Opposition Brief — Mullins Coal Co. of Va. v. Director, Office of Workers' Compensation Programs

zu the Supreme Court ofthe

OCTOBER TERM, 1986

MULLINS CoAL COMPANY, INCORPORATED

OF VIRGINIA, ET AL., PETITIONERS

v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION

PROGRAMS, UNITED STATES DEPARTMENT

OF LABOR, ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF Fok THE FEDERAL RESPONDENT

CHARLES FRIED

Solicitor General

DONALD B. AYER

Deputy Solicitor General

RICHARD G. TARANTO

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

GEORGE R. SALEM

Solicitor of Labor

ALLEN H. FELDMAN

Associate Solicitor for

Special Appellate and

Supreme Court Litigation

BARBARA J. JOHNSON

Attorney

Department of Labor

Washington, D.C. 20210 y

)

QUESTION PRESENTED

Whether an otherwise eligible claimant for black

lung benefits automatically invokes a presumption of

compensable disability under 20 C.F.R. 727.203(a)

by introducing one piece of qualifying medical evi-

dence.

(1)

TABLE OF CONTENTS

Page

EET 1

Jurisdiction 11 1

r Ä h . 2

1. Statutory and regulatory framework 2

2. Administrative proceedingns ss 6

r 22 7

Introduction and summary of argument 14

EL 16

The Director’s reading of the interim regulations

should be accepted by this Court : 16

A. The Director’s view is a reasonable construc-

tion of the regulations . 17

B. The Director's interpretation of the interim

regulations is consistent with statutory require-

ments and with congressional intent 28

C. The Director's view has been consistently main-

tained and represents long-standing administra-

EEE ES 40

Ee 1 40

TABLE OF AUTHORITIES

Cases:

Alabama By-Products v. Killingsworth, 733 F.2d

, 19, 21, 26, 32

Amar Coal Co. v. Director, OH CP. 801 F.2d 958

r ̃ê ...... 19, 37

American Coal Co. v. Benefit Review Bd., 738 F.2d

r è T2 26

Ansel v. Weinberger, 529 F.2d 304 (6th Cir.

1976) b 22, 26

Back v. Director, OH CP, 796 F.2d 169 (6th Cir.

ELS 21, 36, 37

IV v

Cases —Continued: Page

Bethlehem Mines Corp. v. Massey, 736 F.2d 120 Cases—Continued : Page

(4th Cir, 1984) 9. —.—.—.— 19 Lagamba v. Consolidation Coal Co., 787 F.2d 172

Bozick v. Consolidation Coal Co., 735 F.2d 1017

(1984), vacating 732 F.2d 64 (6th Cir. 1984) 36

Conley v. Robert and Schaefer Co., 7 B.L.R. (MB)

3 33, 39

Consolidation Coal Co. v. Chubb, 741 F.2d 968

1 — ͤ ͤö⁵ÜA 23, 24, 36

Consolidation Coal Co. v. Sanati, 713 F.2d 480

1 —K—— — 8, 36, 38

Consolidation Coal Co. v. Smith, 699 F.2d 446

I ——— 8 19-20

Coughlan v. Director, OWCP, 757 F.2d 966 (8th

./ . 33

Director, O CP v. Rowe, 710 F.2d 251 (6th Cir.

111 ²˙¹·¹—ꝛäA ˙ 8 ⅛—duunu.. m 23

Elkins v. Elkhorn Corp., 2 B.L.R. (MB) 1-683

rr 36

Engle v. Director, O CP, 792 F.2d 63 (6th Cir.

Er 37

Gibas v. Saginaw Mining Co., 748 F.2d 1112 (6th

Cir. 1984), cert. denied, 471 U.S. 1116 (1985) 19

Gober v. Matthews, 574 F.2d 772 (3d Cir. 1978) 31

Halon v. Director, OWCP, 713 F.2d 21 (3d Cir.

— 8 33

Hampton v. United States Dep’t of Labor Benefits

Review Bd., 678 F.2d 506 (4th Cir. 1982) 8

Haynes v. Jewell Ridge Coal Corp., 790 F.2d 1113

1 Tb 20, 21

Hill v. Weinberger, 430 F. Supp. 332 (E. D. Tenn.

4 Äꝛ24 —ññ ̃ •)L;! 31

John W. McGrath Corp. v. Hughes, 289 F.2d 403

Dr aes is 23

Kaiser Steel Corp. v. Director, OWCP, 748 F.2d

,,, 19

Kaiser Steel Corp. v. Director, OWCP, 757 F.2d

1111 21

Kozele v. Rochester & Pittsburgh Coal Co., 6

B. L. R. (MB) 1-378 (Ben. Rev. Bd. 1984) 39

Kuehner v. Ziegler Coal Co., 788 F.2d 439 (7th Cir.

—— — — 37

D eT: Ce 21

Lambert v. Director, OWCP, No. 85-3789 (6th Cir.

Nov. 4, 1986), petition for cert. pending, No. 86-

— AAA —— A ] •—§ 0 ne 21

Lawson v. Secretary, 688 F.2d 436 (6th Cir.

. AA Eee Le 31

Lawson v. Secretary of Health & Human Serv-

ices, 688 F.2d 436 (6th Cir. 1982) 21, 31

Lessar v. C.F. & I. Steel Corp., 3 B.L.R. (MB) 1-

Oe nn I i es 36, 39

Markus v. Old Ben Coal Co., 712 F.2d 322 (7th

I 86

Meadows v. Westmoreland Coal Co., 6 B.L.R.

(MB) 1-773 (Ben. Rev. Bd. 198)))³ 36

Mosely v. Peabody Coal Co., 769 F.2d 357 (6th

8 Re Ce 23

NLRB v. Transportation Management Corp., 462

240000 Ann 27, 35

Palmer Coking Coal Co. v. Director, OWCP, 720

F.2d 1054 (9th Cir. 1983) eee 20

Pannell v. Califano, 614 F.2d 391 (4th Cir. 1980) 31

Peabody Coal Co. v. Benefits Review Bd., 560 F.2d

I I 22

Provance v. United States Steel Corp., 1 B.L.R.

(MB) 1-483 (Ben. Rev. Bd. 1979) 33

Revak v. National Mines Corp., 808 F.2d 996 (3d

r a 37

Sharpless v. Califano, 585 F.2d 664 (4th Cir.

Free 23, 31

Skidmore v. Swift & Co., 323 U.S. 134 (1944) 17

Steadman v. SEC, 450 U.S. 91 (1981777 35

Stiner v. Bethlehem Mines Corp., 3 B.L.R. (MB)

1-487 (Ben. Rev. Bd. 1981 36

Strako v. Ziegler Coal Co., 3 B.L.R. (MB) 1-136

, ee 36

Texas Dep’t of Community Affairs v. Burdine,

a I 27

Todd Shipyards Corp. v. Donovan, 300 F.2d 741

(Sth Cir. 1962) ................ - 23

vi VII

Cases—Continued : Page .

Tonker v. Mathews, 412 F. Supp. 823 (W.D. Va. W — *

eee short ba brechen 31 30 U.S.C. (& Supp. III) 91 2

Udall v. Tallman, 380 U.S. 1 (1965) 3 17 30 U.S. C. (& Supp. III) 932 (a) — f . — — 7, 26, 34

Usery v. Turner Elkhorn Mining Co., 428 U. S. 1 30 U.S.C, 932 0 2

. —w 2, 21, 26, 33 300 .8.—.—32——.—ꝛ————.— 8

Vintson v. Califano, 592 F.2d 1353 (5th Cir. 30 —.8.—.9³3—3483— 3

ee eee eee ene den v eee 31 22. a eal 8

Whicker v. United States Dep’t of Labor Benefits National Labor Relations Act, 29 U.S.C. * Supp.

Review Bd., 733 Fd 346 (4th Cir. 1984) 8 A ee 27

Wilson v. Omaha Indian Tribe, 442 U.S.C. 653 . 27

TTT 27 r 3

Zirkle v. Weinberger, 401 F. Supp. 945 (N. D. 2 U.S.C. 8016... —U— 3

e ee 31 So), 7

r CO a 26

Statutes and regulations: 20 C.F.R.:

Administrative Procedure Act, 5 U.S.C. 551 et 1 2

seq. : ESE ES ae a ey 30

D ae aN NE ey I 12 r 18

r ...... 12 Section 410.428 (a) (i 8

5 U.S.C. 556 (d) (8 7 (e 7 15-16, 34, 35 . | | 8

lieth — 12 ETA Cr —

Black Lung Benefits Reform Act of 1977, Pub. L. Section aA[B]i—— 8

No. 95-239, § 2, 92 Stat. hh 3, 28-29 —— ——————— 30

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. (& Section 40.471. 23

Supp. III) 2000e et Sea 27 Section 6100996 30, 31

Federal Coal Mine Health and Safety Act of 1969, Section 410.490 be 222»? 30

30 U.S.C. (& Supp. III) 901 et Se s.. 2, 4 Section 410.490 Sw eesescccoseccnsesenseee 30

2 —— . ——— 32 Pt. 701:

30 U.S.C. 902 (b) * 4 D 3

D 3, 34 . 3

„ 4, 16, 29 ene 3,4

ee 4 Section 718.105 (b) 18

20 0 8 000ͤũ ṹF»mäZ 32 Section 718.105 (e) 18

— — 4,21 Pt. 725: 1

————— 4 0

r 4 Section 725.6... 8

BO U.S.C. 921 (e) (a) 4. 22, 26 Section “25—tů———.—.—.— 6

1 4 Section 728.49——.;— —

30 U.S. C. 923 (bͤ)ö)ö)ö)ö 4, 6, 10, 16, 28, 32 Section 728. 49.——— 7

ea ee 2 Goctiom TEGAGE ane 7

| ce 2 Section 725.452 (a) 34

vill

Statutes and regulations—Continued :

Section 725.455 (92.

Section 725.47

Sections 700 —6—„7—7ÿ˖‚Q‚[—v. E

Section 725.608 (aꝛ

2 1

„ 8 „8 S

r

r 5, 14, 18,

—

Section 727.203 (a) (7).

a ——

e

ne

TTT —

Section 727.206 T

e —''

Miscellaneous:

Allen, Presumptions in Civil Actions Reconsidered,

66 Iowa L. Rev. 843 (1981) -...........----...-------...--.

Attorney General’s Manual on the Administra-

tive Procedure Act (1947

E. Cleary, McCormick on Evidence (2d ed.

a

124 Cong. Rec. (1978):

Kr 12, 17, 22, 33,

1 39

H.R. Conf. Rep. 95-864, 95th Cong., 2d Sess.

| SS ͤ—ſ— 4, —

H.R. Rep. 95-151, 95th Cong., Ist Sess. (1977)

Solomons, A Critical Analysis of the J «ss al

History Surrounding the Black Lung Interim

Presumption and a Survey of Its Unresolved Is-

sues, 83 W. Va. L. Rev. 869 (19817 38

9 J. Wigmore, Wigmore on Evidence (19817 26

D

8

TET 1 2

w

to

| In the Supreme Court of the United States

| OCTOBER TERM, 1986

No. 86-327

MULLINS CoAL COMPANY, INCORPORATED

OF VIRGINIA, ET AL., PETITIONERS

V.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION

PROGRAMS, UNITED STATES DEPARTMENT

OF LABOR, ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_BRIEF FOR THE FEDERAL RESPONDENT

OPINIONS BELOW

The opinions of the court of appeals (Pet. App. Ia-

101a) are reported at 785 F.2d 424.

JURISDICTION

The judgment of the court of appeals was entered

on February.26, 1986. Petitions for rehearing were

denied on April 21, 1986 (Pet. App. 152a-154a).

The Chief Justice extended the time for filing a peti-

tion for a writ of certiorari to August 29, 1986 Pon

App. 155a). The petition was filed on August 2

(1)

1986, and this Court granted certiorari on January

12, 1987. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATEMENT

The non-federal respondents are coal miners who

filed claims with the Secretary of Labor for black

lung benefits. Upon completion of administrative

proceedings, their cases were heard by the en banc

Fourth Circuit. The court overruled several prior de-

cisions and adopted a ne interpretation of the regu-

lation that defines the proof scheme for adjudication

of the claims at issue. Petitioners, who are coal mine

operators and an operator’s insurer, challenge the

Fourth Cireuit's ruling. The federal respondent

agrees that the Fourth Circuit’s ruling should be

reversed.

1. Statutory and Regulatory Framework

Title IV of the Federal Coal Mine Health and

Safety Act of 1969, as amended in 1972, 1977, 1978,

and 1981, 30 U.S.C. (& Supp. III) 901 et seq., estab-

lishes a benefit program for coal miners who are

totally disabled by pneumoconiosis (black lung dis-

ease) arising out of coal mine employment. See gen-

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

1 (1976). Claims filed prior to July 1, 1973, are filed

under Part B of the program and are adjudicated by

the Social Security Administration (SSA) pursuant

to regulations codified at 20 C.F.R. Pt. 410. See 30

U.S.C. 924, 925. Claims filed on or after July 1,

1973, are filed under Part C of the program and are

adjudicated by the Secretary of Labor. See 30 U.S.C.

(& Supp. III) 925, 931. Part C claims are further

divided into two groups: those filed on or after April

1, 1980, which are governed by the Secretary’s per-

manent criteria, codified at 20 C.F.R. Pt. 718 (see 20

C.F.R. 725.4(a)); and those filed prior to April 1,

1980, which are governed by the Secretary of Labor’s

“interim regulations,” codified at 20 C.F.R. Pt. 727.

This case involves the Part C interim regulations

and the proof scheme they establish for adjudicating

claims for benefits filed by miners. Those regulations

apply to approximately 10,000 pending claims, filed

between July 1, 1973 and April 1, 1980. Benefits un-

der this part of the program—indeed, under all of

Part C—are paid by coal mine operators or, in cer-

tain instances specified by statute, by a federal Black

Lung Disability Trust Fund.“ The federal respond-

ent—the Director, Office of Workers’ Compensation

Programs—is responsible, by delegation of the Secre-

tary of Labor’s authority, for aum inistering the fed-

eral fund and for the initial processing of claims un-

der Part C of the black lung program. 20 C. F. R.

701.201, 701.202.

The Part C interim regulations, promulgated in

1978 143 Fed. Reg. 36818), were authorized by Sec-

tion 2 of the Black Lung Benefits Reform Act of

1977, Pub. L. No. 95-239, 92 Stat. 95 (codified at

30 U.S.C. 902(f)). The statute requires that the in-

terim regulations “shall not be more restrictive than”

The Black Lung Disability Trust Fund pays benefits where

a miner’s last coal mine employment ended before January 1,

1970, where a responsible operator cannot be identified, and in

certain cases that are reopened after initial denial. 30 U.S.C.

932 (e) (1), (2), ard (j) (3), 934. The Fund is financed by an

excise tax on the sale of coal (see 26 U.S.C. 4121) and has the

power to borrow from the United States Treasury when its

expenditures exceed its jucome (26 U.S.C. 9501(c)). The Fund

is currently 2.9 billion dollars in deut to the federal treasury.

the criteria governing pre-July 1, 1973 claims under

Part B. 30 U.S.C. 902(f)(2). It further requires

that, like the Part B regulations, they ensure that

“all relevant evidence” be considered “where rele-

vant” in adjudicating claims for benefits. 30 U.S.C.

923(b). See H.R. Conf. Rep. 95-864, 95th Cong., 2d

Sess. 16 (1978).

Under the Part C interim criteria, miners need

not prove all three elements of a claim for black lung

benefits—the disease of pneumoconiosis, total disabil-

ity, and causation by coal mine employment. See 30

U.S.C. 901, 902 (b). Rather, under 20 C. F. R.

727.203, certain miners may, by establishing certain

limited “basic facts“ (see Pet. App. 39a n.5 (opinion

of Phillips, J.)), invoke a presumption of compensa-

ble total disability and hence entitlement to benefits.

The employer or Director may then rebut the pre-

sumption.’

2 The statute (30 U.S.C. 902(b)) and regulations (20 C.F.R.

727.202) include in the definition of “pneumoconiosis” not only

the description of the disease but also a requirement that it be

caused by coal mine employment. For clarity, we will here-

after use “pneumoconiosis” to refer solely to the disease, treat-

ing the question of causation as distinct.

Ife claimant is unable to invoke the presumption or the

presur ption is invoked and rebutted, the claimant may none-

theless attempt to establish eligibility in either of two ways.

The claimant may proceed under 20 C.F.R. Pt. 718. See 20

C.F.R. 727.203 (c) and (d). Alternatively the claimant may

proceed directly under the statute and thus seek to prove the

elements of the claim by a preponderance of the evidence,

using any applicable statutory presumptions. See 30 U.S.C.

921(a) and (c)(1)-(5). The court of appeals considered the

claims at issue in this case only under the Part C interim

criteria.

5

Specifically, Subsection (a) of 20 C. F. R. 727.203 *

provides that a miner who engaged in coal mine em-

ployment for at least 10 years is presumed to be to-

tally disabled due to peureonio arising out of

that employment if any one of four fied medical

evidentiary requirements is met.“ Subsection (b)

* Hereinafter, “Subsection and “§ —” refer to sub-

sections of 20 C.F.R. 727.203 unless otherwise indicated.

20 C. F. R. 727.203 (a) states:

Establishing interim presumption. A miner who engaged

in coal mine employment for at least 10 years will be

presumed to be totally disabled due to pneumoconiosis, or

to have been totally disabled due to pneumoconiosis at

the time of death, or death will be presumed to be due

to pneumoconiosis, arising out of that employment, if one

of the following medical requirements is met:

A chest roentgenogram (X-ray), biopsy, or

au. sy establishes the existence of pneumoconiosis

(see § 410.428 of this title) ;

(2) Ventilatory studies establish the presence of

a chronic respiratory or pulmonary disease (which

meets the requirements for duration in § 410.412

(a) (2) of this title) as demonstrated by values

ry * equal to or less than [specified] values

eer.

(3) Blood gas studies which demonstrate the pres-

ence of an impairment in the transfer of oxygen from

the lung alveoli to the blood as indicated by values

whiten * equal to or less than [specified] values

ated

(4) Other medical evidence, including the docu-

mented opinion of a physician exercising reasoned

medical judgment, establishes the p sence of a

totally disabling respiratory or pulmonary impair-

ment;

Subsection (a) (5), which provides for lay evidence in the case

of a deceased miner where no medical evidence is available, is

not at issue in this case.

provides that the presumption may be rebutted by

showing that the miner is doing, or is able to do, his

usual coal mine work or comparable gainful work;

that his disability does not arise, even in part, from

coal mine employment; or that he does not suffer

from pneumoconiosis.‘ In conformity with the statu-

tory requirement (30 U.S.C. 923(b)), Subsection (b)

also provides that in adjudicating a claim under the

interim criteria, all relevant medical evidence shall

be considered.

2. Administrative Proceedings

All three cases below began when the non-federal

respondents, who are miners or former miners, filed

claims for benefits with the federal respondent. Each

claim was initially decided by an Office of Workers’

Compensation Programs Deputy Commissioner. 20

C.F.R. 725.418, 725.419. In each case, the non-pre-

vailing party requested a hearing before an adminis-

* 20 C. F. R. 727.203 (b) states:

Rebuttal of interim presumption. In adjudicating a

claim under this subpart, all relevant medical evidence

shall be considered. The presumption in paragraph (a)

of this section shall be rebutted 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.

7

trative law judge (ALJ) (see 20 C. F. R. 725.419 (a),

725.451)), who rendered a decision after receiving

additional evidence (see 20 C.F.R. 725.476, 725.477).

In respondent Stapleton’s case, the ALJ invoked the

presumption based on a single positive X-ray, but

then found the presumption rebutted (Pet. App. 106a-

117a). In respondent Ray’s case, the ALJ refused to

invoke the presumption, weighing the evidence and

finding it unpersuasive in any of the Subsection (a)

categories (Pet. App. 125a-134a). In respondent

Cornett’s case, the ALJ invoked the presumption

based on the weight of the evidence in three cate-

gories and then found the presumption unrebutted

(Pet. App. 141a-151a).

The ALJ decisions were appealed to the Benefits

Review Board, which reviewed them for substantial

evidence and conformity with law (see 30 U.S.C.

(Supp. III) 932(a), incorporating 33 U.S.C. 921(b)

(3)) and affirmed in all three cases. In Stapleton’s

case, the Board affirmed the ALJ’s denial of the claim

but held that the presumption should not have been

invoked based on a single piece of evidence (Pet. App.

102a-105a). In Ray’s case, the Board affirmed the

ALJ’s finding that Ray was not entitled to the pre-

sumption (Pet. App. 118a-124a). In Cornett’s case,

the Board affirmed both the ALJ’s invocation of the

presumption and his finding of no rebuttal (Pet. App.

138a-140a, 135a-137a).

3. Judicial Proceedings

The unsuccessful parties before the Board filed

petitions for review in the Fourth Circuit, which sua

sponte ordered the three cases consolidated and heard

en bane. The court directed the parties to address

two questions regarding the proper interpretation of

the interim regulations: whether a claimant could

invoke the presumption with a single piece of “qual-

ifying” medical evidence; and whether and to what

extent “non-qualifying” medical evidence could rebut

the presumption. The court requested the parties to

address these issues in light of its previous panel de-

cisions in Hampton v. United States Dep't of Labor

Benefits Review Bd., 678 F.2d 506 (4th Cir. 1982),

Consolidation Coal Co. v. Sanati, 713 F.2d 480 (4th

Cir. 1983), and Whicker v. United States Dep't of

Labor Benefits Review Bd., 733 F.2d 346 (4th Cir.

1984).*

The term “qualifying” was used by the court to refer to

medical evidence that is positive and would suffice, in the

absence of any contrary evidence of the same

the presumption. For example, an X-ray

pneumoconiosis (§ (a)(1)) or ventilatory studies re-

vealed a respiratory or pulmonary impairment of the specified

magnitude (§ (a) (2)) would be qualifying evidence. Nega-

tive or uncertain results on an X-ray or in ventilatory studies

would, by contrast, be non-qualifying.“

In addition, as Subsection (a) itself indicates, all medical

evidence is subject to regulatory standards for quality. See,

e.g., 20 C.F.R. 410.428 (a) (1), (b), and (e) (X-ray, biopsy,

and autopsy standards) (incorporated in 20 C. F. R. 727.203

(a) (1), 727.206 (a)); 20 C. F. R. 410.430 (ventilatory study

standards) (incorporated in 20 C. F. R. 727.203 (a) (2). Evi-

dence that meets these standards is referred to as “conform-

ing” evidence.

In Sanati, the court agreed with the Director that invoca-

tion of the presumption under Subsection (a) (4) must de-

pend on a weighing of all physician report evidence. 713 F.2d

at 481-482. In Hampton and Whicker, the court placed signifi-

cant restrictions on the range of permissible rebuttal evidence,

ruling that a doctor’s opinion based in part upon non-

qualifying ventilatory function and blood gas test results con-

stituted “improper rebuttal evidence” (Hampton, 678 F.2d at

508). See Whicker, 733 F.2d at 348.

The Director intervened in the appeal, arguing that

a claimant may invoke the presumption only by a

preponderance of the medical evidence in a particular

category—for example, by proving the existence of

pneumoconiosis by a preponderance of the X-ray,

biopsy, and autopsy evidence (under § (a)(1)), or

by proving a totally disabling respiratory or pul-

monary impairment by a preponderance of the

“lo]ther medical evidence“ (under § (a)(4)). The

Director also argued that, once the presumption was

invoked, the burden of persuasion, and not just the

burden of going forward, shifted to the employer or

Director. He argued that, at the rebuttal stage, neg-

ative or otherwise non-qualifying medical evidence

could be relevant, but only if submitted in support of

a reasoned medical judgment. See Pet. App. Sda-

87a (opinion of Sprouse J. (quoting Director’s

brief) ). The Director further argued that facts al-

ready proven at the presumption stage could not be

relitigated at the rebuttal stage, at least not with the

same type of evidence.“

The en bane court of appeals issued a per curiam

opinion announcing the disposition of the three cases

before it and referring, for the guiding rules of law,

to various combinations of its four lengthy opinions.“

For example, proof at the invocation stage of pneumoconi-

osis based on X-ray, biopsy, and autopsy evidence (under

§ (a) ()) implies that the existence of pneumoconiosis may

not be relitigated at the rebuttal stage, at least not without

introducing relevant evidence other than X-ray, biopsy, or

autopsy evidence. See Pet. App. 37a-40a (opinion of Phillips,

J.) (summarizing Director's position).

The court split into three groups. One group (Chief

Judge Winter, Judge Hall, Judge Sprouse, and Judge Sneeden)

was represented in two opinions—one by Judge Hall (Pet.

App. 5a-33a), a second by Judge Sprouse (Pet. App. 56a-

10

A majority of the court rejected the Director's pre-

ponderance standard for invocation, holding that an

otherwise eligible claimant needs to produce only one

credible piece of qualifying evidence in any of the

four categories specified in Subsection (a) to invoke

the presumption of compensable disability (Pet. App.

3a)." A different majority held that all relevant

medical evidence could be considered on rebuttal, in-

cluding non-qualifying test results, subject only to

the statutory limitation (30 U.S.C. 923 (b)) that a

single negative X-ray may not be the basis for deny-

ing benefits (Pet. App. 4a); this holding rejected the

Director's view that non-qualifying evidence (e. g.,

92a). A separate group of four judges expressed its views

in an opinion by Judge Phillips (Pet. App. 34a-55a), which

Judges Russell, Murnaghan, and Ervin joined. A third group

expressed its views in an opinion by Judge Widener (Pet. App.

98a-101a), which Judges Chapman and Wilkinson joined.

The first and third groups formed the majority on the invo-

cation issue. The second and third groups formed the major-

ity on the rebuttal issue.

11 A different majority of the court recognized one excep-

tion to this result, which arises under Subsection (a) (4). A

single qualifying physician’s report suffices to invoke the pre-

sumption; but if there is no such report, all other medical

evidence must be weighed to determine if the presumption may

be invoked under that subsection (Pet. App. 3a). Four of the

judges who advocated this result agreed with the Director

that the evidence in all categories should be weighed before

the presumption is invoked (id. at 51a (opinion of Phillips,

J.)); the three additional members of the court who concurred

in this result apparently believed that the regulatory language,

which requires invocation if ol ther medical evidence“

establishes the presence of a totally disabling respiratory or

pulmonary impairment” (§ (a) (4), imposes by its plain

terms a burden of persuasion if there is no qualifying physi-

cian’s report (Pet. App. 96a-97a (opinion of Widener, J.)).

11

negative X-rays) should be considered probative only

when offered in support of a reasoned medical opin-

ion (see Pet. App. 25a-27a (opinion of Hall, J.)).

All of the judges agreed with the Director that the

rebutting party bears the burden of persuasion on

rebuttal (see Pet. App. 4a; id. at 23a-25a (opinion of

Hall, J.)).” Because the two divided holdings de-

parted from the court’s previous panel decisions, the

court overruled the three panel decisions it had asked

the parties to discuss when it set the cases for en banc

hearing (see page 8, supra).

The several opinions below advance a number of

reasons for the holding, challenged in this Court, that

a claimant can generally invoke the presumption by

a single qualifying test result. All the judges in the

majority pointed to the language and structure of

the regulation. See Pet. App. 20a, 23a (opinion of

Hall, J.), 97a (opinion of Widener, J.). They noted,

in particular, that Subsection (a)(1) provides that

the presumption is invoked if “[a] chest roentgeno-

gram * * * establishes the existence of pneumoconi-

osis” (emphasis added) and that the requirement

that “oll relevant medical evidence shall be consid-

ered” is included in Subsection (b), governing rebut-

tal, not Subsection (a), governing invocation of the

presumption. The judges in the majority further

concluded that a preponderance-of-the-evidence re-

quirement would frustrate congressional intent to fa-

cilitate miners’ efforts to prove their claims. Pet.

The court also unanimously agreed with the Director (Pet.

App. 29a-32a) that 20 C. F. R. 725.608 (a) requires a liable coal

mine operator to pay interest on past-due benefits accruing

from the 30th day after the agency’s initial determination to

grant the claim. That aspect of the court’s decision is not at

issue here.

12

App. 70a, 77a-83a (opinion of Sprouse, J.), 94a

(opinion of Widener, J.).“ In addition, one group in

the majority reasoned that the Director’s approach,

by generally. foreclosing relitigation at the rebuttal

stage of facts established at the presumption stage,

would violate the statutory and regulatory command

that all relevant evidence be considered. See Pet.

App. 21a (opinion of Hall, J.), 71a & n.10 (opinion

of Sprouse, J.). The majority thus viewed the Di-

rector’s interpretation as unreasonable (Pet. App.

17a-18a (opinion of Hall, J.)) and refused to defer

to it.“

A minority of the court agreed with the Director

that a claimant should be required to prove the facts

necessary to invoke the presumption in any of the

Subsection (a) categories by a preponderance of the

evidence. Pet. App. 34a-55a (opinion of Phillips, J.).

The minority urged deference to the Director’s inter-

pretation as a permissible reading of the regulation

18 All of the majority judges also concluded that the Admin-

istrative Procedure Act (APA), 5 U.S.C. 554, 556, 559, to the

extent it establishes a burden of persuasion, had been super-

seded by the particular statutory and regulatory scheme for

black lung benefits. Pet. App. 22a n.8 (opinion of Hall, J.),

93a (opinion of Widener, J.).

„One group in the majority asserted that the Director's

brief amounted to “a bald litigation statement” and included

no contention that “he has previously or consistently inter-

preted the regulation as he now interprets it as an advocating

party” (Pet. App. 56a-57a (opinion of Sprouse, J.)). The

other group in the majority read the comments of the Secre-

tary upon promulgation of the interim regulations (43 Fed.

Reg. 36826 (1978)) as establishing that the single-item-of-

evidence view was the originally intended meaning and thought

this evidence essentially decisive. Pet. App. 94a (opinion of

Widener, J.).

13

that is consistent with the statute. Jd. at 36a. Not-

ing “the range of arguably reasonable interpretations

that are possible with respect to the details of a regu-

lation” such as this one, the dissenters found defer-

ence to the administrative interpretation essential to

encourage national uniformity of application” (id. at

36a n.2). In arguing for adoption of the preponder-

ance standard, they also relied on the regulation’s re-

quirement that a claimant “establish” the necessary

facts to invoke the presumption, just as the rebutting

party must “establish” its case, as the full court

agreed. Id. at 42a.” Finally, the dissenting judges

argued that the majority was mistaken in thinking

that the Director’s interpretation renders the pre-

sumption irrebuttable: when a claimant has proved

any of the “basic facts” by a preponderance of the

evidence in a Subsection (a) category (e. g., pneu-

moconiosis, under § (a)(1)), the operator remains

free to rebut the resulting “presumed facts” (e. g.,

mine-relatedness and total disability, under § (b)

(1), (2), and (3)).

Applying its new interpretation of the interim reg-

ulations to the three cases before it, the court of

appeals first affirmed the Board’s denial of benefits

(though not its reasoning) in Stapleton’s case, con-

cluding that the ALJ properly invoked the presump-

tion and properly found it rebutted (Pet. App. 5a).

In Ray’s case, the court vacated the Board’s decision,

concluding that the ALJ should have invoked the

presumption. and remanded for consideration of re-

buttal (ibid.). In Cornett’s case, the court affirmed

The dissenters further asserted that the preponderance

standard was not only the usual standard in civil litigation but

the standard dictated by the APA where, as here, no other

standard was specified. Pet. App. 41a-42a n.6.

14

the award of benefits, concluding that the presump-

tion was properly invoked and not rebutted, but re-

manded for calculation of interest (ibid.).

On January 12, 1987, this Court granted the peti-

tion filed by the mine operators in Cornett’s and

Ray’s cases.

INTRODUCTION AND SUMMARY OF ARGUMENT

I. The Secretary of Labor’s Part C interim regu-

lations permit certain claimants for black lung bene-

fits to invoke a presumption of entitlement to bene-

fits without proving all three elements of a valid

claim—(i) pneumoconiosis (ii) that is totally dis-

abling and (iii) was caused by coal mine employ-

ment. A miner with ten years’ coal mine employ-

ment may invoke a rebuttable presumption of total

mine-related pulmonary or respiratory disability (or

death) by “establish[ing]” the facts specified, using

the evidence specified, in any of the four categories

listed in Subsection (a) of 20 C.F.R. 727.203—pneu-

moconiosis, as demonstrated by X-ray, biopsy, or au-

topsy evidence (§ (a)(1)); chronic respiratory or

pulmonary disease, as demonstrated by ventilatory

studies (§ (a)(2)); certain lung impairments, as

demonstrated by blood gas studies (§ (a) (3)); or to-

tally disabling respiratory or pulmonary impairment,

as demonstrated by other medical evidence, including

physicians’ opinions (§ (a)(4)). A showing in any

of the four categories leaves some or all of the three

statutory elements of the claim for benefits unproved,

but the presumption shifts the burden of persuasion

on those elements to the mine operator or Director.

In the Director’s view of this proof scheme, the

claimant, in order to invoke the presumption under

one of the Subsection (a) categories, must establish

the fact or facts specified in that category (the

15

“basic” facts) by a preponderance of the specified

type of evidence. Such a showing triggers a presump-

tion of compensable disability, and the rebutting

party then bears the burden of disproving the un-

proven elements of a valid claim to benefits (the

“presumed” facts). Relitigation of the basic facts is

foreclosed—with one infrequently used exception: to

the extent there is any evidence other than the type

used at invocation that is relevant to the basic facts,

the rebutting party may seek to rebut the basic facts

using such evidence.

The court of appeals construed the interim regula-

tions to embody a different kind of proof scheme.

The court held that the presumption is automatically

invoked when the claimant introduces a single quali-

fying piece of evidence in one of the four Subsection

(a) categories, no matter how greatly outweighed

that piece of evidence is by other evidence within the

same category. Apparently, however, the basic fact

thus “established” at the invocation stage remains

fully open for relitigation on rebuttal, with the bur-

den of persuasion having shifted to the operator or

Director. In the court’s view, the presumption op-

erates as an easy burden-shifting device, but does

not establish separate stages for adjudicating dis-

tinct elements of a benefits claim.

II. The Director's view of the proof scheme cre-

ated by the interim regulations gives meaning to the

regulation’s requirement that the claimant “estab-

lish” the basic facts in order to invoke the presump-

tion, and it sets out an orderly method for litigating

the several elements of a valid claim for benefits. It

is also wholly consistent with statutory requirements

and congressional intent and is in accord with,

though not mandated by Section 7(c) of the Admin-

istrative Procedure Act (now codified at 5 U.S.C.

16

556(d)). It provides for consideration of “all rele-

vant evidence,” as required by the statute (30 U.S.C.

923(b)). And because the standards applicable to

Part B claims require the claimant to prove the basic

invocation facts by a preponderance of the evidence,

the Director’s similar reading of the Part C interim

regulations fully reflects the congressional command

that the interim regulations be no more restrictive

than the Part B standards (30 U.S.C. 902(f)(2)).

The Director has consistently maintained that all

like-kind evidence must be weighed at the invocation

stage. Moreover, the Benefits Review Board has long

adjudicated claims under the interim regulations in

accordance with this view. For those reasons, and

because the Office of Workers’ Compensation Pro-

grams has been the agency responsible for adminis-

tering the regulations from the time they were prom-

ulgated, the Director’s view of the regulation js en-

titled to deference and should be adopted by this

Court.

ARGUMENT

THE DIRECTOR'S READING OF THE INTERIM REG-

ULATIONS SHOULO BE ACCEPTED BY THIS COURT

We think it important to note at the outset that

our disagreement with the Fourth Circuit’s ruling is

not directed at the results it would produce in adjudi-

cating particular claims for benefits. Although few

claims have been adjudicated under the Fourth Cir-

cuit’s standards, we have no reason to believe that

those standards will produce results different from

those of the Director’s reading. The Director and the

Benefits Review Board have long adhered to the “true

doubt” rule, which requires that the claimant prevail

on those issues as to which the evidence is in equi-

17

poise (see, e. g., 43 Fed. Reg. 36826 (1978) ); in view

of that rule, the Director’s requirement that the

claimant prove the basic invocation facts by a pre-

ponderance of the evidence appears to have much the

same effect as the Fourth Circuit’s imposition of a

preponderance burden on the rebutting party. The

difference is that the Director’s reading requires a

weighing process at the invocation stage, whereas the

court of appeals’ reading requires it at the rebuttal

stage. With doubts resolved in favor of the claimant

under the Director’s approach, it is difficult to see

how this difference will change the outcome of spe-

cifie cases.

The grounds for our disagreement wich the court

of appeals’ ruling are that the sudden change of

standards will greatly disrupt the adjudication of a

large body of cases and that the court had no reason

to reject the Director’s position, which we think is

the better reading of the admittedly ambiguous regu-

latory language and is entitled to judicial deference.

See Udall v. Tallman, 380 U.S. 1, 16-17 (1965);

Skidmore v. Swift & Co., 323 U.S. 131, 140 (1944).

Thus, it is clear from the large number of remands

that have already taken place (see Fed. Resp. Br.

14) that the Fourth Circuit’s rejection of the long-

followed standards will require relitigation of nu-

merous claims in an already overburdened adjudica-

tory system. Because the Director’s view is reason-

able and avoids this apparently pointless disruption

that the court of appeals’ decision effects, the court

of appeals’ decision should be reversed.

A. The Director’s view is a reasonable construction of the

regulations

1. The regulatory language does not clearly and

unambiguously define the claimant’s burden at the

18

invocation stage. As Judge Phillips pointed out (see

Pet. App. 46a-47a n.11), even a cursory reading of

the regulation at issue, 20 C.F.R. 727.203, reveals

that it is hardly a model of precise and unambiguous

drafting. The regulatory language is, however, quite

consistent with the Director’s interpretation that, in

determining whether the presumption is triggered, all

of the evidence of the specified type must be weighed

under a preponderance standard. Indeed, the regula-

tory language offers strong reason to prefer this read-

ing to that of the court of appeals.

First, although Subsection (a) (1) speaks of [a]“

chest X-ray, biopsy, or autopsy establishing pneu-

moconiosis, the other three subsections all suggest

that more than a single piece of evidence should be

considered. Those provisions expressly use inclusive

terms in describing the evidence to be considered—

the plural “studies” in Subsections (a) (2) and (3);™

the general [o] ther medical evidence” in Subsection

(a)(4). Likewise, even the reference to “the docu-

mented opinion of a physician” in Subsection (a) (4)

(emphasis added) is made only in a context that

seems to require that the opinion be considered

along with “[o]ther medical evidence.” Thus, use of

a singular term in Subsections (a)(1) and (a)(4),

if it is not simply the result of careless drafting,

suggests only that a single piece of evidence may be

sufficient to “establish” disease or impairment, not

Use of the word “studies” in Subsections (a) (2) and (3)

indicates consideration of more than one set of results.

Although ventilatory function and blood gas studies do consist

of a series of tests, the regulations on other occasions refer to

such a series of tests as a single “study.” See 20 (C. F. R.

410.426(b) (referring to “a ventilatory study”); 20 C. F. R.

718.105 (b) and (e) (referring to “a blood-gas study)

19

that a single item of evidence compels invocation of

the presumption.

Most significant, each of the four subsections that

define methods for invoking the presumption ex-

plicitly provides that a presumption of disability is

invoked only if specified facts are “establish[ed]”

(§(a)(1), (2), amd (4)) or “demonstrate[d]”

(§ (a)(3)). This language strongly suggests a

weighing process. For evidence to “establish” a fact,

the evidence must be evaluated; and evaluation

cannot occur in complete isolation from other rele-

vant evidence. Thus, a single positive X-ray would

not “establish” pneumoconiosis if other X-ray, bi-

opsy, or autopsy evidence—for example, several

negative X-rays taken more recently and read by

more expert readers—convinced the trier of fact

that pneumoconiosis was not likely to be present. The

process of “establishing” the basic facts at the invo-

cation stage is most reasonably construed to require

weighing all other like-kind evidence—and doing so

— the usual, preponderance-of- the- evidence stand-

a 1

At the Director's urging, the courts of appeals, including

the court below, have unanimously concluded that the rebutting

party meets its parallel obligation to “establish” its case under

Subsection.(b) only by proving by a preponderance of the evi-

dence that the miner does not have pneumoconiosis, is not dis-

abled, or is not disabled even in part as a result of coal mine

employment. See Pet. App. 23a-25a (opinion of Hall, J.);

Amar Coal Co. v. Director, OWCP, 801 F.2d 958, 963-964 (7th

Cir. 1986) ; Kaiser Steel Corp. v. Director, OWCP, 748 F.2d

1426, 1430 (10th Cir. 1984) ; Gibas v. Saginaw Mining Co.,

748 F.2d 1112, 1120 (6th Cir. 1984), cert. denied, 471 U.S.

1116 (1985) ; Bethlehem Mines Corp. v. Massey, 736 F.2d 120,

124 (4th Cir. 1984) ; Alabama By-Products v. Killingsworth,

733 F.2d 1511, 1513-1515 (11th Cir. 1984) ; Consolidation Coal

The court of appeals’ interpretation of the regula-

tion fails to account adequately for the use of the

word “establish.” It makes little sense to say that

a fact is “established” at the invocation stage (e.g.,

pneumoconiosis, under § (a)(1)) if the fact is fully

open at the rebuttal stage for litigation with all like-

kind evidence (e.g., X-ray, biopsy, or autopsy evi-

dence, for § (a)(1)). If any issue may be litigated,

and any evidence may be considered, at the rebuttal

stage, nothing is “established” at the invocation

stage. Under the Fourth Circuit’s view, all that is

required is an X-ray that has been interpreted to “es-

tablish” pneumoconiosis. Such a construction is, at

the very least, in tension with the regulatory lan-

guage.

The linguistic awkwardness of the court of ap-

peals’ reading of the regulation is highlighted by a

recent panel decision of the Fourth Circuit constru-

ing the decision below. In Haynes v. Jewell Ridge

Coal Corp., 790 F.2d 1113 (4th Cir. 1986), the court

held that the presumption should have been invoked

under Subsection (a)(1) where a number of X-rays

had been interpreted as negative by all readers and

a single X-ray had been interpreted as positive by

two readers and negative by six. The court held

that “[i]f a single reading of a qualifying X-ray

indicates the presence of pneumoconiosis, the (a) (1)

presumption is triggered” (790 F.2d at 1114 (em-

phasis added)), and e lonflicting interpretations”

Co. v. Smith, 699 F.2d 446, 449 (8th Cir. 1983). See also Palmer

Coking Coal Co. v. Director, OHC, 720 F.2d 1054, 1058 (9th

Cir. 1983) (rebutting party “must produce sufficient evi-

dence”).

21

are to be considered on rebuttal (ibid.).“ Thus, in

the Fourth Circuit’s view of the regulation, the med-

ical evidence that invokes the presumption may in

fact be wholly discredited and thus ultimately not

even reliable, probative evidence of pneumoconiosis

or impairment. Such evidence cannot reasonably be

said to “establish” impairment or disease.“

A panel of the Sixth Circuit has explicitly disagreed with

the method of analysis advanced by the Fourth Circuit in

Haynes. In Lambert v. Director, OWCP, No. 85-3789 (Nov. 4,

1986), petition cert. pending, No. 86-6296, the Sixth Circuit,

relying on its previous ruling in a Part B case, Lawson v. Sec-

retary of Health 4 Human Services, 688 F.2d 436 (6th Cir.

1982), noted that to allow invocation on a single positive read-

ing would mean that a claimant could have an X-ray that

has been read as negative repeatedly reread until he achieves

a positive reading“ Lambert, slip op. 4 (quoting 688 F.2d at

438). Accord, Back v. Director, OHC, 796 F.2d 169, 171-172

(6th Cir. 1986).

Those courts that have upheld the interim presumption

against constitutional attack have done so because they found

a rational connection between the proven facts—10 years’ coal

mine employment and simple pneumoconiosis or a significant

respiratory impairment—and the presumed facts—totally dis-

abling pneumoconiosis arising from coal mine employment.

Alabama By-Products Corp. v. Killingsworth, 733 F.2d at 1516-

1518; Kaiser Steel Corp. v. Director, OHC. 757 F.2d 1078,

1083-1084 (10th Cir. 1985). See Usery v. Turner Elkhorn

Mining Co., 428 U.S. at 28-29 (“worth repeating” that statu-

tory presumption, 30 U.S.C. 921(c) (1), is triggered only on

“proof of pneumoconiosis”). It is unclear how one piece of

disputed evidence—such as a single positive X-ray reading

that is ultimately discredited by conclusive negative autopsy

evidence—could provide a rational basis for presumptive eligi-

bility to benefits. See, e., Lagamba v. Consolidation Coal Co..

787 F.2d 172 (4th Cir. 1986) (allowing invocation under Sub-

section (a) (1), as well as Subsection (a) (3), even thouch

autopsy evidence was negative). The Fourth Circuit's reading

of the interim reculations thus strains the constitutional basis

for the presumption.

y,

2. The Director’s interpretation of his regulation

sets out an orderly, sensible, and altogether usual

method of considering “all relevant medical evidence”

(Subsection (b)).” For each particular Subsection

(a) category under which the claimant seeks to in-

voke the presumption, the ALJ examines all evidence,

from both parties, of the type specified in that cate-

gory. The ALJ must first ascertain whether any of

the evidence meets certain standards of reliability.

See note 7, supra. If such evidence exists, and is

uncontroverted, the ALJ is compelled to invoke the

presumption. Cf. Ansel v. Weinberger, 529 F.2d 304,

309 (6th Cir. 1976) (statutory presumption at 30

U.S.C. 921(c)(4)). If the evidence is controverted,

the ALJ, like any other trier of fact, must focus on

the relative weight to be accorded each piece of evi-

dence. Director, OWCP vy. Rowe, 710 F.2d 251, 254-

255 (6th Cir. 1983); Peabody Coal Co. v. Benefits

Review Bd., 560 F.2d 797, 802 (7th Cir. 1977) (cit-

* Contrary to the Fourth Circuit (Pet. App. 23a (opinion of

Hall. J)), the placement of this requirement at the beginning

of the rebuttal section in no way suggests that weighing of

evidence is excluded at the invocation stage. By its own terms,

the requirement applies to the entire adjudication under the

interim regulations, including both Subsections (a) and (b).

Moreover, under any reading of Subsection (a). the evidence

considered at the invocation stage is limited to that specified

in the particular invocation category (¢.¢., ventilatory studies

under § (a) (2)); consideration of all remaining relevant evi-

dence inevitably takes place at the rebuttal stage, and the

command to consider all evidence is thus most sensibly placed

in the rebutta! section of the regulation. Finally, the require-

ment was expressly included in the regulation in

comments focused on the rebuttal stage. See 43 Fed. Reg.

36826 (1978) (“[t)he interim presumption is, by statute,

rebuttable and the Department has no authority to

irrebuttable)

ing John W. McGrath Corp. v. Hughes, 289 F. 2d

403, 405 (2d Cir. 1961), and Todd Shipyards Corp.

v. Donovan, 300 F.2d 741 (5th Cir. 1982) ).

A number of unsurprising evidentiary principles

commonly enter into this weighing process. First,

because pneumoconiosis is a progressive disease, a

later qualifying X-ray, ventilatory study, or blood

gas study generally deserves more weight than an

earlier negative result. See Consolidation Coal Co.

v. Chubb, 741 F.2d 968, 973 (7th Cir. 1984). Sim-

ilarly, an X-ray interpretation by a certified expert

in reading X-rays (a so-called “B”-reader) is usu-

ally more persuasive than an X-ray reading by a

general practitioner. See Sharpless v. Califano, 585

F.2d 664, 666-667 (4th Cir. 1978); Moseley v. Pea-

body Coal Co., 769 F.2d 357, 360 n.3 (6th Cir.

1985) ; Consolidation Coal Co. v. Chubb, 741 F.2d at

973. Likewise, a medical conclusion regarding dis-

ability, offered under Subsection (a)(4), is more

probative if rendered by the claimant’s treating

physician or a pulmonary specialist than if rendered

by any other doctor who has examined the claimant

only once. The evidentiary value of a physician’s

opinion is also increased if it is based on objective

tests and examination results. See 20 C. F. R. 410.471.

Once the threshold established by the presumption

is crossed, the rebutting party bears the burden of

disproving the “presumed” facts—the elements of a

valid claim to benefits that have not been “estab-

lished” at the invocation stage. The “basic” facts

established to invoke the presumption, however, can-

not be relitigated by use of the same kind of evidence

considered at the invocation stage, since those facts

are taken to be proved, and all evidence of the speci-

fied type has been weighed at the earlier stage. See,

24

e.g., Pet. App. 39a n.5 (opinion of Phillips, J.). For

example, if a claimant has successfully invoked the

presumption under Subsection (a) (4), he has neces-

sarily proven by a preponderance of the medical evi-

dence the presence of a totally disabling respiratory

or pulmonary impairment. The rebutting party may

then attempt to show that the disability is-not due

to coal mine employment (§ (b)(3)) or that the

claimant does not have pneumoconiosis (§ (b) (4)).

The rebutting party may also attempt to use non-

medical evidence, such as evidence of actual compara-

ble gainful work, to show that the miner is not dis-

abled within the meaning of Subsections (b)(1) and

(2). But medical evidence bearing on disability, hav-

ing been considered once in connection with the issue

of disability, will not be considered again on that is-

sue (though, if relevant, it may be considered on the

issues of pneumoconiosis and mine-relatedness). Sim-

ilarly, if a claimant has invoked the presumption un-

der Subsection (a) (1), he has proven that he suffers

from pneumoconiosis by the weight of the X-ray,

biopsy, and autopsy evidence.” The rebutting party

can dispute disability (§ (b) (1) and (2)) or mine-

relatedness (§ (b) (3)) but cannot seek to disprove

the existence of pneumoconiosis (§ (b) (4)) solely on

the basis of the kind of evidence specified in Subsec-

tion (a) (1).”

Contrary to the majority’s conclusion below (Pet. App. 71a

n.10 (opinion of Sprouse, J.)), if a claimant attempts to invoke

the presumption inder Subsection (a) (1) based on X-ray evi-

dence, the ALJ, under the Director’s approach, would consider

biopsy or autopsy evidence showing that the claimant does not

suffer from pneumoconiosis before the presumption is invoked.

See Consolidation Coal Co. v. Chubb, 741 F.2d at 974.

22 Based on current medical knowledge, X-ray, biopsy, and

autopsy evidence are today the only reliable evidence for diag-

Contrary to the views of some of the judges below

(see Pet. App. 21a (opinion of Hall, J.), 71a n.10

(opinion of Sprouse, J.)), this scheme excludes con-

sideration of no relevant evidence; nor does it render

the presumption irrebuttable. It simply allocates

certain issues and evidence to the presumption stage

and prohibits relitigation of the same issues based

on the same evidence. Similarly, the proof scheme

in no way eliminates the substantial advantages to

claimants that presumptions afford, as the majority

below believed (Pet. App. 70a, 77a-83a (opinion of

Sprouse, J.), 94a (opinion of Widener, J.)). A

claimant invokes the presumption without establish-

ing each and every element of entitlement to benefits.

Rather, for each of the categories of Subsection (a),

the claimant proves only certain facts with only cer-

tain evidence (e. g., pneumoconiosis under § (a) (1)

with X-ray, biopsy, and autopsy evidence). At the

rebuttal stage, the presumed facts (e.g., disability

and mine-relatedness, in the case of a § (a) (1) pre-

sumption) are open, but the burden of proof is

shifted. The basic facts remain open only to the ex-

tent there is relevant evidence different in kind from

that offered at the presumption stage. See Pet. App.

39a n.5 (opinion of Phillips, J.). Under this proof

scheme, all evidence is considered in an orderly se-

quence, and proof of different elements of a valid

nosing pneumoconiosis. Therefore, after a Subsection (a) (1)

invocation, the question of pneumoconiosis is effectively closed :

the rebutting party cannot, as a practical matter, attempt to

show that the miner does not suffer from some form of clinical

pneumoconiosis. Other issues remain open. Thus, a phy-

sician’s opinion on the cause of the clinical pneumoconiosis—

e.g., that the condition was caused by exposure to asbestos, cot-

ton dust, or silica unrelated to coal mining—would certainly

be admitted in rebuttal.

» 26

claim for benefits is clearly allocated to two different

stages, with claimants relieved of the burden of proof

at the second stage.”

This allocation of issues to the two stages of the

presumption-rebuttal proof scheme has express sup-

port in the black lung statute itself. Under 30 U.S.C.

921(c) (J), a miner with 15 years’ coal mine employ-

ment who “demonstrates the existence of a totally

disabling respiratory or pulmonary impairment” is

entitled to a presumption that he is totally disabled

due to pneumoconiosis. That presumption may be

rebutted “only by establishing” that the miner does

not have pneumoconiosis or that his disability did not

arise from coal mine employment. See, e.g., Ansel v.

Weinberger, 529 F.2d at 310. See also Usery v.

Turner-Elkhorn Mining Co., 428 U.S. at 51 (Stewart

J., concurring in part and dissenting in part). The

issue of disability is not open for relitigation on

rebuttal. The interim presumption, under the Di-

rector’s interpretation, works in much the same way.

The Director’s interpretation of the interim pre-

sumption reflects common notions and practices con-

cerning burdens of proof.“ Recognizing that the al-

location of burdens of proof on particular issues in

particular lawsuits depends on considerations of

“policy and fairness based on experience” (9 J. Wig-

more, Wigmore on Evidence § 2486 (1981); E.

28 As noted above (see page 15, supra), all issues appear to

remain open on rebuttal under the court of appeals’ reading

of the regulations.

The Federal Rules of Evidence do not apply to administra-

tive black lung benefit proceedings. See 20 C. F. R. 725.455 (b)

and 33 U.S.C. 923(a), as incorporated by 30 U.S.C. (Supp.

III) 932 (a); American Coal Co. v. Benefit Review Bd., 738

F.2d 387, 390-391 (10th Cir. 1984); Alabama By-Products

Corp. V. Killingsworth, 733 F.2d at 1515.

- —

— —

27

Cleary, McCormic on Evidence § 345 (2d ed. 1972)),

courts and legislatures have adopted many types of

evidentiary devices, such as presumptions, prima

facie showings, and affirmative defenses.” There is

a class of presumptions that have been labelled con-

ditional imperatives,” where if one party proves a

particular fact, the burden of disproving a second

fact shifts to the opposing party. See Allen, Pre-

sumptions in Civil Actions Reconsidered, 66 Iowa L.

Rev. 842, 850-851 (1981). The Director’s interpre-

tation of the Part C interim proof scheme creates

precisely that type of presumption, with one modifi-

cation: because the regulation specifies the types of

evidence to be considered as well as the facts to be

proved at the invocation stage, those facts remain

open after invocation to the extent (see note 22,

supra) that there is relevant evidence other than the

type considered at the first stage.

25 See, e. g., NLRB v. Transportation Management Corp., 462

U.S. 393 (1983) (under National Labor Relations Act, 29

U.S.C. (& Supp. III) 151 et seq., plaintiff proves by a prepon-

derance that defendant’s discharge of plaintiff was motivated

in part by plaintiff’s protected activity; defendant may prove

by a preponderance that same action would have been taken

despite plaintiff’s protected activity); Teras Dep’t of Com-

munity Affairs v. Burdine, 450 U.S. 248 (1981) (under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. (& Supp. III)

2000e et seq., plaintiff proves prima facie case of employ-

ment discrimination by proving certain facts by a prepon-

derance of the evidence; defendant produces evidence of non-

discriminatory motive; plaintiff must prove by a preponder-

ance that defendant’s articulated motive is pretext) ; Wilson

v. Omaha Indian Tribe, 442 U.S. 653 (1979) (under 25 U.S.C.

194, Indian proves previous possession of land; non-Indian

must prove title).

B. The Director’s interpretation of the interim regulatious

is consistent with statutory requirements and with

congressional! intent

1. The Director’s interpretation of the interim

regulations is wholly in accord with the two relevant

statutory requirements of, as well as with the intent

behind, the black lung statute. It plainly provides

for consideration of “all relevant evidence * * *

where relevant” (30 U.S.C. 923(b)). See also H.R.

Conf. Rep. 95-864, 95th Cong., 2d Sess. 16 (1978)

(“in determining claims under such criteria all rele-

vant medical evidence shall be considered”). The

difference between the Director's view and the Fourth

Circuit’s is not whether, but only where in the proc-

ess, evidence is considered. In the Fourth Circuit’s

view, all but a single piece of qualifying evidence is

considered at the rebuttal stage. In the Director’s

view, all evidence of the type specified in each Sub-

section (a) category is considered at the invocation

stage and, if relevant to non-invocation issues, on

rebuttal; and all other evidence is considered on re-

buttal.“

The Director's interpretation also gives full effect

to the requirement of the Black Lung Benefits Re-

Unsurprisingly, the court of appeals did not assert that

the Director's view violates the statutory prohibition against

the Director’s re-reading certain X-rays that have been read

as positive (30 U.S.C. 923 (b)). Although re-readings obtained

by other parties are accepted as evidence, as are other X-rays,

the Director does not re-read the statutorily specified qualify-

ing positive X-rays. The Director’s view also fully comports

with the prohibition against denying a claim “solely on the

basis of the results of a chest [X-ray]! (ibid.). Although all

X-ray evidence is weighed, no claim is denied on the basis of

a single negative X-ray. Nor is there any doubt that claimants

are afforded the “opportunity to substantiate * * * claim[s] by

means of a complete pulmonary evaluation” (ibid.).

form Act of 1977, Pub. L. No. 95-239, f 2(c), 92 Stat.

96, that the interim regulations may “not be more

restrictive” than the regulations governing claims

under Part B of the program (30 U.S.C. 902 (f) (2)).

The very wording of this restriction makes clear that

the requirement is satisfied by regulations modeled

on those governing Part B claims and interpreted in

a parallel fashion. The legislative history confirms

this and, indeed, evinces a clear expectation that the

Part C interim medical criteria would in fact be

borrowed from Part B. Thus, the Conference Report

(H.R. Rep. 95-864, supra, at 16) states that the so-

called ‘interim’ part B medical standards are to be

applied to all reviewed and pending claims filed be-

fore the date the Secretary of Labor promulgates

new medical standards.” See also H.R. Rep. 95-151,

95th Cong., Ist Sess. 15 (1977). Moreover, in the

House discussion of the Conference bill, Representa-

tive Perkins, the senior House member on the Con-

ference Committee and the Chairman of the Commit-

tee that reported the original bill, stated that the

Part B standards “will continue to apply into the

future as well, until such time as the Secretary of

Labor promulgates new regulations” (124 Cong. Rec.

3426 (1978)). See also 124 Cong. Rec. 3431 ( (1978)

(statement of Rep. Perkins) (Hals for the Labor De-

partment, it too must apply the [Part B] interim

standards to all of the claims filed under Part C, at

least until such time as the Secretary of Labor pro-

mulgates new standards”); ibid. (statement of Rep.

Simon).

In fact, the Part C interim regulations, and the

Director’s reading of them, are modelled on the Part

B regulations administered by the Social Security

Administration (20 C. F. R. 410.490 (b)).“ Under

both sets of regulations, proof of pneumoconiosis by

X-ray, autopsy, or biopsy evidence or proof of a

respiratory or pulmonary impairment by specified

results on ventilatory function tests, combined with

ten years’ coal mine employment (or, in some cases,

other specified evidence that the disease or impair-

ment arose from coal mine employment), entitles a

claimant to a rebuttable presumption of disability.

20 C. F. R. 727.203 (a) (1) and (2), 410.490(b). In

addition, the Part C medical criteria are, in some re-

spects, more generous towards claimants than the

Part B regulations. Thus, they allow claimants to

invoke the presumption by proof of impairment as

demonstrated by the results of blood gas studies or by

* The Part B regulations utilized by SSA provide, among

other things, that a miner will be presumed totally disabled

due to pneumoconiosis if either “{a] chest roentgenogram

(X-ray), biopsy, or autopsy establishes the existence of pneu-

moconiosis” or “{i]n the case of a miner employed for at least

15 years in underground or comparable coal mine employment,

ventilatory studies establish the presence of a chronic respira-

tory or pulmonary disease” and “(t]he impairment * * *

arose out of coal mine employment.” Ten years’ coal mine

employment gives rise to a rebuttable presumption that demon-

strated pneumoconiosis arose from such employment. 20

C.F.R. 419.490(b) (2), 410.416, 410.456. The presumption is

rebutted if there is evidence that the individual is, in fact,

doing his usual coal mine work or comparable and gainful

work” or fol ther evidence, including physical performance

tests (where such tests are available and their administration

is not contraindicated), establish that the individual is able to

do his usual coal mine work or comparable and gainful work.”

20 C. F. R. 410.490(c).

other medical evidence“ establishing a totally dis-

abling respiratory or pulmonary impairment.

Most important for this case, it has long been

clear that all like-kind evidence is weighed in deter-

mining invocation of the presumption available to

Part B claimants under 20 C.F.R. 410.490(b). See,

¢.g., Vintson v. Califano, 592 F.2d 1353, 1356-1359

(5th Cir. 1979); Gober v. Matthews, 574 F.2d 772,

775 (3d Cir. 1978); see also Lawson v. Secretary

of Health d Human Services, 688 F.2d 436, 438-429

(6th Cir. 1982); Hill v. Weinberger, 430 F. Supp.

322 (E.D. Tenn. 1976); Toner v. Mathews, 412 F.

Supp. 823 (W.D. Va. 1976); Zirkle v. Weinberger,

401 F. Supp. 945 (N.D. W.Va. 1975). On at least

be weighed. Hill v. Weinberger,

430 F. Supp. at 334-335. Indeed, the Fourth Circuit

itself recognized as early as 1978, the year the Part

C interim regulations were promulgated, that a weigh-

ing of evidence takes place under Part B at the invo-

cation stage. Sharpless v. Califano, 585 F.2d at 667.

Agreeing that X-ray evidence should be weighed in

establishing entitlement to the Part B presumption,

the Fourth Circuit noted: “[w]e know of nothing in

the Act * * * or * * * legislative history, to indicate

that this fact is not required to be proved by a pre-

ponderance of the evidence as is every other fact

which is not presumed.” /hid. Similarly, in Pannell

v. Califano, 614 F.2d 391, 393 (1980), another

Part B case, the Fourth Circuit stated that t he

claimant has the burden of proving his entitlement

to the presumption under the regulations by a pre-

ponderance of the evidence.” The Director’s view of

vie Part C interim regulations simply follows this

;

;

:

:

5

U.S.C,

here, and by the several restrictions on

unreliable negative X-ray evidence (30 U.S.C. 923

(b)), Congress intended miners to receive the bene-

fit of the doubt in this medically-controversial area,

even as it restricted benefits to those who, under

reasonable evidentiary standards, could be sh wn to

be actually disabled by mine-related pneumoconio-

six.” Contrary to the Fourth Circuit's implicit con-

clusion, there is no reason to think that Congress

believed that those legislative responses to the diffi-

culties of medical proof were inadequate or that the

interim presumption should be structured to furnish

miners with additional assistance in proving their

claims beyond the medical standards set by the Part

B regulations. ~

* in 1977, the House Education and Labor Committee pro-

posed that benefits should be awarded based solely on length

of coal mine employment, with no evidence of disability or

disease. See H.R. Rep. 95-151, supra, at 5. This proposal

was not enacted. In addition, there was considerable debate

in the 95th Congress over whether “simple” pneumoconiosis

as established by X-ray evidence could ever be disabling. See

Alabama By-Products v. Killingsworth, 733 F.2d at 1517-

1518.

Under the Director’s reading, the interim pre-

sumption allows certain miners to invoke a presump-

tion of entitlement to benefits without proving all

elements of a valid claim (pneumoconiosis, disability,

mine-relatedness). Thus, a claimant with a mini-

mum of 10 years’ coal mine employment“ shifts the

burden of proof by establishing only certain aspects

of his claim—pneumoconiosis (§ (a)(1)), a specified

degree of respiratory or pulmonary impairment

($ (a) (2) and (3) ), or a totally disabling respiratory

or pulmonary impairment (§ (a) (4) )—using certain

specified types of evidence. That shifted burden

must be carried by a preponderance of the evidence.

In addition to thus relieving the claimant of sub-

stantial proof obligations, the Director's approach

also facilitates claimants’ efforts to obtain benefits

by following the “true doubt” rule. Where there is

equally probative but contradictory evidence, doubt

must be resolved in the claimant's favor. See, e. g.,

43 Fed. Reg. 36826 (1978); Conley v. Robert &

Schaefer Co., 7 B.L.R. (MB) 1-309 (Ben. Rev. Bd.

1984) ; Provance v. United States Steel Corp., 1 B.L.R.

(MB) 1-483 (Ben, Rev. Bd. 1978). As noted above,

this rule, by mandating that close calls go to the

claimant, makes it difficult to distinguish the Direc-

tor’s view from that of the Fourth Circuit in the

The ten year employment requirement presumptively

establishes that the proven disease or impairment arose from

coal mine employment. See Usery v. Turner Elkhorn, 428

U.S. at 28-30. Two courts of appeals have concluded that a

claimant with less than 10 years’ coal mine employment may

also invoke the interim presumption if he or she can other-

wise prove the causation element. See Halon v. Director,

OWCP, 713 F.2d 21 (3d Cir. 1983); Coughlan v. Director,

OWCP, 757 F.2d 966 (8th Cir. 1985).

outcomes they will produce. The Director's view cer-

tainly satisfies congressional concerns for ameliorat-

ing evidentiary difficulties faced by miners seeking

to establish entitlement to benefits.

2. The Director’s interpretation of the interim

presumption also conforms to the burden-of-proof re-

quirements of Section 7(c) of the Administrative

Procedure Act (APA) (codified at 5 U.S.C. 556(d)),

as modified by the “true doubt” rule.” As recent de-

cisions of this Court demonstrate, Section 7 (e)“ ad-

„ Contrary to petitioners’ argument, Section 7(c) of the

APA, 5 U.S.C. 556(d), does not appear to apply of its own

force to the Secretary's black lung regulations. Although the

black lung statute (30 U.S.C. 932(a)) generally incorporates

33 U.S.C. 919(d), which in turn generally incorporates APA

provisions, including Section 7(c), the black lung statute con-

tains an e.press exception to this incorporation where “other-

wise provided * * * by regulations of the Secretary” (30

U.S.C. gata). In addition, the first sentence of Section 7(c)

itself begins “[e) xcept as otherwise provided by statute * * *.”

Those exceptions, together with the broad authorization to

promulgate appropriate regulations (30 U.S.C. 902(f)), give

the Secretary, and hence the Director, authority to depart

from APA standards.

Nevertheless, the Secretary has elected to incorporate cer-

tain provisions of the APA, not expressly including Section

7(c), into his regulations governing hearings on black lung

claims. See 20 C. F. R. 725.452(a), 725.455(b), 727.109(a).

Moreover, we think it relevant to the reasonableness of the

Director’s view that it conforms to generally applicable APA

requirements.

*The section provides, in relevant part, that “[e)xcept as

otherwise provided by statute, the proponent of a rule or

order has the burden of proof. * * A sanction may not be

imposed or rule or order issued except on consideration of the

whole record * * * and supported by and in accordance with

the reliable, probative, and substantial evidence.” 5 U.S.C.

556 (d)

in turn, be supported by a preponderance of

the evidence, as modified by the “true doubt” rule.”

“ The Fourth Circuit's construction of the interim presump-

tion appears to meet APA requirements as well. In that

view, the claimant bears a burden of production at the in-

vocation stage, and the rebutting party bears a burden of

persuasion. The ALJ's decision on each requisite fact must

supported by a preponderance of the evidence, as modified

1

f

‘if

|

i

fi

fr

i

horn Corp., 2 B.L.R. (MB) 1-683 (Ben. Rev. Bd.

1979) ($ ¢a)(1)); Strake v. Ziegler Coal Co., 3

B.L.R. (MB) 1-136 (Ben. Rev. Bd. 1981) (§ (a)

(2)); Lesser v. CF. & 1. Steel Coro, 3 B.L.R. (MB)

1-63 (Ben. Rev. Bd. 1981) (§ (a)(3)). Similarly,

prior to the Fourth Circuit decision in this case, the

courts of appeals had routinely reviewed for substan-

tial evidence the factfinder’s conclusion that a prepon-

derance of a certain type of evidence supported the

presumption. See, „., Back v. Director, OHC. 796

F.2d 169, 172 (6th Cir. 1986) (citing cases); Con-

solidation Coal Co. v. Chubb, 741 F.2d at 972-974;

Bozick v. Consolidation Coal Co., 735 F.2d 1017 (6th

Cir. 1984), vacating 732 F.2d 64 (6th Cir. 1984);

Consolidation Coal Co. ». Sanati, supra; Markus v.

Old Ben Coal Co., 712 F.2d 322, 326-327 (7th Cir.

1983). Thus, it is the Fourth Circuits reformulation

interpretation of his regulations, that represents a

“In Stier v. Bethichem Mines Corp. 3 B.LR. (MB)

1-487 (Ben. Rev. Bd. 1981), the Board concluded that

moreland Coal Co. 6 B.L.R. (MB) 1-773 (Ben. Rev. Bd

1984). persuaded by the Fourth Circuit s reasoning in Cos

solidation Coal Co. Vv. Sanati, supra.

2. The Fourth Circuit erred in concluding (see

note 14, supra) that the Director had at one time

generally adhered to the court of appeals’ construc-

tion of the presumption. The Director’s policy, since

the promulgation of the interim criteria in 1978, has

been that all like-kind evidence must be weighed in

determining whether a claimant has met one of the

four medical evidentiary requirements specified in

Subsection (a) and is therefore entitled to invoke the

Indeed, as the court of appeals should

* Application of the Fourth Circuit’s interpretation of the

interim presumption to all pending claims would greatly bur-

den the administrative system and would require administra-

tive reconsideration of a substantial number of cases. The

Office of Workers’ Compensation Programs estimates that at

least 10,000 of the 25,000 pending black lung cases involve

the interim presumption. There are currently over 200 black

lung cases pending in the courts of appeals, and most of them

involve the interim regulations. The Fourth Circuit and the

Benefits Review Board together have already remanded at

least 80 cases for reconsideration in light of the new Fourth

Circuit standard.

The Third Circuit has also recently issued a panel decision

that agrees with the Fourth Circuit’s view. See Revak v.

National Mines Corp., 808 F.2d 996 (3d Cir. 1986). By con-

trast, the Sixth Circuit has rejected the Fourth Circuit's view.

Back v. Director, OWCP, 796 F.2d at 172; Engle v. Director,

ih

The majority's observation (Pet. App. 62a (opinion of

Sprouse, J.)) that the Secretary considered and rejected “a

proposed provision requiring the weighing of all medical test

evidence to invoke the presumption” is beside the point. The

have been aware, the Director had successfully urged

adoption of the preponderance standard under Sub-

section (a) (4) in Consolidation Coal Co. v. Sanati,

supra, in 1982.

Contrary to the Fourth Circuit’s assertion (see

note 14, supra), the Secretary’s comments issued in

connection with the promulgation of the interim cri-

teria (43 Fed. Reg. 36826 (1978)) do not undermine

the Director’s view or reduce the deference owed to

it. The purpose of the comments was to explain, in

a balanced if somewhat opaque manner, the dual

point that, while no relevant evidence would be ex-

cluded from consideration in rebuttal, doubts would

be resolved in favor of the claimant. Thus, the Secre-

tary first ted that the Department could not make

the presumption irrebuttable by singling out certain

positive evidence and overlooking other relevant evi-

dence: “[T]he Department cannot, as has been re-

quested by some, look for the single item of evidence

which would qualify a claimant on the basis of the

interim presumption, and ignore other previously ob-

tained evidence.” Ibid. The Secretary then stressed,

on the other hand, that this refusal to overlook rele-

vant negative evidence would not alter the fact that

the process would be tilted in favor of miners’ claims

(tbid.) :

proposed regulation would have required the adjudicator to

consider all medical evidence of disability together rather

than in the separate categories, such as ventilatory or blood

gas studies or medical opinions, recognized by the interim

presumption. It thus would have imposed a substantially

greater burden on claimants than the regulation that was

adopted. See Solomons, A Critical Analysis of the Legislative

History Surrounding the Black Lung Interim Presumption

and a Survey of Its Unresolved Issues, 83 W. Va. L. Rev. 869,

896 n.138 (1981).

— ——

This does not mean that the single item of evi-

dence which establishes the presumption is over-

come by a single item of evidence which rebuts

the presumption. The Act embodies the principle

that doubt is to be resolved in favor of the claim-

ant, and that principle plays an important role

in claims determinations both under the interim

presumption and otherwise.

These remarks thus both demonst: m te that the re-

butting party bears the burden of persuasion and

state the “true doubt” rule—where equally probative

but contradictory evidence is present, doubts are re-

solved in favor of the claimant. See, e. ., Conley v.

Roberts & Schaefer Co., 7 B.L.R. (MB) at 1-312;

Kozele v. Rochester & Pittsburgh Coal Co., 6 B. L. R.

(MB) 1-378 (Ben. Rev. Bd. 1984); Lessar v. C.F. 4

I. Steel Corp., 3 B.L.R. (MB) 1-63 (Ben. Rev. Bd.

1981). Read in context, and in light of the consistent

statements of the Director and practice of the Bene-

fits Review Board since 1978, the Secretary’s com-

ments do not call for the Fourth Circuit’s view that

the presumption is necessarily invoked with one piece

of evidence.”

In addition, there is evidence from the Secretary’s pro-

mulgation of the regulations that tends to contradict the

Fourth Circuit’s view. First, the Secretary noted that another

section of the interim regulations (20 C.F.R. 727.206), which

deals with quality standards applicable to X-rays, was “not

intended to suggest whether a particular X-ray is sufficient to

satisfy the interim presumption.” 43 Fed. Reg. 36828 (1978).

Second, the Secretary agreed to delete a provision of the

proposed version of 20 C.F.R. 727.206 that seemed to permit

“the consideration of any other relevant evidence including

other X-rays and X-ray interpretations in determining the

presence or absence of pneumoconiosis” (43 Fed. Reg. 17771

(1978)). If read, as its language suggests, to be applicable to

40

CONCLUSION

The decision of the court of appeals should be re-

versed, and the case should be remanded with instruc-

tions to reconsider the administrative decisions under

the proper legal standard.

Respectfully submitted.

CHARLES FRIED

Solicitor General

DONALD B. AYER

Deputy Solicitor General

RICHARD G. TARANTO

Assistant to the Solicitor General

GEORGE R. SALEM

Solicitor of Labor

ALLEN H. FELDMAN

Associate Solicitor for

Special Appellate and

Supreme Court Litigation

BARBARA J. JOHNSON

Attorney

Department of Labor

MARCH 1987

the invocation stage, the proposed provision would flatly con-

tradict the Fourth Circuit’s reading of 20 C. F. R. 727.203.

Yet no mention was made of the problem: the sole reason

given for deleting the provision was that it had been “incor-

rectly interpreted to mean that the Department would reinter-

pret X-rays” covered by the statutory prohibition against re-

reading. 43 Fed. Reg. 36828 (1978). This silence suggests

that the Fourth Circuit’s reading of 20 C.F.R. 727.203 was

not intended or perhaps even contemplated at the time of

promulgation.

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