Amicus Curiae Brief — Pauley v. BethEnergy Mines, Inc.

No. 89-1714

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

HARRIET PAULEY, SURVIVOR OF JOHN C. PAULEY,

. Petitioner

BETHENERGY MINES, INC. and

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR,

Respondents

On Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF OF AMICUS CURIAE

UNITED MINE WORKERS OF AMERICA

IN SUPPORT OF CLAIMANT PETITIONER

ROBERT H. STROPP, JR.

General Counsel

MICHAEL DINNERSTEIN *

UNITED MINE WORKERS

OF AMERICA

900 Fifteenth Street, N.W.

Washington, DC 20005

* Counsel of Record (202) 842-7337

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

® een 60

_-- or

TABLE OF CONTENTS

TABLE OF AUTHORITIES 0...

STATEMENT OF INTEREST 00...

INTRODUCTION AND SUMMARY OF ARGU-

MENT ....... Last ipadnbenaanodinddieanebieectalscaisitacects

ARGUMENT ......... juscioeeinteanaianienaabiaiadnees EE et OO

THE COURT BELOW ERRED BY REFUSING

TO APPLY THE COMPROMISE CONGRESS

ENACTED INTO LAW WITH PASSAGE OF

THE BLACK LUNG BENEFITS REFORM ACT

_ gf Ree 2 idiots enipidanecaaeiieeniepeasnebidiicis ae

I.

I.

ENACTMENT OF THE 1977 ACT CONSTI-

TUTED A LEGISLATIVE COMPROMISE

WHICH AWARDED MINERS WHOSE

CLAIMS WERE STILL PENDING OR TO

BE REVIEWED THE BENEFIT OF THE

LIBERAL ELIGIBILITY CRITERIA ESTAB-

LISHED BY THE DEPARTMENT OF

HEALTH, EDUCATION, AND WELFARE

(“HEW”), AND AWARDED INDUSTRY

WITH THE BENEFIT OF STRICTER CRI-

TERIA WITH RESPECT TO FUTURE

CLAIMANTS AND WITH THE REJECTION

OF A PROPOSAL TO GRANT MINERS

BENEFITS BASED SOLELY ON THE NUM-

BER OF YEARS THEY WORKED IN THE

APPLIED TO CLAIMS IN 1977 DID NOT PER-

MIT REBUTTAL OF THE PRESUMPTION

OF ELIGIBILITY INVOKED BY A CLAIM-

ANT WHO SATISFIED MEDICAL TEST RE-

QUIREMENTS ON THE GROUNDS THAT

HIS DISABILITY WAS NOT CAUSED BY

PNEUMOCONIOSIS .

ii

TABLE OF CONTENTS—Continued

lil. THE COURT BELOW DENIED CLAIMANTS

THE BENEFITS OF THE LEGISLATIVE

COMPROMISE BY PERMITTING REBUT-

TAL OF THE PRESUMPTION OF ELIGIBIL-

ITY INVOKED BY A CLAIMANT WHO SAT-

ISFIED MEDICAL TEST REQUIREMENTS

ON THE GROUNDS THAT HIS DISABILITY

WAS NOT CAUSED BY PNEUMOCONIOSIS..

COTTE EI aecceccveesccceedtnesenssctenenaniitiania

Page

11

iii

TABLE OF AUTHORITIES

CASES: Page

American Mining Congress v. U.S.E.P.A., 824 F.2d

Ss Re i 13

Beard v. Rowan, 9 Pet. (34 U.S.) 301 (1835) ......... 20

Bethenergy Mines, Inc. v. Director, OWCP, 890

F.2d 1295 (3d Cir. 1989) _...........0000.00 9, 11,17

Bethlehem Steel Corp. v. U.S.E.P.A., 723 F.2d

ee 21

Board of Governors v. Dimension Financial Corp.,

Te a cprecevumvessaresececsees passim

Bowsher v. Merck & Co., 460 U.S. 824 (1983) ........ 19

Brach v. Amoco Oil Co., 677 F.2d 1213 (7th Cir.

a ccesnevtusewsauevsweese 12-13

Burlington Northern R.R. v. B.M.W.E., 793 F.2d

795 (7th Cir. 1986), cert. dism., 476 U.S. 1179

Neen ee a ccvumieveuseustevesees 20

Communist Party v. S.A.C. Board, 367 US. 1

EEE SS ESE Sd 14

Community For Creative Non-Violence, et al. v.

Reid, 490 U.S. 730 (1989) ................... eicatsaennins 11-12

Continental Air Lines v. Department of Transpor-

tation, 843 F.2d 1444 (D.C. Cir. 1988) ......... 16-17, 19

Coosaw Min. Co. v. South Carolina, 144 U.S. 550

a censunsvecnovnncace 20

Fourco Glass Co. v. Transmission Corp., 353 U.S.

a csscsemsenenesostvecee 20

Funbus Systems, Inc. v. C.P.U.C., 801 F.2d 1120

EE 13

Hardin v. Kentucky Utilities Co., 390 U.S. 1

Cn scnunessasneceeces 11

In Re Timbers of Inwood Forest Associates, Ltd.,

808 F.2d 363 (5th Cir. 1987), aff'd, 484 U.S. 365

a. ccnupsenuenvecccsacoves 12

International Union, UAW v. General Dynamics,

815 F.2d 1570 (D.C. Cir. 1987), cert. denied,

a 22

Lauritzen v. Lehman, 736 F.2d 550 (9th Cir.

Cee a caccsnctennsweves 13-14, 21

Marbury v. Madison, 1 Cranch 137 (U.S. 1803) _. 14

iv

TABLE OF AUTHORITIES—Continued

Page

Mercado v. Calumet Federal Sav. & Loan Ass’n.,

, BK RO Re a noe 19-20

Mohasco Corp. v. Silver, 447 U.S. 807 (1980) _..... 11

Morrison-Knudsen Construction Co. v. Director,

Office of Workers’ Compensation Programs, 461

I in 12

Norris v. Crocker, 13 How. 429 (U.S. 1851) .......... 20

Northwest Airlines v. Transport Workers, 451

i eee ee 15-16

Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st

a ee ee 12

Price v. Forrest, 173 U.S. 410 (1899) —.....000000000.... 20

Rodriguez v. United States, 480 U.S. 522 (1987)... 17,18

TVA v. Hill, 487 U.S. 153 (1978) ............00-0 0... 14-15

Thompson v. Thompson, 484 U.S. 174 (1988)... : 16

Trustees of Iron Workers v. Allied Products, 872

F.2d 208 (7th Cir. 1989), cert. denied, 110 S.Ct.

I 22

U.S. v. Tynen, 11 Wall. 88 (U.S. 1870) 0000. 20

United States v. M/V Big Sam, 693 F.2d 451 (5th

Cir. 1982), cert. denied, 462 U.S. 1132 (1983)... 12

United States v. Medico Industries, Inc., 784 F.2d

ne 20

United States v. Sisson, 399 U.S. 267 (1970) ....18-19, 20

United States v. Tex-La Elec. Co-op., 693 F.2d 392

ee 12

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

SII ccccadeeksaciichativeastits cial ieee Teich tt lai oe Sin de 17

Walck v. American Stock Exchange, Inc., 687 F.2d

778 (3rd Cir. 1982), cert. denied, 461 U.S. 942

(1983), reh. denied, 463 U.S. 1236 (1983) ........... 13

Walton v. United Consumers Club, Inc., 786 F.2d

Re SE ded Rae Sere ote er ee 12

STATUTES:

Black Lung Benefits Act of 1969

ns I io ce ccccticteecciceeniesetes sie eds 17

Black Lung Benefits Reform Act of 1977

AN, CO Sascha rl Secsetarendniindiieuaials 8,11

Vv

TABLE OF AUTHORITIES—Continued

Page

REGULATIONS:

Health, Education and Welfare Regulations

BO CFB. § GIG AGOCD) «2-2-2222 20s0nceseccssceccsccnescesecee

BO Cr cite B GRO EE oscccnascccsecsscseccercsevencoveccsseses

Department of Labor Regulations

30 C.F.R. § 727.208 (a) ....................---00--00-20- siete 9

re es Oe I aires csccsscenevecsencssecessones

oo

LEGISLATIVE MATERIALS: .

123 Cong. Rec. 24,636-24,637 (1977)

123 Cong. Rec. 24,637-24,638 (1977)

123 Cong. Rec. 24,775 (1977) 0.0...

123 Cong. Rec. 29,835 (1977) .......0000000.0e eee

123 Cong. Rec. 29,840 (1977) 2.0.00

123 Cong. Rec. 29,847 (1977) .. ne... Erni

123 Cong. Rec. 29,848 (1977) 2.0.00... occ

123 Cong. Rec. 29,849 (1977) ...... SE OAD ROOT ON TE <P

124 Cong. Rec. 3,429 (1978) 2.20... ecccccccccceeeceeeee

194 Come. Ree. 3.350 (i976) ......................-................

H.R. 4544, 95th Cong., Ist Sess. (1977)...

H.Rep. No. 151, 95th Cong., Ist Sess. (1977) —......... passim

S.Rep. No. 209, 95th Cong., Ist Sess. (1977) ........ .. 4&6

H.Rep. No. 864, 95th Cong., 2nd Sess. (1978) ...... é 8

RAW AAWIAH = bd tw

MISCELLANEOUS:

Bolt, A Man For All Seasons (Three Plays, Heine-

sbeebs dadel 15

Judicial Modification of Statutes: A Separation of

Powers Defense of Legislative Inefficiency, 4

Yale L. & Pol’y. Rev. 228 (1985) 0.000.000... 16

Posner, The Federal Courts: Crisis and Reform

ASN RR po nnn noe OM 13

Sutherland, Statutory Construction (4th Ed.

IEEE RSER Bers eee es iri hoe SOE Parsee PETE 20

U.S. Comptroller General, Report to the Congress:

Achievements, Administrative Problems and

Costs in Paying Black Lung Benefits To Coal

Miners and Their Widows (1972) ........................ 10

vi

TABLE OF AUTHORITIES—Continued

U.S. Department of Labor, 1976 Annual Report

On The Black Lung Benefits Act (1977) _..........

U.S. Department of Labor, 1978 Annual Report

On The Administration Of The Black Lung

cs sesanimssiiidans

U.S. Department of Labor Employment Standards

Administration, A Sample Survey of All Sources

of Both Monetary and Non-Monetary Income of

Black Lung Beneficiaries (1983)

Page

10

10

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,

Respondents

On Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF OF AMICUS CURIAE

UNITED MINE WORKERS OF AMERICA

IN SUPPORT OF CLAIMANT PETITIONER

STATEMENT OF INTEREST

The United Mine Workers of America (“UMWA”)

represents over 200,000 working, retired and laid-off coal

miners throughout the United States and Canada. The

UMWA was a primary force in the adoption of the Fed-

eral Black Lung Benefits Reform Act of 1977 (“1977

Reform Act’), which established the criteria for elig-

ibility for black lung benefits at issue in this case.’

1 See, e.g., Comments of James L. Weeks, UMWA Consultant,

H. Rep. No. 151, 95th Cong., ist Sess. 20-38; Letter from UMWA

President Arnold Miller, 123 Cong. Rec. 24,775 (1977); Letter from

Director of UMWA Department of Occupational Health Dr. Lorin

2

The UMWA is filing this amicus brief because the de-

cision below deprives miners of the benefits Congress con-

ferred on them in passing the 1977 Reform Act and be-

cause the outcome of this case wil have profound effects

on both the UMWA’s membership and coal miners in gen-

eral. The ruling here will directly affect thousands of

black lung claimants and as a practical matter will de-

termine whether many of them will receive benefits. Very

frequently black lung benefits make the difference between

a recipient living at a bare subsistence level or with some

minimal degree of comfort and security.’

INTRODUCTION AND SUMMARY OF ARGUMENT

The legislative process which culminated in the Black

Lung Benefits Reform Act of 1977 was dominated by a

confrontat.on between two interest groups: the coal in-

dustry and the coal miners. The deal which Congress

finally struck and enacted into law represented a care-

fully wrought and delicately balanced compromise between

these two competing interests. Congress chose to reject

the miners’ request for entitlement based solely on years

of service and to grant industry its demand that the De

partment of Labor be authorized to develop stricter

criteria for benefit eligibility for future claims. As quid

pro quo, Congress granted the miners whose claims were

still pending or to be reviewed the benefit of the liberal

eligibility criteria established by the Department of

Health, Education and Welfare (“HEW”).

The court below refused to enforce the compromise

which Congress enacted into law and instead applied

Kerr, 122 Cong. Rec. 24,6237-24.628 (1977): Letter from UMWA

Staff Attorney Gail Falk, 123 Cong. Rec. 24,636-24,637 (1977). See

also, H. Rep. No. 151, 95th Cong., Ist Sess. 8, 89 (1977); S. Rep.

No, 209, 95th Cong., Ist Sess. 153 (1977).

* The total household income from all sources for miner recipients

is only $11,740 and for widow recipients is $8,170. U.S. Department

of Labor Employment Standards Administration, A Sample Survey

of All Sources of Both Monetary and Non-Monetary Income of

Black Lung Beneficiaries 17 (1983).

3

criteria more restrictive than HEW’s to a claimant to

whom Congress had awarded the benefit of the HEW

criteria. In doing so, the court below substituted its own

policy judgment for that of Congress, usurped the prerog-

ative of the legislature, and in effect repealed a statu-

tory provision enacted by the representatives of the peo-

ple, all in abject derogation of its constitutional respon-

sibilities.

ARGUMENT

THE COURT BELOW ERRED BY REFUSING TO

APPLY THE COMPROMISE CONGRESS ENACTED

INTO LAW WITH PASSAGE OF THE BLACK LUNG

BENEFITS REFORM ACT OF 1977.

I. ENACTMENT OF THE 1977 ACT CONSTITUTED A

LEGISLATIVE COMPROMISE WHICH AWARDED

MINERS WHOSE CLAIMS WERE STILL PENDING

OR TO BE REVIEWED THE BENEFIT OF THE

LIBERAL ELIGIBILITY CRITERIA ESTABLISHED

BY THE DEPARTMENT OF HEALTH, EDUCA-

TION, AND WELFARE (“HEW”), AND AWARDED

INDUSTRY WITH THE BENEFIT OF STRICTER

CRITERIA WITH RESPECT TO FUTURE CLAIM-

ANTS AND WITH THE REJECTION OF A PRO-

POSAL TO GRANT MINERS BENEFITS BASED

SOLELY ON THE NUMBER OF YEARS THEY

WORKED IN THE MINES.

The passage of the Black Lung Benefits Reform Act of

1977 marked the culmination of a lengthy and fiercely

contested battle over how best to reform the federal black

lung benefits program.

Congress was torn between the demands of miners to

be adequately compensated for disabilities they incur in

the process of helping the nation meet its energy needs,

and the demands of the coal industry that miners who are

not totally disabled due to coal mine employment not re-

ceive compensation.

In the course of this debate, both the Senate and the

House considered the fact that many deserving miners

4

were being denied benefits. S. Rep. No. 209, 95th Cong.,

Ist Sess. 17 (1977) (“‘it is clear to the Committee .. .

that many disabled miners’ claims have been denied’’) ;

H. Rep. No. 151, 95th Cong., lst Sess. 5 (1977) (it was

immediately apparent that a majority of miners whose

claims had been denied who appeared before the Subcom-

mittee were severely and dramatically handicapped by

respiratory difficulties).

The eligibility criteria set forth in regulations were

offered as one reason why worthy claimants were being

denied benefits. At the time the 1977 Reform Act was

being debated, two different sets of criteria were being

applied to claims. Claims filed under Part B of the pro-

gram, i.e., before July 1, 1973, were judged by interim

standards established by the U.S. Department of Health,

Education, and Welfare (“HEW”), while claims filed

under Part C, i.e., on or after July 1, 1973, were evalu-

ated under permanent standards set by the U.S. Depart-

ment of Labor (“DOL”). The House Committee studied

the difference between the two standards and concluded

that the DOL standards—compared to HEW’s—were

rigid, difficult, and much more demanding. H. Rep. No.

151, 95th Cong., lst Sess. 15 (1977).

The original House Bill, as well as its predecessors,

proposed to solve the problem of deserving miners being

denied benefits by establishing an automatic entitlement

to benefits for miners with a certain number of years of

service in the mines and by giving all other claimants the

benefit of the more liberal HEW criteria. H.R. 4544,

95th Cong., Ist Sess. §§ 21a), 7 (1977).

The coal industry strenuously objected to awarding

benefits on the basis of years of service, on the grounds

that it would allow miners who were not actually disabled

to receive benefits. See, Minority Views, H. Rep. No. 151,

95th Cong., Ist Sess. 73 (1977). (“We cannot. . . support

automatic entitlements based exclusively on years in the

mines. While it is true that most coal miners with 25

years are likely to have some coal dust in their lungs,

5

there is no evidence that they all have or will contract

totally disabling pneumoconiosis”). The industry called

for research into and enactment of more restrictive cri-

teria to ensure that miners who are not totally disabled

due to pneumoconiosis are not awarded benefits. See

Ibid. at 76. (Given medical and scientific research regard-

ing disability associated with black lung, government

should be allowed to apply criteria more restrictive than

HEW’s).

In response to these objections, the House adopted a

substitute offered by Representative Thompson. The

Thompson Compromise, as it came to be known, omitted

the automatic entitlement provisions but preserved the

requirement that claimants receive the benefit of the more

liberal HEW criteria:

With respect to a claim filed after June 30, 1973,

ithe| regulations |applying to such claims] shall not

provide more restrictive criteria than those applicable

to a claim filed on June 30, 1973 [the HEW criteria].

H. Rep. No. 151, 95th Cong., Ist Sess. 52 (1977).

The language requiring application of the liberal HEW

criteria was viewed as compensating for the elimination

of the automatic entitlement provision:

The Section . . . on medical standards will make it

easier for miners to demonstrate that they have the

disease, and thus to some extent serve the purpose

which was to have been fulfilled by the provision

establishing the “irrebuttal presumption” based on

length of service, which was dropped from the sub-

stitute. This Section mandates that . . . standards be

applied to Part C—which are no more stringent than

the “interim” {HEW] standard which are applicable

- to Part B claims...

123 Cong. Ree. 29,847 (1977) (Statement of Rep.

Ammerman).

Many Representatives supported the Thompson com-

promise in spite of their belief that it did not go far

6

enough to ensure that deserving miners got benefits. See

123 Cong. Ree. 29,840 (1977) (Statement of Rep. Wamp-

ler); 123 Cong. Ree. 29,848-29,849 (1977) (Statement

of Rep. McDade). But they recognized that the very na-

ture of the legislative process requires compromise:

We must all remember that legislation is the art of

compromise.

123 Cong. Rec. 29, 835 (1977) (Statement of Rep. Flood).

The Thompson .. . substitute represents a com-

promise, which may be the best possible legislation

to aid the coal miners that can win approval of the

Congress...

122 Cong. Rec. 29,840 (1977) (Statement of Rep. Wamp-

ler).

This legislation is the product of a great deal of

compromise which has become necessary in order to

make some very basic improvements to existing law

. It represents our best efforts to provide simple

justice to a small group of Americans who have no-

where else to turn to for relief.

* ” * *

These provisions are far from perfect, and I worked

for, supported, and would support today the Com-

mittee bill. But there must be compromise.

123 Cong. Ree. 29,848 (1977) (Statement of Rep.

McDade).

In contrast to the Thompson substitute passed by the

House, the Senate Committee, and ultimately, the entire

Senate, rejected the requirement that claimants receive

the benefit of the more liberal HEW criteria on the

grounds that they were “not qualified to assess the appro-

priateness . . . of standards.” S. Rep. No. 209, 95th

Cong., lst Sess. 13 (1977). The Senate Bill authorized

DOL to promulgate and apply standards stricter than

HEW’s.

Because of this dispute over appropriate eligibility cri-

teria, as well as other differences between the House and

7

Senate version, the Conference Committee required de-

tailed negotiations to arrive at a compromise. See 124

Cong. Rec. 3,429 (1978) (Statement of Rep. Thompson).

Accommodation of the competing claims made by miners

and the industry was a lengthy process:

The conferees have worked for nearly four months

to develop this report. Although both House and

Senate conferees worked toward the same objective,

there were serious differences in approach. This con-

ference report represents an accommodation of those

differences.

124 Cong. Rec. 2,333 (1978) (Statement of Sen. Wil-

liams).

The Bill finally reported out by the Conference Com-

mittee represented a compromise on the issue of eligibility

criteria. Instead of giving all claims the benefit of the

HEW criteria, the final law authorized DOL to make and

apply stricter criteria, but required pending and reviewed

claims to be judged by the more liberal HEW criteria:

(1) (D) the Secretary of Labor, in consultation with

the Director of the National Institute for Occupa-

tional Safety and Health, shall establish criteria for

all appropriate medical tests under this subsection

which accurately reflect total disability in coal miners

as defined in subparagraph (A).

(2) Criteria applied by the Secretary of Labor in

the case of —

‘A’ any claim which is subject to review by

the Secretary of Health, Education, and Wel-

fare, or subject to a determination by the Sec-

retary of Labor, under section 435/a) ;

(B) any claim which is subject to review by the

Secretary of Labor under section 435(b) ; and

(C) any claim filed on or before the effective

date of regulations promulgated under this sub-

section by the Secretary of Labor;

8

shall not be more restrictive than the criteria ap-

plicable to a claim filed on June 30, 1973, whether

or not the final disposition of any such claim occurs

after the ‘date of such promulgation of regulations

by the Secretary of Labor.

H.Rep. No. 864, 95th Cong., 2d Sess. 2 (1978). It was

this compromise which became law. 30 U.S.C. § 902(f).

Thus, industry was awarded with rejection of the auto-

matic entitlement proposal and authorization of DOL to

enact stricter criteria, while miners were awarded the

benefit of the more liberal HEW criteria until DOL

promulgated new ones.

II. THE ELIGIBILITY CRITERIA WHICH HEW AP-

PLIED TO CLAIMS IN 1977 DID NOT PERMIT RE-

BUTTAL OF THE PRESUMPTON OF ELIGIBILITY

INVOKED BY A CLAIMANT WHO SATISFIED

MEDICAL TEST REQUIREMENTS ON THE

GROUNDS THAT HIS DISABILITY WAS NOT

CAUSED BY PNEUMOCONIOSIS.

The criteria which HEW applied to claims in 1977 in-

cluded a presumption. Under this presumption, a miner

was presumed to be totally disabled and to be disabled

due to pneumoconiosis if he met any one of several med-

ical test requirements. 20 C.F.R. § 410.490(b). The pre-

sumption could be rebutted only by evidence that the

miner is doing, or capable of doing work comparable to

his coal mine work:

(c) Rebuttal of presumption. The presumption in

paragraph (b) of this section may be rebutted if:

(1) There is evidence that the individual is, in

fact, doing his usual coal mine work or com-

parable and gainful work (see §$ 410.412(a) (1)),

or

(2) Other evidence, including physical perform-

ance tests (where such tests are available and

their administration is not contraindicated), es-

tablish that the individual is able to do his usual

coal mine work or comparable and gainful work.

20 C.F.R. § 410.490(c).

9

The criteria DOL applied to the case at bar also con-

tains a presumption of total disability due to pneumo-

coniosis. 30 C.F.R. § 727.203(a). These criteria permit

rebuttal not only on the grounds that the miner is doing

or capable of doing work comparable to his coal mine

work, but also on the grounds that the miner is not dis-

abled and that the miner’s disability is not caused by

pneumoconiosis:

(b) Rebuttal of interim presumption. The presump-

tion in paragraph (a) of this section shall be re-

butted if:

(1) The evidence establishes that the individual

is, in fact, doing his usual coal mine work or

comparable and gainful work (see § 410.412(a)

(1) of this title), or

(2) In light of all relevant evidence it is estab-

lished that the individual is able to do his usual

coal mine work or comparable and gainful work

(see § 410.412(a) (1) of this title), or

(3) The evidence establishes that the total dis-

ability or death of the miner did not arise in

whole or in part out of coal mine employment;

or

(4) The evidence establishes that the miner does

not, or did not, have pneumoconiosis.

30 C.F.R. § 727.203 (b).

The court below permitted the HEW presumption to be

rebutted on the grounds that the claimant’s disability was

not caused by pneumoconiosis. Bethenergy Mines, Inc.

v. Director, 890 F.2d 1295, 1302 (3rd Cir. 1989). The

court based this ruling on the premise that the HEW

regulation allows this category of rebuttal. /bid. But the

text of the HEW regulation—unlike the DOL regula-

tion—omits any mention of a disability causation rebuttal.

That the HEW presumption did not permit rebuttal

on the grounds of disability causation is also demon-

strated by the fact that even though HEW applied its

criteria in over 400,000 decisions, respondents cannot

produce one single decision by HEW in which it per-

10

mitted rebuttal on the grounds that the miner’s disability

was not caused by pneumoconiosis. U.S. Department of

Labor, 1976 Annual Report On The Black Lung Benefits

Act 4 (1977); U.S. Department of Labor, 1978 Annual

Report On The Administration Of The Black Lung Bene-

fits Act 21 (1979).

Indeed, the Comptroller General of the United States

has confirmed that it was HEW’s policy to grant benefits

even if the claimants’ disability was not caused by pneu-

moconiosis :

| HEW]| experienced difficulties in determining if min-

ers’ disabilities or deaths were due to black lung

rather than to one or more other conditions. GAO

believes that [HEW’s] policy to attribute disabilities

or deaths to black lung in virtually all such cases has

provided equitable treatment te all eligible claimants

but has probably resulted in awarding benefits to

claimants who were not totally disabled due to black

lung and to claimants whose husbands did not die

due to the disease.

In establishing eligibility criteria for black lung dis-

ability claims, |HEW] was faced with a dilemma,

that is, whether it should award or deny benefits to

disabled miners who are afflicted with simple | pneu-

moconiosis] as well as with one or more other con-

ditions which may be the cause of their disabilities.

'HEW] officials advised us that their policy to award

benefits in all such cases was based on an inability

to medically determine if miners’ disabilities were

due to simple [pneumoconiosis] or to one or more

other conditions. The officials believed that—under

the circumstances—resolving the problem in favor of

the claimants was the only reasonable decision that

could have been made.

U.S. Comptroller General, Report to the Congress: Ac-

hievements, Administrative Problems and Costs In Pay-

ing Black Lung Benefits To Coal Miners And Their

Widows 3, 33-34 (1972).

11

Ill. THE COURT BELOW DENIED CLAIMANTS THE

BENEFITS OF THE LEGISLATIVE COMPROMISE

BY PERMITTING REBUTTAL OF THE PRESUMP-

TION OF ELIGIBILITY INVOKED BY A CLAIM-

ANT WHO SATISFIED MEDICAL TEST REQUIRE-

MENTS ON THE GROUNDS THAT HIS DISABIL-

ITY WAS NOT CAUSED BY PNEUMOCONIOSIS.

The court below held that DOL could apply criteria

more restrictive than HEW’s to claims covered by

30 U.S.C. § 902(f)(2). Bethenergy Mines, Inc. v. Di-

rector, OWCP, 890 F.2d 1295, 1301 (3rd Cir. 1989). In

doing so, the Court ignored the plain meaning of § 902

(f 1(2), which specifically—and without qualification or

limitation—provides that criteria governing such claims

“shall not be more restrictive” than HEW’s criteria. Un-

der the guise of statutory interpretation, the court rewrote

the 1977 Reform Act as if the § 902(f) (2) provision had

never been enacted into law, as if the Senate version

rather than the House version of § 902 had prevailed

in conference, and as if the Senate Bill rather than the

House Bill had been enacted into law. By so doing, the

court below undid the hard-fought and delicately balanced

compromise which Congress struck between competing

views of how best to reform the black lung program.

This Court has repeatedly ruled that statutory lan-

guage must not be construed in a manner which is in-

consistent with the bargain chosen by Congress:

We must respect the compromise embodied in the

words chosen by Congress. It is not [the judiciary’s]

place simply to alter the balance struck by Congress

... by favoring one side or the other in matters of

statutory construction.

Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980). Ac-

cord, Hardin v. Kentucky Utilities Co., 390 U.S. 1, 11

(1968) (“the language of [an] Act in its final form is a

compromise and .. . the views of those who sought the

most restrictive wording cannot control interpretation of

the compromise version’) ; Community For Creative Non-

Violence, et al. v. Reid, 490 U.S. 730, n.14 (1989)

12

(“strict adherence to the language and structure of an

act is particularly appropriate where, as here, a statute

is the result of a series of carefully crafted compro-

mises”). See also, Morrison-Knudsen Construction Co. v.

Director, Office of Workers’ Compensation Programs, 461

U.S. 624 (1983).

With the exception of the instant case, the Courts of

Appeal have consistently declined invitations to overturn

or modify legislative compromises under the guise of in-

terpretation. As the Fifth Circuit explained it:

However inconsistent we may think this disparate

treatment, however much we may be of the view

that we could tidy up the statute and make of it

what to us seems to be more sense, it is simply not

part of our function as judges to re-write, in the

guise of statutory construction . . . statutory lan-

guage in order to cure what to us seems to be stat-

utory deficiencies.

United States v. M/V Big Sam, 693 F.2d 451, 455 (5th

Cir. 1982), cert. denied, 462 U.S. 1132 (1983). Aec-

cord, Palmer v. Liggett Group, Inc., 825 F.2d 620, 626

(lst Cir. 1987) (State tort action is preempted by Con-

gressional compromise reached after hard-fought, bitterly

partisan battle since such an action would disrupt the

balance Congress carefully wrought and calibrated) ; /n

Re Timbers of Inwood Forest Associates, Ltd., 808 F.2d

363, 370 (5th Cir. 1987), aff'd, 484 U.S. 365 (1988)

(the role of the courts is to effectuate provisions already

enacte:| and not to anticipate compromises among com-

peting interests which may emerge in the course of re-

form legislation in the future); United States v. Tex-La

Elec. Co-op., 693 F.2d 392, 404 (5th Cir. 1982) (court is

required to enforce the compromise reached by Congress

even though it was drafted ‘not . .. as happily as it might

have been”); Walton v. United Consumers Club, Ince.,

786 F.2d 303, 311 (7th Cir. 1986) (“Legislation is com-

promise... it is... necessary to find the compromise

to learn the meaning of the statute”); Brach v. Amoco

Oil Co., 677 F.2d 1213, 1225 (7th Cir. 1982) (declining

13

to disregard congressional compromise because courts “do

not sit in judgment of Congress’ chosen scheme”); Fun-

bus Systems, Inc. v. C.P.U.C., 801 F.2d 1120, 1129 (9th

Cir. 1986) (“we refuse to countenance... an ‘end run’

around the compromise negotiated in the ... Act”);

American Mining Congress v. U.S.E.P.A., 824 F.2d 1177,

1187 (D.C. Cir. 1987) (courts should be loathe to tear

asunder the process of legislative compromise) .

Indeed, the Third Circuit itself—in another case—has

acknowledged that it “is not at liberty” to disregard leg-

islative compromise. Walck v. American Stock Exchange,

Inc., 687 F.2d 778, 793 (3rd Cir. 1982) cert. denied, 461

U.S. 942 (1983), reh. denied, 463 U.S. 1236 (1983).

Judicial acknowledgment of legislative compromise is

dictated by the realities of the legislative process itself,

a process which often precludes attribution of a single

intent to the legislature:

[S]tatutes often are the product of compromise be-

tween opposing groups and ... a compromise is un-

likely to embody a single consistent purpose .. .

{w]here the lines of compromise are discernible, the

judge’s duty is to follow them, to implement not the

purposes of one group of legislators but the com-

promise itself.

Richard A. Posner, The Federal Courts: Crisis and Re-

form 289 (Harvard: 1985).

Focusing on the purpose of legislation is surely a

legitimate element of statutory interpretation. None-

theless, this exercise often proves to be difficult be-

cause legislatures rarely act with a single purpose.

Where statutes reflect, as they frequently do, both

explicit and implicit compromises among competing

considerations, our use of policy must be wary and

cautious. To do otherwise risks upsetting the bal-

ance struck by Congress among competing goals.

Nor should courts accept a sly invitation to achieve

an end for which Congress could not muster the

votes.

14

Lauritzen v. Lehman, 736 F.2d 550, 556 (9th Cir. 1984).

Accord, Board of Governors v. Dimension Financial Corp.,

474 U.S. 361, 373-374 (1986).

But judicial respect for legislative compromise is coun-

seled not only by prudential principles of sound statutory

construction, but also by the constitutional requirement

of separation of powers:

We would be indulging in a revisory power over en-

actments as they come from Congress—a power

which the Framers of the Constitution withheld from

this Court—if we interpreted . . . what in fact Con-

gress did... “So long as Congress acts in pursu-

ance of its constitutional power, the Judiciary lacks

authority to intervene...”

Communist Party v. S.A.C. Board, 367 U.S. 1, 85-86

(1961) (citations omitted). Thus, judicial revision of

Congressional enactments constitutes an invasion of the

power which the Framers entrusted to the legislative

branch:

Our system of government is, after all, a tripartite

one, with each branch having certain defined func-

tions delegated to it by the Constitution. While “[i]t

is emphatically the province and duty of the judicial

department to say what the law is,” Marbury v. Mad-

ison, 1 Cranch 137, 177 (1803), it is equally—and

emphatically—the exclusive province of the Congress

not only to formulate legislative policies and man-

date programs and projects, but also to establish their

relative priority for the Nation. Once Congress, ex-

ercising its delegated powers, has decided the order

of priorities in a given area, it is for the Executive

to administer the laws and for the courts to enforce

them when enforcement is sought.

+ * * *

Our individual appraisal of the wisdom or unwisdom

of a particular course consciously selected by the

Congress is to be put aside in the process of inter-

preting a statute. Once the meaning of an enact-

15

ment is discerned and its constitutionality deter-

mined, the judicial process comes to an end. We do

not sit as a committee of review, nor are we vested

with the power to veto. The lines ascribed to Sir

Thomas More by Robert Bolt are not without rele-

vance here:

“The law, Roper, the law. I know what’s legal,

not what’s right. And I'll stick to what’s legal.

. . . I’m not God. The currents and eddies of

right and wrong, which you find such plain-

sailing, I can’t navigate, I’m no voyager. But

in the thickets of the law, oh there I’m a fores-

ter ... What would you do? Cut a great road

through the law to get after the Devil? .. .

And when the last law was down, and the Devil

turned round on you—where would you hide,

Roper, the laws all being flat? ... This coun-

try’s planted thick with laws from coast to coast

—Man’s laws, not God’s—and if you cut them

down . . .d’you really think you could stand up-

right in the winds that would blow then?.. .

Yes, I’d give the Devil benefit of law, for my

own safety’s sake.” R. Bolt, A Man for All

Seasons, Act I, p. 147 (Three Plays, Heinemann

ed. 1967).

{I]n our constitutional system the commitment to

the separation of powers is too fundamental for us

to pre-empt congressional action by judicially decree-

ing what accords with “common sense and the pub-

lic weal.” Our Constitution vests such responsibili-

ties in the political branches.

TVA v. Hill, 437 U.S. 153, 194-5 (1978). Judicial ap-

plication of the compromises enacted by Congress is

therefore a necessary corollary to the separation of

powers:

[W]e consistently have emphasized that the federal

lawmaking power is vested in the legislative, not the

judicial, branch of government; therefore, federal

16

common law is “subject to the paramount authority

of Congress”.

Although equitable considerations strongly supported

a nonliteral reading of the statutory provisions...

we concluded that we had a duty to “respect the com-

promise embodied in the words chosen by Congress”.

Northwest Airlines v. Transport Workers, 451 U.S. 77,

95, 98 (1981) (citations omitted). See also, Thompson v.

Thompson, 484 U.S. 174, 188 (1988) (concurrence of

Justice Scalia); Judicial Modification of Statutes: A

Separation Of Powers Defense Of Legislative Inefficiency,

4 Yale L. & Pol’y. Rev. 228 (1985).

In this connection, judicial disregard of legislative

compromise must also be rejected as fundamentally anti-

democratic, a usurpation of the power which the Framers

granted the popular'y elected representatives of the peo-

ple:

Judicial seizing upon a single Congressional goal and

transmogrifying that desire into the measuring rod

against which to measure agency fidelity to supplied

legislative norms poses obvious anti-democratic dan-

gers. In plain English, it may distort the legislative

process. The upshot of “purpose-driven” interpre-

tive methodologies is that carefully wrought com-

promises on Capitol Hill may be torn asunder in fed-

eral courthouses. Losers in the Congress (or more

precisely, partial winners who may view themselves

as losers) may find themselves ultimate victors by

eschewing the democratic process and instead enter-

ing the litigation arena.

* * * *

To be sure, we are faced in the precincts of Chev-

ron Step Two analysis with ambiguous legislative

materials, not the clarity of statutory expression

found by the Court in Dimension Financial. But

the anti-democratic danger still exists, especially

since ambiguity may well be the deliberate result of

competing and warring legislative forces striving to

17

achieve essentially incompatible results in a single

piece of legislation (or simply to minimize “losses’’).

It therefore will not do, when interpreting a statute

embodying conflicting demands, for courts grandly

to resort to a single “broad purpose” of a statute

and then employ a judicially idealized “goal” to drive

the interpretive process. To do so may represent . . .

revisionist interpretations of a specific legislative

measure...

Continental Air Lines v. Department of Transportation,

843 F.2d 1444, 1450-1451 (D.C. Cir. 1988).

The court below justified its disregard of the Ccngress-

sional compromise by finding its application ‘9 the facts

of the case inconsistent with the general purpose of the

Act—enunciated in the preamble—to provide benefits to

those totally disabled due to pneumoconiosis “arising out

of” coal mine employment. Bethenergy Mines, Inc. v.

Director, OWCP, 890 F.2d at 1300 referencing lan-

guage at 30 U.S.C. §901(a). But this flies in the face

of this Court’s ruling in Turner Elkhorn which specifi-

cally acknowledged the fact that certain other portions of

the Act do bar rebuttal on grounds of disability causation

notwithstanding the coexistence of this language at § 901

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

34-35 (1976).

Moreover, it disregards this Court’s injunction in Di-

mension, Financial and Rodriguez disapproving judicial

invocation of the broad purposes of legislation to repeal

specific statutory provisions:

Application of “broad purposes” of legislation at the

expense of specific provisions ignores the complexity

of the problems Congress is called upon to address

and the dynamics of legislative action. Congress may

be unanimous in its intent to stamp out some vague

social or economic evil; however, because its Mem-

bers may differ sharply on the means for effectu-

ating that intent, the final language of legislation

may reflect hard-fought compromises. Invocation of

the “plain purpose” of legislation at the expense of

18

the terms of the statute itself takes no account of the

processes of compromise and, in the end, prevents

the effectuation of congressional! intent.

Board of Governors v. Dimension Financial Corp., 474

U.S. 361, 373-274 (1986).

|[Nlo legislation pursues its purpose at all costs.

Deciding what competing values will or will not be

sacrificed is the very essence of legislative choice—

and it frustrates rather than effectuates legislative

intent simplistically to assume that whatever furthers

the statute’s primary objective must be the law.

Rodriquez v. United States, 480 U.S. 522, 525-526 (1987)

‘emphasis in criginal).

Indeed, this Court has specifically rejected the proposi-

tion that the broad purposes of an act can be judicially

construed to alter the compromises struck by Congress:

tadical reinterpre tations of the statutory phrase...

are said to be necessary in order to effectuate a broad

policy, found to be underlying the Criminal Appeals

Act, that this Court review important legal issues.

The axiom that courts should endeavor to give stat-

utory language that meaning that nurtures the poli-

cies underlying legislation is one that guides us when

circumstances not plainly covered by the terms of

statute are subsumed by the underlying policies to

which Congress was committed. Care must be taken,

however, to respect the limits up to which Congress

was prepared to enact a particular policy, especially

when the boundaries of a statute are drawn as a

compromise resulting from the countervailing pres-

sures of other policies. Our disagreeing Brothers, in

seeking to energize the congressional commitment to

review, ignore the subtlety of the compromise that

limited our jurisdiction, thereby garnering the votes

necesssary to enact the Criminal Appeals Act.

In this regard, the legislative history reveals a strong

current or congressional solicitude for the plight of a

criminal defendant exposed to additional expense and

19

anxiety by a government appeal and the incumbent

possibility of multiple trials. Criminal appeals by

the Government “always threaten to offend the poli-

cies behind the double-jeopardy prohibition . . . even

in circumstances where the Constitution itself does,

not bar retrial. Out of a collision between this policy

concern, and the competing policy favoring review,

Congress enacted a bill that fully satisfied neither

the Government nor the bill’s opponents. For the

Criminal Appeals Act, thus born of compromise, man-

ifested a congressional policy to provide review in

certain instances but no less a congressional policy

to restrict it to the enumerated circumstances.

Were we to throw overboard the ballast provided by

the statute’s language and legislative history, we

would cast ourselves adrift, blind to the risks of col-

lision with other policies that are the buoys marking

the safely navigable zone of our jurisdiction.

United States v. Sisson, 399 U.S. 267, 297-299 (1970)

(citations omitted). Accord, Continental Air Lines v. De-

partment of Transportation, 843 F.2d 1444, 1451 (D.C.

Cir. 1988). This Court recently reaffirmed this principle

in the Bowsher case:

It does not follow ... from the fact that the...

amendment was a compromise that the . . . lan-

guage is to be given no effect at all... [A] ma-

jority voted for the . . . amendment, and we must

give weight to the expressed will of a legislative

majority.

Bowsher v. Merck & Co., 460 U.S. 824, 835 n.10 (1983).

As the U.S. Court of Appeals for the Seventh Circuit

has explained, relying on broad purposes to construe stat-

utory language ignores the fact that Congress also con-

templates the reach of the law to stop at some point:

Congress always has some objective in view when it

legislates, and it is always possible to move a little

farther in the direction of the objective. The fact

that Congress has pointed in a particular direction

20

does not authorize a court to march in that direc-

tion without limit. The language and the structure

of the statute establish how far to go. We honor the

decision of Congress by choosing stopping points no

less than by achieving more of the ultimate end in

view.

Mercado v. Calumet Federal Sav. & Loan Ass’n., 763

F.2d 269, 271 (1985); Accord, United States v. Sisson,

399 U.S. 267, 298 (1978). See also Burlington Northern

RR. v. B.M.W.E., 793 F.2d 795, 803 (7th Cir. 1986), cert.

dism., 476 U.S. 1179 (1986) (“When Congress writes

the rule, courts may not transmute the statute... by

inventing new rules to pursue the goal Congress had in

mind’): United States v. Medico Industries, Inc., 784

F.2d 840, 844 (7th Cir. 1986) (“When Congress chooses

the rule... a court must turn aside claims that . . . con-

duct [prohibited by the rule] does not undercut the

lerislature’s objective and therefore should be per-

mitted”).

The decision below also disregards virtually every

maximum of sound statutory interpretation. It ignores

the long-established precept of statutory interpretation

that language in a preamble cannot control language in

the purview, or body, of the Act. Sutherland, Statutory

Construction (4th ed. 1984) §$ 47.04; Beard v, Rowan, 9

Pet. (34 U.S.) 301, 317 (1835); Coosaw Min, Co. v.

South Carolina, 144 U.S. 550 (1892); Price v. Forrest,

173 U.S. 410, 428 (1899). It abrogates the principle that

amendments, like § 902(f)‘2), repeal the effect of the

original language to the extent they are irreconcilable.

Sutherland, Statutory Construction § 22.32; Norris v.

Crocker, 13 How. 429 (U.S. 1851); U.S. v. Tynen, 11

Wall 88 (U.S. 1870). And it violates the precept that

specific provisions—like § 902(f) (2) here—prevail over

general ones——like § 901(a). Fourco Glass Co. v. Trans-

mission Corp., 353 U.S. 222, 228-229 (1957).

If the courts were charged with reinterpreting plain

text of statutes in accordance with the purposes set forth

21

in their preamble, they would be hopelessly and eternally

embroiled in a vain quest to divine a single legislative in-

tent where none exists. Board of Governors v. Dimension

Financial Corp., 474 U.S. 361, 374 (1986); Lauritzen v.

Lehman, 736 F.2d 550, 556 (9th Cir. 1984).

But, fundamentally, this is not a case about conflicting

maxims of statutory construction. For the decision below

is much more than that, it is an attack on the legislative

compromise in which Congress chose to give a limited

category of claimants the right to invoke presumptions of

eligibility with the benefit of only limited rebuttal, in ex-

change for giving industry broader rebuttal rights for

future claimants.

It may also be important to note that the fact that the

agency charged with administering the statute disagrees

with the approach Congress enacted is insufficient to war-

rant judicial disregard of specific statutory provisions:

|W |here a statute strikes a political balance but ad-

ministration of the statute is entrusted to an agency

that may not embody that balance, it is dangerous

to defer automatically to the agency’s view. An

agency that may be dominated by one faction in the

legislative struggle that led to enactment of a com-

promise is not authorized to hand that faction a

victory that was denied it in the legislative arena

through the efforts of another faction. The court

must enforce the compromise, not the maximum

position of one of the interest groups among which

the compromise was struck.

Bethlehem Steel Corp. v. U.S.E.P.A., 723 F.2d 1303, 1309

(7th Cir. 1983). So are any fragments of legislative

history offered up in defense of the decision below:

Disearding the plain language of a statute in favor

of committee reports or other legislative history ig-

nores the realities of the legislative process. The

crafting of specific language often reflects legisla-

tive compromise reached after hard fought battles

22

over the means to reach even common goals. Courts

should only reluctantly turn to legislative history

for fear of upsetting the delicate balance reflected in

a finally worded piece of legislation.

Trustees of Iron Workers v. Allied Products, 872 F.2d

208, 213 (7th Cir. 1989) cert. denied, 110 S.Ct. 143

(1989). Accord, International Union, UAW v. General

Dynamics, 815 F.2d 1570, 1575-1576 (D.C. Cir. 1987)

cert. denied, 484 U.S. 976 (1987).

CONCLUSION

The judgment of the Court of Appeals for the Third

Circuit should be reversed and remanded with directions

to award the petitioner here benefits.

Respectfully submitted,

ROBERT H. Stropp, JR.

General Counsel

MICHAEL DINNERSTEIN *

UNITED MINE WORKERS

OF AMERICA

900 Fifteenth Street, N.W.

Washington, DC 20005

* Counsel of Record (202) 842-7337