# Opposition Brief — Pauley v. BethEnergy Mines, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 501 U.S. 680

## Text

—

Suprema Court, U.S.

; FILED
. ‘25 1990
No. 89-1714 HL 29
| _ SPANIOL, JR
CLERK

ty In the Supreme Court of the United

oe OcTOBER TERM, 1990

“4

~ HARRIET PAULEY, SURVIVOR OF JOHN C. PAULEY.

P| PETITIONER
Vv.

BETHENERGY MINES, INC., AND Director, OFFICE oF
WORKERS’ COMPENSATION PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

KENNETH W. STARR
Solicitor General
DAVID L. SHAPIRO
Deputy Solicitor General
CHRISTOPHER J. WRIGHT
Assistant to the Solicitor General
Department of Justice
Washington, D.C. 20530
(202) 514-2217

ROBERT P. Davis
Solicitor of Labor
ALLEN H. FELDMAN
Associate Solicitor
EDWARD D. SIEGER
Attorney
Department of Labor
Washington, D.C. 20210

QUESTIONS PRESENTED

1. Whether the rebuttal provisions of a Department of
Labor regulation satisfy Section 402(f)(2) of the Black Lung
Benefits Act, which requires the Department to apply
“(cjriteria * * * not more restrictive” than the criteria ap-
plied during an earlier phase of the black lung program.

2. Whether the statute, if construed to invalidate the
Department’s rebuttal provisions, violaies the constitutional
guarantee of due process.

(I)

TABLE OF CONTENTS

Page
Ne ec cca c esc ceccecceces l
ee cee eek ceceseces PTT Tiree l
EEE 2
eee Lc US ea ecescescceeesecces 5
EEE EE 10
TABLE OF AUTHORITIES
Cases:
Dayton v. Consolidation Coal Co. , 895 F.2d 173 (4th
Cir. 1990), petition for cert. pending, No.
ss eked ade uvccceses 7, 8,9, 10
Karcher v. May, 484 U.S. 72 (1987) ........... y
Krahel v. Consolidation Coal Co., No. 89-2394 (4th
Ss onc csedeccscccece 7
Meyer v. Zeigler Coal Co., 894 F.2d 902 (7th
Cir. 1990), petition for cert. pending, No.
Ne cece weeecccce 7
Pittston Coal Group v. Sebben, 109 S. Ct. 414
ee occ va uawcbceaverece 2, 5, 6, 8
Robinette v. Director, OWCP, No. 88-1144 (4th Cir.
Apr. 27, 1990), petition for cert. pending .... 7,8
Rosebud Coal Sales Co. v. Weigand, 831 F.2d 926
EE 4

Taylor v. Clinchfield Coal Co., 895 F.2d 178 (4th
Cir. 1990), petition for cert. pending, No.
ES LE 6, 7,8
Taylor v. Peabody Coal Co., 892 F.2d 503 (7th
Cir. 1989), petition for cert. pending, No.

Ee 7,8
Youghiogheny & Ohio Coal Company v. Milliken,
866 F.2d 195 (6th Cir. 1989) ................ 5, 6

(111)

IV
Statutes and regulations:

Black Lung Benefits Act, 30 U.S.C. 901 ef
OM,‘ cncianddedhenceeeeneed¥sa0densnenede
Se f - th eres

§ 402(f)(2), 30 U.S.C. 902(f)(2) ...........

BD UB. GREED oi vccccvcccesevevessusecccens

20 C.F.R.:
Section 410.412(a)(1) 2... 6... eee eee
Cn eu anentae she heat
cea cn Gene een
Section 410.490(c)(1)-(2) ..... 2.2... ee.
i ee Le ec ee ek eenenses
ee ha ek eee kee s
Section 727.203(a)(1)-(S) ...........-0005-
Section 727.203(b)M1)-(2) ....... 2... cee ees
i i ee ec an sane es
Section 727.203(b)(3)-(4) .............085-

Miscellaneous:

Employment Standards Admin., United States Dep't
of Labor, Annual Report on Administration of
the Black Lung Benefits Act for Calendar Year
SE es a os 64 oNUSRERECEAES Oh EGES

NMA NNN & NN lV YM

In the Supreme Court of the United States

OCTOBER TERM, 1990

No. 89-1714

HARRIET PAULEY, SURVIVOR OF JOHN C. PAULEY,
PETITIONER

Vv.

BETHENERGY MINES, INC., AND DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-19a)
is reported at 890 F.2d 1295. The decision and order of the
Benefits Review Board (Pet. App. 20a-22a) and the deci-
sion and order of the administrative law judge (Pet. App.
23a-4la) are unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App. 44a-45a)
was entered on December 7, 1989. The order denying the
rehearing petition was entered on February 6, 1990. Pet.
App. 42a-43a. The petition for a writ of certiorari was filed
on May 7, 1990. The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. The Black Lung Benefits Act, 30 U.S.C. 901 ef seq.,
provides benefits to former coal miners and their survivors
for total disability or death due to pneumoconiosis. Disabili-
ty claims filed by June 30, 1973, were considered by the
Department of Health, Education, and Welfare (HEW)
under regulations that included a presumption of entitle-
ment to benefits (20 C.F.R. 410.490) that was available to
certain claimants. Claims filed after that date are considered
by the Department of Labor. Claims filed with the Depart-
ment of Labor before April 1, 1980, are subject to Section
402(f)(2) of the statute, 30 U.S.C. 902(f)(2), which provides
that the “[{c}riteria” applied to those claims “shall not be more
restrictive than the criteria applicable to a claim” adjudicated
by HEW. See Pittston Coal Group v. Sebben, 109 S. Ct.
414, 417-419 (1988).

In response to Section 402(f)(2), Labor promulgated its
own presumption regulation, 20 C.F.R. 727.203. While
there were only two ways to invoke HEW’s presumption
(see 20 C.F.R. 410.490(b)(1)), there are five ways to invoke
Labor’s presumption. See 20 C.F.R. 727.203(a)(1) and (5).
Once the presumption had been invoked, HEW’s regula-
tion specified that the presumption could be rebutted (1)
by proving that the miner was doing his usual coal mine
work or comparable work or (2) by proving that the miner
was capable of doing such work. 20 C.F.R. 410.490(c)(1)
and (2). In contrast, Labor’s regulation specifies four rebut-
tal methods. The first two generally correspond to the two
specified HEW methods. 20 C.F.R. 727.203(b)(1) and (2).
The third and fourth Labor methods allow a party con-
testing entitlemént to defeat a claim either (3) by proving
that the disability or death of the miner did not arise in
whole or in part from coal mine employment or (4) by prov-
ing that the miner does not or did not have pneumoconiosis.
20 C.F.R. 727.203(b)(3) and (4).

3

2. In 1978, after about 30 years of coal mining, John
Pauley applied for black lung benefits. Pet. App. 25a. A
deputy commissioner in the Department of Labor’s Office
of Workers’ Compensation Programs (OWCP) found him
eligible for benefits, but respondent Bethenergy Mines, the
responsible coal mine operator, contested eligibility and ob-
tained a hearing before an administrative law judge. /bid.
The ALJ concluded that Pauley had properly invoked the
presumption of eligibility for benefits based on his 30 years
of coal mining and on x-ray evidence showing that he had
pneumoconiosis. /d. at 4a, 36a.

Bethenergy conceded the existence of the disease and its
relationship to coal mining. Pet. App. 4a, 36a. But it Sought
to rebut the presumption under Labor’s third rebuttal pro-
vision by showing that, although Pauley was disabled, his
disability did not arise in whole or in part from the disease.
The ALJ concluded that the operator had succeeded in
rebutting the presumption under Labor’s regulation since
the operator had shown that “pneumoconiosis is not a con-
tributing factor in claimant’s disability.” /d. at 38a. Rather,
the medical evidence showed that Pauley was disabled due
to arthritis and residual hemipariesis resulting from a stroke.
Id. at 36a-37a. However, the ALJ went on to hold that the
third rebuttal provision in Labor’s regulation is contrary to
Section 402(f)(2) because there was no comparable rebut-
tal provision on the face of HEW’s regulation. According-
ly, the ALJ held that “the claimant is entitled to benefits.”
Pet. App. 40a.

The Benefits Review Board affirmed. Pet. App. 20a-22a.'

' John Pauley died in December 1988, while the case was pending
before the Benefits Review Board. His wife, Harriet Pauley, who is
listed as the petitioner, was never formally substituted as a party before
the Board or the court of appeals. We believe that if Mr. Pauley’s death
had been called to their attention, the Board or the court would have
substituted Mrs. Pauley as a party. Because Mr. Pauley had been found
eligible for benefits when he died, Pet. App. 23a-4la, Mrs. Pauley

4

3. The court of appeals reversed. Pet. App. la-19a. It
began by noting that “[t}he purpose of the Benefits Act is
to provide a recovery for a miner totally disabled at least
in part by pneumoconiosis if the disability arises out of coal
mine employment,” and that the ALJ had made unchal-
lenged findings that “Pauley’s disability did not arise even
in part out of coal mine employment.” /d. at 12a, 13a. It
then determined that Section 402(f)(2) did not require an
award of benefits in that circumstance, for two reasons.

First, the court of appeals noted that, as part of the
statutory definition of “total disability,” Section 402(f)(2)
requires that the criteria applied by the Secretary of Labor
in determining whether someone is totally disabled must be
no more restrictive than the criteria applied by HE W in mak-
ing that determination. However, the court stated, “if Con-
gress had intended ‘criteria’ under [Section 402(f)(2)] to in-
clude rebuttal criteria or criteria relating to matters other
than those dealing with ‘total disability’ it would have said
so directly rather than dealing with the matter diffidently
in the section.” Pet. App. 17a. Since the rebuttal provision
at issue relates not to the question whether the claimant is
disabled, but rather to the question whether the disability
arose out of coal mine work, the court concluded that it
is not contrary to Section 402(f)(2).

Second, the court noted that although there was “no case
law indicating how the rebuttal provisions of 20 C.F.R.
§ 410.490 were applied by the Department of Health,
Education, and Welfare,” it did not believe that HEW would
have awarded benefits under the facts of this case. Pet. App.

became eligible for these benefits as his survivor without having to refile
or otherwise validate the claim. See 30 U.S.C. 932(/); Rosebud Coal
Sales Co. v. Weigand, 831 F.2d 926, 927-928 (10th Cir. 1987); 20 C.F.R.
725.212. In May 1990, the government moved the Board tc correct this
oversight and substitute Mrs. Pauley as a party nunc pro tunc. On July
23, 1990, the Board issued an order stating that it “has no jurisdiction
to consider the Director's request” because the case “is currently pend-
ing at the United States Supreme Court.” The Director intends to seek
reconsideration of this order.

17a. To the contrary, the court interpreted a cross-reference
in HEW’s regulation to 20 C.F.R. 410.412(a)(1) — which in
turn refers to the cause of the claimant’s disability —to
authorize “rebuttal by a showing that the claimant’s disabili-
ty did not arise at least in part from coal mine employment.”
Ibid. Thus, the court concluded, the same result was re-
quired under both regulations, and Labor’s regulation was
not more restrictive than HEW’s.

The court of appeals added that “there is an apparent con-
flict between other circuits as to issues similar to those before
us. Compare Youghiogheny & Ohio Coal Company v.
Milliken, 866 F.2d 195 (6th Cir. 1989), with Taylor v.
Peabody Coal Co., {892 F.2d 503 (7th Cir. 1989)].” Pet.
App. 19a. The court decided not to “attempt to harmonize
those cases.” /bid. The full court subsequently denied a peti-
tion for rehearing en banc, with one judge dissenting. /d.
at 42a-43a.

ARGUMENT

Although we believe the decision of the court of appeals
is correct, we agree with petitioner that the questions
presented warrant review by this Court. The various deci-
sions of the courts of appeals are not reconcilable, and the
conflict has disrupted the administrative process. Moreover,
even though Section 402(f)(2) applies only to claims filed
before April 1, 1980, the conflict is significant because an
estimated 2,000-3,500 claims are still subject to that Section.

1. In Pittston Coal Group v. Sebben, 109 S. Ct. 414
(1988), this Court held that the invocation portion of
Labor’s presumption (which is not at issue here) violated
Section 402(f)(2)’s command to apply “criteria” no more
restrictive than those applied by HEW. The Court did not
decide whether Labor’s rebuttal provisions were valid

6

because the respondents in Sebben had conceded their validi-
ty. 109 S. Ct. at 423. For the same reason, the Court did
not decide whether application of Labor’s rebuttal methods
was constitutionally required. /bid.

Since Sebben, four courts of appeals have addressed the
validity of Labor’s rebuttal provisions. The court below and
the Sixth Circuit have upheld the provisions. Pet. App.
la-19a; Youghiogheny & Ohio Coal Co. v. Milliken, 866
F.2d 195 (6th Cir. 1989). In both of those cases, miners in-
voked Labor’s presumpiion by proving the existence of
pneumoconiosis. Pet. App. 4a; 866 F.2d at 197. In both
cases, benefits were denied because coal mine operators
proved under Labor’s third rebuttal method (20 C.F.R.
727.203(b)(3)) that the miners’ disabilities did not arise in
whole or in part from the disease. Pet. App. 4a-Sa, 37a-38a;
866 F.2d at 197.

The Fourth and Seventh Circuits have invalidated parts
of Labor’s rebuttal reguiation. In Taylor v. Clinchfield Coal
Co., 895 F.2d 178 (4th Cir. 1990), petition for cert. pend-
ing, No. 90-113 (filed July 17, 1990), an ALJ concluded
that a miner who had invoked the presumption did not have
pneumoconiosis, so that the relevant operator had rebutted
the presumption under the fourth method listed in Labor's
regulation. The ALJ also concluded that the miner was not
totally disabled as a result (in whole or in part) of
pneumoconiosis, so that the presumption had been rebutted
under the third method as well. The Fourth Circuit con-
cluded that Labor’s four rebuttal methods “permit rebuttal
of more elements of entitlement to benefits than do the in-
terim HEW regulations which permit rebuttal solely through
attacks on the element of total disability,” and held that
they were contrary to Section 402(f)(2). 895 F.2d at 182-183.

7

Accord Dayton v. Consolidation Coal Co., 895 F.2d 173
(4th Cir. 1990), petition for cert. pending, No. 90-114
(filed July 17, 1990).?

In Taylor v. Peabody Coal Co., 892 F.2d 503 (7th Cir.
1989), petition for cert. pending, No. 89-1696 (filed May
2, 1990), an ALJ concluded that the presumption had been
rebutted under Labor’s second method because th. medical
evidence showed only a mild respiratory impairment that
did not prevent the miner from doing his usual coal mine
work. 892 F.2d at 505. The ALJ awarded benefits, however,
on the theory that HE W’s second rebuttal method required
proof not only that the miner was able to work, but also
that the miner could actually obtain work. The court of ap-
peals, in affirming the award, spoke broadly. In the order
issued on rehearing, the court said that it had “held that
to the extent the Department of Labor regulations allow
rebuttal— when HEW’s do not—the Labor rules are in-
valid.” Pet. App. 2a.’

? In Taylor v. Clinchfield Coal, the Fourth Circun found no substan-
tial evidence of rebuttal under Labor's third method, but suggested that
HEW’s regulation might have allowed a third method of rebuttal
“similar” to Labor's third method, and remanded for consideration of
that issue. 895 F.2d at 183. In an unpublished decision following Taylor
v. Clinchfield Coal, the court concluded that this suggestion was
“dicta” and that HEW’s regulation allowed only two rebuttal methods.
Robinette v. Director, OWCP, No. 88-1144 (4th Cir. Apr. 27, 1990),
slip op. 8 & n.9, petition for cert. pending (filed July 25, 1990). See
also Arahel v. Consolidation Coal Co., No. 89-2394 (4th Cir. Apr. 5,
1990) (unpublished), slip op. 5-6 (“we have recently held that applica-
tion of the rebuttal provisions of 20 C.F.R. § 727.20%b)3) and (4)
violates 30 U.S.C. § 902(f)").

> Although Labor's third rebuttal method was not directly at issue
in Taylor v. Peabody Coal, the author of the panel opinion in that case
subsequently stated that “this court held in Taylor v. Peabody Coal
* * * that § 727.20Mb\ 3) was invalid.” Mever v. Zeigler Coal Co. , 894
F.2d 902, 905 n.3 (7th Cir. 1990), petition for cert. pending, No. 89-7383
(filed Apr. 27, 1990).

The courts of appeals have acknowledged the conflict.
Both the Fourth Circuit, 895 F.2d at 183 n.2, and the
Seventh Circuit, 892 F.2d at 506, noted their disagreement
with the approach of the Sixth Circuit. The court below,
in turn, noted the conflict between the Sixth and Seventh
Circuits “as to issues similar to those before us,” and de-
clined to attempt to harmonize the decisions. Pet. App. 19a.
And the dissenting judge on the Fourth Circuit recognized
the conflict among the circuits and stated that “[i}t seems
to me that by adopting the views of the Third and Sixth
Circuits concerning these murky and confusing regulations
we [would] do less violence to congressional intent, and
[would] avoid both upsetting the statutory scheme and rais-
ing due process problems.” 895 F.2d at 184; see also
Robinette v. Director, OWCP, No. 88-1144 (4th Cir. Apr.
27, 1990), slip op. 7-8 n.8, petition for cert. pending (filed
July 25, 1990) (asking the Court to “definitively resolve this
conflict”).

2. Although Section 402(f)(2) applies only to claims filed
before April 1, 1980 (see Sebben, 109 S. Ct. at 418-419),
the conflict among the four courts of appeals can still be
expected to have a significant, detrimental impact on the
administration of the black lung program. An estimated
2,000 to 3,500 claims governed by Section 402(f)(2) are still
in litigation, and about, 83% of them arise in the Third,
Fourth, Sixth, and Seventh Circuits. Because the vaidity
of Labor’s rebuttal provisions appears to be the only
substantial legal question remaining concerning the applica-
tion of Section 402(f)(2), we believe that a very high per-
centage of the outstanding claims are affected by the
conflict.

The present value of a single black lung claim has been
estimated at between $118,316 and $185,656. See Employ-
ment Standards Admin., United States Dep’t of Labor, An-
nual Report on Administration of the Black Lung Benefits

9

Act for Calendar Year 1979, at 32 (1980). Thus, the claims
are of great importance to the individual claimants and,
given their cumulative value (as much as $650 million), of
great importance to the coal industry.

There is, in our view, one substantial question as to
whether this case, rather than one of the Fourth Circuit cases
in which a petition for a writ of certiorari is pending, is the
most appropriate vehicle for resolution of the existing con-
flict. As noted (see note |, supra), Mr. Pauley died in 1988
and h‘s widow was not promptly substituted as claimant.
The failure to effect her substitution raises the question
whether Mrs. Pauley was entitled to petition for certiorari
in light of “the general rule that one who is not a party or
has not been treated as a party to a judgment has no right
to appeal therefrom.” Karcher v. May, 484 U.S. 72, 77
(1987) (citations omitted). Since the statute provides benefits
to survivors as well as miners and expressly states that sur-
vivors of eligible miners are not required to refile or other-
wise validate the miners’ claim (see note |, supra), we believe
that Mrs. Pauley is the proper party and that substitution
nunc pro tunc is appropriate. However, the Benefits Review
Board rev ently decided that it lacks jurisdiction to consider
the gove"nment’s unopposed substitution motion. /bid. The
governs. ent intends to seek reconsideration of this ruling,
but in view of this substitution issue, which is not in itself
one warranting this Court's attention, the Court may wish
to hold this case and to grant plenary review in one of the
Fourth Circuit cases.*

* For the reasons more fully stated in our brief in response to the
certiorari petition in that case, we believe that, of the petitions that are
currently before the Court, Consolidation Coal Co. v. Dayton, No.
90-114, is the most appropriate of the Fourth Circuit cases for plenary
review.

10

CONCLUSION

The petition for a writ of certiorari should either be
granted or held and disposed of as appropriate in light of
the disposition of Consolidation Coal Co. v. Dayton, No.
90-114.

Respectfully submitted.

KENNETH W. STARR
Solicitor General

David L. SHAPIRO
Deputy Solicitor General

CHRISTOPHER J. WRIGHT
Assistant to the Solicitor General

ROBERT P. Davis
Solicitor of Labor

ALLEN H. FELDMAN
Associate Solicitor

EDWARD D. Si®GER

Attorney
Department of Labor

JuLy 1990

US GOVERNMENT PRINTING OF FICE 1990- 262 20320029

a a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0750%3A04. Public record. Not legal advice.