Reply Brief — Pauley v. BethEnergy Mines, Inc.

.

(

Nos. 89-1714, 90-113 and 90H Bepreme Court. 1

* Tus FEB 13 1991

Supreme Court of the Anite Siates ona |

OCTOBER TERM, 1990 =

HARRIET PAULEY, Survivor of JohN C. PAULEY,

Petitioner,

V.

BETHENERGY MINES INC., et al.,

Respondents.

CLINCHFIELD Coal COMPANY,

Petitioner,

Vv

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION

PROGRAuS, U.S. DEPARTMENT OF LABOR, et al.,

Respondents,

CONSOLIDATION COAL COMPANY,

Petitioner,

V.

Director, OFFICE OF WORKERS’ COMPENSATION

PROGRAMuS, U.S. DEPARTMENT OF LABOR, et al.,

Respondents.

On Writs Of Certiorari To The United States Courts

Of Appeals For The Third And Fourth Circuits

JOINT REPLY BRIEF FOR THE PETITIONERS

CLINCHFIELD COAL COMPANY AND

CONSOLIDATION COAL COMPANY

ALLEN R. Prunty** MarRK E. SOLOMONS*

JACKSON & KELLY LAURA METCOFF KLAUS

1600 Laidley Tower ARTER & HADDEN

P.O. Box 553 Suite 400

Charleston, WV 25322 1919 Pennsylvania Ave., N.W.

orc 1 Washington, D.C. 20006

Counsel. 202) 775.7154

JOHN J. BAGNATO 0

SPENCE, CUSTER, SAYLOR, oe 4 1 | led

Wotre & Rose pany

U.S. National Bank Building Counsel 7 Record for the

P.O. Box 280 Consolidation Coal Company

Johnstown, PA 15907

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

5

TABLE OF CONTENTS

Page

LR Ä ii

ee

r nierneniineenenrneerenemnessass

I. THE IRREBUTTABILITY THEORY IS NOT

NT ... 4

II. DOL’S INTERPRETATION OF 30 U.S.C.

e 6

A. DOL Was in the Best Position to Know

What Congress Expect ed 6

B. oe Evidence of Pneumoconiosis Does

RE —18 7

C. PFT Proof Does Not Conclusively Estab-

lish Entitlement to Benefits 11

III. DOL’S RULE MERITS DEFERENCE. ............ 15

IV. CONGRESS WOULD NOT HAVE ENACTED A

BLACK LUNG PROGRAM DOOMED TO PER-

PETUAL FINANCIAL CRIS Is 18

8 ——— 20

TABLE OF AUTHORITIES

CASES: Page

Bellotti v. Baird, 428 U.S. 132 (1976) 18

Bowen v. Yuckert, 482 U.S. 137 (1987) ................. 13

Broyles v. Director, of Workers’ Compensa-

tion Programs, A 327 (ath Cr 1987),

d in part, Pittston Coal Group v. Sebben,

1 ˙2 5

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, 467 U.S. 837 erly — 16

Director, Office Compensation Pro-

grams v . Diamond Diamond Mining Co., 598 F. 2d

945 (5th > 19

Mullins Coal Co. v. — ae

(1987) — —— — — 8

Pittston Coal Group v. Sebben, 488 U.S. 105

. ee passim

Schweiker v. Hansen, 450 U.S. 785 (1981) ............ 9

Securities Industries Ass'n v. Board of Governors

of the Fed. Reserve Sys., 468 U.S. 137

. ͤ 17

Traynor v. Turnage, 108 S. Ct. 1372 (1988) 16

United States v. American Trucking Ass'n, Inc., 310

J accsscssemmmeaiiaie 16

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1

6 —. 14

CONSTITUTIONAL PROVISIONS

WS. Gamat, GeO, FEE r 17

J VU ccsccsscsnsnsmcentnen 17

STATUTES AND REGULATIONS:

L cnnnnanminl 18

I 7

Black Lung Benefits Act, as amended, 30 U.S.C.

I 3

ili

Table of Authorities Continued

Page

Section 401(a), 30 U.S.C. § 901(a) (1988) ....... 16

Section 402(b), 30 U.S.C. § 902(b) (1988) ....... 12

Section 402(f(1), 30 U.S.C. § 902(f\1)

e 10,16,17

Section 402(fX2), 30 U.S.C. § 9020)

r passim

Section 4020 (A), 30 U.S.C. § 9020 NA

(1988)

e esse 6

1 402(f( 2B), 30 U.S.C. 5 902(f( 2B)

e 6

* — 41 16a), 30 U.S.C. § 921(a) (1988) ....... 16

Section 411(cX1), 30 U.S.C. § 921(cX1)

r ] m 14

we 411(cX2), 30 U.S.C. § 921002)

LET AT 14

Section 411(cX3), 30 U.S.C. § 921(cX3)

m sees 15

Section 411(cX4), 30 U.S.C. § 921(c\4) .

eee 4,

Petey 413(b), 30 U.S.C. § 923(b) (1988) ....... 16

Section 422(c), 30 U.S.C. § 932(c) (1988) ...... 3,16,18

Section 423, 30 U.S.C. § 933 (1988) 19

1 — 30 U.S.C. § 934(a\1)

EE aT 19

Section 435, 30 U.S.C. § 945 (1988) . .. 6

Black Lung Benefits Act of 1972, Pub. L. No. 92-

Se 4

Black Benefits Revenue Act of 1977, Pub. L.

No. 95-227, 92 Stat. 11 (1978) . 6

Black Benefits Reform Act of 1977, Pub. L.

No. 95-239, 92 Stat. 95 (1978) . . . 6

Consolidated Omnibus Reconciliation Act of

1985, Pub. L. No. 99-272, 100 Stat. 312, 313

w 5,19

iv

Table of Authorities Continued

Page

Black Lung Program Regulations

20 C. F. R. § 410.412 (1990) . 8

20 C. F. R. § 410.412(aX1) (1990) . .. 8.9, 10

20 C. F. R. 5 410.416 (1990) . ... . 12,14

20 C. F. R. § 410.416(a) (1990) . . .. 11

Lee 11

20 C. F. R. 5 410. 424-4 10.426 (1990) . . . 8

20 C. F. R. § 410. 426(a) (1990) . .. 8

20 C. F. R. § 410.456 (1990) . . . 12,14

20 C. F. R. § 410.456(a) (1990) . . . . . 11

20 C. F. R. § 410.458 (1990) . 11

20 C. F. R. § 410.490 (1990) . passim

20 C.F.R. 5 410.490(a) (1990) . . . 4

20 C.F.R. § 410.490(bX1) (1990) . . . 11,13,14

20 C.F.R. § 410.490(bX2) (1990) . . passim

20 C.F.R. § 410.490(bX3) (1990) .............. 11,12,13,14

20 C.F.R. 5 410.490(c) (1990) . .. passim

20 C. F. R. § 410.4900 (2) (1990) . eeeeee 13

20 C. F. R. § 725.49 Aa) (1990) . 19

20 C.F.R. 1. %% ee 6,12

20 C. F. R. § 727. 20800) (1990) . 2,7

20 C. F. R. § 727.203(bX3) (1990) . . eee 2, 14,16

20 C. F. R. 5 727. 2030b 4) (1990) . . 2,8, 14,16

CLI . 6

LI „ .. 8 6

MISCELLANEOUS:

H.R. 7, 94th Cong. Ist Sess. (1975) .. . 15

„ Relating to the Insol of the Black

ity Trust Fund, Hearings Before

a ubcomm. on 1. of the House Comm.

oo and Means 97th Cong., Ist Sess.

— —̃ —-—-— . ———— 5

Table of Authorities Continued

Oversight of the Administration of the Black Lung

play A 1977: Hearings Before the Subcomm.

abor of the Senate Comm. on Human Re-

sources, 96th Cong., tst Sess. (1977) ............. 6

Black Lung Benefits Provisions of the Federal Coal

Mine Health and Safety Act: Hearings Before

the House Comm. on Education and Labor, 95th

.. 11

H.R. Rep. No. 864, 95th Cong., 2d Sess. (1978) 6, 15,19

S. Rep. No. 336, 95th Cong., Ist Sess. (1977) ...... 19

S. Rep. No. 209, 95th Cong., Ist Sess. (1977) ...... 12

131 Cong. Rec. $15,477-79 (1985) . . . . 18

124 Cong. Rec. 3426 (1978) . . ... . . . . . . . 15

Irn 15

U.S. Department of , Black Lung Disabil-

, * Fund, Status of Funds (Sept.

— ᷣQ— ¶ĩ ¶ 5

Brief Amicus Curiae of the National Council on

Compensation Insurance, et al., Pittston Coal

Group v. Sebben, 488 U.S. 105 (1988) (Nos. 87

4... ee 5

Social Security Administration, Coal Miner's Ben-

r . —vV 3,7,9,12

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1990

Nos. 89-1714, 90-113 and 90-114

HARRIET PAULEY, Survivor of JoHN C. PAULEY,

Petitioner,

V.

BETHENERGY MINES INC., et al.,

Respondents.

CLINCHFIELD COAL COMPANY,

Petitioner,

V.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION

PROGRAMS, U.S. DEPARTMENT OF LABOR, et al.,

Respondents.

CONSOLIDATION COAL COMPANY,

Petitioner,

V.

DIRECTOR, OFFICE OF WorKERS’ COMPENSATION

ProGRAMS, U.S. DEPARTMENT OF LABOR, et al.,

Respondents.

On Writs Of Certiorari To The United States Courts

Of Appeals For The Third and Fourth Circuits

JOINT REPLY BRIEF FOR THE PETITIONERS

CLINCHFIELD COAL COMPANY AND

CONSOLIDATION COAL COMPANY

INTRODUCTION

In these consolidated cases, the mine operator parties

and the Government seek this Court’s affirmation of the

validity of the Department of Labor’s (‘“‘DOL’’) black lung

interim rebuttal regulations at 20 C.F.R. § 727.203(b). The

provisions at issue permit a mine operator to demonstrate

that it is not liable to pay black lung benefits, if the evi-

dence proves that the miner did not contract black lung

disease or, that the miner's total disability or death was

not related to this disease. Id. § 727.203(b\3), (4).

The black lung claimant parties in these cases assert

that these avenues of inquiry were blocked under the So-

cial Security Administration’s (“SSA”) interim rules. 20

C.F.R. § 410.490 (“section 410.490’’). Accordingly, DOL’s

rules are more restrictive than SSA’s and thus invalid

under section 402(f(2) of the Black Lung Benefits Act, 30

U.S.C. § 90202) (“section 402(f2)’’). The claimants argue

that the invocation of SSA’s interim presumption by x-

ray, biopsy, autopsy or pulmonary function test (“PFT’’)

evidence’ irrebuttably presumes that the miner has or had

black lung disease and that the disability or death of the

miner is causally related to this occupational disease. Sec-

tion 402(f(2) of the Act then requires DOL to apply the

same irrebuttable presumptions in the claims it adjudi-

cates. Responding to the assertion that DOL’s contrary

In No. 90-113, the DOL presumption was invoked on the basis of

arterial blood gas tests, a method not available under SSA's rule. The

claimant involved in 90-113, John Taylor, adopts the substantive ar-

interpretations are entitled to judicial deference, Pauley

and Dayton argue that only SSA’s interpretation as re-

flected in its claims manual is entitled to deference, and,

because of the liberal purpose of the Black Lung Benefits

Act, 30 U.S.C. §§ 901-945 (‘‘Act’’), claimants’ interpreta-

tions are also entitled to special respect.

Pauley and Dayton then concede that, in light of 30

U.S.C. § 932(c), individual mine operators cannot be held

liable for claims in which it is proven that a miner’s dis-

ability or death did not arise in part from pneumoconiosis

caused by the miner’s employment with the operator. Thus,

a claimant who is eligible in a case involving a mine owner

who cannot be held liable, receives benefits from the Black

Lung Disability Trust Fund. This theory makes it unnec-

essary for the Court to address the due process arguments

presented as it insulates employers from liability, where

no harm was done to the miner by the employer.

A brief amicus curiae has been filed by the United Mine

Workers’ of America (“UMWA”’) in support of the claim-

ants. The National Council on Compensation Insurance

(“NCCI”), a workers’ compensation insurance industry af-

filiated organization, and the National Coal Association

(“NCA”), a trade association of mine owners and related

businesses, have filed amici curiae briefs in support of the

mine operators. NCCI points out that the liability advo-

cated by the claimants in these cases is not insured and

could not be insured under black lung compensation in-

surance policies. NCA argues that Congress did not intend

to deprive mine operators of any meaningful opportunity

to defend black lung claims and urges the Court not to

“dump” liability for non-meritorious claims on the Black

Lung Disability Trust Fund.

The mine operator parties join the Government in ar-

guing that the irrebuttability theory is neither valid nor

even believable. Both the operators and the Government

point out that SSA’s presumption, while it is complex and

perhaps redundant, encompasses the possibility of factual

inquiry into the elements of entitlement addressed in DOL’s

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II. DOL’S INTERPRETATION OF 30 U.S.C. § 902(f(2) IS

CORRECT

A. DOL Was in the Best Position to Know What Con-

gress Expected

Less than two months after enactment of 30 U.S.C.

990202). DOL published proposed regulations.“ including

an interim presumption that is virtually identical to the

version in section 727.203 finally adopted several months

later.’ It is, therefore, clear that from the beginning DOL

interpreted section 402(f(2) of the Act and SSA’s section

410.490 to allow rebuttal in any case in which the miner

did not have pneumoconiosis or suffer total disability or

death due to this disease. DOL’s contemporaneous inter-

pretation was surely informed by some authority. In

congressional testimony, DOL had already expressed un-

certainty over the exact meaning of the interim presump-

tion. Oversight of the Administration of the Black Lung

Program, 1977: Hearings Before the Subcomm. on Labor

of the Senate Comm. on Human Resources, 95th Cong., Ist

Sess. 146-47 (1977) (statement of Labor Assistant Secre-

tary Elisburg). It is reasonable to assume, however, —

1978 amendments.“ It also follows that DOL's interpre-

*43 Fed. Reg. 17,770 (1978).

tation of section 402(f2) of the Act and section 410.490

reflected in the DOL presumption is consistent with SSA's.’

Although lengthy efforts are made by Pauley and Day-

ton to dissect section 410.490, its cross-references, and the

SSA manual to show that section 410.490 and section

727.203(b) are irreconcilably in conflict, the resolution pro-

posed is no more than a result-oriented product that serves

Pauley’s and Dayton's objectives. They are in no better

position than any other outside observer to offer an au-

minated on June 30, 1973.

rere It is, at

B. X-ray Evidence of Pneumoconiosis Does Not

Irrebuttably Presume Disease Causation

Pauley claims that a miner who invokes section 410.490

* Both Pauley and Dayton urge the Court to defer to SSA's inter-

section 410.490, but offer only their own views on the

i SSA's manual. There is

“disability causation because no other segment of sec-

tion 410.490 directly requires a factual inquiry into this

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“criteria” in section 402(f(2) of the Act means only “

ical” criteria, but not “other conditions for recovery”

2

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85 1

10 AA rather than all of section 410.412 is inherently mean-

ingful. That is not so. Section 410.1 Aal) “defines” “total disability”

> canted tity diated oes 1 —

to if: his pneumo-

cuubale quuaits On Gen cumin ta em end ana eae

(Emphasis supplied.)) The disability causation element is clearly present

in section 410.412(aX1) without reference to any other segment of sec

tion 410.412. The cross-reference to sections 410.424-410.426 which in

turn provide more detailed criteria for evaluating the listed components

of “total disability” then at the end of section 410.41 All)

It i rensonahly clear throughout d of SBA's rules, incioding soction

410.490(c), that the meaning of the term “total disability” is defined

in section 410.412(a(1). This definition invariably focuses on the cause

of the disability as well as its extent. This is, in fact, one of the few

consistent patterns in SSA's rules. Pauley’s attempt to limit the overall

definition to exclude reference to causation is unjustified and strained.

SSA's criteria in this regard than there was

in Pittston Coal Group. See id.

Two explanations are offered to buttress 's the-

ory: (1) that SSA’s claims manual does not include the

cross-references to section 410.41 Aa I), and (2) that Pau-

|

:

|

if the criteria in paragraph IB6(c) are met “and there is

no evidence that rebuts such finding. This description

able if the proof shows that the miner does not or did

not have pneumoconiosis or that his totally disabling im-

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n.18. SSA produced a considerable volume of additi ;

— 5 additional operating guide-

“The theory is an overstatement having no genuine factual foun-

dation. See Brie! of Respondent BethEnergy Mines Inc. at 8-9, 18.

Dayton s Brief repeatedly insists that DOL keeps changing its mind

on the precise location of the disability causaton inquiry within the

text of section 410.490. In its brief to this Court, DOL does not rely

upon the section 410.490(c) cross-references to section 410.412(a\{1), but

argues instead that neither DOL nor SSA considered the “total disa-

bility” rebuttal methods in section 410. 40%) to be exclusive. DOL also

points out that section 410 40h (which applies to all medical meth-

ods for invocation of the SSA rule), by focusing on “impairment” caus-

ation also reflects a focus on disability causation in the SSA rue The

differing focal points of the mine operators’ arguments and DOL's are

not particularly significant, and both arguments are likely to be correct.

is unlikely that the same i

4+, - — meaning may de drawn from

— —— —— ——

11

C. PFT Proof Does Not Conclusively Establish En-

titlement to Benefits

Dayton argues that when a claimant invokes the SSA

presumption by PFT evidence, both disability causation

and the existence of pneumoconiosis are irrebuttably pre-

sumed. This ascribes a particularly curious intent to SSA,

since the agency knew that its PFT invocation criteria

were set at essentially normal levels for retired miners,’

and thus would predict a zero probability that either ir-

rebuttably presumed fact was true in most cases. SSA was

given no authority to promulgate a retirement entitlement

for older coal miners.

Dayton’s PFT argument is based on the theory that

benefits can be denied to a miner with qualifying test

scores only if the miner is working or able to work. Adopt-

ing Pauley’s view of section 410.490(c), it does not matter

why the miner is not working. Dayton argues that section

‘410.490(bX2) (which inquires into the cause of the impair-

ment detected in section 419.490(bX1)) does not apply in

these cases because it functions only if the miner has pneu-

moconiosis. Rather, section 410.490(b\3) alone defines the

scope of PFT invocation and the presumption it creates.

This theory works only if this Court ignores the cross-

references in section 410.490(c), the apparent applicability

of section 410.490(b\X2) to all medical invocation methods,

and the language in sections 410.416(a) and 410.456(a)

(which is incorporated by reference into section

See Black Lung Benefits Provisions of the Federal Coal Mine Health

and Safety Act: Hearings Before the House Comm. on Education and

Labor, 95th Cong. Ist Sess. 274-75 (1977) (testimony of Dr. Harold I.

Passes, Former Acting Chief Medical Officer, Bureau of Hearings and

Appeals. SSA).

Dayton ignores the fact that section 410. 49003) may also be read

to defeat the presumption in the face of proof that the miner did not

have pneumoconiosis or suffer related disability or death. Section

410.490(bX3) describes a presumption but there is no reason to con-

clude that it describes an irrebuttable presumption. SSA knew how

to write an irrebuttable ion where it intended to do so. See

20 C.F.R. §§ 410.418, 410.458.

- gg

12

410.490(b\(2)), stating that persuasive evidence to the con-

trary matters. It is also necessary to assume for the PFT

theory that SSA’s presumption was designed to work like

DOL’s section 727.203 where predicate (invocation) and

ultimate (rebuttal) facts are neatly set out to guide the

adjudicator, and the burden of persuasion clearly shifts

after invocation.

There is no good reason to ignore either section

410.490(b\X(2), the cross-references in section 410.490(c), or

the plain language of the various cross-referenced rules.

The manual is no help for the reasons noted infra at p.

9, and in fact does not even contain the equivalent of

section 410.490(bX3). It does, however, contain the equiv-

alent of section 410.490(b\X2) at paragraph IB6(cX2), which

cross-references paragraph IB4 which, in turn, contem-

plates rebuttal if the “impairment” established by x-ray,

biopsy, autopsy or PFT evidence did not arise out of coal

mine employment. Both the manual and section

410.490(bX2) inquire directly into whether the miner has

pneumoconiosis, and neither source suggests irrebuttability

in connection with this fact element.“

Dayton attempts to finally validate the PFT irrebutta-

bility theory by arguing that the SSA presumption should

not be read to sanction the sort of pre- invocation rebut-

tal” that would follow from the full implementation of

sections 410.416 and 410.456 through section 410.490(b\2).

This argument assumes, erroneously, that SSA’s pre-

sumption is a burden shifting device like DOL’s presump-

tion. DOL’s rule is clearly designed for application in

Dayton attempts to blunt the force of section 410.490(b\(2) by stat-

ing that prior to 1978, PFT evidence could not be treated as evidence

of pneumoconiosis, thus making section 410.490(b\2) inapplicable in a

PFT case. Brief of Respondent Albert C. Dayton at 19, 27 n.17. Al-

though in 1978, the Act was amended to include respiratory impair-

ments arising out of coal mining within the definition of pneumoconiosis,

30 U.S.C. § 902(b), the Senate Committee that proposed this revision

noted that this amendment was merely a codification of SSA’s existing

practices. This was not a substantive change. S. Rep. No. 209, 95th .

Cong., Ist Sess. 20 (1977).

13

adversary litigation in which the trier of fact must ulti-

mately find the pivotal facts based upon the complete re-

cord. DOL’s presumption is enormously beneficial to

claimants because, once triggered, the burden of persua-

sion on all ultimate facts falls to the employer, thus re-

solving reasonable probabilities in favor of the claimant.

SSA has decided tens of millions of disability and death

claims employing a very different and distinctly non-ad-

versarial method in which the SSA adjudicator moves

through the elements of the case in series. See, e.g., Bowen

v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing the

SSA grid). Most likely, section 410.490 is a crude con-

glomeration of the grid and the statutory black lung pre-

sumptions that allowed SSA’s claims personnel to

adjudicate black lung cases in a familiar way. The terms

“invocation” and rebuttal' in this setting probably do

not have the same meaning that they would have in tra-

ditional adversary litigation. More likely, the section

410.490 scheme allowed SSA personnel to look at each

element, one at a time, in the overall process of deciding

whether or not to make an award.

The SSA adjudicator first established the years of work

and then looked at the section 410.490(bX1) medical evi-

dence. If the requisite years were present and the medical

evidence qualified, the claims examiner would go to section

410.490(bX2) and/or (3) to see if some other information

in the file indicated the absence of disease or impairment.

The presumption format of paragraphs (bX2) and (3) prob-

ably allowed SSA to skip these steps because, as SSA

conceded, it developed no adverse evidence in defense of

the agency. There would, therefore, be no “rebuttal’’ evi-

dence to consider. Turning next to section 410.490(c), the

inquiry could be concluded unless SSA knew that the miner

was still working or SSA had negative blood gas studies

(physical performance tests). See section 410.490(cX2). If

there was no such evidence in the file, SSA could then

make an award. SSA did not, and would have no reason

to, prohibit its claims personnel from investigating each

element in the claim in light of all relevant evidence, but

14

simply set the system up in a way to ensure speedy awards

in a non-adversarial setting, partly by making no effort

to develop independent evidence and partly by making only

a token effort to validate the claimant’s evidence. See Joint

Brief for the Petitioners Clinchfield Coal Company and

Consolidation Coal Co. at 12-13.

This Court is clearly correct in observing that it is

plainly not the intended purpose of paragraph [410.490]

(bX2) to serve as a rebuttal provision rather than a sub-

stantive requirement.” Pittston Coal Group, 488 U.S. at

120. At the point of section 410. 4900b) or (03) inquiry,

the substantive element at issue is whether the miner has

pneumoconiosis or impairment arising out of mining em-

ployment, notwithstanding the affirmative medical evi-

dence allowing the claim to get past section 410.4900b 1).

DOL’s “rebuttal” rules merely reflect the placement of

the substantive inquiries directed by sections 410.490(b\2)

and (b) into sections 727. 203003) or (b\4). This approach

is better suited to adversary litigation and ensures that

the claimant’s presumptive bubble does not burst as soon

as persuasive evidence to the contrary” is introduced.“

SSA did not need to protect claimants from a loss of

the interim presumption when unfavorable evidence crept

into a file, because that evidence was never developed.”

If Congress gave any clear message to DOL in 1978, it

was to instruct DOL to “do as SSA says not as they do.”

Section 410.490(b\2) by referencing sections 410.416 and 410.456

incorporates the statutory presumptions in 30 U.S.C. § 921(c\1), (2).

This Court noted that the effect of these two presumptions is simply

to shift the burden of going forward with evidence from the claimant

to the operator.” Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 27

(1976) (citing Fed. R. Evid. 301).

This fully explains the general absence of “rebuttal” case law in

SSA claims, except in the cases of working miners. Rebuttal issues

cannot arise unless they are raised by the adversary and supported by

proof.

15

If there was any compromise reflected in the final congres-

sional deliberations over section 402(fX2), it was to this

effect.“ The agreement reached required DOL to validate

awards by ensuring the consideration of all relevant evi-

dence and writing an interim presumption that would

clearly promote this objective. H.R. Rep. No. 864, supra

n.8, at 16; 124 Cong. Rec. 2333 (1978) (statement of Sen-

ator Javits); id. 3426 (statement of Congressman Perkins).

There is no clear indication anywhere that SSA actually

wrote largely irrebuttable interim criteria or that DOL was

expected to design such a rule for its own claims.

III. DOL’S RULE MERITS DEFERENCE

Apart from section 402(f(2) of the Act, no legitimate

argument can be made that DOL’s rebuttal rules violate

any provision of the Act. To the contrary, a strong ar-

gument can be made that, with one express but non-ger-

mane exception, the Act compels inquiry into each factual

element of a claim in every case. Dayton and Pauley an-

swer the pervasive statutory focus on the existence of

pneumoconiosis, and the establishment of a connection be-

tween the disease and total disability or death by arguing

() that section 402(f(2) repealed these pre-existing pro-

visions by implication, or (2) by rationalizing the various

provisions to the point of inapplicability.

Dayton, Pauley, and the UMWA argue that sectior, 402(f\(2) reflects

a congressional compromise that must be honored by this Court. Pur-

portedly, the compromise mediated industry's wish for new permanent

eligibility regulations with the views of those in favor of a largely

irrebuttable interim presumption. This theory falters for a lack of proof

demonstrating a belief by anyone that SSA's interim presumption was

in any way irrebuttable. Congress did compromise the Senate's pref-

erence for the development of new DOL criteria for all claims with

the House’s preference for applying the interim criteria in all claims.

This in no way implies the irrebuttability of the SSA's criteria. The

House independently proposed but rejected the use of irrebuttable pre-

sumptions. See, ¢.g., H.R. 7, 94th Cong. Ist Sess. § 3(a) (1975).

* The Act contains an irrebuttable presumption of entitlement in the

case of a miner suffering from complicated pneumoconiosis, the most

advanced and life threatening stage of the disease. 30 U.S.C. § 92103).

16

There is no case to be made here for repeal by impli-

cation of, for example, 30 U.S.C. §§ 901(a), 902(f1), 921(a),

923(b), or 932(c). See Traynor v. Turnage, 108 S. Ct. 1372,

1381 (1988) (holding that repeal by implication will not lie

unless such a construction is “absolutely necessary). The

rationalizations are based on the premise that section

410.490 and thus section 402(f(2) really do compensate

total disability or death due to pneumoconiosis, but that

factual inquiry into the truth is barred by irrebuttability.

The argument is circular and is disproved by the fact that

SSA did not write and DOL was not ordered to write an

interim rule in which the existence of pneumoconiosis or

related disability or death are beyond the scope of factual

inquiry. There is, in sum, nothing in the Act to invalidate

DOL’s rebuttal rules.

If DOL’s interpretation of section 402(f\2) to allow fac-

tual rebuttal by the methods set forth in section

727.203(b\3), (4) is permissible under the Act, these rules

propriate for this Court to sustain DOL’s rules because

the interpretation advanced by Pauley and Dayton leads

to absurd results “plainly at variance with

the legislation as a whole.” See United States v. American

Trucking Ass n, Inc., 310 U.S. 534, 543 (1940).

Pauley suggests that this Court should defer to SSA

and Dayton suggests that this Court should favor the

claimant’s interpretation of the Act. Both contend that

2

— — H — — —

17

DOL’s position reflects only the litigating position of its

attorneys. These points merit little discussion.

First, it is DOL’s rule that is being reviewed and thus

it is DOL’s interpretation of section 402(f(2) that matters.

SSA had no legal authority to promulgate any rules gov-

erning these cases. 30 U.S.C. § 902(f1). Even if SSA's

prior interpretation of section 410.490 may be considered

to have been codified in section 402(f2), there is no com-

pelling insight into what SSA meant, or any proof that

the two agencies disagreed. A deference exercise focusing

on SSA is neither helpful nor appropriate.

Next, courts do not defer to the statutory interpreta-

tions of private litigants. There is no basis in the Consti-

reviewing an agency’s litigating position.

18

Consolidation Coal Company at 5 n.2. Lawyers for agen-

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that employers, indeed, eannot be held liable for these

clearly non-meritorious cases in keeping with 30 U.S.C.

the Black

19

in any case. See Consolidated Omnibus Budget Reconcili-

ation Act of 1985, supra n.4. The cost of the benefits

sought by Pauley and Dayton will surely fall on the tax-

payer. It seems that for Pauley and Dayton SSA's Part

B program is simply preferable in all respects to DOL's

program and they are essentially seeking its reenactment

in this Court.

The adoption of this theory would do great violence to

Congress's intent. Noting that substantially all of the costs

of the program were being paid by the taxpayer, the Sen-

ate Finance Committee in 1977, concluded that this was

improper and that these costs should be borne by the

industry. S. Rep. No. 336, 95th Cong., Ist Sess. 2, 6-8

(1977). The Trust Fund concept emerged from this objec-

tive. The Fund's liability was limited to claims in which

the miner quit work before January 1, 1970, claims for

30 U.S.C. § 934(aX1). Congress did not at any time expect

or intend that differing eligibility criteria would apply de-

pending upon whether the claim was paid by the Fund or

an operator. This conclusion would not in any way have

been consistent with the benefit financing scheme adopted.

20

It could not have enacted a new open-ended social program

for coal miners or a private liability program doomed to

failure. This intent should be respected.

CONCLUSION

The decisions of the Fourth Circuit in Nos. 90-113 and

90-114 should be reversed and the decision of the Third

Circuit in No. 89-1714 should be affirmed.

ALLEN R. Prunty** MARK E. SoLomons*

JACKSON & KELLY LAURA METCOFF Klaus

1600 Laidley Tower ARTER & HADDEN

P.O. Box 553 Suite 400

Charleston, WV 25322 1919 Pennsylvania Ave. NW.

Of Counsel: Washington, D.C. 20006

JOHN J. BaGNaTO Counsel of Record for the

Spence, Custer, SAYLor, Clinchfield Coal Company

Woire & Rose

, : 8 Counsel of Record for the

U.S. National Bank Building 4

P.O. Box 280 Consolidation Coal Company

Johnstown, PA 15907