

as though fully set forth herein.

9. The Black Lung Benefits Act of 1972 amended See-

tion 422(a) of Part C of said Title TV to include medical

benefits (as provided for in Section 7 of the Longshore-

men’s and Harbor Workers’ Compensation Act, 33 USC

§907) among those benefits that coal mine operators must

pay after December 31, 1973 in connection with claims al-

lowed against them after June 30, 1973.

10. Defendant Secretary of Labor has interpreted said

amendment as requiring that after December 31, 1973, coal

mine operators insure the payment of, and pay, such medi-

eal benefits to persons who have filed claims and been

awarded life-time Federal benefits under Part B of said

Title [V prior to July 1, 1973, and in implementation there-

of has promulgated Regulations so providing at 20 CFR

§720.109(a).

11. Defendant Secretary of Labor’s interpretation of

said amendment is unwarranted, unlawful, contrary to the

clear intent and meaning of said Title TV, and in excess

of his authority under said Title. Enforcement of Section

422(a) as interpreted and implemented by said Defendant

will result in the imposition of liability upon Plaintiffs for

the payment of medical benefits in cases previously adjudi-

cated by the Defendant Secretary of Health, Education and

Welfare, substantial numbers of which involve false, fraud-

ulent, or grossly excessive claims improperly allowed by

said Defendant, and in none of which were Plaintiffs given

enllitiin

any notice or opportunity to be heard and present proof

on the merits of said claims, all in violation of the due

process of law guaranteed Plaintiffs by the Fifth Amend-

ment to the United States Constitution.

12. The matters herein alleged are the subject of a

present and actual controversy between Plaintiffs and De-

fendants. Plaintiffs are without an adequate remedy at

law for the substantial and irreparable injury with which

they are threatened, and require interlocutory injunctive

relief to protect and preserve their rights. The granting

of such relief would not interfere with the continuing

processing and payment of claims by Defendant Secretary

of Labor under Part C of said Title 1V, because said De-

fendant expressly is required to pay such claims out of

Federal funds, pursuant to the mandate of Clause (2) of

Section 424 of said Part, which provides that in cases

where “. . . there is no operator who was required to

secure the payment of such benefits, the Secretary shall

pay such miner, or such widow, child, parent, brother or

sister the benefits to which he or she is so entitled.”

Wherefore, Plaintiffs pray that this Court—

A. Declare 20 CFR §720.109(a) void and of no effect

as contrary to the clear intent and meaning of Section

422(a) of said Title 1V and in excess of and contrary to

the authority delegated the Defendant Secretary of Labor

by said Title IV, and grant Plaintiffs interlocutory and

permanent injunctive relief restraining said Defendant,

his agents and successors, from soliciting, entertaining or

allowing the refiling of claims allowed by the Defendant

Secretary of Health, Education and Welfare prior to July

1, 1973, for purposes of imposing liability upon Plaintiffs

for the payment of medical benefits to such claimants in

the future;

alin,

B. In the alternative, if this Court should find that said

Defendant was acting pursuant to and consistent with said

Section 422(a) in promulgating 20 CFR §720.109(a), Plain-

tiffs pray that this Court declare said Section 422(a) void

and of no effect as inconsistent with rights seeured to

Plaintiffs by the Fifth Amendment to the United States

Constitution, and grant Plaintiffs the injunctive relief

prayed for in Paragraph A above.

C. In the further alternative, if this Court should find

that said refilings and payments are permissible under said

Section 422(a), then Plaintiffs pray that this Court enter

its order expressly directing said Defendant to make such

payments pursuant to the mandate of Clause (2) of See-

tion 424 of Part C of said Title IV.

/s/ Lord, Bissell & Brook

135 South LaSalle Street

Chicago, Ulinois 60603

Telephone: 312-786-6328

By: /s/ Stephen A. Milwid

/s/ BR. R. MeMahan

Boehl, Stopher, Graves & Deindoerfer

2300 Louisville Trust Bank Building

One Riverfront Plaza

Louisville, Kentueky 40202

Telephone: 502-589-5980

By: James M. Graves

Attorneys for Plaintiffs

| Copy of statute attached as Exhibit to

complaint omitted in printing |

—26—

Civil Action No. 1761

In The

UNITED STATES DISTRICT COURT

For the Eastern District of Kentucky at Pikeville

[Title omitted in printing]

Answer

First Defense

The complaint fails to state a claim upon which relief can

be granted.

Second Defense

The Court lacks jurisdiction over the subject matter.

Third Defense

Responding specifically to the numbered paragraphs of

the complaint, defendants state:

Jurisdiction

1-3. These paragraphs set forth conclusions of law and

plaintiffs’ statement of the case and not allegations of fact

for which an answer is required, but insofar as an answer

is required, they are denied.

Parties

1. Denied for lack of information or knowledge sufficient

to determine the truth of the allegations.

2. Denied except to admit that Peter J. Brennan is

Secretary of the United States Department of Labor.

3. Denied except to admit that Caspar W. Weinberger

is Secretary of the United States Department of Health,

Education and Welfare.

Count |

1. Denied for lack of information or knowledge sufficient

to form a belief as to the truth of the allegations.

=~ =

2-4. These paragraphs set forth conclusions of law and

not allegations of fact for w'.ich an answer is required, but

insofar as an answer is required, are denied.

5. Denied.

6. This paragraph sets forth conclusions of law and not

allegations of fact for which an answer is required, but in-

sofar as an answer is required, is denied.

7. Denied.

8. Denied.

9. Denied.

10. This paragraph sets forth conclusions of law and not

allegations of fact for which an answer is required, but in-

sofar as an answer is required, is denied.

Count II

1-8. Defendants reallege the answers to paragraphs 1-8

of Count I as though fully set forth herein.

9. This paragraph sets forth conclusions of law and not

allegations of fact for which an answer is not required; the

quotations from section 411(c) of Part B speak for them-

selves.

10. Denied.

Il. Denied.

12. Denied.

13. Denied.

14. Denied.

Count I1l

1-8. Defendants reallege the answers to paragraphs 1-8

of Count I as though fully set forth herein.

9. Denied.

10. Denied.

ll. Denied.

12. Denied.

13. Denied.

—_— =

Count IV

1-8. Defendants reallege the answers to paragraphs 1-8

of Count I as though fully set forth herein.

9. This paragraph sets forth conclusions of law and not

allegations of fact for which an answer is required, but in-

sofar as an answer is required, is denied.

10. Denied.

11. Denied.

12. Denied.

Defendants deny each and every allegation of fact not

hereinbefore denied.

Respectfully submitted,

William J.Kilberg Irving Jaffe §-

Solicitor of Labor Acting Assistant Attorney

General

~JamesG. Johnston United States Attorney

Associate Solicitor

“ MarkE.Solomons HarlandF. Leathers

“Frank A.White DavidOrlikoff =

Attorneys, Department of Attorneys, Department of

Labor Justice

Co-Counsel for Defendant Counsel for Defendant

Peter J. Brennan, Caspar W. Weinberger, Sec-

Secretary, United States retary, United States De-

Department of Labor partment of Health, Edu-

cation and Welfare

Co-Counsel for Defendant

Peter J. Brennan, Secre-

tary, United States De-

partment of Labor

[ Certificate of Service omitted in printing]

—_— =

Civil Action No. 1761

In The

UNITED STATES DISTRICT COURT

For the Eastern District of Kentucky

at Pikeville

| Title omitted in printing]

Plaintiffs’ Motion For

Summary Judgment

Plaintiffs Turner Elkhorn Mining Company, et AL.,

move this Court pursuant to Rule 56 of the Federal Rules

of Civil Procedure to:

1. Enter a summary judgment in Plaintiffs’ favor for

the relief demanded in each of the four counts of

Plaintiffs’ Complaint on the ground that there is no

genuine issue as to any material fact and that Plain-

tiffs are entitled to a judgment as a matter of law;

or, in the alternative,

2. If summary judgment is not rendered in Plaintiffs’

favor upon the whole case or for all the relief asked

and a trial is necessary, that the Court, at the hear-

ing on the motion, by examining the pleadings and

evidence before it and by interrogating counsel, as-

certain what material facts are actually and in good

faith controverted, and thereupon make an order

specifying the facts that appear without substantial

controversy and directing such further proceedings in

the action as are just.

This motion is based upon:

(a) Defendant Brennan’s Answers dated October 30,

1973 to Plaintiffs’ First Set of Interrogatories,

heretofore filed with the Court;

—30—

(b) Defendants’ Answers dated January 15, 1974 to

Plaintiffs’ Second Set of Interrogatories, here-

tofore filed with the Court;

(ec) Defendants’ Statement dated January 18, 1974

in Response to Plaintiffs’ First Request for Ad-

missions of Fact, heretofore filed with the Court;

(d) Deposition of Nancy Snyder, Director of the

Division of Coal Mine Workers’ Compensation

Programs, Employment Standards Administra-

tion, U.S. Department of Labor, dated Decem-

ber 5, 1973, heretofore filed with the Court ;

(e) Deposition of George F. Reall, Manager of the

National Council on Compensation Insurance,

dated January 16, 1974, heretofore filed with the

Court;

(f) Affidavit of J. Huell Briscoe dated January 21,

1974, attached hereto;

[*}(g) Documents produced by the Defendant Brennan

in response to Plaintiffs’ Request for Produe-

tion of Documents pertaining to the claims for

benefits under Title IV of the Coal Mine Health

and Safety Act of:

William Thompson Soe. See. No. 304-14-3468

Claude Pennington Soe. See. No. 307-038-6192

Ceeil Purnell Soe. See. No. 355-090-2809

Andrew Smith Soe. See. No, 303-05-2658

true and complete copies of which are attached hereto,

[*|(h) ocuments served by the U.S. Department of

Labor upon two of the Plaintiffs named herein

pertaining to the claims for benefits under Title

IV of the Coal Mine Health and Safety Act of

Craig Fulton Soe. See. No. 283-09-7890

Alva A. Libbey Soe. See. No. 354-10-9906

true and complete copies of which are attached hereto.

| Signatures and Certificate of Service

omitted in printing |

[*] Documents omitted in printing.

te ES es

—

= =

Civil Action No. 1761

In The

UNITED STATES DISTRICT COURT

For the Eastern District of Kentucky

at Pikeville

[Title omitted in printing]

Affidavit Of J. Huell Briscoe

State Of Illinois

County Of Cook—ss

J. Huell Briscoe, being first duly sworn, deposes and says

that if he were called as a witness in the captioned matter,

he would testify under oath as follows:

He is a practicing actuary and has been one for 35

years. He is President of J. Huell Briscoe & Associates,

Inc., 307 North Michigan Avenue, Chicago, Llinois 60601,

a firm of consulting actuaries, and has been a fellow of

the Conference of Actuaries in Public Practice and a mem-

ber of the American Academy of Actuaries since these

societies were organized. His actuarial practice has in-

cluded actuarial studies for casualty insurers, state insur-

ance departments, national and state associations, and na-

tionally known business corporations. His experience in-

cludes studies of the frequency and severity of claims under

workmen’s compensation policies.

He has qualified as an expert witness in insurance mat-

ters (including rating procedures) in administrative hear-

ings in several states including Illinois, Kentucky, Penn-

sylvania, Tennessee, Florida and Louisiana, and in state

courts including Illinois and Pennsylvania, and in Federal

courts including the U.S. Court of Claims, and United

States Tax Court.

He has examined available data on the frequency and

severity of claims to be expected under Part C of Title

IV of the Coal Mine Safety Act of 1969, as amended by the

Black Lung Act of 1972, and under the similar provisions

enacted by states in an effort to comply with the require-

ments of Part C of that Act, as amended.

His examinations of the available data have been oc-

casioned by (1) his representation as consulting actuary of

the Coal Mine Rating Bureau of Pennsylvania and (2) a

consulting actuary for Old Republic Insurance Company

(the largest insuror of workmen’s compensation for coal

mine companies in the United States), a relationship that

has existed continuously for more than 25 years.

During the course of his analysis, he has consulted and

collaborated with the actuarial staff of the National Coun-

cil on Compensation Insurance.

His research and examination of the available pertinent

data have, indicated clearly that only two meaningful

sources of information exist as to frequency of “Black

Lung” claims, or expected claims, for currently employed

mine workers. These sources are: (1) the experience under

the Pennsylvania Act #337 Coal Mine Occupational Dis-

ease, and (2) a study of 62,876 miners by the National In-

stitute of Occupational Safety and Health (NIOSH) un-

der the 1969 Coal Mine Health and Safety Act provisions.

Each of these sources of data include information as to age.

His research has further determined that, as to former

coal mine workers eligible for additional or new benefits

under the July 1, 1973 amendment to the Act, periodic re-

ports from the Social Security Administration of the De-

—

= =

partment of Health, Education & Welfare are obtainable

as to “Black Lung Benefit” claimants.

His research has also determined that ag to frequency

and severity, the age of the average worker and a claimant

are significant as to final financial results and that such

age factors are available in each source data except the

“Status Reports” from the Social Security Administration

Division of the Department of Health, Education and Wel-

fare.

His research also indicates that the “NIOSH” studies are

probably not representative as to the older age groups (60-

64) wherein respiratory involvement is most prevalent,

and that the results reflected therefrom are probably un-

derstated as to frequency of expected claims.

He states that in his opinion, the Pennsylvania studies

are the most reliable since they reflect actual claims in-

curred under an Act quite similar to the Federal Act, ex-

cept as to the amount of benefits.

The Pennsylvania frequeney for “Black Lung” claims

for the four year period under review amounted to 1.47/100

working miners for the age group under 63, and 29.11/100

for the age group over 63, an overall average of 12.91/100

of working miners.

He states that in his opinion the frequency used by the

National Council on Compensation Insurance of 2.57/100

working miners (obtained from the NIOSH studies) is

most conservative as to working miners and makes little

or no allowance for the vast potential exposure incident to

presently disabled miners (136,600 as of April, 1973) filing

for medical benefits provided for by the 1972 amendment

to the Act.

—34—

He states that in his opinion, the present value of Federal

Indemnity Benefits computed by the National Council at

$56,384.51 per claim is proper. He further states that in

his opinion, the present value of medical benefits computed

by the National Council at $12,216.00 is based on the latest

available information, and is reasonably accurate. In each

instance, the present value has been computed on the basis

of life expectancy using the U.S. Lives Mortality Table

with interest assumed at 3.50%.

He states that in his opinion, the coal mine industry can

expect to incur liability under the Federal “Black Lung”

Act of at least $279,805,000 per vear as to presently em-

ployed miners as follows:

Estimated Working Population

of Coal Miners 135,000

requency 2.57%

Kx pected Claims 3,469.5

Present Value Per Claim

Indemnity $56,334

Medical $12,216 $ G8,55

Mstimated Pure Claim Cost

Incurred Per Year $237,834,225

Kstimated Annual Workmen’s

Compensation Insurance Cost

for Active Miners (Based on

an expense loading of 15%) $279,804,971

He further states that in his opinion, the coal mine in-

dustry can expect medical claims from former miners al-

ready disabled with a present value of at least $2,236,246,588

as follows:

— _

—35—

Former Miners Drawing Ben-

efits at 4/30/73 130,600

Claims Awaiting Determina-

tion at 4/30/73 56,000

Estimated Additions 25,000

Estimated Claimants 155,600

Estimated Present Value Per

Medical Claim $12,216

Estimated Pure Medical Claim

Cost for Former Miners Re-

cently Disabled $1 ,900,809,600

Estimated Workmen’s Com-

pensation Insurance Cost

(Based on Expense Load-

ing of 15%) $2,236,246,588

/s/ J. Wuell Briscoe

Subseribed And Sworn to before me

this 21st day of January, 1974

/8/ Nancy M. Zorn

Notary Public

Civil Action No. 1761

In The

UNITED STATES DISTRICT COURT

For the Eastern District of Kentucky at Pikeville

| Title omitted in printing |

Affidavit Of George W. Wright

State Of Colorado

County Of Denver—ss

I, George W. Wright, of 460 South Marion Parkway,

Denver, Colorado, being first duly sworn, depose and say

—36—

that if I should be called to testify as a witness in the

above-captioned cause, I would state under oath as follows:

1. I am a physician specializing in pulmonary and oc-

cupational diseases, licensed to practice medicine in the

states of New York and Ohio. I am a member of the

American Association for Thoracic Surgery, the American

Thoracic Society, the American Clinical and Climatological

Association, and the Industrial Medical Association.

2. I presently am Consultant for Environmental Affairs

for Johns-Manville Corporation, Denver, Colorado. From

1953 to 1972, I was Head of the Medical Research Divi-

sion of Saint Luke’s Hospital, Cleveland, Ohio, and Pro-

fessor of Internal Medicine at Case Western Reserve Uni-

versity, Cleveland, Ohio. From 1960 to the present, | have

been Chairman of the Social Security Administration Medi-

cal Advisory Committee (Disability) ; from 1965 to present,

a member of the Permanent Commission and International

Association on QOvcupational Health; and from 1969 to

1970 inclusive, a member of the Environmental Health

Sciences Training Committee of the National Institute of

Environmental Health Sciences of the Department of

Health, Education and Welfare.

3. According to the scientifically valid information cur-

rently available, coal miners in the United States have

experienced the development of two kinds of lung tissue

reaction as a result of exposure to dust in coal mines.

One of these consists of discreet foci of dust charac-

terized by a proliferative cellular reaction and reticulin

deposition with slight to moderate fibrous tissue produc-

tion, the latter dependent to some degree on the concen-

tration of free crystalline silica co-existing with coal dust.

This is the so-called “coa! macule”. This nodular reaction

—

———— oe

= =

is distributed rather evenly throughout both lungs and con-

stitutes “simple coal workers’ pneumoconiosis”. Some coal

miners may also develop a second reaction consisting of

masses of large coalescing nodules, or extensive prolifera-

tive and hyalin tissue formation. This type of reaction is

designated “progressive massive fibrosis” or PMF. These

two types of tissue reaction distort the involved or neigh-

boring lung tissue. These anatomical tissue reactions are

the only unique or specific development consequent to

deposition of coal mine dust, and comprise the anatomical

basis for coal workers pneumoconiosis. Progressive mas-

sive fibrosis is virtually always preceded and accompanied

by the disereet macular or nodular form of simple coal

workers pneumoconiosis.

4. The discreet nodular densities that characterize sim-

ple coal workers’ pneumoconiosis involve so little of the

total lung in the pre-x-ray positive stage and also in the

ILO or UICC category I stage that abnormalities conse-

quent to lung loss are not measurable and have no dis-

abling effect. In category II and category III of simple coal

workers’ pneumoconiosis there may be measurable effects

of a restrictive nature. Small amounts of progressive mas-

sive fibrosis also may actually cause little impairment.

5. The chest roentgenogram is one of the required tools

for making a diagnosis of coal workers pneumoconiosis

unless the lung can be examined directly by microscope.

6. Chronic bronchitis and emphysema, which are of

themselves capabie of causing severe disability, are not

caused by and do not constitute diseases to be designated

as pneumoconiosis.

7. As set forth in Subpart D of Part 410 of Title 20

of the Code of Federal Regulations, “coal workers pneu-

—38—

moconiosis, anthracosiliosis, anthracosis, anthrosilicosis,

massive pulmonary fibrosis, progressive massive fibrosis,

silicosis or silicotuberculosis” are disease entities, having

specific physical characteristics and known specific causa-

tive agents, and are accepted by the scientific world as

varieties of the pneumoconiosis. In contrast physical im-

pairments and physical conditions such as cardiac en-

largement or enlargement of the left ventricle are the re-

sult of many diseases having nothing to do with the pneu-

moconioses. Such impairments or conditions therefore are

not acceptable as diagnostic eriteria of specific diseases

and cannot be substituted for the proper diagnostic criteria

of the diseases classed under “pneumoconiosis” as the

scientific world understands and uses that term, For ex-

ample, arteriosclerosis or systemic hypertension are the

common diseases causing left ventricle hypertrophy while

none of the pneumoconioses cause this condition.

Signed: George W. Wright

Subseribed and sworn to before me

this 22nd day of February, 1974

at Denver, Colorado,

Arapahoe County.

(Notarial Seal)

/8/ George M. Mollick

Notary Publie

My Commission expires August 20, 1977

te ee

—39—

tivil Aetion No. 1761

In The

UNITED STATES DISTRICT COURT

Kor the Kastern Distriet of Kentucky

at Pikeville

| Title omitted in printing |

Motion To Strike Affidavits And Other

Documents In Support Of

Plaintiffs’ Motion For Summary Judgment

Defendants move the Court to strike defendant’s answers

to plaintiffs’ first set of interrogatories directed to de-

fendant Brennan, dated October 30, 1973, defendants’ an-

swers to plaintiffs’ second set of interrogatories, dated

January 15, 1974, defendants’ statement in response to

plaintiffs’ first request for admissions of fact, dated Janu-

ary 18, 1974, deposition of Naney Snyder, dated December

5, 1973, deposition of George F. Reall, dated January 16,

1974, affidavit of J. Huell Briseoe, dated January 21, 1974,

all documents produced by defendant Brennan in response

to plaintiffs’ first request for production of documents

pertaining to the claims of the following individuals: Wil-

liam Thompson, Claude Pennington, Ceeil Purnell and

Andrew Smith, all documents served upon two of the plain-

tiffs to this action by defendant Brennan pertaining to the

claims of the following individuals: Craig Fulton and Alva

A. Libbey, a document entitled “Coal Mine Compensation

Bureau of Pennsyivania, Analysis of Exposure Under

Pennsylvania Aet 337, Coal Mine Occupational Disease,”

prepared by J. Huell Briscoe & Associates, Inc., dated May

29, 1973, a document entitled “Projected Direct Impact of

Black Lung Program on Kentucky With Emphasis on

—40~

the Kentucky Coal Industry: a Preliminary Report,” pre-

pared by the University of Kentucky College of Business

and Economies, dated July 9, 1973, Testimony of Kentacky

Labor Commissioner James R. Yocom for Delivery to the

General Subcommittee on Labor, U.S. House of Represen-

tatives, dated July 11, 1973, attached to and in support of

plaintiffs’ motion for summary judgment, and any further

documents which plaintiffs may seek to introduce in sup-

port of their motion for summary judgment, including the

affidavit of George W. Wright, M.D., dated February 22,

1974, which go beyond the legislative record compiled in

conjunction with the enactment of the Federal Coal Mine

Health and Safety Act of 1969, as amended, on the ground

that all such extraneous material is immaterial and in-

admissible in evidence in contravention of the requirements

of Rule 56(e), Federal Rules of Civil Proeedure.

{Signatures and Certificate of Service

omitted in printing]

Civil Aetion No. 1761

In The

UNITED STATES DISTRICT COURT

For the Eastern District of Kentucky

at Pikeville

[Title omitted in printing |

Motion To Dismiss And Cross-Motion

For Summary Judgment

Defendants Peter J. Brennan, Secretary of Labor and

Caspar W. Weinberger, Secretary of Health, Education and

Welfare, by their undersigned attorneys, hereby respeect-

atin

fully move the Court, pursuant to Rule 12 of the Federal

Rules of Civil Procedure, to dismiss this action on the

ground that the complaint fails to state a claim upon which

relief may be granted.

Alternatively, defendants cross-move the Court, pursu-

ant to Rule 56 of the Federal Rules of Civil Procedure,

for summary judgment on the grounds that there is no

genuine issue as to any material fact and that the defend-

ants are entitled to a judgment as a matter of law. In

support of these alternative motions, the Court is respect-

fully referred to the brief filed herewith and the decision

of the three-judge court in National Independent Coal Op-

erator’s Association, et al. v. Brennan, Civil Action No.

1711-73 (D.D.C. February 21, 1974), a certified copy of

which is attached hereto.

| Signatures, Attachment to Motion, and Certificate

of Service omitted in printing |

Affidavit Of Nancy Snyder

Washington, District of Columbia

| depose and say that:

I am Mrs. Naney Snyder. Since July 1, 1973, | have been

the duly appointed Director of the Division of Coal Mine

Workers’ Compensation (DCMWC) of the Employment

Standards Administration, United States Department of

Labor. In my capacity as Director of the DCMWC, it is

my responsibility to administer the regulations of the Seere-

tary of Labor promulgated for the purpose of carrying

out the statutory command of section 415 of Part B and

Part C of Title 1V of the Federal Coal Mine Health and

Safety Act of 1969, as amended. Among the functions of

the DCMWC are to prepare, process, adjudicate, and in

- 42—

respect of certain approved claims, pay benefits in re-

spect of persons qualifying for black lung benefits under

section 415 and Part C of the Act. In addition, it is my

responsibility to guarantee that operators adjudicated li-

able for the payment of benefits in respect of any case are

fully informed of their potential responsibility prior to

adjudication, and are given an opportunity to participate

meaningfully in all adjudicatory proceedings affeeting such

operator. Other responsibilities include budget, monitoring,

staffing and other administrative funetions which must be

performed to assure efficient and continued operation of

the program.

As of March 2, 1974, the Social Security Adininistration

has received 547,900 miners’ and survivors’ claims. Of these

more than 24,000 claims are survivors’ claims filed on or

after July 1, 1973. As of March 2, 1974, 352,000 claims have

been approved by the Social Security Administration and

an estimated 484,600 persons are receiving Federal life-

time black lung benefits under Part B of Title ITV. The

Social Security Administration is currently processing ap-

proximately 6,000 claims and will continue to accept and

process all survivors’ claims filed before January 1, 1974,

or within 6 months from the date of death of the miner,

whichever is later. The total cumulative payout by the

Social Security Administration as of March 2, 1974, in

respect of all prior approved claims is $2,331,080,000. It

is estimated that the total payout by the Social Seeurity

Administration, for all approved elaims in calendar year

1973 was $1,076,000,000,

As of March 31, 1974, the DCMWC has received 26,075

claims of living miners and is currently accumulating evi-

dence and processing each of these claims. As of the above

date, 536 “refiled” claims have been received and none of

—43—

those has thus far been approved nor has any coal operator

been determined potentially liable for payment of medi-

cal benefits in respect of any such claim. It should be noted

that all “refiled” claims are treated as new section 415 or

Part C claims and are processed accordingly. Any prior

evidence submitted to the Social Security Administration

with respect to such claims is admissible in evidence but is

not conclusive as to eligibility, either medical or otherwise.

As of March 31, 1974, 44 coal operators have thus far

been designated authorized to self-insure under section

423 of the Act. There have been 1,774 certificates of pur-

chase of commercial Part C black lung insurance received

from coal operator’s insurance carriers and State Work-

men’s Compensation funds. It is my understanding that no

coal operator in any State will be denied commercial in-

surance or State fund coverage upon payment of the pre-

scribed premium. It is also my understanding that the

Federal Coal Mine Health and Safety Act endorsement

appearing, described, and interpreted in 20 CFR 726.208

of the Seeretary’s regulations is currently being attached

to all policies of compensation insurance sold where cover-

age for liability under the provision of Part C of Title TV

of the Act is desired.

DCMWC currently employs 97 persons all of whom are

situated in Washington, D.C. Among these persons are

claim examiners, technical, advisory, administrative, and

clerical staffs. Plans are currently progressing to increase

the full staff to 151 persons by early 1974. To date, the

Division has entered into contracts and agreements with

676 physicians and medical testing and treatment facilities

to insure that (1) each claimant will have adequate medi-

eal facilities available to assist him in developing the medi-

cal evidence needed to support a claim and (2) to insure

that medical treatment benefits will be available to totally

—_44—

disabled miners beginning on January 1, 1974. It is infor-

mally estimated that the largest number of claims will be

filed with DCMWC during fiscal year 1974. Thereafter

it is anticipated that the claims load will decrease yearly

to an average of between 5-7,000 claims per annum during

and after fiscal year 1977.

The procedures by which coal operator liability is as-

sessed with respect to any and all claims for which an op-

erator may be found liable is that which is fully outlined in

the duly promulgated regulations of the Seeretary. Kach

potentially responsible operator is notified of the initial

determination that a claim is pending for which he may

be found liable. Such notification includes a copy of the

claimant’s claim form and all supporting evidence submit-

ted, including all pertinent medical evidence, upon which

the claimant’s eligibility and the operator’s liability may

be predicated. Each operator is notified of and given an

opportunity to participate in each and every stage of the

ensuing adjudicatory proceedings, if any. In addition each

operator is given the right to have any miner-claimant re-

examined by a physician of such operator’s choosing, if

such examination is reasonably warranted. Any and all

reliable and probative evidence may be submitted by a po-

tentially liable operator with respect to any claim for

which he may be found liable.

As of March 31, 1974, the DCMWC has initially deter-

mined 1,041 claims under section 415 and Part C of Title

IV of the Act and the applicable regulations. Of these 206

claimants have been initially determined eligible to re-

ceive benefits either from a coal operator or from the

Federal Treasury. 835 of these claimants have been ini-

tially denied benefits.

It is the policy and intent of the DCMWC and of the

Secretary of Labor in administering section 415 and Part

a ee ce

—45—

C of Title TV of the Act to, as fully and fairly as is prac-

ticable and permissible within the law, carry out the clear

congressional mandate that all coal miners who have be-

come totally disabled by black lung and the survivors of

all coal miners who have died due to or while totally dis-

abled by black lung receive the full measure of benefits pro-

vided for them by the Act from whatever source is appro-

priate, It is also the policy of the DMCWC and the Seere-

tary of Labor to fully insure, within the language and in-

tent of the Act, that all coal operators who may be found

liable for the payment of Part C black lung benefits will

be treated fairly and reasonably and will be afforded the

full range of rights and remedies provided for such opera-

tors by the Constitution and laws of the United States.

Affiant states that to the best of her knowledge and be-

lief the foregoing statements are true and correct.

Dated and Signed Tiis 5th Day of April, 1974.

/8/ Naney Snyder

| Notarization omitted in printing |

Memorandum Opinion And Judgment Order Of The United

States District Court For The Eastern District Of Kentucky

At Pikeville In Civil Action No. 1761

(These documents are printed at pp. LA-I3A and pp.

14A-15A, respectively, of the Jurisdictional Statement filed

in Case No, 74-1302).

Defendants’ Motion To Amend Judgment, Filed In The

United States District Court For The Eastern District

Of Kentucky At Pikeville In Civil Action No. 1761

(This document is printed at pp. 16A-17A of the Juris-

dictional Statement filed in Case No. 74-1302.)

—46—

Order Of The United States District Court For The Eastern

District Of Kentucky At Pikeville In Civil Action No. 1761

Overruling Defendants’ Motion To Amend Judgment

(This document is printed at pp. 29A-30A of the Juris-

dictional Statement filed in Case No. 74-1302.)

SUPREME COURT OF THE UNITED STATES

Nos. 74-1302 and 74-1316

John T. Dunlop, Secretary of the United States

Department of Labor, et al.,

Appellants,

Turner Elkhorn Mining Company, et al.; and

Turner Elkhorn Mining Company, et al.

Appellants,

John T. Dunlop, Secretary of the United States

Department of Labor, et al.

APPEALS from the United States District Court for

the Kastern District of Kentucky.

The statements of jurisdiction in these cases having been

submitted and considered by the Court, probable jurisdic-

tion is noted. The cases are consolidated and a total of one

hour is allotted for oral argument.

June 9, 1975

A true copy Michael Rodak, Jr.

Teste:

Clerk of the Supreme Court of the United States

By /s/ Francis J. Corson

Deputy

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.