Petitioners Reply Brief — Seaboard System Railroad v. Donovan

Supreme Court brief1984

Ask Donna

What actually matters in this document.

Text

EE ey bn ne

Office - Supreme Court, U.S.

FILED

APR § 1904

No. 83-1040 ALEXANDER L. STEVAs.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

SEABOARD SYSTEM RAILROAD, INc., et al.,

Petitioners,

Vv.

RAYMOND J. DONOVAN, SECRETARY OF LABOR, et al.,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

REPLY BRIEF OF PETITIONERS

Patrick F. HEALY, JR. MICHAEL BoupIN*

Two Illinois Center Davip H. Remes

233 North Michigan Avenue 1201 Pennsylvania Avenue, N.W.

Chicago, Illinois 60601 P.O. Box 7566

Eucene W. Herve Washington, D.C. 20044

500 Water Street (202) 662-6000

Jacksonville, Florida 32202 Nina K. WUESTLING

C. KEITH MEISER 210 North Thirteenth Street

100 North Charles Street St. Louis, Missouri 63155

Baltimore, Maryland 21201

Counsel for Petitioners

April 1984 *Counsel of Record

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C. (202) 347-8203

TABLE OF CONTENTS

Page

eins a0. 0:00 Gata asn cbadaeckaabontunleks const 1

SEED icv acusaesdues badesebencetbcakouscemas 8

TABLE OF AUTHORITIES

CASES: Page

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) ... 4

his han guweqwebsspueedhoabss seems Weeeenas 3

Commissioner v. Standard Life & Accident Ins. Co., 433

EET sa aneecivusud wahonenees éayebec 7

C ope Department v. Marshall, 667 F.2d 336 (3d

as ch dius pennadbaessseeseterngealadss

Consumer Product Safety Comm'n v. Sylvania, 447 U.S.

ED ch 4n6d dis ncaa debh WeGh baaews oaes de 64 6

Edelman v. Jordan, 415 U.S. 651 (1974) ............ 3

Laing v. United States, 423 U.S. 161 (1976) ......... 6

NICOA v. Brennan, 372 F. Supp. 16 (D.D.C. 1974) passim

NICOA v. Usery, 419 U.S. 955 (197) ..... 0.0.00. passim

Pennhurst State School & Hospital v. Halderman, 1048S.

Gin ED nlite ne ccevee wns Gs ene saneamnaees

Turner Elkhorn Mining Co. v. Brennan, 385 F. Supp.

ae ee passim

PROTA ee NOE TI ME PEN EIT Ea passim

Whitney National Bank v. Bank of New Orleans & Trust

ee Ss 4

Williams v. Zbaraz, 448 U.S. 358 (1980) ............ 3

STATUTES:

Administrative Procedure Act:

EM fhe dine ney dulina vc dbovakGanna td 4

Judicial Code:

EE, Wat on inna sdinhosdd decueenee meen 2

ee IOS PIE fod cc dcbdecs eacehaddcobdcauteees 3

Table of Authorities Continued

Page

I is on ededacadacaseas omens os 3

ES decane uy étes uns civdevneria 2

Black Lung Benefits Act:

ED ec vcceeetecnnceksseeveges passim

LEGISLATIVE MATERIALS:

S. Rep. No. 95-181, 95th Cong., Ist Sess. (1977) ... 6

S. Rep. No. 95-209, 95th Cong., Ist Sess. (1977) ... 6

MISCELLANEOUS:

L. Jaffe, Judicial Control of Administrative Action

Re amie ae tal ag Uwe daca gb enw ueawe

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1983

No. 83-1040

SEABOARD SysTEM RAILROAD, INC., et al.,

Petitioners,

RAYMOND J. DoNOVAN, SECRETARY OF LABOR, et al.,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

REPLY BRIEF OF PETITIONERS

In this case, the petitioner railroads have sought review of a

Court of Appeals decision which, in conflict with two prior

decisions of this Court,’ held that the District Courts lack

jurisdiction to resolve threshold legal issues arising under the

Black Lung Benefits Act, 30 U.S.C. §§ 901-45 (“BLBA”). In

reply to the Government’s opposition to certiorari, four points

deserve emphasis.

1. Despite the Government’s attempt to wish the conflict

away in a footnote (see Gov. Opp. 6 n.4), the conflict between

the Sixth Circuit’s decision and this Court’s decisions in Turner

Elkhorn and NICOA is quite real. In both Turner Elkhorn and

NICOA, District Courts, later reviewed on the merits by this

! Usery v. Turner Elkhorn Mining Co., 428 U.S. 1(1976); NICOA

v. Brennan, 419 U.S. 955 (1974).

Court, asserted jurisdiction to decide threshold legal claims

under the BLBA.* That is exactly what the District Court did

in this case—before the Sixth Circuit reversed, holding that

the District Court lacked jurisdiction.’ The Sixth Circuit’s

holding therefore conflicts with this Court’s recognition in

Turner Elkhorn and NICOA that District Courts may enter-

tain such claims, and the Government fails to distinguish either

case.

First, this Court in Turner Elkhorn did not pass on the

jurisdictional issue sb silentio, as the Government implies by

its reliance on Pennhurst State School & Hospital v. Halder-

man, 1048. Ct. 900 (1984). To the contrary, in Turner Elkhorn

this Court explicitly recognized a three-judge District Court’s

jurisdiction over constitutional challenges to the BLBA, and a

single District Judge’s jurisdiction over challenges to regula-

tions implementing the statute. See 428 U.S. at 13, 37 n.41.'

Thus, it cannot be said, as in Pennhurst, that the jurisdictional

issue is “an open one.” 104 S. Ct. at 918. This Court in Turner

Elkhorn expressly recognized and affirmed District Court

jurisdiction to decide threshold claims under the BLBA.’*

* Turner Elkhorn Mining Co. v. Brennan, 385 F. Supp. 424 (E.D.

Ky. 1974); NJCOA v. Brennan, 372 F. Supp. 16 (D.D.C. 1974).

’The Sixth Circuit’s opinion is reported at 713 F.2d 1243 and

appears as Appendix B to the petition for certiorari, and the District

Court opinion appears as Appendix D.

4 Because of the repeal of 28 U.S.C. § 2282 in 1976, both sets of

issues would today be within the jurisdiction of a single District

Judge.

> The Government also suggests that this Court’s review in Turner

Elkhorn does not confirm the District Court’s jurisdiction because

this Court “had jurisdiction over the appeal under 28 U.S.C. 1252

regardless of whether the district court properly asserted jurisdic-

tion in the first instance.” Gov. Opp. 6 n.4. Under Section 1252,

however, the Court had jurisdiction to review the District Court’s

decision on the merits only if the District Court itself had jurisdiction

to act; otherwise this Court’s jurisdiction would have been limited to

vacating the judgment below and remanding with directions to dis-

Second, NJCOA is not deprived of precedential weight on

the jurisdictional issue because it was a summary affirmance.

As the Government correctly notes (Gov. Opp. 6 n.4), sum-

mary decisions extend to all issues “necessarily decided.” The

issue of a District Court’s jurisdiction is necessarily decided

when this Court summarily affirms on the merits, and such

actions “obviously are of precedential value.” Edelman v. Jor-

dan, 415 U.S. 651, 671 (1974). The Government can argue

about how much precedential value should be assigned to

NICOA: but the decision’s implicit acknowledgment of District

Court jurisdiction to entertain threshold legal claims under the

BLBA, and its conflict with the Sixth Circuit on this point, are

beyond dispute.

In all events, the assumption of jurisdiction in Turner

Elkhorn and NICOA cannot be squared with the rejection of

jurisdiction by the court below. That is precisely the kind of

conflict that this Court sits to resolve. At a minimum, litigants

and lower courts are entitled to know which set of signposts are

to be followed in the future.

2. Wholly apart from the direct conflict of decisions under

the BLBA, certiorari to resolve the jurisdictional issue is fur-

ther justified by several other considerations. The Govern-

ment, like the Sixth Circuit, conveniently forgets that District

Court review of agency determinations of threshold statutory

issues is presumptively available. A cause of action supporting

such review has been recognized for almost a century and

District Court jurisdiction is clearly provided under 28 U.S.C.

§§ 1331 and 1337(a). See Pet. 7-8 & nn.14, 15. This Court has

stressed that such review “will not be cut off unless there is

persuasive reason to believe that such was the purpose of

miss. See California v. Grace Brethren Church, 457 U.S. 398, 418-19

(1982); Williams v. Zbaraz, 448 U.S. 358, 368 (1980). Since this Court

did pass upon the merits in Turner Elkhorn (and in NICOA as well),

it recognized District Court jurisdiction to decide threshold legal

claims under the BLBA.

Congress.” Abbott Laboratories v. Gardner, 387 U.S. 136, 140

(1967).

There is no basis in the BLBA or its legislative history to

support the conclusion that Congress meant to preclude Dis-

trict Court review. of threshold legal claims. Like the Sixth

Circuit, the Government mistakenly assumes that, because

Congress explicitly provided an exclusive statutory review

procedure for a specified class of agency action (individual

benefits determinations), District Court review of a different

class of agency action (general regulations of the Secretary of

Labor) is “implicitly” precluded. See Gov. Opp. 7 & n.5." As

this Court said in Abbott, “the mere fact that some acts are

made reviewable should not suffice to support an implication of

exclusion as to others.” 387 U.S. at 141, quoting L. Jaffe,

Judicial Control of Administrative Action 357 (1965).

Certainly no “tribunal with ... cumulative experience

about arcane regulatory matters” (Gov. Opp. 8) is required to

decide the threshold legal question of whether Congress in-

tended railroad employees to be within the BLBA’s definition

of “miners.” Similarly, there is no showing here—as there was

in Whitney National Bank v. Bank of New Orleans & Trust

Co., 379 U.S. 411 (1965)—that Congress considered and re-

jected District Court review of such questions. Thus, the rele-

vant Congressional policy is that reflected in the Administra-

tive Procedure Act: a person adversely affected by agency

action—here the Secretary of Labor’s general misinterpreta-

tion of the statute—“is entitled to judicial review thereof.” 5

U.S.C. § 702.

The jurisdictional issue in this case is a recurring one and is

important to the administration of the BLBA, which governs

thousands of present and potential claimants and hundreds of

* No review of an individual benefits determination is involved in

this case; petitioners seek a declaration that railroad employees are

not included in the definition of “miner” under the BLBA.

millions of dollars in benefits. Through threshold judicial re-

view, a recurring constitutional or statutory interpretation

issue can be resolved swiftly by the courts, providing guidance

to the Secretary of Labor in subsequent cases.’ Whether Dis-

trict Court review is available under the BLBA to determine

threshold legal questions affecting a large number of claims is

an issue that ought to be resolved definitively, even assuming

arguendo that this Court’s prior decisions in NJCOA and Tur-

ner Elkhorn did not do so.

3. Onthe merits, petitioners challenged the Department of

Labor regulation that expressly includes railroad employees in

BLBA’s definition of “miners.”* The regulation is invalid be-

cause Congress explicitly said that the BLBA’s definition of

“miner” “does not contemplate inclusion of those workers em-

' The Government's suggestion that precluding District Court re-

view will “streamline[{ |" the process (Gov. Opp. 8) is bizarre since it is

the Government's resistance to District Court jurisdiction in this

case that has created the continuing delay and uncertainty in the

interpretation of the statute. Clearly, as this Court recognized in

NICOA and Turner Elkhorn, broad threshold issues, common to a

range of potential claims, ought to be subject to judicial review at

once. The possibility that there may be some legal issues that Jo not

warrant such treatment is no basis for deferring judicial : view

where a genuine threshold issue is present. Compare Compensation

Department v. Marshall, 667 F.2d 336 (3d Cir. 1981).

* The Government misdescribes the issue by suggesting that peti-

tioners assail the regulation’s failure to “exclude” railroad employees

from the statute (Gov. Opp. 3), a phrasing that suggests that the

Secretary of Labor may not have decided the issue. Quite the contra-

ry, the Secretary of Labor has expressly included railroad employees

as “miners” in a series of examples: ¢.g., “{a] claimant employed by a

railroad company to maintain track between the extraction site and

tipple,” and “(a] claimant who is employed by a railroad company as a

conductor on trains which pick up raw, unprocessed coal at a coal

mine and carry it to a preparation facility .. . .” Pet. App. 34a.

ployed by a railroad . . . unless such company also operates a

mine.” S. Rep. No. 95-209, 95th Cong., Ist Sess. 21 (1977).

The Government argues that what the Senate said is im-

material because the Senate bill under discussion “was not

enacted.” Gov. Opp. 10 n.7. However, the BLBA definition of

“miner” was the definition framed by the Senate, and the

Conference Committee adopted the Senate’s language. See

Pet. 20 n.31. The fact that the Senate’s definition was incorpo-

rated into the House bill by the Conference Committee (see

id.) does not render the Senate's expression of intent any less

controlling.

Nothing in the subsequent legislative history suggests any

repudiation of the Senate’s view, expressed both in the Senate

committee report and on the Senate floor by Sen. Randolph,

the floor leader for the Senate committee. See Pet. 21 n.32. Itis

difficult to imagine how Congress could have made any clearer

its intent that railroad employees were not to be included in the

definition of “miners” under the BLBA. The Secretary of

Labor’s decision to include such employees under the BLBA

despite “the expressed legislative intent to the contrary” (Con-

sumer Product Safety Comm'n v. Sylvania, 447 U.S. 102, 108

(1980)) is a direct usurpation of power worthy of review by this

Court.’

4. Contrary to the Government’s suggestion (Gov. Opp. 9

n.7), the statutory interpretation issue should be decided by

this Court along with the jurisdictional issue. The question

whether railroad employees qualify as “miners” under the

BLBA, in light of the explicit congressional directive to the

contrary, is itself an important and recurring issue in the

administration of a major federal program. In Laing v. United

*Since railroad employees are not miners, the question whether

the term “operator” might otherwise embrace railroads need not be

reached (compare Gov. Opp. 9 n.7); but in fact, the legislative history

shows that the definition of “operator” was not designed to teach

railroads but rather to include firms engaged in mine construction or

extraction for the benefit of the mine operator. See S. Rep. No.

95-181, 95th Cong., Ist Sess, 14 (1977). See Pet. 22 & n.34.

States, 423 U.S. 161 (1976), this Court, in granting review,

took note of the fact that there were 70 pending cases depen-

dent on the resolution of the issue involved. In the present

case, it appears that there are already well over 1000 claims for

black lung benefits filed by present or former railroad employ-

ees against the railroads. See Pet. 6.

In addition, the amount of money involved is enormous.

Each individual claim represents a potential liability of about

$150,000 so that, even without regard to future claims, claims

filed thus far could represent over $150 million in liability. In

Commissioner v. Standard Life & Accident Ins. Co., 433 U.S.

148 (1977), this Court observed that over $100 million was in

dispute. Furthermore, Congress’ intended exclusion of rail-

road employees from BLBA almost certainly reflected the fact

that railroad employees are covered by other federal statutes

not applicable to ordinary miners. The Secretary of Labor’s

ruling in this case creates a risk both of double liability for

railroads and of double recovery by their employees. See Pet.

21 & n.33

Finally, the statutory issue should be resolved now because

it is contrary to every precept of sound judicial administration

to defer a decision on the merits. Without a simple yes or no

answer to the statutory question presented, hundreds of cases

may progress through the administrative process, additional

suits will will be pursued through different Courts of Appeals,

there will be vast expenditures of time and money in litigation,

and the railroads’ financial liability will remain uncertain for a

period of years . Thus, there is acommon thread connecting the

jurisdictional and the statutory issues presented in this case:

the same concerns that in general warrant District Court

jurisdiction to resolve legal threshold issues under the BLBA

also specifically support a definitive ruling on the merits of this

case by this Court at the earliest possible time.

CONCLUSION

For the foregoing reasons, as well as for those set out in the

petition, certiorari should be granted.

Respectfully submitted,

Patrick F. HEeAty, JR. MICHAEL BovuDIN*

Two Illinois Center Davip H. RemMes