Reply Brief — Norfolk & Western Railway Co. v. Roberson

ep? Ss ——— —

( ) | FILED

No. 90-1271 _ APB.2 3 1991

In The OFFICE OF THE CLERK

Supreme Court of the United States

@Orctober Germ, 1990

NORFOLK AND WESTERN RAILWAY COMPANY

Petitioner,

Vv.

OLEN ROBERSON, and DIRECTOR, OFFICE

OF WORKERS’ COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR,

Respondents.

On Petition for a Writ of Certiorari to

The United States Court of Appeals

for the Fourth Circuit

PETITIONER’S REPLY TO

BRIEFS IN OPPOSITION

JAMES S. WHITEHEAD

(Counsel of Record)

LinzeEy D. JONES

SIDLEY & AUSTIN

One First National Plaza

Chicago, Illinois 60603

(312) 853-7000

WILLIAM B. Porr Doua.as A. SMooT

CiinToN S. Morse JACKSON & KELLY

Woops, RoceErs & Post Office Box 553

HAZLEGROVE Charleston, WV 25322

Post Office Box 720 (304) 340-1000

Roanoke, VA 24004-0720

(703) 982-4200

Counsel for Petitioner

Date: April 24, 1991

American Reprographics Management, Inc.™ (312) 332-ARMI

Nig Pes

SO Sou

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

CASES Page

Hanna v. Director, OWCP, 860 F.2d 88 (3d Cir. 1988) ................ 5

Louisville & N. R.R. v. Donovan, No. 80-0611-L{G),

vacated on other grounds, 713 F.2d 1243 (6th Cir. 1983),

cert. denied, 466 U.S. 936 (1984) .........:scccessccccsseecesesseeseeseeseeeneees 5

Mitchell v. Director, OWCP, 855 F.2d 485 (7th Cir. 1988) ........... 5

Public Citizen v. United States Dep’t of Justice,

491 U.S. 440, 105 L.Ed.2d 377 (1989)............cccceccssseessseeeeesersesees 2

Southard v. Director, OWCP, 732 F.2d 66 (6th Cir. 1984) ........... 5

Stroh v. Director, OWCP, 810 F.2d 61 (3d Cir. 1987)...............00 5

West Virginia Univ. Hosp., Inc. v. Casey, 59 U.S.L.W. 4180

CEE I TR, Ie icncssetaccncevecmnczisencenseteranitenienianianiensiatnaiabienin 2

STATUTES AND OTHER AUTHORITIES

Black Lung Benefits Act § 402(d), 30 U.S.C.

II incinisssiinsesicneoiiiensitinsniadlanlaincsaininenbiinimlpselgiiiie passim

Ee, Fe Fe Oe ees srccsnrerninniniiesinpnnmnsitiansidaviesisiaiiimaiilianas 3

H.R. Conf. Rep. No. 864, 95th Cong., 2d Sess. (1978),

reprinted in 1978 U.S. Code Cong. & Admin.

No. 90-1271

In The

Supreme Court of the United States

@rctober Germ, 1990

NORFOLK AND WESTERN RAILWAY COMPANY

Petitioner,

v.

OLEN ROBERSON, and DIRECTOR, OFFICE

OF WORKERS’ COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR,

Respondents.

On Petition for a Writ of Certiorari *o

The United States Court of Appeals

for the Fourth Circuit

PETITIONER’S REPLY TO

BRIEFS IN OPPOSITION

As Petitioner, Norfolk and Western Railway Company

(“NW”), and the Association of American Railroads (“AAR”),

as amicus curiae, have demonstrated, this Court should grant

the petition and review the Court of Appeals’ manifestly erroneous

interpretation of Section 402(d) of the Black Lung Benefits Act

(“BLBA”), 30 U.S.C. § 902(d) (1988). The Court of Appeals’

expansion of BLBA coverage to include common carrier railroad

workers employed in the movement of coal in interstate commerce

is not supported by the language of the Act and is patently

contrary to the Act’s purpose and legislative history. NW, along

with the rest of the railroad industry, potentially will be exposed

to thousands of claims for benefits from the large number of

2

railroad workers engaged in the movement of coal at or around

mine sites and preparation facilities as a result of this erroneous

decision.

Both the Federal Respondent and Respondent Roberson

argue that the Court of Appeals’ interpretation of “miner” to

include railroad employees engaged in the interstate transpor-

tation of coal is consistent with the plain language, the legislative

history, and Congress’ purpose in enacting the statute. Both

Respondents also deny that this case presents an issue of

sufficient public importance to merit review. They, like the Court

of Appeals below, are in error.

1. The Court of Appeals’ erroneous interpretation of Section

402(d) of the BLBA is not supported by any permissible appli-

cation of the “plain meaning” rule of statutory construction, as

Respondents urge. Fed. Resp. Br. at 6-8; Roberson Br. at 7-8.

It is certainly not self-evident that Congress intended the phrase

“an individual who works or has worked in .. . transportation

in or around a coal mine” to encompass an employee of a common

carrier railroad who is present at a mine site or preparation facility

solely to move coal away from such locations by means of

instrumentalities of interstate commerce. The phrase is, at best,

ambiguous. Neither Respondent nor the Court of Appeals has

shown that it has a “clearly accepted meaning in both legislative

and judicial practice.” Contrast West Virginia Univ. Hosp., Inc.

v. Casey, 59 U.S.L.W. 4180, 4184 (U.S. March. 19, 1991).

Moreover, examination of the legislative history and Con-

gress’ purpose in enacting the BLBA is essential to an accurate

understanding of the statute’s meaning, as this Court has

repeatedly declared. See, e.g., Public Citizen v. United States Dep’t

of Justice, 491 U.S. 440, 105 L.Ed.2d 377, 391-92 (1989):

As we said in Church of the Holy Trinity v. United

States, 143 U.S. 457, 459 (1892), “frequently words of

general meaning are used in a statute, words broad

enough to include an act in question, and yet a

consideration of the whole legislation, or of the

circumstances surrounding its enactment, or of the

absurd results which follow from giving such broad

meaning to the words, makes it unreasonable to believe

3

that the legislator intended to include the particular

act.”

... Looking beyond the naked text for guidance is

perfectly proper when the result it apparently decrees

is difficult to fathom or where it seems inconsistent

with Congress’ intention, since the plain-meaning rule

is “rather an axiom of experience than a rule of law,

and does not preclude consideration of persuusive

evidence if it exists.” Boston Sand & Gravel Co. v.

United States, 278 U.S. 41, 48 (1928) (Holmes, J.).

In hiding behind its invocation of “plain language”, the Court

of Appeals erroneously substituted its uninformed understanding

of Congress’ intent for that clearly expressed in the relevant

legislative history.

2. Thelegislative history and purpose of the BLBA are flatly

inconsistent with the Court of Appeals’ decision. Congress cannot

have spoken more directly. Both the key Congressional Report

and the explanatory statement of the Act’s leading spokesman,

Senator Randolph, establish that, in including certain “trans-

portation” workers within BLBA’s coverage in the 1977 Amend-

ments, Congress did not intend to encompass traditional railroad

employees. See Petition at 10-12.

The Federal Respondent acknowledges, as he must, that the

Senate Committee Report and the statement of Senator Randolph

“speak restrictively of the contours of the amended definition’s

coverage of transportation workers.” Fed. Resp. Br. at 9. In fact,

the Senate Report states precisely that “{tJhe [expanded definition

of ‘miner’] does not contemplate inclusion of those workers

employed by a railroad, trucking company, or barge line unless

such company also operates a mine.” S. Rep. No. 209, 95th Cong.,

lst Sess. 20-21 (1977). Senator Randolph emphasized this

exclusion during floor debate: “Railroad, trucking, bargeline, and

coke oven workers are not included in the definition [of ‘miner’].”

123 Cong. Rec. 24,239 (1977).

Nonetheless, the Federal Respondent, like the Court of

Appeals below, would have this Court ignore these direct

manifestations of Congress’ intent to exclude rail workers from

4

the Act’s coverage on the sole ground that there was no similar

reference to rail employees in the Conference Report accompany-

ing the 1977 Amendments. However, the language of that report

establishes that the Conference Committee fully embraced the

scope of the Senate bill, with its carefully crafted coverage

provision and its exclusion of railroad workers: “The conference

substitute conforms generally to the Senate amendment... .”

H.R. Conf. Rep. No. 864, 95th Cong., 2d Sess. 15 (1978), reprinted

in 1978 U.S. Code Cong. & Admin. News 308-309. Neither

Respondents nor the Court of Appeals below offers any evidence

that the Conference Committee intended sub silentio to expand

the definition of “miner” beyond that proposed by the Senate

so as to include railroad employees. The only change to the Senate

language made in conference was the addition of “an amendment

to clarify that transportation and construction workers are

covered only to the extent they work in or around a coal mine

and are exposed to coal dust.” Jbid. Thus, the Conference

Committee, far from broadening the Senate’s definition of

“miner”, narrowed that definition by clarifying the limited

circumstances in which any “outside” transportation and

construction workers can qualify for BLBA benefits.

3. Respondents’ argument that inclusion of railroad

workers under the BLBA is consistent with Congress’ purpose

in providing this federal benefit program flatly ignores the entire

20-year history of the Act. Congress initially enacted, and

subsequently reenacted, the BLBA solely because of the perceived

inadequacy of state workers’ compensation programs for coal

miners. Petition at 7-8. There is no evidence in the legislative

history of the BLBA that Congress has ever expanded the

coverage of the statute because of any perceived inadequacy in

the panoply of federal health and welfare statutes covering

railroad workers. See Petition at 9-10.!

4. The Federal Respondent asserts at page 7 n.4 of his Brief

in Opposition that the decision below is consistent with previous

decisions that have found various transportation workers to fall

1 Respondent Roberson suggests, at pages 5-6 of his Brief in Opposition,

that Congress may well have intended to supplement federal health

and welfare benefit programs for railroad workers by including them

within BLBA’s coverage. Notably, he cites to nothing in the Act’s

extensive legislative history to support any such conclusion.

5

within BLBA coverage. In fact, however, the cited decisions are

inapposite; none involved a BLBA claim by a rail worker? against

a railroad;? in none was the issue of Congress’ intent with respect

to the coverage of the rail industry under the BLBA even

discussed. The only federal court that has directly decided this

question,‘ apart from the Court of Appeals below, has rejected

the interpretation of “miner” reached in this case by the Fourth

Circuit.

5. Finally, Respondents seek to minimize the importance

of the Court of Appeals’ decision on the ground that “only a

small group of railroad workers” will be benefited. Roberson Br.

at 11; see also Fed. Resp. Br. at 6. There are already at least

174 pending BLBA claims against NW and other railroads

throughout the industry. If the Court of Appeals’ precedent-setting

decision bringing the railroad industry within the Act’s coverage

is allowed to stand, any rail employee even remotely involved

in the movement of coal from a mine site or processing plant

or over the rail lines in between may well file a claim for black

lung benefits.

The Federal Respondent is in error when he suggests that

the “demanding tests of function and situs” (Fed. Resp. Br. at

13 n.7) will result in a narrow application of the BLBA to the

2 See, e.g., Hanna v. Director, OWCP, 860 F.2d 88 (3d Cir. 1988) (tug

boat deck hand); Stroh v. Director, OWCP, 810 F.2d 61 (3d Cir. 1987)

(self-employed trucker); Southard v. Director, OWCP, 732 F.2d 66 (6th

Cir. 1984) (trucker employed by coal retailer).

3 The Federal Respondent’s description of Mitchell v. Director, OWCP,

855 F.2d 485 (7th Cir. 1988), at page 7 n.4 of his Brief in Opposition,

as a case involving a “railroad employee” is potentially misleading.

While the employee in question in Mitchell was technically employed

by a railroad, the BLBA claim was brought by his widow against Old

Ben Coal Company, not against the railroad. The Seventh Circuit, in

upholding his claim against Old Ben, focussed on the fact that Mitchell

was de facto an employee of the coal comp&ny during the period he

cleaned railroad cars, finding that he “worked under the direction of

Old Ben employees at Old Ben’s mine site and on Old Ben’s time

schedule.” Jd. at 490. Thus, the issue of the application of the BLBA

to traditional railroad employees, such as Roberson, was not considered

by the court.

4 Louisville & N. R.R. v. Donovan, No. 80-0611-L({G) (W.D. Ky. 1981)

(Pet. App. l1la-16a), vacated on other grounds, 713 F.2d 1243 (6th Cir.

1983), cert. denied, 466 U.S. 936 (1984).

6

rail industry. In this case, Olen Roberson was found to have

satisfied the “situs” test even though he was involved in the

movement of coal over 36 miles of interstate rail line between

a coal mine and a preparation plant. NW has thousands of

employees similarly involved in the transportation of coal

between coal mines and preparation plants.

The so-called “function” test provides no meaningful

limitation either, encompassing, as the Fourth Circuit has ruled,

such traditional preparatory train movement activities as

“coupling and uncoupling high pressure air hoses between cars,

. . .8etting and releasing brakes, and obtaining loading numbers

and tags from the individual cars” when they occur at either

coal mines or processing facilities. Pet. App. 13a. There are

thousands of employees throughout the rail industry who are

engaged in such activities at preparation plants in connection

with the transportation of shipments of processed coal to ultimate

consumers and, according to the Fourth Circuit, have contact

with coal before it is finally “prepared and reloaded for shipment.”

Pet. App. 10a. See generally AAR Br. at 15-18.

NW and other railroads should not be burdened with BLBA

claims and proceedings where the statutory language and history

of the Act provide no basis for including railroad workers within

its coverage. Congress did not intend for the BLBA to apply

to the railroad industry. This Court should halt the erroneous

expansion of the BLBA triggered by the Court of Appeals’

decision and limit the BLBA to its Congressionally intended

beneficiaries.

7

CONCLUSION

For the reasons set forth herein and in NW’s petition for

a writ of certiorari, the petition should be granted.

WILLiAM B. Porr

CurinTon S. Morse

Woops, RocErs &

HAZLEGROVE

Post Office Box 720

Roanoke, VA 24004-0720

(703) 982-4200

Date: April 24, 1991

Respectfully submitted,

JAMES S. WHITEHEAD

(Counsel of Record)

Linzey D. JONES

Srp.ey & AusTIN

One First National Plaza

Chicago, Illinois 60€93

(312) 853-7000

DouaG.as A. SmMoor

JACKSON & KELLY

Post Office Box 553

Charleston, WV 25322

(304) 340-1000

Counsel for Petitioner